Abstract: Since the 1982 Citizenship Law, the lives of Myanmar’s Rohingya minority have been subjected to both symbolic, material, and physical violence. This paper seeks to analyze how the Citizenship Law can be considered an act of lawfare, that is, using the law as a weapon. Lack of citizenship can give rise to insecurity, excluding people from a community in which civil and political rights are assured and security is guaranteed. In this way, it can also legitimize violence against the minority. Thus, the Citizenship Law — and the consequent exclusion of the Rohingyas from citizenship — has been an enabler of violence. First, in the form of symbolic and material violence through the denial of civil, political, social, and economic rights; then, physical violence through ethnic cleansing attempts enacted by the Tatmadaw, which sought to transform legislative nonexistence into literal nonexistence.
Problem statement: How did the Tatmadaw government use the 1982 Citizenship Law to create insecurity and legitimize violence against the Rohingya minority in Myanmar?
Bottom-line-up-front: The 1982 Citizenship Law in Myanmar, which excluded the Rohingya minority from the ‘national races’ entitled to citizenship, was not only a cause of insecurity and vulnerability among those targeted but also a genuine act of lawfare carried out by the Tatmadaw to legitimize symbolic, material, and physical violence by marginalising and alienating the Rohingya minority through legal non-recognition.
So what?: Comprehending the use of citizenship as lawfare to understand how, in order to resolve the crisis, a constitutional reform that recognizes citizenship for the Rohingya and thus grants them the rights attached to it is imperative. Understanding how the lack of citizenship can be used as lawfare can also serve to prevent and pre-empt similar tragedies elsewhere.
Source: shutterstock.com/Sk Hasan Ali
A Textbook Example of Ethnic Cleansing
The Rohingya minority’s security situation in Myanmar has always been profoundly concerning to the international community. The United Nations has described the violence enacted by the Tatmadaw, Myanmar’s armed forces, as “a textbook example of ethnic cleansing”.[1] UNHCR’s[2] Joint Response Plan reports murder, imprisonment, torture, kidnapping, sexual violence perpetration in the form of rape, sexual abuse, forced prostitution, and enslavement, further stating there are “elements of extermination, and deportation” as well as “systematic oppression and discrimination [that] may amount to the crime of apartheid”.[3] Such violence, however, should be considered the iceberg peak of a law-making process that worked towards denying citizenship to the Rohingya minority, which is consequently not entitled to any rights.
The United Nations has described the violence enacted by the Tatmadaw, Myanmar’s armed forces, as “a textbook example of ethnic cleansing”.
The Rohingya minority is one of the hundreds of Myanmar’s ethnic groups residing in northeast Rakhine State, bordering Bangladesh. With approximately 1.3 million members before August 2017, it accounts for nearly a third of the region’s population, and differs from the dominant Buddhist groups ethnically, linguistically, and religiously.[4] Myanmar is ethnically diverse: the predominant ethnic group is Bamar, which accounts for 68% of the national population. After the military junta Tatmadaw seized power in 1962, the Bamar-dominated government exercised political dominance by pushing back and oppressing other ethnic groups, including the Rohingya minority. Accordingly, the government appeared as an all-exploitative machinery that implemented oppressive policies to create an extremely vulnerable condition. Myanmar’s majority religion, Buddhism, has been recognized as the state religion, and minority religions — particularly Islam, which is followed by most Rohingyas — are considered as threats to be eliminated.
