Research Article

Strategic Denial of International Studies

59(3) 234­–251, 2022
Rohingya Identity and © 2022 Jawaharlal Nehru University
Reprints and permissions:
Their Right to Internal in.sagepub.com/journals-permissions-india
https://doi.org/10.1177/00208817221112544
DOI: 10.1177/00208817221112544
Self-Determination journals.sagepub.com/home/isq

Sakhawat Sajjat Sejan1

Abstract
Denying the identity of a race is the step towards committing the crime of
genocide, which may also result in ethnic cleansing. This article has tried to
strategically depict the nexus between the identity denial and ethnic cleansing of
Rohingyas. From the very inception to now, the gradual development of ignoring
the identity of Rohingyas is evident to deny their rights. Also, Buddhist extremism
has outnumbered the demands of Rohingya as an ethnicity among 144 races of
Myanmar. Then, it has claimed the proposition that might become applicable
for their internal recognition, which is ‘right to internal self-determination’. This
article also discusses the development of the Gambia versus Myanmar case,
which may contribute to the resurrection of Rohingya identity within the lands
of Myanmar. Internal recognition of the Rohingyas under the legal instruments
of Myanmar will restore their fundamental rights along with their political and
social recognition.

Keywords
Right to internal self-determination, dolus specialis, democide, chauvinism, identity
denial

Prelude: Currently, the world has 22.5 million refugees, 65.6 million forcibly and
internally displaced persons, along with 10 million stateless people (UNHCR,
2019). From the First World War to the Second World War, the world witnessed
several refugee crises. In the past few decades, Vietnam, Rwanda, Sudan, Bosnia,
Cambodia, Iraq, Afghanistan and the Rakhine of Myanmar have witnessed the
cruellest atrocities within their states. The military junta cruelly raped, tortured
and killed many, whereas many became stateless or refugees. The number is
increasing with the advent of time. Fractionalization, dehumanization, polarization

1 Department of Law, Feni University, Feni, Bangladesh

Corresponding author:
Sakhawat Sajjat Sejan, Department of Law, Feni University, Feni 3900, Bangladesh.
E-mail: sejan@feniuniversity.edu.bd
Sejan 235

and extreme nationalism have continuously contributed to the number. According

to the Political Instability Task Force, from 1955 to 2016, nearly 43 genocides
were killing 50 million people and displacing 50 million others (McManus, 2018).
In almost all of the above-mentioned cases, state mechanisms denied their identity
and ethnicity. Sectarianism played a significant role in this hegemony. Parliament
passed arbitrary laws, and then it utilized the religious sentiment of other religions,
targeting a particular group. From arbitrariness to abusing religious sentiment, all
contributed to the bawl of strategic denial of identity or ethnicity. The case is
analogous to the issue of Rohingyas. In this article, the author will endeavour to
inculcate the circumstances which contributed towards Rohingya’s identity denial
and how their ‘Right to Internal Self-Determination’ is violated at different stages
of denial. And how this denial approach has turned into the menace of ethnic
cleansing or genocide. Also, the effect of this denial as dolus specialis (Fellmeth
& Horwitz, 2009) in committing the crime of genocide, whether promptly or
slowly, encompassing genocidal intent within the act.

A Brief Background of Rohingyas’ Identity Denial

From the very beginning, Rohingyas are considered ‘kulas’ or ‘kalar,’ meaning
dark-skinned aboriginals by the Buddhist nationalist groups (Ahmed, 2019).
Theravada Buddhism was the core belief of Burmese Buddhists that has turned
into chauvinism lately paved the way for this narrative. The subtle contribution
from this perspective towards the non-acceptance of Rohingya identity is
significantly undeniable. They have always preached Rohingyas as foreign
nationals, Bengali intruders or illegal immigrants (Center for Preventive Action,
2022). According to their preaching, Rohingyas came to Myanmar due to several
Arab and Persian invasions to the land during 788–810 AD, the 15th century and
the 17th century, respectively (Siddiqui et al., 2006). Since the inception of
invasions and rulers, Rohingyas have been residing in Eastern Rakhine (then
Arakan). The Burmese people debatably used to call them Arakanese Muslims,
Rooinga, Rosangya, Ro-Khing-Yha or Rakkhingya, etc., under immense
politicization across the country (Tirman, 2004). The families of invaders extended
as Arab people married some of the Myanmar nationals and settled. Muslims from
Afghanistan, Turkey, northern India and most significantly Mughals settled in the
lands of Arakan, by extending their families, marrying local women in between
the 9th and 15th centuries (Writenet, 1993).
Before annexing Myanmar in 1784, Arakan was an independent kingdom, that
is, Sothern Arakan and Northern Arakan. King Budapawa conquered the kingdom
in 1784 when many Rohingyas fled to Bengal. Some of them fled from the eastern
part of Rakhine to the northern part of Rakhine after becoming internally displaced
(Razzak & Haque, 1995). In pursuance of this attack by King Budapawa, some
Rohingya Muslims have lost their rooted identity in the southern part of the then
Arakan. Also, simultaneous second invasions by Mongolians uprooted the
Rohingya roots (Maung, 1989). King Budapawa ruled Myanmar for 40 years with
236 International Studies 59(3)

