Adilia Jilgildina holds a master´s degree in Public Policy from the University of Reading, UK. Her research interests include gender studies, international politics, religious freedom and political philosophy.
Myanmar has a long record of inter-ethnic conflict, human rights abuses, repression, violence and extreme poverty. The situation started to take shape in 1950s when the Myanmar government treated the Rohingya Muslims as illegal immigrants posing the threat to the region, which enabled the government to push them out of the country, and recently unfolded when a Rohingya militant group attacked Myanmar security personnel leaving nine policemen dead. The army retaliated by pouring into their villages and perpetrating massive human rights abuses, mass killings and rape.[i]
The Myanmarese government continued to deny all the clear-cut allegations of ethnic cleansing that led to over 70,000 Rohingya Muslims flee the country to Bangladesh. Although the government has assumed the responsibility to protect its nation from mass atrocities, it has never followed through on this pledge which proved its failure to meet international standards and provided opportunities for the international community to intervene. Initially it was difficult, if not impossible, to ascertain whether the crime was a genocide or mass atrocity due to the victims’ having no legal status, but soon the Irish Centre for Human Rights and UN Commission of Experts in their reports clearly identified them as victims of mass atrocities and rape and called on the international community to take appropriate actions, and suggested the irresponsive Myanmarese government could really be behind these occurrences.[ii]
Notwithstanding its effectiveness and forcefulness in the past conflicts, an international community’s efforts are as yet having limited practical impact due to specific conditions. In other words, there appear to be certain loopholes in the legal system in Myanmar that are taken advantage by the State and military who retain the control over judiciary and are guided by what is called ´a rule by law´ (which means using old laws that promote human rights violations and punishing human rights defenders, as well as impunity of authorities without one’s being able to challenge their decisions). Another concern is that the judiciary, bar associations and Attorney General, are appointed, not elected, which questions their transparency. Lacking functional independence, they are so poorly equipped to protect human rights of their countrymen that they often act upon the executive orders while ignoring the proper procedures and requirements. This resulted in thousands of outspoken lawyers and critics facing criminal charges and punishment. And yet Myanmar is showing signs of positive changes with regard to reform, making a slow but steady walk to democracy, although remains unable to create new institutions. These constitute a clear indication of the incompetency of Myanmar’s courts, but the case also highlights the need for more meaningful actions on the part of higher instance courts or international institutions.[iii]
Before referring this case to the UN Security Council, Myanmar, as a United Nations’ member, should have ensured to fulfill its obligations to investigate human rights abuses and bring the perpetrators to justice.[iv] The failure of nation-state to do so would result in the UN Security Council’s taking collective action based on the principle of responsibility to protect. However, there is also the principle of non-interference in domestic affairs of the state, which both the ASEAN and UN Security Council were unable to ignore, with Russia and China consequently vetoing the UN decision. The International Criminal Court was also initially claiming to have been incapable to make any difference due to it having no territorial jurisdiction over the Myanmar conflict – since Myanmar is not a state-party to the Rome Statute.[v] Later, however, it ruled that it would be able to hold the Myanmar leaders accountable for perpetrating the crimes against humanity involving Rohingya people, should the crimes of deportation have occurred. The court aims to complete the prosecution and investigation process in 5-years’ time, yet is restricted by the UN Security Council in its capacity to bring the prosecutors to trial.[vi]
Although the international community, including the ASEAN, UN and ICC have made tremendous efforts to prevent mass atrocities and genocide in Myanmar, the conflict in the region remains a serious concern. These efforts appear to be insufficient to eliminate the problem, as external actors should seek to interfere in the Myanmarese internal affairs and urge the government to make:[vii]
- legislative changes that would ensure the revision of the statutes that violate the fundamental rights protected by the 2008 Constitution, make appropriate amendments to the 2008 Constitution, Criminal Procedure Code and other laws so as to ensure the acknowledgment of the presumption of innocence, right to be heard, etc., review the Burma Citizenship Law that would grant more people the citizenship rights, reduce statelessness, and generally protect the fundamental rights of the citizens.
- institutional changes that would create a permanent law reform commission so as to review the current statutes and decrees that are subject to violation, set up a new Ministry of Justice that would oversee the courts system, grant prosecutor authorities to the new public prosecution service, make the judiciary an independent body, strengthen the effectiveness of other bodies such as Myanmar National Human Rights Commission;
- judiciary and legal changes that involve amendments to the Bar Council Law 1989 so as to enhance the legal function of the Bar Council to serve the interests of legal workers.
- international aid changes to ensure that Myanmar authorities coordinate their aid programs with the donors.[viii]
Unless the international community takes the lead in this regard and engages in collective cooperation with the government of Myanmar, this crisis would undoubtedly escalate to human sufferings on a catastrophic scale and constitute a real threat to global governance. It follows that international institutions are capable to a certain extent of providing global governance, but powerful states still dominate in the international system.
[i] European Foundation for South Asian Studies (2018) The Rohingya Issue – Its wider ramifications for South Asia. Available at: https://www.academia.edu/37303321/The_Rohingya_Issue_Its_wider_ramifications_for_South_Asia [Accessed 22 October 2018].
[ii] Ibrahim, H., & Nordin, R. (2015). The Principle of Responsibility to Protect: The Case of Rohingya in Myanmar. Pertanika Journal of Social Sciences & Humanities, 23.
[iii] International Bar Association. (2012). The rule of law in Myanmar: challenges and prospects. IBA, London.
[iv] Aung, M. (2018a). Rule of law in Myanmar and current situation 2018. Available at: https://www.slideshare.net/aung3/rule-of-law-in-myanmar-and-current-situation-2018 [Accessed 22 October 2018].
[v] Aung, M. (2018b) The International Criminal Court (ICC) and Myanmar 22 June 2018 Update. Available at: THE INTERNATIONAL CRIMINAL COURT (ICC) AND MYANMAR 22 JUNE2018 UPDATE [Accessed 23 October 2018]
[vi] Safi, M. (2018) ICC says it can prosecute Myanmar for alleged Rohingya crimes. Available at:
https://www.theguardian.com/world/2018/sep/06/icc-says-it-can-prosecute-myanmar-for-alleged-rohingya-crimes [Accessed 23 October 2018]
[vii] Ibrahim, H., & Nordin, R. (2015). The Principle of Responsibility to Protect: The Case of Rohingya in Myanmar. Pertanika Journal of Social Sciences & Humanities, 23.
[viii] International Bar Association. (2012). The rule of law in Myanmar: challenges and prospects. IBA, London.
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