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Transitional Justice (Part 56): Rohingya the Voiceless, Stateless Refugees

AnalysisTransitional Justice (Part 56): Rohingya the Voiceless, Stateless Refugees


15 Mar 2024 – It is natural to have questions about how this paper on transitional justice fits into the series of 56 articles. The author has already published 55 articles on transitional justice covering various countries such as Argentina, Algeria, Afghanistan, Burundi, Cambodia, Chad, Congo, East Timor, El Salvador, Germany, Guatemala, Honduras, Japan, Lebanon, Liberia, Nepal, Russia, Sierra Leone, South Africa, Sri Lanka, Child soldiers (Pathak, October 2019), and others. These transitional justice articles have been disseminated through various mediums, including electronic and print media as well as social media.

The politico-legal aspects of transitional justice are a complex final stage in conflict transformation by peaceful means (Pathak, 2020). This process aims to identify the truths about the experiences of both victims and perpetrators. The new concept of transitional justice encompasses two interconnected components, much like two sides of the same coin: truth-seeking and judicial accountability. In countries like Nepal, as well as in many post-conflict nations around the world, making progress with truth investigations and judicial proceedings is proving to be incredibly challenging (Pathak, 2021). Transitional justice bodies such as Truth Commissions have been established globally, but many of them have failed to ensure all six pillars of (i) truth seeking, (ii) justice attainment, (iii) reparation delivery, (iv) vetting for accountability, (v) prosecution of proven perpetrators, and (vi) institutional reform policies (Pathak, 2017 & nagariknews.nagariknetwork.com/blog/148467-1525946880.html).

Transition justice is the period between the complete abolishment of the old state system and the establishment of a new system of government. It emerges from political changes brought about by either violence or popular movements. Transitional justice includes both judicial and non-judicial components. The judicial aspect involves seeking out victims and holding perpetrators accountable by investigating serious human rights violations, excessive use of force, war crimes, crimes against humanity, and genocide that occurred during past armed conflicts (Pathak, 2016).

The non-judicial aspect of transitional justice focuses on providing relief and compensation packages, healing for victims both physically and mentally and recommending institutional reforms to prevent future armed conflicts. While transitional justice was previously seen as solely seeking justice for victims and punishing perpetrators, it now also recognizes the rights of survivors, families, societies, and international communities (Pathak, May 18, 2015). Truth Commission plays a crucial role in transitional justice by giving voice to victims, holding perpetrators accountable, gathering factual information, testimonies, and evidence to address past atrocities (Pathak, August 29, 2015). Overall, transitional justice stands for truth investigations and judicial remedies.

The purpose of this paper is to examine and inform all relevant and interested parties about the plight of the Rohingya minority Muslims in Myanmar. It will illustrate why the Rohingya have been compelled to flee their homeland as a result of grave human rights violations committed by the military junta. Additionally, this study will delve into the junta’s overthrow of the elected government, as well as the current legal proceedings against the junta at the International Court of Justice (ICJ).

The study utilizes both primary and secondary sources. The secondary information led to snow-ball techniques following archival research. The author’s two decades of experience in transitional justice have been crucial in preparing this study. The Generation of Transitional Justice in the World (July, 2019) has also assisted in its completion. The required information was reviewed, analyzed, and lessons were drawn from the past (yesterday), understanding the sufferings of the Rohingya in the present (today), and fostering hope for the repatriation of Rohingya refugees as dignified citizens in their homeland of Myanmar for the future (tomorrow).

Rohingya Refugees

On December 10, 2019, Myanmar’s leader and Nobel Peace Prize laureate Aung San Suu Kyi appeared at the International Court of Justice (ICJ) in The Hague, Netherlands to defend her military-backed government against accusations of genocide (Al Jazeera, December 12, 2019 & Bowcott, December 11, 2019). The accusations included mass murder, rape, disappearances, and forced deportation (Human Rights Watch, February 14, 2022). From October 2016 to August 2017, thousands of Rohingyas were extrajudicially killed and disappeared in an effort to suppress a minority Muslim rebellion by the majority Buddhist-backed army (The Daily Star, August 18, 2018). Additionally, many Rohingyas traveled 600 km, facing extremely difficult conditions.

