MUCH has been written lately, either empathetically or as a challenge, of Myanmar’s “Rohingya problem”. Since early June, the Rohingya have borne the brunt of communal violence, human rights violations, and an urgent humanitarian situation in Rakhine State, and face an uncertain future. But when considered more closely, is that all? What really is the problem?
The events of this year, as well as the violent events of 1978, 1992, 2001, and 2009, are attributable to systemic discrimination against the Rohingya in Myanmar. That is, to a political, social, and economic system – manifested in law, policy, and practices – designed to discriminate against this ethnic and religious minority.
This system makes such direct violence against the Rohingya far more possible and likely than it would otherwise be. Further, in the eyes of the Myanmar authorities at least – as evidenced by the lack of accountability for the civilians and officials alike – discrimination also makes the violence and violations somehow justifiable. That is the problem.
In 1978’s “Dragon King” operation, the Myanmar army committed widespread killings and rape of Rohingya civilians and carried out the destruction of mosques and other religious persecution. That resulted in the exodus of an estimated 200,000 Rohingya to neighbouring Bangladesh.
A similar campaign of forced labour, summary executions, torture and rape in 1992 led to a similar number of Rohingyas again fleeing across the border.
In February 2001, communal violence between the Muslim and Buddhist populations in Sittwe resulted in an unknown number of people killed and Muslim property destroyed.
Late 2009 featured the pushing back by Thai authorities onto the high seas of several boats – lacking adequate food, water, and fuel – of Rohingyas in the Andaman Sea.
It is true that all of these events have similar, separate equivalents in countries in which systemic discrimination does not take place.
Yet in Myanmar such discrimination provides the violence with a ready-made antecedent, expressly approved by the state. Indeed, to varying degrees, the five seminal events noted above were simply exacerbations of this underlying discrimination.
It would overstate the causality to assert that if Myanmar had never put its system of discrimination against the Rohingya into place, these events would not have occurred. Eliminating it now, however, is urgently required for a sustainable future peace in Rakhine State and, equally important, is a human rights imperative.
The system’s anchor is the 1982 Citizenship Law, which in both design and implementation effectively denies the right to a nationality to the Rohingya population. It supercedes all previous citizenship regimes in Myanmar of 1947, 1948, and 1974.
The 1982 Citizenship Law creates three classes of citizens – full, associate, and naturalised – none of which has been conferred on the Rohingya. Full citizenship is reserved for those whose ancestors settled in Myanmar before the year 1823 or are among Myanmar’s more than 130 recognised national ethnic groups, of which the Rohingya is not one.
Associate citizens are those who were both eligible and applied for citizenship under the 1948 Union Citizenship Act. Requiring an awareness of the law that few Rohingya had and a level of proof that even fewer were able to provide, this included few Rohingya.
Likewise with naturalised citizenship, eligible for those who resided in Myanmar for five continuous years on or before 1948. Moreover, with all three classes, a Central Body has the discretion to deny citizenship even where the criteria are met.
The 1982 Citizenship Law’s discriminatory effects are also extremely consequential. The main one is that the Rohingya, lacking citizenship in Myanmar, have been rendered stateless, both unable to avail themselves of the protection of the state and – as has been the case for decades – subject to policies and practices which constitute violations of their human rights and fundamental freedoms.
While not limited to Rohingyas, they are not imposed in the same manner and to the same degree on Buddhists or other Muslims in Rakhine State.
This is systemic discrimination. Laws, policies, and practices, though designed and carried out by people, are ultimately part of or attributable to a system that ensures discrimination even in the absence of discriminatory individuals.
And it is patently unlawful.
As a member of the United Nations, Myanmar is legally obliged to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”, as written in Articles 55 and 56 of the UN Charter.
The Universal Declaration of Human Rights – though admittedly not a binding document – provides in Article 2 that everyone is entitled to all the rights in the Declaration “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
It is clear that Myanmar, as a state party to this Convention, is in violation of its international legal obligations pertaining to the right of Rohingya children to a nationality.
Solutions? Myanmar should substantially amend the 1982 Citizenship Law or repeal and redraft it, such that the Rohingya are indisputably made citizens.
Rohingyas born in Myanmar who would otherwise be stateless should be granted citizenship, as should those who are not born there but are able to establish a genuine and effective link to the country.
Myanmar should also eliminate its policies and practices that discriminate against the Rohingya on the grounds of ethnicity and/or religion.
Myanmar’s “Rohingya problem” is almost entirely of its own making. More than any other single step, dismantling its system of discrimination would bring it closer to a solution.
Benjamin Zawacki is the South-East Asia Regional Representative of the International Development Law Organisation and a member of the Council on Foreign Relations. The views expressed here are his own, adapted from remarks given earlier last week at “Plight of the Rohingya: Solutions?”, a conference organised by the Perdana Global Peace Foundation in Kuala Lumpur.
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