the highest anarchy and repression meted to the Rohingyas (Rahman & Mohajan,
2019). Simultaneously, the British regime usurped the Indian subcontinent by
then and the Indians subjects had lost their freedom. They were planning to invade
and conquer Arakan as it was rich in natural resources. Finally, in 1824, the first
Anglo-Burmese war broke out, and the English annexed Arakan (Rahman &
Mohajan, 2019). Many ethnic minorities were grievously oppressed during the
British rule, mainly Rohingya Muslims.
Rohingyas and Rakhines were peacefully cohabitating in the region even after
oppression and communal conflicts. The continuous matter of contention was that
the ‘Rohingyas’ have always been labelled as foreign nationals (Arakanese
Muslims) by the Arakanese Buddhists. Unsurprisingly, the British rulers always
relied on the ‘divide and rule’ theory, and they instituted the same approach in
Arakan. They marginalized the Rohingya community as a whole by diverting
Buddhists’ attention on the matter of ‘kula.’ As an outcome of oppression,
Rohingyas had to take the side of the British rulers during the Japanese invasion
(Rahman & Mohajan, 2019). It served the interest of the British regime. From the
beginning of the colonial era, Rohingyas remained the most persecuted and most
forgotten ethnicity due to extensive colonialization by the British rulers.
The Second and Third Anglo-Burmese Wars strengthened the status of
Rohingyas’ statelessness. Many of them fled to Cox’s Bazar and Bandarban of the
then Bengal (Ahmed, 2019). Those who could not escape became displaced
within the region—every attack initiated at that time somehow far-sightedly
targeted Rohingyas by hook or by crook. At the same time, due to the instigation
of British rulers, tension between Rakhines and Rohingyas started mounting.
Communal harmony or peaceful coexistence began to diminish between the First
World War and the Second World War. British-driven oppression in the whole
subcontinent had drawn everyone’s attention from the matter of Rohingya’s
identity denial several times. Due to these instigations, Burmese Buddhists never
accepted them as Myanmar nationals, and the British regime took this as an
opportunity to accumulate their power (Agence France-Presse, 2017). British
oppression ultimately ended during the Second World War, when Japan invaded
Burma, and The Rakhine Communalist and Burma Independence Army killed
100,000 Rohingyas for supporting the British rulers (Ahmed, 2019). This move of
the Rohingyas in support of the British regime had further marginalized them
from Buddhist believers. Simultaneously, in the absence of any administration,
the Burma Independence Army (BIA) killed more than 50,000 Rohingya Muslims
to exterminate Rohingya identity from the region just before Myanmar’s freedom
from the British regime (Ahmed, 2019). Finally, in 1947, the Union Treaty was
signed to form the Union of Burma and its independence. However, Rohingyas
were kept away from discussions and negotiations due to Buddhist extremism and
identity extermination (Ahmed, 2019). In the 1950s, Rohingyas were the
segregated ethnic group due to BIA’s attack and extreme religious discourses by
Buddhist Moths in Arakan. After Aung San’s assassination, U Nu ruled Burma for
10 years in the following years. During these 10 years, Rohingya Muslims became
proactive in institutionalizing their identity with a distinct state (Maung, 1989).
Sejan 237

U Nu government, with active negotiation, sterilized the movement under various

perspectives and Rohingya-friendly offerings. This mechanism substantiated the
menace of repression under the Ne Win regime later. As by this time, Rohingyas’
confrontation to establish their identity was nipped in the bud.
Buddhist fundamentalists became more xenophobic due to Rohingya leaders’
persuasion to annex newly independent Pakistan. Under the Ne Win regime,
Burma Socialist Programme Party and Burmese Revolutionary Council
oppressed Rohingyas until 1988 (Das, 2020). It somehow contributed to strong
strategic denial, from banning all sorts of Rohingya organizations to passing a
draconian law to exclude Rohingya identity from all formal documents. The
Burmese government enacted the Emergency immigration Act 1974 (EIA) to
objectify the denial deal by taking away citizenship from Rohingyas (Human
Rights Watch [HRW], 1996). ‘Operation Nagamin’ in 1978 was an operative
part of this critical conspiracy forwarded by the Ne Win dictatorship to sow the
seed of extermination. This operation caused a mass influx of refugees from
Burma to Bangladesh and a clinical displacement within the Rakhine state. The
core purpose of this EIA 1974 and operation was not solely to displace them but
also to strengthen the reasonableness of ‘The Citizenship Act 1982’ that was
about to be enacted by the Myanmar government (D’costa, 2012). This Act was
the last arch of archery in the history of Rohingya Muslims. It has incarnated the
modes to exclude Rohingyas as an ethnic group under the Act. Burmese rulers
were clairvoyant to connect the dots of exclusion and fulfil the objectives of
identity extermination.
To achieve citizenship under the Act, three categories were settled, that is,
full, associated or naturalized. They had to provide proper documents to either
get registered under ‘national registration certificate’ or ‘foreign registration
certificate’ (Razzak & Haque, 1995). The Myanmar government determined
Rohingyas as ‘illegal immigrants’ or ‘foreign nationals during this registration
process.’ As a result of several displacements since 1784, Rohingyas could not
procure documents during the registration process. Even a juvenile can perceive
the fact of systematic elimination or Rohingya ethnicity. Because, in the name
of law and order restoration and taxation, they have unreasonably stopped their
right to movement, right to education, etc. Myanmar government even set
military bases for torturing the Rohingyas. And they levied unreasonable taxes
on the Rohingyas in the Northern Rakhine. In the end, State Peace and
Development Council changed the name from Burma to Myanmar in 1988 and
Arakan to Rakhine in 1989 (AP, 1989). Hence, the last bark of their identity got
peeled off. Through projecting different types of rejections and barriers at
different levels, Rohingyas were denied their identity and connection with the
soil of Myanmar. Constant clearance operations on various unjustified grounds
to oust foreigners by the Myanmar government wiped out the peasants of
Rohingya ethnicity by shedding blood during 1991–1992, 2012 and very
recently in 2017 (Ahmed, 2019). The creation of their statelessness was a
century-long history based on religious fundamentalism, which later turned into
refugee-hood (!) in between terminological debates.
238 International Studies 59(3)

