By a Legal Scholar
IT has come to my attention that Yuyun Wahyuningrum, a Senior Researcher at the Asia Pacific Centre for the Responsibility to Protect, based in Australia, recently published an article on The Interpreter, an online publication of the Lowy Institute, entitled “Starvation as a Weapon: The ICJ Myanmar Case Could Redefine Genocide”. The article was published towards the end of July.
The article appeared at a time when the proceedings in the case between Myanmar and The Gambia before the International Court of Justice (ICJ) had reached their final stage, following the conclusion of the oral hearings, and while the parties are awaiting the Court’s judgment.
At first sight, the article may appear to be an analysis of international law. However, given the apparent underlying purposes and implications of the arguments advanced, it is necessary to present the views of a Myanmar legal scholar in response to the article. The author attempts to interpret Article II(c) of the Convention on the Prevention and Punishment of the Crime of Genocide according to her own understanding. Article II of the Convention defines the acts that may constitute genocide, while Article II (c) concerns the “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,” with the requisite intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Yet the author, writing from Australia – more than 4,000 miles away from Myanmar – appears to make allegations against Myanmar on the basis of one-sided narratives and information detached from the actual situation on the ground, much as The Gambia, situated more than 7,000 miles away from Myanmar, has done.
The author alleges that, long before the 2017 conflict, which escalated following the mass attacks by the ARSA terrorist group against border security forces in northern Rakhine State, the Myanmar Government deliberately enacted the 1982 Citizenship Law to render the Bengali population in the area — referred to by the author as “Rohingya” — stateless. She further claims that the Government intentionally restricted their freedom of movement and access to property and livelihoods, thereby preventing them from working and earning a living and deliberately subjecting them to starvation.
The author further alleges that, following the 2017 events, when some members of the Bengali population left for a neighbouring country, the Myanmar Government confiscated their agricultural land, seized the crops that had been planted, and redistributed the land to others. A closer examination of these allegations, however, reveals a number of unsupported assertions and inconsistencies. Although the author describes herself as a senior researcher, the information presented suggests that the relevant facts have not been systematically collected, examined and analyzed before these allegations were advanced. For example, the 1982 Citizenship Law was not enacted specifically for the purpose of rendering Bengali communities in Rakhine State stateless. Rather, it was enacted as a nationwide legal framework governing citizenship and the procedures for determining citizenship status throughout Myanmar.
Persons who meet the requirements prescribed by law may acquire citizenship under the relevant categories, including associate citizenship and naturalized citizenship. There are, in fact, many people of Bengali origin who hold citizenship certificates or other forms of documentation issued under the applicable legal framework. There are also many individuals whose applications for citizenship status remain under consideration.
These are realities that cannot simply be ignored. At the same time, persons who entered Myanmar unlawfully after independence are treated as illegal migrants, regardless of their ethnicity, and are subject to the applicable laws and procedures. This is not unique to Myanmar. Countries around the world enforce their own immigration laws in dealing with persons who enter their territories unlawfully. Australia is no exception. Australia maintains strict immigration controls and operates detention facilities for persons subject to immigration proceedings, including seven facilities within Australia as well as arrangements involving facilities outside the country, including on Nauru. One might therefore reasonably ask the author whether persons held under such arrangements are free to leave those facilities, move wherever they wish, or engage freely in agricultural activities.
In Myanmar, by contrast, members of the Bengali community in areas including Buthidaung and Maungdaw have engaged in agriculture and fish and shrimp farming. Some have also become prominent businesspeople in major cities. These are facts known to Myanmar citizens. In addition to relying on questionable factual premises, the author’s understanding of the applicable legal standards also appears to fall considerably short of established international legal principles. In relation to crimes as grave as genocide, the evidentiary requirements are exceptionally stringent. International judicial practice recognizes the need for compelling evidence capable of establishing the allegations to the requisite standard of proof that must be beyond a reasonable doubt. In criminal law, it is necessary to establish both the requisite mens rea, or criminal intent, and the corresponding actus reus, or prohibited act, through sufficiently reliable evidence.
Against this legal framework, the author’s assertion that the enactment of the 1982 Citizenship Law constituted a deliberate act intended to cause starvation is far removed from the applicable legal standards. To claim that the enactment of a citizenship law was itself evidence of an intention to starve a particular group, without establishing the necessary causal and intentional elements, is not a serious application of the law.
It amounts to little more than an unsupported accusation. Nor should the role of the International Court of Justice be misunderstood. The ICJ is the highest international judicial body, and there is no basis for assuming that an individual writing externally to the proceedings can, through personal assertions or speculation, redefine or reinterpret an international convention according to her own preferred understanding. Article 38 of the Statute of the International Court of Justice sets out the sources of law to be applied by the Court, including international conventions, international custom, general principles of law, and judicial decisions and the teachings of highly qualified publicists as subsidiary means for determining rules of law.
The personal opinion expressed in an article such as this does not, in itself, constitute an authoritative reinterpretation of the Genocide Convention. Furthermore, under Article 60 of the Statute of the Court, the judgment of the Court is final. Where a dispute arises concerning the meaning or scope of a judgment, the parties to the case may request an interpretation from the Court.
The authority to seek such an interpretation therefore rests with the States participating in the proceedings, not with an outside commentator. Against this background, the author’s intervention in this case — without a sufficiently careful examination of the relevant legal principles or the actual facts on the ground — appears to amount to little more than speculation and unfounded allegations presented as legal analysis. The situation on the ground also tells a considerably more complicated story than the article suggests. In Rakhine State, persons displaced from their homes and residing in camps administered by the Government have received assistance and support from international organizations.
Subject to the applicable laws and security conditions, they have access to livelihood opportunities, education, healthcare and religious practice. International diplomats and journalists have also been invited to visit and observe the situation firsthand. Moreover, persons temporarily displaced by armed clashes have been provided with protection and humanitarian assistance without discrimination on the basis of ethnicity or religion.
These realities are not consistent with the simplistic portrayal presented in the article. Far from being subjected to a policy aimed at the physical destruction of a population, the factual situation includes continued provision of humanitarian assistance, access to basic services and livelihood activities, and engagement with international organizations. Nevertheless, the author appears to have used the considerable influence of international media to promote a particular narrative about Myanmar while disregarding facts that do not fit that narrative. The result is liable to mislead international audiences and to create a distorted and diminished perception of Myanmar and its people.
When false or misleading assertions are left unanswered, there is always a risk that repetition will eventually cause them to be accepted as truth. It is therefore necessary to correct errors when they arise and to respond when allegations are presented without adequate factual or legal foundation.
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