Ethnic conflicts in Myanmar : the application of the law of non-international armed conflict
Megumi Ochi and Saori Matsuyama
Asia-Pacific perspectives on international humanitarian law
Cambridge : Cambridge University Press, 2020
This chapter provides an analysis of the applicable laws of non-international armed conflict (NIAC) to the ethnic conflict in Myanmar which captured the world’s attention in 2017: the Rohingya crisis. In addition to other violations, the conflict involving the Rohingya people in Rakhine state saw hundreds of thousands of people fleeing to Bangladesh as a result of violent acts against Rohingya civilians by the military forces and its followers. The chapter first provides an overview of Myanmar’s long history of conflict between different groups in order to highlight the complexity and characteristics of Myanmar’s ethnic conflicts. Second, the chapter confirms the applicability of the law of NIAC in Myanmar. Myanmar is party to the four Geneva Conventions of 1949 (Geneva Conventions). However, it is not party to the Additional Protocols of 1977. The legal regime of the International Criminal Court (ICC) and the customary rules of international criminal law (ICL) is also applicable to the Rohingya crisis because of the cross-border deportation to Bangladesh of the civilian population. Third, the chapter discusses the threshold of applicability of Common Article 3 of the Geneva Conventions (CA 3) and the customary rules of NIAC. Fourth, it examines whether the threshold of NIAC has been reached in the violent situations in Rakhine state in 2017. The armed conflicts in Kachin and Shan states have a long history and many researchers have examined the conflicts from various perspectives. By contrast, little research has been conducted on the legal issues with respect to the armed conflict in Rakhine state. In conclusion, this chapter points to the unreasonable consequence of the automatic application of the laws of NIAC to the situation in the Rakhine state. Application of IHL would legitimise the unilateral shootings and killings by the military forces of the civilians who responded to the commander of the armed group’s WhatsApp message and participated in the violence with homemade weapons.
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