How These Denial Mechanisms Came into Effect

Under the Burmese Citizenship Act 1982, Rohingyas would have obtained
citizenship if they could provide the documents to prove their eligibility.
Alternatively, even their father or mother was a recognized citizen of Myanmar
under full, associated or naturalized citizenship following section 7 of ‘The
Citizenship Act’ (Burmese Citizenship Law, 1982). The Act also proposed
including the ethnic groups of Burmese origin if they settled or lived in northern
Rakhine (Eastern Arakan) before the British regime annexed Burma in 1824 to
their colonial rule. The Rohingyas were previously displaced during the invasions
of King Budapawa and Mongolians. So there remains a slight chance of settling
or living in the eastern part of the then Arakan due to several displacements. The
Act has further stated that if any of the children’s parents are a citizen of
Myanmar, the children will be considered Myanmar citizens. We often have
come across an argument that the Rohingyas are of Arab origin. Arabs settled in
Myanmar during the medieval period and married some of the local women of
Arakan extending families after that (Ahmed, 2019). So technically, according to
their sought requirement, we can entangle retrospective effect in seeking
determination or identity for Rohingya Muslims. Because every local woman
who married the Arab invaders was a citizen of the then Burma according to the
Act following the date of their settlement in Arakan. Somehow the ancestors of
current illegal immigrants, foreign aboriginals, Rooingas, kulas, kalars or
Rohingyas connect with the citizens of Burma by birth. Forceful non-acceptance
of someone’s ethnic identity in pursuance of strategic approaches to deny
somehow fulfils the vacuum of their identity crisis in the same way that the
authority wanted to snatch from them. Restricting their movement, education,
association, medical rights or even taxing arbitrarily on unreasonable aspects did
not make them identity-less. Instead, every single oppression that was meted out
to them built their image as a unique ethnic group across Myanmar and the world.
The Burmese government endeavoured to quarantine their ethnic identity within
the camps that the Burmese military and Nasaka gradually extinguished. But due
to evidential acceptance of Rohingya’s fidelity by U Nu over the national radio
after their independence and inclusion of Rohingyas under General Ne Win
consensus of 1961 somehow safeguarded their identity (Salim, 2019). Their
National Register of Citizens (NRC) was also taken away in 1971 to solicit the
purpose of Operation Nagamin in 1978 and for naming them as foreign nationals
(Yegar, 2002). The 1982 Act was just the offshoot of the previous denial to
formalize the denial mechanisms even after universal acceptance by several
authors in their relevant works. Though they kept denying identity, their acts or
approaches fulfilled some of the credentials of ‘right to internal self-
determination’. I will argue from the facet of self-determination to induce
Rohingyas’ ethnicity within the purview of international law and assimilate the
determinants to establish this right.
Sejan 239

Understanding Internal Self-determination Within the

Purview of International Law
United Nations Charter 1945’s article 1(2) prescribes the right to self-determination
of peoples and states as a universal right. It has created a persuasive value for self-
determination jurisprudence (United Nations Charter, 1945). ‘UNGA Resolution
1514 (Declaration on Granting Independence to Colonial Countries and Peoples
1960)’ defines ‘right to self-determination’ as a customary principle of international
law and formed it as Opinio Juris following the spirit of United Nations Charter
(Talmon, 2015). The Declaration on friendly relations among states in the 1970’s
principle (e) also approved it (UNGA, 1970). The purview of self-determination
was not restricted to the periphery of external self-determination, that is, seceding
a state. Also, the proposition did not determine whether self-determination would
only mean external self-determination or not include internal self-determination.
As there stays a scope for interpretation, we would be understanding self-
determination as ‘external self-determination’ and ‘internal self-determination’
(Senese, 1989).
Literally, the right of having a state is defined as external self-determination. In
contrast, internal self-determination is understood as the right of an individual
ethnic group to identify themselves as a separate political and cultural entity
(Unilateral secession). Heterogeneity and multiculturalism are prerequisites for
cultural and political recognition. The first criterion of ‘right to internal self-
determination’ is participating in the election and electing their representative to
speak their voice. Internal self-determination always refers to the equal and
equitable participation of ethnic minorities. Additionally, it advocates for an equal
opportunity of involvement by the segregated bunch of people living within the
territory of an encompassed region.
Article 1 of ‘International Covenant on Civil and Political Right 1966’ and
‘International Covenant on Economic, Cultural, and Social Rights-1976’
encompasses the phenomenon of self-determination as a human right to achieve
political recognition and accelerate economic, social and cultural development.
However, ‘Conference on the Security and Co-operation in Europe Final Act
1975’ described self-determination as identifying all people’s external or internal
political status without interference to tame their cultural, social and economic
development (Helsinki Final Act, 1975). Almost all human rights instruments—
the European Convention on Human Rights, African Charter on Human and
Peoples’ Rights, Arab Charter on Human Rights and American Charter of Human
Rights—have recognized self-determination as a human right. In 1988, the
International Law Commission designated ‘principle of self-determination’ as
prospective towards universal application (International Law Commission, 1988).
After different authors’ interpretations of self-determination and the Helsinki
Final Act, self-determination includes internal self-determination within its
definitional periphery. ‘United Nations Declaration on the Rights of Indigenous
People’s article 3 discusses about the ‘right to self-determination’, along with
separate political status to work for their own social, cultural and economic
240 International Studies 59(3)

development by an ethnicity (United Nations Declaration on the Rights of

Indigenous Peoples [UNDRIP], 2006).
Also, the Algiers Declaration (Universal Declaration of the Rights of Peoples
1976) has discussed internal self-determination as a means for a particular group
of people to determine their social, economic and political mechanism within a
territory (UDRP, 1976). It helps to actualize the identity as a race or community.
And denial or refusal to provide these mechanisms becomes the logical ground for
unilateral secession for a race. But in the case of Rohingyas’ internal self-
determination, that is not for establishing a unique political or economic system.
Rohingyas placed the confrontation at first for a separate political forum during
the 1940s or 1950s (Yegar, 1972). But from 1982 to the present, the confrontation
is solely for identity determination. They have not pledged for a segregated state
as they cherished in 1948. They just wanted to substantiate their ethnicity to be
recognized in the mainstream social and legal practice of Myanmar.
From that argument, we can take internal self-determination in two senses. In
broader terms, internal self-determination may mean a unilateral secession of a
state of political, economic or social strata has interfered. Or, in a narrower sense,
we may determine it as the recognition of social status based on ethnolinguistic
and hereditary identity derived from the different parts of history in a region.
Denying ethnic identity is also considered a constituent of ethnic cleansing. The
Rohingyas’ extermination is a continuous process of ethnic cleansing, which we
consider the consequence of identity denial. The self-determination practice,
irrespective of external or internal self-determination, was adopted during the
colonial era by many colonial countries to free themselves from the cages of
oppression and repression. By establishing this practice, many countries identified
themselves as integral nations in the atlas. After state formation, the emergence of
a state is considered external self-determination with a segregated territory,
sovereignty and population (Senese, 1989). This emergent process carries a lot of
cases of internal self-determination within the state (Senese, 1989). In this process,
ethnic minorities in a particular region may become illegal immigrants or foreign
nationals to pacify the communal and economic instinct. From fractionalization to
identity denial, from non-recognition to ethnic cleansing, all have been grievously
decreed by the state towards Rohingyas. Different authors have cited this as
violation of multiple human rights treaties and established principles of
international law. To broaden the aspects of various human rights principles and
thoughts written by different authors, we will be pondering over the establishment
of the right to internal determination in a narrower perspective.

