The International Court of Justice has delivered a momentous verdict against Myanmar on the Rohingya genocide issue in a case filed by African nation The Gambia.
This is a big blow to Myanmar's official stand which refused to acknowledge the very identity and existence of Rohingya Muslims. The United Nations top court held that Rohingyas were a "protected group" within the definition of the Genocide Convention, and issued provisional orders directing Myanmar to take steps for their protection.
The Court's order was based on the prima facie findings that Rohingya's were subjected to "systemic oppression and persecution" which were carried out with "genocidal intent".
The ICJ referred to the reports of the International Fact Finding Mission established by the UN Human Rights Council to make its preliminary findings.
The judgment quoted from the UN General Assembly's resolution, which denounced the citizenship laws of Myanmar for legitimizing the segregation and the eventual persecution of Rohingyas. In December 2019, the General Assembly expressed its "grave concern" saying :
"in spite of the fact that Rohingya Muslims lived in Myanmar forRoh generations prior to the independence of Myanmar, they were made stateless by the enactment of the 1982 Citizenship Law and were eventually disenfranchised, in 2015, from the electoral process".
It noted that the "the extreme levels of violence perpetrated against the Rohingya in 2016 and 2017 resulted from the systemic oppression and persecution of the Rohingya, including the denial of their legal status, identity and citizenship, and followed the instigation of hatred against the Rohingya on ethnic, racial or religious grounds.".
Discriminatory citizenship laws of Myanmar
While Myanmar was under military junta in 1982, it passed a Citizenship Law, which was brazenly discriminatory. As per this, full citizenship rights were granted collectively only to descendants of certain ethnic groups, which were believed to have been living within the boundaries of the country in 1823 before the first Anglo-Burma war.
Full citizens belonging to the "national ethnic groups" were issued a card called the National Registration Card (NRC).
There were secondary classes of citizens called Associated Citizens and Naturalized Citizens, who were granted citizenship after 1948 and 1982 respectively by the State based on certain conditions.
The Council of State has discretion to decide whether any ethnic group is national or not. Over the years, it notified about 135 groups as such ethnic groups whose members are entitled to automatic full citizenship rights. Rohingyas have not been included in the list of legally recognized ethnic groups. Myanmar's stand is that they are infiltrators from Bangladesh.
Due to systemic hostilities, the alternate routes of Associate Citizenship or naturalization are difficult for Rohingyas. They were issued "white cards", which are temporary residence permits. But for getting these, they were compelled to register as Bangladeshi migrants and not Rohingyas. In 2015, following pressure from Buddhist nationalist groups, these cards were cancelled, thereby taking away their voting rights.
State sanctioned segregation : Precursor to genocide
Experts who have been studying genocidal trends across the globe are unanimous that state sanctioned discrimination of citizens acts as a precursor for brutal genocidal acts.
Dr Gregory Stanton, President of Genocide Watch, opines that discriminatory laws result in 'Classification' of target groups, which is the first in the eight different stages of genocide.
Such discriminatory laws legitimize the "othering" of a group, eventually leading to their de-humanization, and this will enable mainstream society to ignore and condone the acts of violence against the persecuted class.
This phenomenon is explained by Mark Farmaner, Director of Burma Campaign UK, who observed that the discriminatory citizenship law gave legal foundation for the systemic oppression of Rohingyas.
"Myanmar's 1982 Citizenship Law is not just a tool for denying the Rohingya their rights. It is one of the foundation stones which underpins prejudice and violence against the Rohingya. It has also contributed to the military's acts of genocide against them. In the mind of many in Myanmar this, in turn, justifies the prejudice against them. Even justifies the most horrific human rights violations".
The international court's order taking cognizance of the persecution of Rohingyan Muslims has come at a time when discussions on their exclusion from the ambit of Citizenship Amendment Act 2019 are going on.
The selective omission of the victims of this grave humanitarian crisis from the CAA casts a shadow on its purported noble intentions, and adds weight to the arguments that the law is arbitrary and discriminatory.
Also, the ICJ's observations on the discriminatory citizenship laws of Myanmar assume relevance in the context of concerns about the proposed National Population Register and National Register of Citizens.
The Citizenship Rules 2003, which give legal basis for NPR and NRC, enable local level officers to mark "doubtful citizens" from NPR while preparing the NRC. While the catastrophic consequences of such a marking are not hard to foresee, the Rules do not provide any guidelines regarding the exercise of this power.
These Rules also enable third parties to raise objections against the inclusion of persons in NRC.
These executive rules, laden with a high degree of subjectivity, can be a recipe for disaster if applied by persons driven by prejudices and communal agendas.
The consequences of any wrongful exercise of discretionary powers of the NRC officials could be drastic : the de-legitimization of a person.
It can be devastating for a majority of Indians in inverse order to their proximity to privilege, paperwork and social power.
One has to be mindful that this exercise is sought to be done in the backdrop of strong majoritarian-exclusionary sentiments, which tend to perceive only a certain class of persons as the rightful inhabitants of the country. That the talks about NPR-NRC were accompanied with hostile and de-humanizing terminologies directed at the perceived immigrants is also a cause for concern.
Therefore, it is hoped that the government and its advisors will take appropriate lessons from the Myanmar-Rohingya episode while deliberating future course of action on CAA-NPR-NRC.