Deposed Burmese Leaders Are Now Changing Their Tune on Human Rights of Rohingya

The United Nations (UN) has long characterized the Rohingya Muslims, a religious and ethnic minority population in Myanmar, as the world’s most persecuted community. Since achieving independence from British colonial rule in 1948, successive military and civilian governments have subjected the Rohingya to crimes against humanity, ethnic cleansing and genocidal campaigns. Most recently, in 2017, such mass atrocity crimes culminated in the exodus of nearly 1 million Rohingya from Myanmar (also known as Burma) to neighboring Bangladesh, where they have settled in refugee camps. Others have sought safe haven in the United States.

On February 1, 2021, political events in Myanmar once again grabbed international headlines following a military coup that deposed democratically elected members of the nation’s ruling party. Significantly, the coup has not only inspired mass protests among the civilian population demanding democratic reform, but it has also culminated in some surprising developments. Specifically, a new series of public declarations from the National Unity Government of Burma (NUG), composed of the exiled parliamentarians elected in the November 2020 democratic elections whom the military subsequently ousted, prove historic. This is because they focus almost exclusively on advancing Rohingya human rights despite decades-long persecution. The declarations are not only important to the work of immigration attorneys and human rights advocates, but also those involved in rule-of-law initiatives in Myanmar and beyond.

Repealing the 1982 Citizenship Law

On May 26, 2021, the NUG called to repeal the 1982 Citizenship Law that rendered the Rohingya the world’s largest stateless population in violation of public international law. By way of background, many Burmese saw the Rohingya as illegal immigrants from South Asia allowed in by their former British colonizers. Myanmar’s authorities have denied them citizenship rights on this basis even though their presence predates colonial rule. In fact, the country’s Citizenship Law codified the Rohingya’s legal exclusion in 1982 by refusing to grant them citizenship while recognizing more than 100 other racial and ethnic groups. Today, the Rohingya are the world’s largest “stateless” community deprived of legal protection from the government.

Significantly, Rohingya statelessness or lack of citizenship has exacerbated the population’s vulnerability because they are not entitled to any legal protection from their government. In fact, from restrictions to accessing health care and educational opportunities to arbitrary detention and extrajudicial violence, the group’s lack of citizenship has helped facilitate human rights abuses over the course of decades by both private and public actors. As such, the NUG’s call to repeal the discriminatory measure represents an initial and necessary step toward achieving formal equality.

Recognizing Rohingya Muslims as a Distinctive Group

Subsequently, on May 28, the NUG issued another public statement that not only demanded equal rights for the persecuted minority population but actually recognized the group as “Rohingya.” To understand the significance of this particular development, some social, political and legal context is necessary.

Prior to the most recent military coup, Aung San Suu Kyi, Myanmar’s deposed leader who now serves as NUG’s State Counsellor, refused to recognize the Rohingya as an Indigenous group with a unique language, culture and history. To that end, like the military and many Burmese nationals, she alleged the term “Rohingya” was inflammatory. Rather, the group was consistently called “Bengali” (and instructed to return to Bangladesh). Ultimately, such social hostilities culminated in discriminatory legal measures such as the citizenship law noted above.

As such, the NUG’s recognition of the Rohingya as a distinct racial and religious group carries social, political and legal significance. This is particularly so given pending international legal claims before the International Court of Justice and International Criminal Court. In both contexts, attorneys allege that Burmese officials have engaged in a genocidal campaign and perpetrated mass atrocity crimes against the group. Prior to the NUG’s declaration, government officials refused to recognize the existence of the community in the first instance, let alone the human rights violations in question. Significantly, in public international law, establishing the Rohingyas’ distinctive identity as a religious and ethnic minority group is key to proving genocide.

Cooperating With the International Court of Justice

On May 30, the NUG released yet another public declaration claiming that (as the democratically elected government of Burma), it was fully cooperating with the International Court of Justice in the pending case The Gambia v. Myanmar, alleging an official genocidal campaign against the Rohingya. Some additional context is warranted to fully appreciate the significance of this public commitment.