The Relationship Between Citizenship Status and Insecurity
Citizenship and Security in Theory
The concept of citizenship has always been of great interest to critical security studies since it comprises one of the main practices of drawing lines to include or exclude those who are part of a political community.[5] This has obvious repercussions on the security perceptions of those affected. Historically, states have always claimed their legitimacy by providing security and protection to their citizens. Citizenship gives people an identity that enables them to enjoy the maximum benefits and privileges of the state.[6] Therefore, recognition of one’s identity by the state is usually a prerequisite for obtaining the benefits provided by the state. This concept refers directly to Hobbes’ Leviathan, according to which individuals are by nature aggressive and selfish, making trust in one another impossible and life outside the state “solitary, poor, nasty, brutish, and short”.[7] Therefore, individuals are willing to stipulate the social contract of citizenship and bow to the sovereign power capable of offering them security against the risks of the ‘State of Nature’. Thus, Nyers[8] asserts that citizenship can be considered a true act of ‘securitization’, that is, an act that creates security in a dynamic and formative way.
This is possible because the state guarantees citizens’ rights through the constitution, listing the rights afforded to citizens and non-citizens.[9] Citizenship means membership in a political community in which members are de jure bearers of rights that make them politically, economically and socially equal.[10] The possession of these rights, and thus the possibility of exercising them and having them protected, inevitably shapes the conditions within which individuals will have to set up their lives, thus profoundly moulding their concept of security.
Citizenship means membership in a political community in which members are de jure bearers of rights that make them politically, economically and socially equal.
As a status that creates security for those who possess it, citizenship also simultaneously creates insecurity among those without it. Thus, citizenship has a duality: on the one hand, it has the value of bringing people together within a political community; on the other hand, it performs an exclusionary function based on differences in race, gender, caste, religion, and other factors.[11] It has always had its ambiguous history of being an institution of both inclusion and exclusion: a technique of differentiating masses of people by separating citizens from non-citizens.[12] On this continuum of inclusion/exclusion, rights are often assigned differently based on citizenship status. Citizenship, therefore, operates differences by assigning rights, belonging, and political capacity to certain sections of the people. Rights are no longer universally guaranteed but are rather privileges that are granted.
In this way, security becomes a privilege granted by the state. But if rights are defined as an attribute of citizenship, what of those without citizenship? Indeed, the accident of being born within a political community and enjoying the rights granted to it has profound implications on the availability of adequate food, health care, education, and life opportunities.[13] This is the situation currently experienced by tens of millions of international refugees, internally displaced persons, indigenous peoples, and residents of occupied territories, which continue to see their citizenship rights suspended, withheld, or simply disregarded – in what might be called a ‘citizenship gap’[14] that creates dramatic differences in the rights and benefits of citizenship statuses globally.
The relationship between citizenship and security demonstrates how citizenship is closely linked to security. There’s an ‘interstitial space’[15] between security and citizenship, which work together and have an immanent tendency to alienate those who are excluded from a political community. Insecurity perceived by non-citizens is a consequence of the lack of civil and political rights by not having membership in a political community: it is the other-sidedness of any citizenship law. This inevitable feature intrinsically produces exclusion.
Citizenship and Security in Practice
The concept of citizenship has always been of utmost importance to the Rohingya minority’s security within Myanmar.Ever since independence and the 1948 Union Citizenship Law, governments in Myanmar have refused the Rohingyas’ historical claims. This law identified eight specific ethnic groups — excluding the Rohingya — as the ‘indigenous races of Burma,’ which were allowed to obtain citizenship. Yet, Rohingyas were allowed to apply for citizenship if their families had lived in Myanmar for two generations.[16] But since the 1982 Citizenship Law, even this kind of recognition has been denied. General Ne Win — who seized power in the 1962 coup and established the Socialist Republic of the Union of Burma — took the previously politically insignificant concept of ‘national races’ (taing-yin-tha in Barman) and turned it into the defining criterion for citizenship in Myanmar.[17] The law divided citizenship into three categories with different rights associated with each: full citizens (descendants of residents who lived in Myanmar before 1823); associate citizens (people who acquired citizenship under the 1948 law); and naturalized citizens (people who had resided in Myanmar before 1948 but had failed to apply for citizenship under the 1948 law).[18]
Ever since independence and the 1948 Union Citizenship Law, governments in Myanmar have refused the Rohingyas’ historical claims. This law identified eight specific ethnic groups — excluding the Rohingya — as the ‘indigenous races of Burma,’ which were allowed to obtain citizenship.
