ANALYSIS OF THE CRIME OF GENOCIDE BY MYANMAR AGAINST
ETHNIC ROHINGNYA FROM THE PERSPECTIVE OF INTERNATIONAL
CRIMINAL LAW
Arland Berry
Arizona State University
Course
Professor Elizabeth
May, 2024
Week 3
Introduction
The term international criminal law was originally introduced and developed by
international law experts from mainland Europe such as Freiderich Meili in 1910 from
Switzerland, Georg Schwarzenberger in 1950 from Germany, Gerhard Mueller in 1965
from Germany, J.P Francois in 1967, Rolling and Van Bemmelen in 1979 from the
Netherlands, then followed by legal experts from the United States such as Edmund
Wise in 1965 and Cherif Bassiouni in 1986 (Efendi, 2014: 37).
International Criminal Law indicates the existence of a crime that is international
in nature, namely crimes that are regulated in international conventions as international
crimes. As for what is meant by international criminal law is the law that determines the
national criminal law that will be applied to crimes that have actually been committed if
there is an international criminal law. There are international elements in it, including
individuals, states, and private entities. International criminal law as a new branch of
science in the history of its development is inseparable and even closely related to the
history of the development of human rights (Effendi, 2014: 34).
The ICC is a permanent and independent court capable of investigating and
prosecuting any person who commits serious violations of international crimes.
International criminal law has as its main source the Rome Statute. The 1998 Rome
Statute on the establishment of the International Criminal Court (ICC) is the legal basis
for the establishment and enforcement of the International Criminal Court (ICC). Since
its ratification on July 17, 1998, the Rome Statute has been amended through a review
conference held in Kampala from May 21 to June 11, 2010. Genocide is defined as
murder with intentional killing, destruction or extermination of a group or members of a
group, was first considered as a subcategory of crimes against humanity (Effendi, 2014:
111).
Regulations related to genocide include the charter of the international military
tribunal of Nurnberg, the 1948 Genocide Convention, the ICTY Statute, the ICTR
Statute, the 1998 Rome Statute. Meanwhile, the institutions for punishing genocide
include punishment by the National Court, punishment by the Hybrid Court, and
punishment by the International Criminal Court. The International Military Tribunal of
Nurnberg and the International Military Tribunal of Tokyo were the foundation for the
establishment of international criminal tribunals in the following period, namely, the
International Military Tribunal of Nurnberg, the International Criminal Tribunal for the
Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the
International Criminal Court (ICC) (Siswanto, 2015: 83). Data from Amnesty
International 2011-2017, after the conflict began, the Rohingya people have suffered a
long period of human rights violations committed by the Myanmar Junta Government.
The Rohingya people's freedom of movement is severely restricted, they are also
subjected to various forms of extortion and arbitrary taxation, land grabbing, forced
evictions, and the destruction of homes and imposition of high administrative fees on
marriages. Actually, the dispute between the Rohingya ethnicity and the Myanmar
government is not a conflict about religion, namely based on Article 3 of the Burma
Citizenship Law in 1982 states that the Rohingya are only immigrants who were placed
by the British colonials from the Bhanglades, this was reaffirmed by the statement of
the Minister of Foreign Affairs of Myanmar on February 21, 1992. Ethnic rohingnya
Muslims are illegal immigrants and have not received citizenship status from the
government Myanmar. Because of this, the Myanmar government discriminates against
the ethnic Rohingya Muslims.
They have been employed as forced laborers on roads and in military camps,
although the number of forced laborers in northern Rakhaing has decreased over the
past few years. This discriminatory treatment has forced them to become boat people
and leave Myanmar to seek safety in other countries. Countries that have become their
transit and destination include Bangladesh, Malaisya, Pakistan, Saudi Arabia, Thailand,
Indonesia and Australia (Faniati, 2102: 8). Actually, the dispute between the Rohingya
ethnicity and the Myanmar government is not a conflict about religion, which is based
on Article 3 of the Burma Citizenship Law in 1982 which states that the Rohingya are
only migrants who were placed by the British colonialists from the Bhanglades, this was
reaffirmed by the Myanmar Foreign Minister's statement on February 21, 1992.
