Taking Statelessness Seriously: Linkages to Mass Atrocities?

Statelessness as a phenomenon has been in the news of late – from the impact of statelessness on the Rohingya, to the potential revocation of nationality of 4 million in India’s Assam state, and the grant of citizenship to some survivors of a dramatic rescue of a Thai football team. It is estimated that there are approximately 10 million individuals who are stateless currently. While there is some awareness of what this entails, the root causes of, and remedies for statelessness are multiple and complex.

It is arguable that nationality and its corollary, statelessness, are factors that have facilitated the commission of mass atrocities, such as against the Rohingya in Myanmar. The intent here is not to establish cause and effect – as there are undoubtedly multiple factors resulting in such atrocities – but is an attempt to tease out potential interlinkages between legal conditions that create statelessness and those that address the commission of mass atrocities.

Marginalization and statelessness in Myanmar

The implications of these interlinkages as drivers of marginalization and conflict emanate from the recent events in Myanmar and need to be addressed increasingly urgently. As a starting point, the U.N. Independent International Fact-Finding Mission on Myanmar (‘FFM’) – set up to examine the situation in Myanmar from 2011, including the recent atrocities committed against the Rohingya – issued its report on 18 September 2018.

Assessing violations of human rights and humanitarian law in Rakhine, Shan and Kachin states from 2011, the FFM found patterns of the “gravest crimes” under international law, to be investigated and prosecuted. The FFM detailed crimes against humanity, including murder, torture, forms of sexual violence, and potentially persecution and apartheid. It also found the potential inference of genocidal intent.

A significant aspect of the report relates to the references to de facto statelessness and decades of stigmatization. In the words of the report in para. 1377:

“The situation of the Rohingya in Rakhine State has been aggravated by their gradually increasing exclusion from the Myanmar nation since the 1960s, amid decades of State-sponsored stigmatization, leading to their being de facto stateless and reviled by much of the population.”

(emphasis my own).

The FFM report makes multiple references to statelessness, and the discrimination inherent in the Constitution and legal framework that excludes non-citizens from rights and obtaining effective remedies for violations (para. 1584). The role of social media in permitting a climate of hate to flourish is highlighted, with explicit references to the status of Rohingya as stateless in many of the posts and messages inciting violence (para. 1203).

The Myanmar FFM report has shone the spotlight on the implications of statelessness and the lack of nationality to demonize and marginalize individuals – thereby creating an enabling environment for the commission of mass atrocities.

Legal framework for statelessness

There is a matrix of laws, both international and domestic, that relate to nationality and statelessness.

At the national level, laws relating to statelessness encompass those that confer or remove citizenship, including those that exclude categories of people. Apart from the obvious provisions (such as in the Constitution and citizenship legislation), immigration and detention laws, laws pertaining to hate speech, discriminatory laws resulting in segregation are some that may be relevant in assessing compliance with international legal standards.

The treaties that address statelessness squarely – the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness – do not have many signatories. These treaties place obligations on states to end statelessness and prohibit discrimination for the grant of nationality. However, safeguards relating to nationality are in a range of well ratified international human rights conventions such as the ICCPR, ICESCR, CRC, and CEDAW. The range of protections include the right to nationality of children, nationality upon marriage, as well as the general right to nationality, detailed in Article 15 of the UDHR. (For more on the ASEAN position in regard to statelessness, see here).

Of late, there have been international legal developments focusing on statelessness. In the 2014 Inter-American Court of Human Rights Case of Expelled Dominican and Haitian people v Dominican Republic relating to Haitian descendants in the Dominican Republic, the right to nationality as an independent right and the obligation on states to not discriminate have been reaffirmed. In the 2018 case of Hoti v Croatia at the European Court of Human Rights, the right of residence and family life in Croatia discussed statelessness as a central component of the case, eventually finding against Croatia.

Mass atrocity crimes – A missing link or irrelevant extension?

However, is there any international legal reference or connection to statelessness, as related to the commission of mass atrocities?

There are no direct references to statelessness and mass atrocities in international humanitarian law or international criminal law. However, there are a few provisions that may be relevant in addressing certain aspects of statelessness – the crimes against humanity of deportation or forcible transfer; persecution; and the crime of apartheid (Article 7 (1)(d), (h) & (j), Rome Statute). Statelessness may also be relevant related to aspects of the crime of genocide (Article 6, Rome Statute), such as “(b) Causing serious bodily or mental harm to members of the group; and “(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;” And lastly, the war crime of unlawful deportation or transfer (Article 8, Rome Statute).

Statelessness may not be implicated directly in these situations but may be viewed as either part of the underlying factors part of or resulting in the crimes, or as the end result of the commission of such crimes. For instances, the act of deportation – either as a crime against humanity or a war crime – may result in statelessness. In the inherent discrimination necessitated in the creation of conditions of statelessness – exclusion, discrimination, marginalization – it could be argued that these have created or are a part of “…institutionalized systems of oppression” (crime against humanity of apartheid), as well as the conditions for persecution (“intentional and severe deprivation of fundamental rights…” and targeting persons by reason of identity of group). In the case of genocide, it could be argued that the aspect of “mental harm” referred to could include statelessness, given its “grave and long-term disadvantage to a persons ability to lead a normal and constructive life…” (For cases and additional details, see Klamberg, Commentary on the Law of the International Criminal Court, 2017, footnotes 40, 41, 49, 58 & 60)

In the jurisprudence of the ICTY, statelessness is mentioned as a factor that does not deprive an individual of protection, and for whom protection in regard to crimes against humanity would apply. However, the other aspects mentioned above have not been fully adjudicated upon in international courts.

There are a few reasons for this – the lack of a factual context in which statelessness is a significant consideration, and the inability to conceive of statelessness as a crime thus far. However, the lack of a distinct legal category and adjudication should not detract from the significance of this right and its implications in regard to mass atrocities. It is also worth noting that the tension between the development of the recognition and protection against statelessness as a fundamental international legal right may be at odds with the potential for international criminalization.

Conclusion

Most discriminatory laws are implicated in facilitating the legal environment that enables the commission of mass atrocities. Laws enabling statelessness may be viewed as an integral part of a continuum of such laws, leaving individuals extremely vulnerable. There has been scant attention paid to the legal parameters of statelessness, despite efforts to the contrary. There is also a very limited understanding of the relevance of the issue to mass atrocities.

The case of statelessness of the Rohingya should emphasize the perils of ignoring this significant aspect of rights, that has now morphed into a much more sinister avatar. There is an inherent value and need to focus on the issue of statelessness with some urgency, regardless. It is hoped this focus will not only begin an inquiry into the role of statelessness in mass atrocities, but also on the conditions around stateless in general. These are areas worthy of more detailed research and advocacy.