On November 11, 2019, on behalf of the 57-member Organization of Islamic Cooperation, the West African nation of The Gambia filed a case with the International Court of Justice (ICJ), the UN’s highest court, accusing Myanmar of genocide pursuant to the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). As noted, Burmese officials have long subjected members of the Rohingya Muslims population to a spectrum of human rights abuses, including the denial of citizenship rights, restrictions on religious freedom, forced displacement, gender-based violence and the arbitrary deprivation of life. The UN’s primary judicial body, the ICJ adjudicates international legal controversies between nations while also issuing advisory decisions to UN entities regarding international law. This case represents the first time the international community has attempted to hold officials accountable.

The Gambia’s lawsuit seeks to enforce Myanmar’s obligation to protect the Rohingya from acts of genocide. Specifically, The Gambia relied on Article 9 of the Genocide Convention, allowing any party to the Convention to hold another state accountable for genocide since all member states have an affirmative duty to prevent and to punish genocide. The Gambia not only seeks to stop Myanmar’s genocidal acts against the Rohingya while also ensuring legal accountability, but also provides reparations, including the “safe and dignified return” of refugees abroad.

Since the ICJ’s adjudication of these requests requires several years, The Gambia also requested provisional measures, akin to an injunction against a country, to ensure protection of the Rohingya remaining in Myanmar and its own rights to fair proceedings as the legal process unfolds. Specifically, on November 11, 2019, the Republic requested provisional measures that would require Myanmar to cease all genocidal acts; to stop non-state actors from engaging in such acts; to prohibit the official destruction of evidence; and mandate official cooperation with all UN experts and entities investigating the mass atrocity crimes alleged. The Gambia argued that such injunctive relief was justified given the urgent ongoing threat to the Rohingya population.

On January 23, 2020, the ICJ granted The Gambia’s application for provisional measures to prevent irreparable harm to human rights. In doing so, the Court ordered Myanmar to: (a) ensure that non-state actors refrain from committing genocidal acts; (b) preserve all relevant evidence; (c) report on its compliance with the Court’s order; and (d) “take all measures within its power” to prevent the genocide of the Rohingya among other measures while describing the 600,000 Rohingya remaining in Myanmar as “extremely vulnerable” to state-sanctioned violence.

In response, Human Rights Watch asserted, “This is the most important court in the world intervening in one of the worst mass atrocity situations of our time while the atrocities are still happening.” Significantly, the provisional measures order is legally binding on Myanmar and The Gambia. As such, the NUG has made clear that it intends to comply with the ICJ’s provisional ruling.

While one hopes that the NUG’s calls for human rights reform come to fruition, it is difficult to ignore the broader context from which these public commitments emerge. To ensure strategic self-preservation prior to the military coup, Myanmar’s deposed leader Aung San Suu Kyi oversaw the genocidal military campaign against the Rohingya that has since animated the litigation noted above.

Indeed, during her reign of power, Aung San Suu Kyi, the human rights advocate who triumphed in the 2015 democratic elections, refused to pursue meaningful reforms to realize Rohingya human rights. In response to related criticism that she ignored flagrant human rights violations against the Rohingya Muslims, she characterized the 2017 humanitarian and human rights crisis as the unintended consequences of necessary counterterrorism measures rather than representative of decades-long persecution. She also accused international actors of “drumming up a cause for bigger fires of resentment.” In other words, the long-celebrated democracy icon provided political cover for official mass atrocity crimes that the military committed against the Rohingya as a matter of strategic self-interest only to be subsequently deposed by those very criminals.

Now a government in exile, the NUG, which she helps lead with other lawmakers, has called for historic reforms to protect a once reviled group. While such changes are noteworthy, this is presumably intended to solidify support among a wider swath of compatriots and also more broadly in the international community. For better or worse, it underscores the role of politics in protecting, promoting and advancing human rights.

After President Biden ordered sanctions against Myanmar’s generals in the coup’s immediate aftermath, critics pointed to atrocity crimes committed against the Rohingya while questioning the absence of such measures during the genocide. In tandem with late Harvard legal scholar Derrick Bell’s interest-convergence theory, NUG’s series of public statements demonstrate that reforms for individual rights may arise as a matter of strategic self-interest rather than an altruistic desire to assist an “otherized” population — even as a matter of public international law. This is a significant consideration for those working on rule of law initiatives in Myanmar and beyond.