Ethnic rohingnya Muslims are illegal immigrants and have not received
citizenship status from the Myanmar government. Because of this, the Myanmar
government discriminates against the ethnic Rohingya Muslims. The rohingya
community has experienced various forms of human rights violations that include acts
of genocide, especially since 1978. The right to freedom of movement for the rohingya
people is strictly restricted and most of them are not recognized as Myanmar citizens.
The purpose of this research consists of the first general purpose and the second specific
purpose, namely, the general purpose of this research aims to find out the history of the
Rohingya ethnicity in Myanmar. To increase knowledge, especially in the field of
international criminal law regarding genocide, and international criminal justice. The
specific objectives of this study, namely the first, aim to analyze and find out the actions
taken by the government.
Myanmar to the ethnic rohingnya is a crime of genocide. The next goal is to find
out the efforts to resolve disputes between the Government of Myanmar and ethnic
rohingnya from the perspective of international criminal law. From the above
background, the researcher gets two formulations of the problem, namely, whether the
crime committed by Myanmar is a crime of genocide, and how efforts to resolve
disputes that occur between Myanmar and ethnic rohingnya from the perspective of
international criminal law.
Research Methods
Research is a key tool in the development of science and technology. Because
research is a means for the development of science and technology, the research
methodology applied must always be adapted to the science that is the parent. This does
not necessarily mean that the research methodologies used by various sciences will be
completely different. However, each science has its own identity, so there will definitely
be various differences (Soekanto and Mamuji, 2015: 1). The type of research used by
researchers in this study is a type of normative legal research, normative legal research,
namely research conducted by examining laws and regulations that apply or are applied
to a particular legal problem. Normative research is often called doctrinal research,
namely research whose object of study is legislative documents and library materials
(Soejono and Abdurahman, 2003: 56). It is said that the legislative approach is in the
form of legislation and regulations formed by state institutions or authorized officials
and is generally binding (Geraldi, 2013: 18).
Primary Legal Sources: legal materials that are authoritative, meaning they have
authority. In this case, rules such as the 1998 Rome Statute, the Statute of ICTY, ICTR
Statute, Tokyo Statute and Nurnberg Statute. Secondary Legal Sources: namely all
publications on law that are not official documents, Tertiary legal sources are materials
that provide additional guidance or explanation of primary and secondary legal
materials contained in the research.
The technique of collecting legal materials is by exploring the normative framework
using legal materials that discuss legal theories, human rights protection for Rohingya
Muslims. Both primary and secondary legal materials are collected based on the topic of
the problem that has been formulated based on the card system and classified according
to the source and hierarchy to be reviewed comprehensively.
Results And Discussion
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
The actions taken by Myanmar against ethnic rohingnya is a crime of Genocide
Genocide according to article 6 of the 1998 Rome Statute is a crime committed
systematically with the aim of destroying all or part of an ethnicity, race, tribe, and
religion such as :
Killing a group;
Causing severe injury or mentally damaging a group;
Intentionally endangering the life of a group by causing partial or total physical
harm;
Undertake actions intended to prevent births in groups;
Forcibly moving children from one group to another.
Etymologically, the term genocide comes from the Greek word, "Geno', meaning
"race" and the Latin word "cidium" meaning "to kill". Thus literally, genocide is defined
as the killing of a sense or the extermination of a race. Genocide, defined as the
deliberate killing, destruction or extermination of a flavor or members of a group, was
first considered as a subcategory of crimes against humanity (Effendi, 2014: 111).
The term was first popularized by Raphael Lemkin in 1944 to refer to the systematic
and widespread slaughter of Jews in Europe. Therefore, it is very appropriate what
sociologist Leo Kuper stated that although genocide is a new term, what is contained in
the term is actually an old concept (Siswanto, 2015: 27).