As of September 2023, a total of 965,467 Rohingya refugees have been jointly registered by the Government of Bangladesh and UNHCR. More than half 52 percent, are children, with women and girls making up another 52 percent (UNICEF Bangladesh, 2023). The Rohingya are a stateless Indo-Aryan ethnic group. There are 92,000 Rohingya refugees living in neighboring countries such as Thailand, 21,000 in India, 1,700 in Indonesia, and 1,000 in Nepal.

In 1962, the government of military dictator General Ne Win passed a new citizenship law, Article 3 of this law recognized as Burmese citizens individuals from the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan states who lived within the state’s territories from 1185 to 1823 (Brett & Hlaing, 2020).

Myanmar’s nationality law denied citizenship to the Muslim Rohingyas and other ethnic minorities. Their freedom of movement, access to state education, and civil service employment were also restricted. The discriminatory legal regime faced by the Rohingyas can be compared to apartheid in Africa.

When examining the history of the Rohingyas, it is evident that they are descendants of Arabs, Moors, Pathans, Mughals, Central Asians, Bengalis, and some Indo-Mongoloid people. This community asserts that they are the original residents of both pre-colonial Arakan and colonial Arakan (Haradhan, January 18, 2018). Historically, they inhabited an independent state located between Southeast Asia and the Indian subcontinent. The Rohingyas are predominantly Muslim in religion, with a distinct culture, social organization, and civilization that can still be seen today.

The Classical Journal of 1811 identified Rohingya as one of the languages ​​spoken in the Burmese Empire (Ibrahim, 2016). In 1815 German theologian and linguist Johann Severin Vater also listed the “Ruinga” as an ethnic group with a separate language in a collection of languages ​​published in German (Ibrahim, 2016).

In 1824, the Rohingya, a minority within the Muslim community, were brought from Chittagong, Bangladesh, as agricultural laborers during the British colonial period and were subsequently kept in Myanmar by the government. The Myanmar government considers Rohingyas to be British colonial immigrants due to their arrival under British rule (Leider, May 2018).

In the Buddhist-majority country of Myanmar, the Rohingya people have endured oppression and exploitation for many years. Even after Myanmar gained independence from British colonial rule, the Rohingya continued to face discrimination, which led to increase conflict with the country’s Buddhist population. During the 2014 population census, the Rohingya were excluded and pressured to identify as Bengali (Ferrie, June 2, 2013).

Since the 1940s, the Rohingya have been experiencing extrajudicial killings, disappearances, arson, looting, and torture by government soldiers (Holmes, November 24, 2016). They have also raised their demands at various times such as in 1978, 1991-1992, 2012, 2015, and particularly in 2016-2018 through rebel-based movements. As a result, the Rohingya have been forced to flee their state in order to save their lives.

In August 2017, the Myanmar military and Buddhists initiated a campaign to cleanse the Rohingya population resulting in widespread human rights violations. More than 24,000 individuals were extrajudicially murdered (Habib et al, July 18, 2018). Over 36,000 were thrown alive into burning homes, 18,000 women and girls were raped, and more than 100,000 were tortured (Baykan, February 18, 2019). Consequently, millions of Rohingyas were compelled to flee their country, leaving their homes behind. Many embarked on the perilous sea journey through the Bay of Bengal, eventually reaching Bangladesh after days of walking through the jungle.

The Rohingya living in Kutupalong, in the Cox’s Bazar region of Bangladesh, have become resident of the largest refugee camp in the world. The former Secretary General of the United Nations, Ban Ki-moon, even stated in a United Nations program that the Rohingya are the most oppressed and stateless community in the world (SBS News, Undated).

Crime of Genocide

On November 11, 2019, The Gambia, representing the 57-member states of the Organization of Islamic Cooperation, lodged a case at the International Court of Justice (ICJ) accusing Myanmar breaching its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide against the Rohingya in Rakhine State (Genocide Convention) and violating multiple provisions (Human Rights Watch, December 5, 2019). In December 2019, the court unanimously decided to commence hearings on Gambia’s plea for interim measures to safeguard the Rohingya in Myanmar from genocide.