Nexus Between Identity Denial, Slow Persecution, Ethnic

Cleansing and Crime of Genocide
The modus operandi of the whole denial prospect from the political, social,
cultural or even intellectual countenance has an intuitive link up with the
Sejan 241

determinants of ethnic cleansing or genocide under the definition of Genocide

Convention of 1948. Forced labour, rape, mass killing, forced disappearance,
state-sponsored extortion, arbitrary arrest and detention contribute to the
understanding of genocide. But when we look at the definition of ethnic cleansing,
it can be termed as the result of a whole approach of denial. ‘Ethnic Cleansing is
an emotively politicized term compared to the legal basis’ (Carmichael, 2002;
Sociology of Race, 2020). It includes genocide more comprehensively or it
broadens the aspects of Genocide.

Identity Denial, Slow Persecution and Genocide

There are two propositions to verge into the periphery of Genocide, that is, the
scapegoat theory and the political opportunity theory (Strass, 2012). The first
theory aims to achieve the vices of sectarianism by targeting a particular group for
dehumanization to grace their political agenda. And the second theory confides in
accumulating opportunities for a specific group to strengthen their political stance
in a particular country. Convention on the Prevention and Punishment of the
Crime of Genocide 1948’s articles 3 and 4 enumerate, enacting sectarian laws,
enraging a specific group against another religious group and poaching more on
the power principle to establish a distinguished belief, as the multiplicands of
committing the crime of genocide (Convention on the Prevention and Punishment
of the Crime of Genocide [CPPCG], 1948). Myanmar’s situation meets all the
above-mentioned stated credentials. It had amended its citizenship law in 1982. It
tried to cleanse the ethnic identity of Shan, Kachin, especially Rohingya Muslims
and some other minority groups. They have successfully graced their plan,
considering the influxes and displacement. The power principle and the scapegoat
theory have portrayed Muslims as the prey of this polarized crisis in Rakhine to
acquire more power and cohere the dots of genocide.
From a different point of view, R. J. Rummel, a Professor of Political Science,
introduced a new term called ‘Democide’ (Rummel, 1668). He tried to generalize
the term genocide to include the government killings in his coining. Any number
of intentional killings by the government will be considered as democide under
his propagation. Obstruction of personal liberty, dignity or security is a sign of
democide. Democide, by dint of definition, includes mass murder, genocide and
political killings. In a broader sense, the definition enumerated in article 2 of the
prior stated Convention somehow encompasses the extermination of any particular
group from a country without any other determinants.
In the narrower sense, the ‘intent to destroy a particular group is very
sophisticated to prove’. There is no parameter to decide the constituents of
genocide under the Convention. The Convention also does not offer any particular
number in terms of deaths. They were emphasizing less on the physical elements
of genocide. They wanted to emphasize mental elements or intent. Pitiably, they
have undergone complex bewilderment in preaching the mental elements too.
242 International Studies 59(3)

Moreover, Professor Rummel endeavoured to generalize genocide with the

limbs of democide. But, on an ideological basis, democide may be understood as
‘killing in the name of democracy’ by a sectarian government that we found in the
case of Myanmar (Katz, 2018). The Buddhist majority and law enforcement
agencies have callously partaken in the mass murder and ethnic cleansing with
clear genocidal intent. Many houses and establishments are extorted, vandalized
and set on fire by the Nasaka, Military forces, and state-sponsored goons. All of
these incidents resemble the stance of Rwanda, Bosnia and Herzegovina, Armenia,
etc. (Liton, 2017).
Following the precedents, the state passed a sectarian law to create groups and
subgroups to communally mould clashes between or among different religious
beliefs to substantiate their power and inherent agenda. Here, EIA and Citizenship
Law acted as an arsenal on the spike of genocide. The language, manipulation of
words and the intent by Aung Sun Su Kyi, Tatmadaw and Wirathu of Myanmar
contemplate the footprint of Ratko Mladic in the Bosnian genocide and Théoneste
Bagosora in the Rwandan genocide. The fascist statements by Wirathu and
Tatmadaw are indeed an outright genocidal language (Frewer, 2015). The mental
element or dolus specialis (GPA News, 2017) utterly came into existence with the
outrageous language and laws so far manufactured by the Ne Win and Su Kyi
regime. After the occurrences and atrocities in Rakhine, the physical element of
genocide subsisted. Even though it is complex to prove genocide along with the
act of intent to destroy in whole or in part, we can take refuge in article 3 of the
Genocide Convention (CPPCG, 1948). This article has encompassed abetment,
attempt and conspiracy as a part of genocide.
So, the crime of genocide requires two natural elements, (a) the intent to
destroy a protected group in whole or in part and (b) the commission of the
prohibited acts towards the group (killing members, deliberately inflicting
conditions to cause physical destruction, preventing births, causing serious
bodily or mental harm and transferring children from one group to another) (UN
Office on Genocide Prevention and Responsibility to Protect, 2022) under the
Convention. Undoubtedly, the Rohingya crisis accomplishes this criterion with
a basic understanding of the Myanmar government’s oppression. Not providing
their right to movement except within 4 km, not allowing more than two children
without the permission of the state council, restricting their education by levying
taxes for staying outside Rakhine, adding duty for taming animals and holding
property were all the benefactors of their physical destruction under article 2(c)
and (d) of the Convention. When a state mechanism oppresses a community and
manipulates another group to suppress the same community, mobilization of its
people within and beyond borders begins automatically. It may be designed as
slow persecution. If mass killings, rape, torture, etc., adhere to slow persecution,
the crime of genocide is perpetrated. Incessant identity denial has caused slow
persecution, and slow persecution along with other atrocities leads the case
towards the crime of genocide.
Hence, we may draw an inference from the case of ‘The Gambia vs. Myanmar’
(International Court of Justice [ICJ], 2019a, b), where the court opined Rohingyas
Sejan 243