In all three cases, citizenship eligibility is limited only to the 135 national races, making the Citizenship Law discriminatory against those not on the taing-yin-tha list, including Rohingyas, who are therefore provided with no legal documentation, effectively making them stateless. The concept of taing-yin-tha, almost akin to ‘indigeneity,’ has become entangled with programs of nationalization, minority domination, and alien exclusion, which for Rohingyas, means a struggle for their physical, cultural, and social survival. Recognition as a ‘national race’ under such a political system has profound implications on rights and inclusion. Further, the 1982 Citizenship Law can be considered an act of legal denial, in which law-making procedures and legal institutions are used to enact denial.[19]
Citizenship Status as Lawfare
Lawfare in Theory
A citizenship law can be both a direct creator of (in)security and a legitimizer of acts of violence against those excluded. When introduced, this concept was used to systematize the instrumentalization of the law in its military operations use.[20] Thus, lawfare can be defined as “the use of law as a weapon of war”[21] or, more specifically, the abuse of laws and judicial systems to achieve strategic military or political ends. At the national level, it can be described as the manipulation of national legal systems to implement laws incompatible with the general principles of liberal democracy.[22]
Lawfare is seen as the legal-political harassment and persecution of political opponents by power blocs, notoriously embodied by the ruling parties, making legal warfare asymmetric through the strategic use of lawfare on a spectrum of social legitimacy and institutional legality.[23] The results of these actions generally include the withdrawal of property, tarnishing reputation, and restricting freedom of those targeted. Consequently, lawfare creates externalities related to the environment designed to use law as weapons against the chosen enemy.[24]
Lawfare is seen as the legal-political harassment and persecution of political opponents by power blocs, notoriously embodied by the ruling parties, making legal warfare asymmetric through the strategic use of lawfare on a spectrum of social legitimacy and institutional legality.
The concept has mainly been limited to dealing with lawfare directed by the establishment against those who oppose, denounce, or attempt to change the economic, political, social, and cultural model established by the dominant and hegemonic power. If lawfare can refer to the strategy promoted in a given political context, directed by those at the top of political power toward the group of people representing the enemies’ narrative,[25] the concept can then be extended to consider targets including not only political opponents attempting to overthrow the regime but also national, ethnic minorities identified by those in power as the enemy ‘others’.
Existing literature has always understood lawfare as a phenomenon in which law is an intrinsic part of armed action, and therefore, its proper use as a substitute for other military means encourages the use of laws instead of force. This proactive use of lawsuits and various measures means that legality is understood only as another tool, like any other weapon that can be used.[26] However, extant literature has largely overlooked how law can be used as complementary to armed action — if not as an enabler of violence itself. The situation of the Rohingya minority in Myanmar, following the denial of citizenship, is the perfect case to examine this possibility.
Lawfare in Practice
The most common view is to frame the denial of citizenship as merely creating a general sense of insecurity and vulnerability due to statelessness. The state has a prominent role in addressing the issue of vulnerability to ensure that all people have equal access to the societal institutions that distribute resources and security.[27] The state can reduce this feeling of vulnerability among citizens by granting them citizenship. The lack of this status has made the Rohingyas extremely vulnerable.
The denial of citizenship has been not only an act by which the state has created a widespread sense of vulnerability among the minority but also a violence enabler and legitimizer, leading the Rohingyas to be targets of widespread and constant acts of aggression. The denial of citizenship and the resulting statelessness became a tool exploited by the military junta to legitimize violence. Consequently, the attacks on Rohingyas could even be considered a ‘state crime’,[28] as they are well-identifiable as a deviant activity perpetrated by the state to implement its policy and achieve its goal while violating human rights. Any claim to Rohingya identity is both dangerous and illegal, as it is both politically and legally unacceptable.[29] Hence, the unlawful situation the Rohingyas find themselves in, which is reinforced by the national legal framework, makes them continually vulnerable to being killed while simultaneously allowing and legitimizing the state to kill them.