Factors that cause genocide include:
Race Factor
The first factor about racial differences by some groups in the world resulted in the
cause of genocide crimes such as those that occurred in South Africa in the 17th
century, which began with the case of Apartheid. This event arose because after the
independence of the South African nation from colonization by the British and the
Dutch, at that time two groups had formed that would control South Africa. Among the
groups that wanted to control the South African State, one of the Nationalist Parties had
won and controlled it. The Nationalist Party's tactics and strategies in one of them
created the Apartheid conflict as a way to strengthen their control over the form of
economic and social systems (Widyawati, 2014)
Tribal Factors
The next cause that can lead to the crime of genocide is the ethnic background of a
group. Problems that arise due to ethnic discrimination, rights violations committed
against minority groups. According to Colier, states that ethnic conflict is not only
caused by general ethnic differences, religion, politics, and economic development, but
also because it can be caused by civil society in the country a place itself (Widyawati,
2014: 65).
Religious Factors
The factor that can cause the next genocide crime is religion, as with the previous
triggering factors that religious backgrounds are fundamental to the emergence of
divisions between one group and another. Where minority religions will always be
oppressed by religions that are classified as the majority in a place where there is
violence against humanity. Conflicts caused by religious factors are indeed more
extreme for violence and even attacks on people of other religions (Widyawati, 2014:
66). Divisions that arise due to religious factors will continue to occur if a group does
not have the initiative to solve the problem that causes the conflict itself. The main role
lies with religious leaders, elders and leaders in a religion who have the authority and
trust in fostering and directing their groups not to commit violence against fellow
humans (Widyawati, 2014: 66).
Myanmar is one of the countries in Southeast Asia, so writing a complete history of
Burma (now Myanmar), especially in the Arakan region has not been able to be
clarified by historians objectively. So far, modern historians have written about events
relevant to the history of Arakan. Old sources about the history of Arakan are also
available, in the form of chronicles, history books, and articles written in Burmese by
several researchers, but they still cause controversy and distortion due to the bias of
strong group interests (Bustamam, 2013: 311) In recent months, Burma has made
headlines regarding human rights violations, especially cases of discrimination against
ethnic Muslim minorities. The term Rohingya has become highly controversial. The
Rohingya ethnicity is also often associated with the ethnicity, language, and religion of
the Bengali who settled in the Chitaggong region. It is widely believed that Bengali
Muslims in Arakan today came with the 19th and 20th century British colonials 20. The
Rohingya are often associated with illegal immigrants due to the war of independence
and the cyclone disasters in 1978 and 1991. There is also an assessment that they want
to establish citizenship statuts like other indigenous ethnicities, such as Shan, Karen,
Kachin, and Chin (Bustamam, 2013: 312).
In general, the government, historians and academics tend to publicize that there are
135 ethnic groups in Burma, the largest of which are Burman, Chin, Kachin, Shan,
Arakanese, Kayah, Karen and Mon. Although the government claims there are 135
ethnicity, there is no official data on the number of ethnic minorities in Burma. The
Kachin, Karen, Kareni, Shan, Chin, Mon and Arakan are ethnic groups that can trace
their lineage and negotiate boundaries with the government.
The ethnic population in Burma consists of the Burman ethnicity who the majority
of 50 million people (50-75%). The next largest minority groups are the Shan (9%) and
Karen (7%). While the ethnic Mon, Arakan, Chin, Kachin, Karen, Rohingnya, Kayan,
Chinese, Indian, Danu, Akha, Kokang, Lahu, Naga, Palaung, Pao, Tavoyan, and Wa
population is only about 5% or below that figure (Bustamam, 2013: 317). Rohingya are
Muslim people who live in the Arakan region in western Myanmar. According to the
United Nations, the Rohingya are one of the most persecuted minorities in the world.
Many people Rohingya have fled to safety and escape rooms in neighboring
Bangladesh, and areas along the Thai-Myanmar border. We already know together that
the crime of genocide is the most serious crime discussed by the world today, because
genocide is a crime that intends to destroy the Rohingya To ethnic, racial and religious
cleansing of certain groups.