as a protected group following the spirit of genocide Convention. A group is

considered a ‘protected group’ (Schabas, 2000) if it holds national, racial, religious
or ethnic belongingness in a particular territory. The court addressed any
systematic approach in torture, mass killing, extortion, rape, sexual violence and
looting house shall constitute the crimes of genocide. The court also found a well-
founded ‘plausibility’ (ICJ, 2019a, b) to protect the rights of Rohingyas sought by
the Gambia. The international community shall bring under the protection of the
provisional measures to avoid irreparable harm within the lands of Myanmar.
Emphasizing the report of an independent International Fact-Finding Mission led
by the UN, the court also assures serious human vulnerability and casualties were
caused in the name of clearance operations under a systematic approach to
extinguish the Rohingya ethnicity (Lee, 2018).
Consequently, it undoubtedly falls under the jurisdiction of the Genocide
Convention. Being a part of it, Myanmar failed to procure the common interest
carried by the Convention. The court finally awarded provisional measures under
article 8 to stop further human vulnerability and wave of genocide and keep the
evidence of genocide. The International Court of Justice (ICJ) has defined the
whole Act of Myanmar as genocide technically, which is legible after a plain
reading of the provisional measures accepting the Rohingyas as a protected group.
ICJ recognized Rohingyas as a protected group. So there remains less scope
of denying Rohingyas as an integrated ethnic group, as the Genocide Convention
designates religious, racial, national and ethnic groups as protected groups.
Also, Myanmar concurred severe violations of International Humanitarian Law
and Human Rights Law following clearance operations. If these violations are
carried out against an ethnic group strategically, they fulfil the constituents of
the Crime of Genocide. Moreover, Myanmar’s modus operandi of clearance
operations is to cleanse an ethnicity and cause displacement unwantedly,
resulting in the crime of genocide.

Identity Denial Towards Ethnic Cleansing

Ethnic cleansing can be described as a practice, a pattern, a campaign, a
systematic process or a policy (Petrovic, 1994). Several United Nations Security
Council Resolutions have termed it differently (Petrovic, 1994). But in general,
ethnic cleansing means state-sponsored actions and operations against an ethnic
minority with or without the support of other groups to exterminate their root
from a territory (Bell-Fialkoff, 1993). Systematic criminality differs from ethnic
cleansing from crimes against humanity and genocide. Different authors have
termed it as intolerance, discrimination, the exclusivity of a group or the
superiority of a group(s) over an ethnic group based on political, religious or
ethnic identity, making them unacceptable to the mainstream population of the
territory. To achieve territorial unity, a government may take systematic
approaches at the administrative level to exterminate the ethnic identity of the
targeted group. The government may also take the option of discriminatory laws
and different operations to accumulate a homogeneous demographic structure.
244 International Studies 59(3)

The authority may also receive preventive measures to achieve ethnic cleansing
through several restrictions.
From the above-mentioned discussion, we may determine the credentials
required to prove ethnic cleansing and the strategies used. Ethnic cleansing
encompasses (a) a systematic and distinguished disposition; (b) against a particular
group based on religion, ethnicity or political identity; (c) different forms of
intolerance, discrimination and torture; (d) active participation by the authority
through repressive actions or refraining from taking any actions against any
oppression; (e) forced labour, rape and other sexual violence, (f) controlling births
or not allowing to give birth at all; (g) spreading hate speech and hatred in the
mass media; (h) destroying the documents containing their historical and ethnic
identity; and (i) causing displacement and creating conditions to make their return
undesirable. All of the above-mentioned actions are carried out to form territorial
unity of ethnic inclusivity.
These above-stated standards are six different approaches to broaden the
general understanding of ethnic cleansing and build a bridge with identity denial.
Identity denial is one of the measures of the systematic approach. Administrative
approach (Pajic, 1993), legislative approach, violent approach (Mazowiecki,
1994), non-violent approach (Mazowiecki Report), military approach
(Mazowiecki, 1994) and intellectual approach are the effective methods accredited
so far in all the instances of ethnic cleansing. Administrative approaches are
brought into action through forced labour, restricting the right to movement,
acquiring property without consent, unnecessary identity checking, etc. The
legislative approach is coined by passing discriminatory laws seeking irrelevant
documents to establish citizenship, levy absurd taxes through these laws, etc.
Violent approach includes robbery, unlawful detention, deportation, setting fire of
homes, demolishing cultural and religious establishments, committing rape and
other sexual violence, killing mass people and eventually causing gross
displacement. The non-violent approach is a silent movement against the ethnic
group, which incorporates hate speech, dehumanizing the ethnic group, spreading
hatred, causing disappearance of their leading members and criminalizing them.
The military approach is the last resort to capitulate the vices of ethnic cleansing
through unlawful executions, mass murder, torturing leaders, keeping the territory
in siege and killing intellectuals. Finally, the advocating authors of suppressing
authority capitalize on the intellectual approach. Mostly, they pen against the
oppressed group strategically by defying their identity and root in a particular
territory either to criminalize them or to polarize the general narratives supporting
the ethnic minority in different books, articles and newspapers (Karčić, 2022).
These constituents are met in the case of Rohingya Muslims at different strata
of Myanmar’s oppression. Initially, they denied their identity through several
verbal forwarding. Then, they passed two discriminatory laws to carry out
displacement operations, ultimately causing displacement. In between the
atrocities, they circulated hate speech and hatred in the mass media and among
other groups of people. Eventually, Myanmar brought the denial mechanism into
black letters with discriminatory laws. Side by side, the advocating authors of the
Myanmar government kept writing against the Rohingya minorities to initiate a
Sejan 245

counter-narrative resulting in polarization of opinions (Hunt, 2017). In the end,

the Myanmar military and other armed groups cultivated the operations to
mechanize their 100-year-old plan to abolish Rohingya ethnicity and historical
identity and establish Buddhist inclusivity within Myanmar.