Violence against the Rohingya minority is a direct result of structural violence — that is, violence systematically exercised, formed, and enforced through laws, institutions, and ideological mechanisms. The strategy of the Myanmar regime has been to adopt collective laws aimed at the Rohingyas to restrict their rights of movement, marriage, childbirth, religious freedom, and economic freedom,[30] all of which is rooted in the denial of citizenship and, therefore, the legal nonexistence of the minority group in Myanmar’s legislative framework. The result has been a violent process of arbitrary arrests, rape, destruction of mosques, burning of villages, and confiscation of land.
Lawfare in Action
The lawfare enacted in Myanmar, represented by the denial of citizenship recognition to the Rohingya minority as analyzed above, has led to various consequences and repercussions on the existence of the entire people, further solidifying their feelings of insecurity and poor living conditions. Since Rohingyas are denied citizenship, they are also denied the recognition and protection of civil, political, economic, and social rights, which has resulted in material and symbolic violence, as well as physical violence.
Since Rohingyas are denied citizenship, they are also denied the recognition and protection of civil, political, economic, and social rights, which has resulted in material and symbolic violence, as well as physical violence.
Material and Symbolic Violence
Only indigenous ‘national races’ have full political rights within Myanmar’s contemporary political system.[31] Recognition as a ‘national race’ under such a political system has profound implications on rights and inclusion. The denial of citizenship has allowed the state to introduce laws to restrict the legal rights of the Rohingya minority. Four macro-groups of rights can be detected: (1) civil rights are those necessary for individual freedom; (2) political rights indicate the right to participate in the exercise of political power; (3) social rights encompass a whole range, from the right to minimum economic well-being to the right to fully live a life according to the prevailing standards of society; and lastly, (4) rights that allow people to affirm and nurture their cultural heritage. Each category of rights necessarily implies an entitlement and assurance of security, with the state promising citizens that they can continue to exist in a situation of security and non-vulnerability.[32]
Basic civil rights include the right to movement. After the 2012 clashes between the Rohingyas and the Rakhine Buddhists, the other minority residing in Rakhine State, military forces used the risk of further clashes to legitimize segregation and restrict the Rohingyas’ mobility, particularly away from urban centers, including for medical treatment. This tense situation damaged agricultural production and trade, reducing incomes for all groups and discouraging direct investment in the territory. However, the greatest impact of these measures has always been on the Rohingyas’ livelihood, health, and educational opportunities.[33] The main consequence of denying the right to movement is the institutionalization of spatial segregation, which, as also noted by MacLean[34], facilitates the implementation of large-scale ethnic clearance operations. The Rohingya are also required to obtain permission from authorities to leave their homes or travel outside their townships. The restrictions have contributed to the loss of agricultural land, forcing them to live in their villages and engage in other small economic activities, usually day labour, to survive. Municipal authorities require them to pay daily dues, and troops at military checkpoints often extort additional funds from them as they travel to and from home. As a result, much of what they earn is lost. Many Rohingya, therefore, cannot afford to leave their villages regularly, adversely affecting their ability to exercise their livelihoods, attend school, obtain medical care, and access other essential services.
The main consequence of denying the right to movement is the institutionalization of spatial segregation, which facilitates the implementation of large-scale ethnic clearance operations.
Moreover, in 2012, the military set fire to more than 10,000 houses, mosques, and other buildings, which were thus damaged or destroyed, causing the internal displacement of 140,000 people, ninety-five percent of whom were Muslim, further contributing to spatial segregation.[35] In 2019, more than 120,000 internally displaced persons (IDP), seventy-eight percent of whom are women and children, reportedly continued to languish in these camps, and external food assistance has been critical to their survival.[36] The very existence of these segregation camps reproduces an apartheid-like system in Rakhine State.