The genocide committed by the Myanmar government against ethnic rohingnya is
an act that has violated the human rights of the rohingnya community. Severe human
rights violations occurred, there are two general reactions arising from the rohingnya
community, namely staying in Myanmar or choosing to become refugees in other
countries (Soetjipto, 2015: 132). The rohingnya people who stayed experienced
inhumane treatment and were increasingly oppressed by the non-recognition of them as
citizens of Myanmar, the non-recognition of the rohingnya as citizens of Myanmar.
Myanmar causing the rohingnya community to become stateless persons. A major
conflict that affects the parties involved, in this case the Myanmar government and the
ethnic Muslim rohingnya (Soetjipto, 2015: 132).
The genocide in Myanmar was marked by the killing of Rohingya Muslims by the
Buddhist population of Myanmar in 1938, massive arrests in 1970, and the enactment of
the 1982 citizenship law which structurally made the existence of the Rohingya
community illegal in the eyes of the law (Soetjipto, 2015: 133).
Discrimination against the Rohingya community has been going on since 1938 and
30,000 Rohingya Muslims were killed on July 26, 1938. The same incident has been
repeated in 1942, 1968, 1992, and culminated in 2012 (Froyoplus, 2012). In 1982 the
Myanmar government officially issued the "Burma Citizenship Law 1982" which
discriminates against the ethnic rohingnya (Karuniawan, 2012: 11). Since the issuance
of the law, ethnic rohingnya children have been denied their right to study and as a
result, they have not continued their studies and have received various pressures such as
economic, arrest, torture, and other types of discrimination (Karuniawan, 2012: 11).
The situation is getting worse and sadder when rohingnya Muslim women are
forbidden to wear hijab, many of them are oppressed, discriminated, and other violence.
The Rohingya community is also discriminated against in the health sector, the
Rohingya community does not get the same treatment in hospitals and clinics in
Myanmar. The Rohingya community is forced to pay the price of treatment and hospital
fees are very expensive compared to the people of Myanmar (Karuniawan, 2012: 11).
The acts of genocide experienced by ethnic rohingnya occurred in various forms
such as rape, murder, oppression of children, confiscation of houses, land, destruction
and prohibited from repairing mosques, replacing mosques with Buddhist pagodas,
restricting their movement and marriage, arrest and torture without talking, and forcing
them to leave Islam and embrace Buddhism (Karuniawan, 2012: 12).
The genocide committed by Myanmar against ethnic rohingnya is a very cruel act
because it has eliminated the human rights of ethnic rohingnya people. Actions taken
such as killing, raping, exterminating, burning, not giving to adhere to their respective
religions, planning to exterminate ethnic rohingnya is a very serious crime of genocide.
It is hoped that the United Nations must act in this case so that this case is quickly
resolved and there are no more similar cases that occur in other countries.
From the explanation above, researchers can draw results related to the actions taken
by the Government of Myanmar against ethnic rohingnya have fulfilled the elements
that these actions can be categorized as acts of genocide crimes. The requirements of an
act can be said to be an act of genocide, if it fulfills elements such as mass murder,
carried out systematically, discrimination against a religion, and aims to eliminate a
particular ethnicity or group that is a minority. So from this, researchers can describe
that the actions taken by the Myanmar government have fulfilled the elements above,
even exceeding the main elements, so it can be concluded that the actions taken by the
Myanmar government against ethnic Muslims are international crimes of genocide.
Efforts to Settle Disputes Between the Government of Myanmar and Ethnic
Rohingya from the Perspective of International Criminal Law
International dispute resolution is a method used to resolve problems faced by
countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
International dispute resolution efforts are the means used to resolve problems faced
by countries in dispute. In general, dispute resolution that we all know includes dispute
resolution through the court and outside the court or litigation and non-litigation.
Dispute resolution outside the court is a dispute resolution that is carried out not in front
of a judge but in front of a mediator or a third person who has been appointed
beforehand, out-of-court dispute resolution includes:
Negotiation, is The most basic dispute resolution method used by the community,
many disputes are resolved every day in this way, the main reason is that in this
way, the parties can supervise the dispute resolution procedure and each settlement
is based on the agreements of both parties (Winarwati, 2017: 78).