Inefficacy in International Legal Regime to Address

Rohingyas’ Right to Internal Self-determination
Several human rights instruments, the United Nations charter and a guiding
principle have been devised to acknowledge the ‘right to self-determination’.
These instruments merely endeavoured to ascertain and emphasize the external
right to self-determination, especially, rather than the internal one. Internal right
to self-determination dodged into unclear explanations and prescriptions
(Abdullah, 2006). The multiplicands of ‘external right to self-determination’ are
written and demarcated. At the same time, the constituents of internal self-
determination are not even precise.
Consequently, it has always remained to recognize political status in an
integrated territory. But three interlinked interrogations are of vital importance
here. What if an ethnicity does not have any political recognition? What if
ethnicity is not accepted socially and culturally? Or what if these means of
recognition are seized? The international legal regime carries an absolute void
regarding the replies to these questions. Almost in every case, it evoked recognition
of a state within a country to choose their political leader to preach their political
status. What if the state authority recognizes only one ethnicity by denying the
identity of another ethnicity! How was the denied ethnicity supposed to call for
representation of their political leader for their political status? Also, can we resort
to this incomplete present legal regime to establish Rohingya ethnicity socially,
culturally, politically and legally? The international community shall solve these
crippling puzzles before pleading for the identity of Rohingya ethnicity.
Even the United Nations Charter has not defined the word ‘people.’ Rather, it
cooked up some more questions (Rain, 2002). Then who shall be considered as
‘people’? Does an ethnic minority come under the purview of ‘people’? The
principle of ‘right to self-determination’ does not offer this right to ethnic
minorities as per international law practice. The drafters of this charter did not
intend any distinction between the minorities and peoples (Abdullah, 2006). At
the same time, very unclearly, they persuaded the political status of minorities.
The United Nations Charter has prescribed this right as a mere principle to create
more ambiguity in its English translation, whereas the French translation of the
document termed it as a ‘Droit’ or ‘right’ (Abdullah, 2006). But the two human
rights conventions being legally binding instruments have established this
principle as a human right quashing the debate of principle and rights (Shaw,
1997; UN Human Rights Committee [UNHRC], 1984).
There are contentions regarding accepting this right as a human right instead of
the principle theory. As the scope and periphery of the right to self-determination
246 International Studies 59(3)

are undetermined due to the Western perception of self-determination and Third

World countries’ perception of self-determination, defining the internal right to
self-determination is a castle in the air. The evolution and understanding of the
right to self-determination drastically changed after establishing the United
Nations and the end of the colonial era. Till now, internal right to self-determination
has remained undeveloped. This caused many ethnic minorities worldwide
suffering, that is, Tutsi, Twa, Hutu, Albinos, Bosniaks, Bosnian Croats, Uyghur,
Kurds, Rohingyas, etc. (Sterio, 2015). Consequently, these ethnic minorities were
merely treated as Subhuman (Uddin, 2020) in their own country or the country
they took refuge in. There is also a significant policy gap concerning the right to
internal self-determination case.Self-determination has always propagated to
provide political status to ethnic minorities. In pursuance of this, many countries
have recognized the ethnic minorities in their respective countries and given them
constitutional recognition. For example (The Constitution of People's Republic of
Bangladesh, 1972), article 23(A) of Bangladesh’s Constitution (The Constitution
of Republic of India, 1950), article 29 and 30 of the Indian Constitution (The
Constitution of Republic of Rwanda, 2003), article 51 of the Rwandan Constitution
(The Constitution of Islamic Republic of Pakistan, 1973), article 36 of Pakistan’s
Constitution (Constitution of the Federation of Bosnia and Herzegovina, 1994),
Article 2(4) of Bosnia and Herzegovina’s Constitution and article 3 of Nepal’s
Constitution recognize (The Constitution of Nepal, 2015) ethnic minorities.
Almost all the constitutions worldwide designated ethnic minorities with a
specific status within the country.
Myanmar comprises 144 ethnic minorities, and the Burmese Citizenship Act
recognizes 135 of them only (Chaturvedi, 2012). In a country where ethnic
minorities form a state, the international legal regime does not prescribe how the
right to self-determination proposition will determine minorities. After analysing
the jurisprudence for ethnic minorities and their rights under international law,
Rohingyas may resort to political status. Internal law and practice have always
evoked it under the pursuance of the self-determination principle. But it remains
the question of mercy by the Myanmar government till now that we absolutely
should not seek after perceiving the current condition. International law and
principle makers shall anticipate broadening the aspect of self-determination to
ennoble the right to internal self-determination with more precise essentials.

Conclusion
Internal self-determination is not a new phenomenon to the jurisprudence of self-
determination. Self-determination includes both external and internal versions of
self-determination. Previously, drafters and principle makers of international law
paid less heed in exploring different aspects of internal self-determination.
Thousands of ethnic minorities worldwide only claim political recognition to live
with dignity. Many of them earn it at the mercy of the government. Some like the
Rohingyas could never climb up the tree of acceptance and recognition. And that
Sejan 247

is where the significance of institutionalizing the ‘right to internal self-

determination’ lies. Authors and principle makers should also step up to broaden
the aspect of self-determination. For this, some fundamental criterion may be
fixed to appease the claim of internal self-determination. In Rohingyas’ case, ICJ
may extend the scope of self-determination during the delivery of final relief after
the completion of provisional measures. This expansion shall be inclusive of the
scope of internal self-determination. Rohingyas, being designated as protected
group under the Genocide Convention, have now become strong claimants of
internal self-determination.
Simultaneously, International Criminal Court’s (ICC) Pre-trial Chamber III
investigates crimes against humanity under article 15 of Rome Statute of 1998
against Myanmar. Amid this pressure, the repatriation of Rohingyas will soon
become unavoidable. The perpetrators may get prosecuted sooner or later. But
ICC may also proceed with a different narrative apart from prosecuting the
offenders. It may, during its procedure, establish Rohingyas’ ethnicity to deliver
them healthy repatriation because Myanmar shall repatriate them and recognize
them under its constitution. Discussing Rohingyas’ ethnicity firmly in several
platforms in the United Nations and other international forums will help to
establish Rohingyas’ right to internal self-determination. United Nations shall not
leave a whole race for the mercy and maltreatment of the Myanmar government.
Security Council may adopt the panoramic resolution to institutionalize
internal self-determination to encourage better policies at the regional level
unanimously. Also, all the related instruments relating to self-determination shall
clearly define ‘people and ethnic minorities.’ Internal self-determination shall be
differentiated from external self-determination with explicit standards.
Rohingyas’ struggle for recognition is as archaic as the history of Arakan, and the
name of Arakan was altered with the intention to dispossess Rohingyas from
their authentic identity. Their recognition struggle seeks relief in the form of
internal self-determination with absolute concentration. Besides, international
forums shall adopt other relatable reliefs through the mechanisms to be prescribed
by ICJ and ICC.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship
and/or publication of this article.

Funding
The author received no financial support for the research, authorship and/or publication of
this article.