The denial of the right to property is related to the restriction on the right of movement. This violation specifically allowed what is referred to in the literature as ‘domicide’.[37] Because of the economic value of the territory in which the Rohingya reside, as early as the late 1970s, the military regime either authorized the construction of ‘model villages’[38] in that area to house Buddhists from other parts of the country, or it was earmarked for special economic projects by foreign investors or camps in which security forces reside. These territories required land and the local authorities appropriated it from the Rohingya communities, who found themselves pushed into more marginal and isolated areas. During the pogroms, Myanmar’s military attacked the Rohingya in their homes, vandalizing their property, looting their valuables, and finally setting fire to their homes. This can be considered as not only material but also symbolic violence: the extreme forms of domicide, such as expropriation, occupation, burning, damaging, and vandalizing homes, are a clear message to the Rohingya that the Myanmar authority wants to erase their family memory, intimate attachments, and sense of belonging.[39] Home is the unique crossroads between the material good and the affective good: it is a physical and emotional space for fulfilling the essential human need for identity. Attachment to it is, therefore, not only related to its physical space but also to its intangible affective ties and family roots.[40] Erasing the home also means erasing the living space of a community,[41] along with the memories and sense of belonging attached to that territory. Thus, the act qualifies as a perfect example of the ethnic cleansing of the Rohingya community – not only the ones currently living there but also those who existed in the past. The denial of property rights also disallows the Rohingya to acquire land, either new or as a replacement for their homes. Moreover, most of the Rohingya are farmers: the inability to purchase agricultural land is also detrimental to their livelihood.
Also among the violated civil rights is the package of laws implemented by former president and military junta general President Thein Sein. These were famously known as the Race and Religion Protection Laws, which included the Buddhist Women’s Special Marriage Law, Population Control Law, Monogamy Law, and Religious Conversion Law. The first requires women wishing to convert to Islam after marriage to complete a government application and be interviewed by at least five members of a supervisory committee to prove that they were not forced into conversion, which makes it difficult, if not impossible, for Buddhist women to convert and marry Muslim husbands. The second requires couples to follow the two-child policy,[42] while also having to wait 36 months to give birth to a second child.[43] The third is openly at odds with the Buddhist religion, as it allows polygamous marriage under specific conditions.[44] The fourth and final one requires non-Buddhist men to convert to Buddhism to marry Buddhist women.[45] In addition, Rohingyas are subject to a restriction on marriage, as they are forced to seek permission to marry, which may require them to bribe local authorities and provide photographs of the bride without a veil and the groom with a clean-shaven face, which are against the practices of the Muslim faith.[46]
Among the basic political rights is the right to vote. Since the right to vote is a fundamental part of citizenship, its absence has allowed the state to deny the right to vote. The act of legal denial was the 2015 Legislative Reform through removing the right to vote and run for office, which led to the mass disenfranchisement of the Rohingya community. Previously, the Rohingya were granted the right to vote because they were among the holders of the ‘white card’, a temporary identity card that was not a substitute for citizenship. Through a series of calculated legal moves, the parliament ensured that white card holders — primarily the Rohingya — would not be allowed to vote in either the referendum or elections, thus excluding them from participating in the 2015 Elections.[47] The bill proposed eliminating the right of naturalized and associated citizens and white card holders to be members of a political party or vote.
Among the basic political rights is the right to vote. Since the right to vote is a fundamental part of citizenship, its absence has allowed the state to deny the right to vote.
In September 2014, an amendment was passed to ensure that only naturalized or associated citizens have the right to run for political office. A separate parliamentary motion was filed to abolish white cards and instead undertake a final citizenship verification process to be eligible for voting. In February 2015, the Office of the President announced that white cards would no longer be valid for voting purposes.[48] The act of disenfranchising white card holders was possible only because the minority did not possess citizenship. Still, its members are recognized as temporary residents –an example of symbolic violence in that it excluded the minority from the political community and deprived them of the opportunity to participate in political life.