Mediation, is a way of resolving disputes through a third party or a mediator. The
mediator can come from the State, international organizations such as the UN,
politicians, legal experts, and scientists. The mediator actively participates in the
mediation process, usually a mediator in his or her capacity as a neutral party seeks
to reconcile the parties by providing suggestions and advice. advice to resolve the
dispute (Winarwati, 2017: 79).
Conciliation is a way of resolving disputes that is more formal than mediation.
conciliation is a way of resolving disputes by a third party or by a commission
formed by the parties, this commission is called a conciliation commission. this
commission functions to determine the terms of dispute resolution accepted by the
parties, but its decisions are not binding on both parties (Winarwati, 2017: 80).
In 1994, the UN General Assembly decided to try to realize the establishment of the
International Criminal Court, by bringing a draft statute from the International Law
Commission as a basis for the draft to be discussed in the Ad Hoc Commission which
met twice throughout 1995 (Effendi, 2014: 240). After the draft was discussed by the
Ad Hoc Committee, the UN General Assembly based on General Assembly Resolution
number 5216 (LII) adopted in 1996 and 1997 established a Preparatory Commission to
follow up on the results of the Ad Hoc Committee. On 15 to 17 July 1998, a diplomatic
conference was held in Rome and attended by representatives from countries around the
world, governmental organizations, and non-governmental organizations.
After the text was successfully prepared from 1994 by the International Law
Commission, it was submitted to the UN General Assembly and in the same year the
General Assembly established an ad hoc Commission to review substantive,
administrative, and procedural aspects (Parthiana, 2015 : 357). In 1994 the manuscript
was submitted for follow-up and discussed by the General Assembly, which had already
established a Commission Preparatory Commission to discuss it in more depth from
1995-1997 and in April 1998, the Preparatory Commission successfully completed its
work which then produced a final and authentic text on the subject 1998, the
Preparatory Commission successfully completed its work which then produced the final
and authentic text of the Statute of the International Criminal Court. This final text was
then brought and discussed at the Conference on July 15-17, 1998 in Rome and then the
text was signed by representatives of States, and all invited representatives who were
present at the Diplomatic Conference (Parthiana, 2015: 357).
Based in The Hague, Netherlands, the Statute as a whole consists of 13 parts and
comprises 128 Articles (Parthiana, 2015: 358).
Crimes that occur within the international sphere must be resolved through judicial
bodies if peaceful means cannot resolve them. Crimes such as genocide, war crimes,
crimes against humanity, and crimes of aggression that concern international affairs as a
whole, can be punished. Thus, the establishment of a permanent International Criminal
Court is considered important for the prosecution of international crimes in the future
(Iswadi, 2014: 2). Setting Court The regulation of the International Criminal Court in
the Rome Statute is contained in Article 125 paragraphs 2 and 3, Article 126 paragraph
1, Article 4 paragraph 1, Article 4 paragraph 2, Article 3 paragraph 2 (Siswanto, 2015 :
358). The 1998 Rome Statute is the basis for the establishment of the International
Criminal Court which aims to provide certainty for the parties victims of serious
international crimes, that the perpetrators of criminal acts cannot be separated from
criminal responsibility for their actions (Effendi, 2014: 239).
Dispute settlement efforts are a way for a court to resolve a dispute that occurs in a
country. In this case, it is an effort to resolve disputes that occur in the State of
Myanmar between the Myanmar government and ethnic rohingnya Muslims. In order to
resolve disputes that occur between the government of Myanmar and ethnic rohingnya
Muslims, in accordance with Article 33 of the UN Charter, it should first use
diplomacy, if it does not find a bright spot in this problem, it will only switch to using
legal means, namely through the judiciary (Susanti, 2014: 16).
Article 31 of the United Nations Charter is explained in two paragraphs, namely;
paragraph (1): Parties to a dispute which, if continued, is likely to jeopardize national
peace and security, shall first seek settlement of the dispute by negotiation,
investigation, mediation, conciliation, arbitration, judicial settlement of the dispute
through regional bodies or regulations, or by any other peaceful means of their choosing
paragraph (2): The UN Security Council may, if it deems it necessary, request the
parties concerned to settle their disputes by such means.