On January 23, 2020, the ICJ ordered the government of Myanmar to cease violations or destruction, implement effective measures to preserve evidence, and submit regular reports to the court regarding actions taken to comply with the order, in light of the acts outlined in the Genocide Convention.

In January 2021, the government of Myanmar led by Aung San Suu Kyi submitted its opening statements to the court, challenging the court’s jurisdiction and Gambia’s position in filing the case. On July 22, 2022, the ICJ rejected an appeal filed by Gambia against Myanmar (Human Rights Watch, July 22, 2022).

On February 1, 2021, Myanmar’s military staged a coup, overthrowing the elected government and installing a military junta known as the State Administrative Council. This move was made in order to avoid potential intervention by the International Court of Justice. Min Aung Hlaing, the leader of the military junta and Chairman of the State Administration Council, may have also been motivated by fear of repercussions for the brutal actions he had authorized against millions of anti-junta protesters in past years (Strangio, February 8, 2021). Human Rights Watch has condemned the army’s actions as crimes against humanity.

From February 21 to 28, 2022, the International Court of Justice in The Hague, Netherlands held preliminary hearings in the case of The Gambia v. Myanmar (International Court of Justice, November 16, 2023). The case involved to violations of the Genocide Convention by the military-backed government of Myanmar against the ethnic Rohingya minority.

The ICJ initially ordered Myanmar to submit its response to Gambia’s claim by May 24, 2023. However, Myanmar requested an extension until August 24, 2023. On October 16, 2023, the ICJ directed Gambia to submit a response to Myanmar’s arguments by May 16, 2024 (United Nations, Undated). Additionally, a deadline of December 16, 2024 was set for Myanmar to present its submissions to the ICJ in response to Gambia’s claims.

On November 15, 2023, Canada, Denmark, France, Germany, the Netherlands, and the United Kingdom jointly presented a declaration to the Court proposing that the ICJ take on an interventionist role in Myanmar (International Court of Justice, Undated). They expressed their shared interest in upholding the objectives of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

On November 10, 2023, the Maldives submitted a declaration to the ICJ expressing deep concern and “appealing for international cooperation to stop the ongoing human rights violations, barbaric attacks, and genocide against the Rohingya Muslims. They also urged for the perpetrators involved in these acts to be punished” (International Court of Justice, Undated).

Critiques against Human Wrongs

After Aung San Suu Kyi’s party won the general election in 2020, she promised to amend the constitution. However, the military junta-led by Min Aung was staunchly opposed to any changes. Previously, the army had sent Suu Kyi to the ICJ in The Hague in an effort to justify their actions against the Rohingya. Suu Kyi defended the military actions against the Rohingya and was severely criticized by Westerners as well as peace and human rights activists. Suu Kyi not only upset Western powers but also shifted her stance as a Nobel Peace Prize laureate, stating that the prize should not take precedence over the country’s needs.

The military junta may have sought to align themselves with Suu Kyi’s opponents who disagreed with her receiving the Peace Prize. Additionally, Suu Kyi’s government had been working to strengthen ties with China, which might have been viewed as an effort to appease Western powers by playing the China card (East Asia Forum, June 17, 2023). What General Min Aung Hlaing did was to avoid the massacres committed by his army in the past and to dismiss or neglect the case at the ICJ.

Overall, Min Aung, did not deviate from Ne Win’s strategy. He too embraced Ne Win’s philosophy, “The army’s purpose is to shoot”. Consequently, the army has unlawfully killed 1,000 anti-coup activists, imprisoned many of their opponents, and left thousands injured.

The military junta coup in Myanmar was not sudden. Britain, the USA, and Canada have imposed sanctions on Myanmar in response to the coup (Gilroy et al, November 7, 2023). Nearly 20 diplomatic missions residing in Myanmar demanded a democratic transition. UN Secretary-General Antonio Guterres warned and condemned the coup and lethal use of force against peaceful protestors in Myanmar (Teza, February 21, 2021), but the UN Security Council officially failed to condemn it due to China’s veto. Many Western scholars believe that China accepted the military coup in Myanmar as a way to counter influence of the United States.