ORCID iD
Sakhawat Sajjat Sejan https://orcid.org/0000-0003-4222-1461
248 International Studies 59(3)

References
Abdullah, M. (2006). The right to self-determination in international law: Scrutinizing the
colonial aspect of the right to self-determination (Master thesis [Tillämpade studier],
32–33). Public International Law. gupea.ub.gu.se/handle/2077/1888
Agence France-Presse. (2017, September 16). Tracing history: Tension between Rohingya
Muslims, Buddhists date back to British rule. Hindustan Times. https://www.hindu-
stantimes.com/world-news/tracing-history-tension-between-rohingya-muslims-bud-
dhists-date-back-to-british-rule/story-9mo9eTjOaJ4JQmXGef0BHL.html
Ahmed, I. (2019). The plight of the stateless Rohingyas (3rd ed.). The University Press.
Ahmed, H. U. (2019 July 27). A historical overview of Rohingya crisis. Dhaka Tribune.
https://www.dhakatribune.com/opinion/longform/2019/07/27/a-historical-overview-
of-the-rohingya-crisis
AP. (1989, June 20). Burma takes another name: Now, the Union of Myanmar. New York
Times. https://www.nytimes.com/1989/06/20/world/burma-takes-another-name-now-
the-union-of-myanmar.html
Bell-Fialkoff, A. (1993). A brief history of ethnic cleansing. Foreign Affairs, 72(3), 110–
121. https://www.jstor.org/stable/20045626
Burmese Citizenship Law. (1982). Section 7. http://un-act.org/publication/view/myan-
mars-citizenship-law-1982/
Carmichael, C. (2002). Ethnic cleansing in the Balkans: Nationalism and the destruction of
tradition (1st ed.). Routledge Press. https://dx.doi.org/10.4324/9780203218334
Center for Preventive Action. (2022, May 12). Rohingya crisis in Myanmar. Global
Conglict Tracker. https://www.cfr.org/global-conflict-tracker/conflict/rohingya-cri-
sis-myanmar
Chaturvedi, M. (2012). Myanmar’s ethnic divide: The parallel struggle. Institute of Peace
and Conflict Studies—Special Report, 131, pp. 1–12 https://www.jstor.org/stable/
resrep09338?seq=1#metadata_info_tab_contents
Constitution of the Federation of Bosnia and Herzegovina. (1994). Article 2(4). https://
advokat-prnjavorac.com/legislation/constitution_fbih.pdf
Convention on the Prevention and Punishment of the Crime of Genocide. (1948). Approved
and proposed for signature and ratification or accession by General Assembly resolu-
tion 260 A (III) of 9 December 1948, Entry into force: 12 January 1951, https://www.
un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20
on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20
of%20Genocide.pdf
Das, S. (2020, February 11). Authoritarianism, Buddhism, and the Rohingya crisis in
Myanmar: A critical inquiry. The Journal of Contemporary Asian Studies. https://
utsynergyjournal.org/2020/02/11/authoritarianism-buddhism-and-the-rohingya-cri-
sis-in-myanmar-a-critical-inquiry/
D’Costa, B. (2012, July 4). The Rohingya and the denial of the ‘Right to have
rights’. Reliefweb, https://reliefweb.int/report/myanmar/rohingya-and-denial-
%E2%80%98right-have-rights%E2%80%99
Fellmeth, A. X., & Horwitz, M. (2009). Guide to Latin in international law. Oxford
Reference, Dolus Specialis—“Special deceit.” meaning harm resulting from an
act specifically intended to cause that harm. https://www.oxfordreference.com/
view/10.1093/acref/9780195369380.001.0001/acref-9780195369380-e-574
Frewer, T. (2015, March 26). Fascist assemblages in Cambodia and Myanmar (March 26,
2015). New Mandala. https://www.newmandala.org/fascist-assemblages-in-cambo-
dia-and-myanmar/
Sejan 249

GPA News. (2017, September 5). Myanmar—The most silent genocide. Geopolitics Alert.
https://geopoliticsalert.com/myanmar-genocide
Helsinki Final Act. (1975). Chapter 1, Conference on security and co-operation in Europe
final act, 7. https://www.osce.org/files/f/documents/5/c/39501.pdf
Human Rights Watch (HRW). (1996, September 1). Burma: The Rohingya Muslims:
Ending a cycle of exodus? C809. https://www.refworld.org/docid/3ae6a84a2.html
Hunt, K. (2017, September 20). How Myanmar’s Buddhists feel about the Rohingya,
CNN. https://edition.cnn.com/2017/09/19/asia/myanmar-yangon-rohingya-bud-
dhists/index.html
International Court of Justice (ICJ). (2019a). Application instituting proceedings and
request for provisional measures (The Gambia v. Myanmar). https://www.icj-cij.org/
public/files/case-related/178/178-20191111-APP-01-00-EN.pdf
International Court of Justice (ICJ). (2019b). Application of the convention on the preven-
tion and punishment of the crime of genocide (The Gambia v. Myanmar)—Conclusion
of the public hearings on the Request for the indication of provisional measures sub-
mitted by the Republic of The Gambia - The Court to begin its deliberation. https://
www.icj-cij.org/en/case/178
International Law Commission. (1988, May 9–July 29). Report of the international law
commission on the work of its fortieth session, Official Records of the General
Assembly, Forty-third Session, Supplement No. 10. https://legal.un.org/ilc/documen-
tation/english/reports/a_43_10.pdf
Karčić, H. (2022). Torture, humiliate, kill: Inside the Bosnian Serb camp system (1st ed.).
University of Michigan Press. https://doi.org/10.3998/mpub.12079875
Katz, E. (2018, January 30). The trials of democracy: Myanmar in perspective. Stanford
Politics. https://stanfordpolitics.org/2018/01/30/trials-democracy-myanmar/
Lee, Y. (2018, March 12). Special Rapporteur on the situation of human rights in Myanmar
the 37th session of the Human Rights Council, OHCHR https://www.ohchr.org/en/
NewsEvents/Pages/DisplayNews.aspx?NewsID=22806&LangID=E
Liton, S. (2017, December 25), Genocide of Rohingyas: Is another Bosnia in the making?
The Daily Star. https://www.thedailystar.net/backpage/genocide-rohingyas-another-
bosnia-the-making-1509904
Maung, S. L. (1989). Burma (Nationalism and Ideology): An analysis of society, culture
and politics. University Press.
Mazowiecki, T. (1993a). Case of Croatia, Third Mazowiecki report on the situation of
human rights in the territory of the former Yugoslavia. https://digitallibrary.un.org/
record/226088
Mazowiecki, T. (1993b). Report on the situation of human rights in the territory of the
former Yugoslavia/Submitted by Tadeusz Mazowiecki (First Mazowiecki Report I, at
4, point 15; Third Mazowiecki Report I, at 6, point 9; Fourth Mazowiecki Report II, at
2, point 11.). https://digitallibrary.un.org/record/226088
Mazowiecki, T. (1994). Third Mazowiecki report, at 2–3, points 6–13; Fourth Mazowiecki
report I, at 5, point 29. Peter Kessler from UNHCR accused the Serbs of ‘ethnic
cleansing by starvation,’ ‘UN Denounces Serbs for Blocking Convoy,’ International
Herald Tribune, March 16, 1994, at 2., See also: Fifth Mazowiecki Report, at point: 7,
12, 23, 36, 37, 84 and 163. (Report on the situation of human rights in the territory of
the former Yugoslavia). https://digitallibrary.un.org/record/226088
McManus, R. (2018, November 16). ‘Blind’ man gazes into future. https://nihrecord.nih.
gov/2018/11/16/blind-man-gazes-future
250 International Studies 59(3)