The crimes committed by the Myanmar government against ethnic Muslims are
cases of genocide, because in accordance with the definition of genocide Article 6 of the
Rome Statute genocide is a crime that aims to eliminate ethnicity, race and religion
either in whole or in part. To address the case that occurred in Myanmar against the
ethnic Muslim rohingnya, the United Nations has indeed strongly criticized the
Myanmar government to immediately end the violence that occurred and has been going
on for a very long time. However, the Myanmar government has not responded well and
there is still no effort to resolve the dispute.
In this dispute, extrajudicial means, such as mediation, conciliation, and negotiation
have been used for dispute resolution efforts but have not yet found a bright spot in the
dispute. If the use of extrajudicial means has been used by the State in ending the
dispute that occurred, but still has not found a meeting point, then in this case it can be
taken over by the UN Security Council to be resolved using the method through the
International Criminal Court (Susanti, 2014: 17). Within the jurisdiction of the
International Criminal Court there are four jurisdictions, namely:
Material Jurisdiction: The international criminal court is authorized to try crimes
regulated in the 1998 Rome Statute, namely in Article 6 up to Article 8,
including genocide, crimes against humanity, aggression, and war crimes
(Parthiana, 2015: 361). In relation to the case that occurred in Myanmar, the
crime that occurred was the crime of genocide.
Personal Jurisdiction: In Article 25 the International Criminal Court only tries
individuals regardless of the social status of the individual, whether a State
official or so on (Susanti, 2014: 18). In relation to the case in Myanmar, the
person responsible is the individual.
Territorial Jurisdiction: The International Criminal Court can hear cases that
occur in the State party where the crime was committed or occurred. This is
regulated in article 12 of the 1998 Rome Statute (Effendi, 2014):
245).
Temporal Jurisdiction: In accordance with Article 11 paragraphs (1) and (2) of
the 1998 Rome Statute, the International Criminal Court is only authorized to try
crimes which are occurred after the entry into force of the International Criminal
Court on July 1, 2002 (Widyawati, 2014: 152). In relation to the case that
occurred in Myanmar, the crime occurred after the International Criminal Court
came into force on July 1, 2002 (Widyawati, 2014). Court International Criminal
Court officially took effect.
From the explanation above, researchers can draw results related to dispute
resolution efforts for genocide crimes from the perspective of international criminal law.
The dispute that occurred in Myanmar is an international crime of genocide, so the
settlement efforts can be carried out in various ways in addition to international criminal
law dispute resolution can also be done by out of court such as mediation and
negotiation. But from the way of resolving disputes in international criminal law, related
to the dispute that occurred, the settlement can be handled by the International Criminal
Court even though Myanmar is not a participating State that has ratified the
International Criminal Court, but all people are under the jurisdiction of the
International Criminal Court.
All citizens fall under the jurisdiction of the International Criminal Court because
first, the state has ratified the Statute of the International Criminal Court, second, the
state recognizes the jurisdiction of the Court. Third, the UN Security Council submits
this dispute to the International Criminal Court, so that this case can be tried using the
International Criminal Court (Susanti, 2014: 19).
Conclusion
The crimes committed by the Myanmar government against ethnic rohingnya
Muslims can be said to be an international crime of genocide, because it has fulfilled
several main elements, namely mass murder, discrimination against religious minorities,
carried out systematically, and aims to eliminate a certain ethnicity and group, so from
this, researchers analyze that the crime is categorized as an international crime of
genocide.
Regarding the settlement of the dispute that occurred, the researcher provides an
analysis related to the settlement of disputes that occurred in Myanmar, the dispute can
be resolved out of court and in court. If outside the court, the dispute can be resolved by
mediation and negotiation, but if it is done in court, which in this case is the
international court, the dispute can be handled by the International Criminal Court.
Because all citizens are under the jurisdiction of the International Criminal Court.