Some believe that these sanctions have actually benefited China. China never condemned the coup, but instead recognized the military-led government as a major cabinet reordering change. Despite China’s previous close relationship with Suu Kyi (Global Times, December 29, 2020), the military junta is developing a strong relationship with the Chinese government as well. China has had a strong tie with the Myanmar military government since 1962. Less than two years after the caretaker government took power, on March 2, 1962, Ne Win once again seized state power through a military coup d’état. Ne Win announced himself as the Head of State (President) as well as the Prime Minister of the Union Revolutionary Council.

The military junta in Myanmar is supported not only by China but also by Russia, which vetoed the UN Security Council’s condemnation of the coup on February 2, 2021. On May 27, 2022, China and Russia once again vetoed a UN Security Council resolution that included a statement drafted by the UK regarding the escalating humanitarian crisis in Myanmar. A joint statement from 13 out of the 15 members of the UN Security Council stated that the military junta generals must stop killing civilians and resolve the crisis in Myanmar. Both China and Russia vetoed the resolution (Al Jazeera, August 24, 2023).

In December 2022, China, Russia, and India abstained from voting on a UN Security Council resolution (Haidar, December 22, 2022). Twelve nations supported the resolution, which aimed to end all forms of violence, promote de-escalation of the Rohingya crisis, and create a conducive environment for repatriating the refugees and internally displaced persons. The countries that abstained expressed a strong preference for a presidential statement over a resolution (www.securitycouncilreport.org/whatsinblue/2022/12/myanmar-vote-on-draft-resolution.php & Brunei Darussalam, April 24, 2021).

In March 2021, Russian Deputy Defense Minister Alexander Fomin attended an Armed Forces Day program in Myanmar, where he received a ceremonial sword and a medal. Fomin visited Myanmar to express Russia’s commitment to maintaining friendly relations with the country. Speaking at the parade, 66-year-old General Min Aung Hlaing welcomed the presence of the Russian military and stated, “Russia is a true friend” (meduza.io/news/2021/03/27/zamglavy-minoborony-rf-obmenyalsya-podarkami-s-liderom-voennoy-hunty-myanmy-i-posetil-parad-kotoryy-proignorirovali-zapadnye-strany). Seven neighboring countries, including China, India, Pakistan, Bangladesh, Thailand, Laos, and Vietnam, sent their representatives to the military procession in Myanmar. Fomin stated that Russia wants to further strengthen military relationship with Myanmar (Reuters, March 26, 2021).

India expressed concern over the violence and instability in Myanmar following the 2021 coup by the military junta. India stated that the violence could have direct implications for the country’s security (Laskar, February 1, 2024). India is worried about a potential influx of new refugees across its borders (Peri, June 4, 2023). Despite indirectly supporting the military coup and junta administration in Myanmar, India’s actions are influenced by China’s growing interest in the region.

On February 11, 2024, India unilaterally canceled the agreement on the ‘freedom of movement regime’ between India and Myanmar. The impact of Myanmar’s armed conflict has been noticed in India’s bordering states, including Mizoram, Manipur, Nagaland, and Arunachal Pradesh. In response, the Indian government has closed a 16 km stretch of the border with Myanmar restricting the right to free movement (Kaushik & Agarwala, February 8, 2024). A Peace Treaty was signed between the two countries in 1951 to safeguard India’s internal security and preserve the demographic structure of India’s northeastern states that border Myanmar.

US Secretary of State Rex Tillerson has described the refusal to recognize the Rohingya citizens of Myanmar and their subsequent deportation as ethnic cleansing. Following the coup in 1962, the Burmese army not only strained its relationship with the United States but also isolated itself in self-imposed exile from the international community. After Myanmar held its first general elections in 20 years in 2012, US President Barack Obama visited Myanmar in 2016 and lifted sanctions against the country (Blank & Culbertson, January 5, 2018).  However, four years ago, after another coup by the Myanmar army, the West, including the United States, has imposed sanctions against the junta administration.