Pajic. (1993). Violation of fundamental rights in former Yugoslavia: 1. The conflict in

Bosnia and Herzegovina (Occasional Paper No. 2). The David Davies Memorial
Institute of International Studies.
Petrovic, D. (1994). Ethnic cleansing—An attempt at methodology. European Journal of
International Law, 5, 342–359. www.ejil.org/pdfs/5/1/1247.pdf
Rahman, M. M., & Mohajan, H. K. (2019). Rohingya-The stateless community becom-
ing the lost generation. Journal of Economic Development, Environment, and People,
8(2), 24–36. https://doi.org/10.26458/jedep.v8i2.621
Rain, D. (2002). Statehood and the law of self-determination (Vol. 43 of Development in
International Law Series). Martinus Nijhoff Publishers.
Razzak, A., & Haque, M. (1995). A tale of refugees: Rohingyas in Bangladesh. The Center
for Human Rights.
Rummel, R. J. (1668). Death by government (5th ed.). Transaction Publishers.
Salim, S. (2019, September 20). Rohingya crisis: A historical perspective. HeritageTimes.
http://heritagetimes.in/rohingya-crisis-a-historical-perspective/
Schabas, W. A. (2000). Groups protected by the genocide convention: Conflicting inter-
pretations from the international criminal tribunal for Rwanda. ILSA Journal of
International Law, 6, 375–387. https://core.ac.uk/download/pdf/51091794.pdf
Senese, S. (1989). External and internal self-determination. Human Rights & Peoples
Rights: Views from North and South, 16(1), 19–25. https://www.jstor.org/sta-
ble/29766439
Shaw, M. N. (1997). International law. Cambridge University Press.
Siddiqui, M.M., Musalman, A., & Chowdhury, M.A. (2006, October 22). The advent of
Islam in Arakan and the Rohingyas. Arakan Rohingya National Organisation. https://
www.rohingya.org/the-advent-of-islam-in-arakan-and-the-rohingyas/
Sociology of Race. (2020). Ethnic cleansing. http://sociology.iresearchnet.com/sociology-
of-race/ethnic-cleansing/
Sterio, M. (2015). Self-determination and secession under international law: The new
framework (Law Faculty Articles and Essays). ILSA Journal of International Law,
21(2), 293–306. https://engagedscholarship.csuohio.edu/fac_articles/847
Strass, S. (2012). “Destroy them to save Us”: Theories of genocide and the logics of politi-
cal violence. Terrorism and Political Violence, 24(4), 544–560. https://doi.org/10.10
80/09546553.2012.700611
Talmon, S. (2015). Determining customary international law: The ICJ’s methodology
between induction, deduction, and assertion. European Journal of International Law,
26(2), 417–443. https://doi.org/10.1093/ejil/chv020
The Constitution of Islamic Republic of Pakistan. (1973). Article 36. www.na.gov.pk/
uploads/documents/1333523681_951.pdf
The Constitution of Nepal. (2015). Article 3. https://www.wipo.int/edocs/lexdocs/laws/en/
np/np029en.pdf
The Constitution of Republic of India. (1950). Article 29 and 30. https://indiankanoon.org/
doc/30435647/
Tirman, J. (2004). The maze of fear. The New Press.
Uddin, R. N. (2020). The Rohingya: An ethnography of ‘Subhuman’ life. Oxford University
Press.
UDRP. (1976, July 4). Algiers declaration. https://www.algerie-tpp.org/tpp/en/declara-
tion_algiers.htm
UN Charter. (1945). Chapter I: Purposes and principles. https://www.un.org/en/about-us/
un-charter/chapter-1
Sejan 251

UN Human Rights Committee. (1984). CCPR general comment no. 12: Article 1 (Right
to Self-determination), The Right to Self-determination of Peoples. Refworld, https://
www.refworld.org/docid/453883f822.html.
UN Office on Genocide Prevention and Responsibility to Protect. (2022). Genocide.
https://www.un.org/en/genocideprevention/genocide.shtml
UNGA. (1970). Declaration on principles of international law concerning friendly relations
and co-operation among states following the charter of the United Nations [Adopted
on a Report from the Sixth Committee (A/8082)]. http://www.un-documents.net/
a25r2625.htm
UNHCR. (2019, June 19). Figures at a glance. https://www.unhcr.org/figures-at-a-glance.
html
United Nations Declaration on the Rights of Indigenous Peoples. (2006). United Nations
General Assembly. https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
Writenet. (1993, December 1). Myanmar: Muslims from Rakhine state: Exit and return.
Refworld. https://www.refworld.org/docid/3ae6a6bec.html
Yegar, M. (1972). Muslims of Burma: A story of minority group (Schriftenreihe Des
Sudasien Instituts Der Universitat Heidelberg). Otto Harrassowitz.
Yegar, M. (2002). Between integration and secession: The Muslim communities of the
Southern Philippines, Southern Thailand, and Western Burma / Myanmar. Lexington
Books.