In order to appease Western authorities, Min Aung pledged to revise the Civil Code enacted by Ne Win in 1982. This move was intended to address the security issues faced by the Rohingyas and was announced shortly after the coup. Additionally, he assured that Rohingyas who had fled to Bangladesh would be repatriated and granted citizenship. However, as of now, those promises have not been fulfilled, only amounting to lip service.

Various human rights organizations are pressuring the Myanmar government to grant Rohingya citizenship and the right to self-determination. The United Nations has described the Rohingya as “the world’s most oppressed ethnic minority”. Former Secretary General of the United Nations, Ban Ki-moon, expressed in his speech to the United Nations that the Rohingya are the most unjust and oppressed ethnic minority in the world.


The world’s transitional justice system ironically grants freedom to perpetrators, further limiting justice for the victims (Pathak, July 10, 2018). This is evident in the case of the Rohingya in Myanmar. Furthermore, due to the impossibility of establishing transitional justice bodies within Myanmar, the ICJ is collecting testimonies and evidence against the military junta.

In order to reduce the influence of the US and European countries in Asia, many countries in Southeast Asia and South Asia are supporting the military junta in Myanmar. Despite being considered rivals and sometimes enemies since their secession in 1947 (Sekhar, 2004; Claude, 2004; and Ian, 2016), India and Pakistan share similar perspectives on the military dictatorial government in Myanmar. Since 1962, China and India have been in continuous conflict over the border territories of Aksai Chin and Arunachal Pradesh (Gerry, 2018 and Hoffman, 1990).

Additionally, India and China have two different ideologies. India is disorderly under-governed, while China is orderly over-governed. India pursues a bourgeois competitive Westminster parliamentary system of democracy, while China adheres to a non-competitive proletarian people’s democracy (Pathak & Bastola, 2022). In China, proletariat politics control the economy, whereas economically wealthy individuals control India’s democratic politics.

China and India have both formal and informal relations with the military junta and the Rohingya. Instead of addressing humanitarian issues and human rights of the Rohingya refugees, power centers are using the situation to advance their own vested interests in the name of the Rohingya minority.

Due to the dirty politics of powerful nations, the Rohingya, who have lived between India and Burma for generations, have become stateless and voiceless. Their inherent rights to life, liberty, security, and dignity have been denied. Repatriation and granting citizenship to them is not only their natural right, but also their universal, inalienable, and indivisible rights.

Ensuring that the Rohingya minority have all their human rights is essential for transforming human wrongs into respect for democratic freedom while pursuing its norms and values.

Yesterday, the democratic system worked hard to transform the government from a military junta dictatorship; today, the military junta is considering a shift from dictatorship to democratic practices to save itself from the actions of the ICJ; and tomorrow, democratic practice must focus on giving a voice to voiceless, stateless refugees by respectfully repatriating them and recognizing them as dignified citizens of Myanmar.


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Prof. Bishnu Pathak was a former Senior Commissioner at the Commission of Investigation on Enforced Disappeared Persons (CIEDP), Nepal who has been a Noble Peace prize nominee 2013-2019 for his noble finding of Peace-Conflict Lifecycle similar to the ecosystem. A Board Member of the TRANSCEND Peace University holds a Ph.D. in interdisciplinary Conflict Transformation and Human Rights in two decades. Arduous Dr. Pathak who is an author of over 100 international paper-book publications has been used as references in more than 100 countries across the globe. Immense versatile personality Dr. Pathak’s publications belong to Human Rights, Human Security, Peace, Conflict Transformation, and Transitional Justices among others. He can be reached at ciedpnp@gmail.com.

Tags: Asia and the Pacific, Aung San Suu Kyi, Bangladesh, Buddhists, Burma/Myanmar, Ethnic Cleansing, Ethnocentrism, Genocide, Genocide Convention, Human Rights, India, Massacre, Muslims, Myanmar, Pariah State, Racism, Refugees, Religious Freedom, Rohingya, State Terrorism


This article originally appeared on Transcend Media Service (TMS) on 18 Mar 2024.

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