Among the social rights denied is education. Rohingya children are allowed to attend primary school, but secondary education is reserved for citizens only.[49] Further, although the right to primary education is assured to the Rohingyas, this constitutes a formal right and does not transform as a de facto substantive right. Indeed, the restriction on movement and segregation within the internally displaced people camps goes to nullify this right, as the children find themselves unable to reach school since they cannot leave the camps in the first place. Segregation also negatively impacts another extremely important social right: the right to health. The Rohingyas cannot reach urban centers where they can avail the opportunity to receive adequate medical treatment.
Although the right to primary education is assured to the Rohingyas, this constitutes a formal right and does not transform as a de facto substantive right.
Freedom of religion is at the border between civil and cultural rights. Buddhism is recognized as the national religion owing to the close link between the religion and the political conformation of the state. This has made the Buddhists’ position special while simultaneously making the Muslims’ situation extremely delicate. The inability to promote one’s culture is also among the violations of cultural rights. It is illegal for schools to teach a language other than the Bamar language beyond the fourth grade, and a set of censorship rules further restrict the public use of minority languages.[50]
Physical Violence
The denial of citizenship and consequent denial of rights has become a tool that the Myanmar government has exploited to create “unliveable and atrocious conditions”[51] through symbolic, material, and physical violence. The condition of the Rohingya is that of subjects who are always vulnerable to killing, rape, and burning by the state, state agents, and state practice through deliberate coercion.[52] The denial of the minority’s legal existence leads to the subsequent legitimization of physical violence by the military junta to make this legal nonexistence a literal physical nonexistence as well. Consequently, the Rohingya are treated as non-humans because they do not exist within the state’s legal framework, but are considered illegal objects within it.
Since the 1970s, the Rohingya have cyclically been the victims of pogroms and large-scale waves of violence by both the military junta and the Rakhine minority. In the 1978 ‘Dragon King’ operation, the military junta committed killings and rapes of Rohingya civilians and the destruction of mosques and other religious persecution, leading to the exodus of some 200,000 Rohingyas to Bangladesh. Another campaign of forced labor, summary executions, torture, and rape occurred in 1992, leading to similar numbers of Rohingyas fleeing across the border. Similarly, in 2001, violence between Muslims and Buddhists in Sittwe resulted in an unknown number of deaths and the destruction of Muslim property.[53]
The largest pogrom occurred in 2012, following clashes between the two minorities, Rakhine and Rohingya, fighting in Rakhine State territory. Riots broke out between the two communities: in June, sectarian clashes in four of the 17 townships in Rakhine State mainly targeted Rohingya communities. In October, a more systematic campaign was launched in nine townships, resulting in dozens of deaths and tens of thousands of displaced people.[54] The violence was characterized by destroying homes and stores and engaging in a killing spree, resulting in at least 192 deaths, more than 140,000 people being internally displaced, at least 120,000 interned in camps, and 8,614 homes, 17 mosques and three schools being burned to the ground.[55]
The largest pogrom occurred in 2012, following clashes between the two minorities, Rakhine and Rohingya, fighting in Rakhine State territory.
The clashes comprised a mixture of state authorities, civilian mobs, and local populations that killed and destroyed Rohingya property en masse. The role of security forces in the violence demonstrates that discrimination and abuse against the Rohingyas was institutionalized, and that the killings and hate campaigns have been planned and perpetrated to create poor living conditions to drive them out or lead to their destruction. Since 2012, violence fueled by systems of impunity against Muslim communities has continued in Rakhine State and spread to other areas of the country.
The act of maximum violence eliciting the most shared outrage, even from the international community, occurred in 2017. Following alleged terrorist attacks by the Arakan Rohingya Salvation Army (ARSA) directed against security installations in Rakhine State, resulting in the deaths of 12 officers, the Tatmadaw response was immediate and massively disproportionate, deploying troops to 25 locations in Rakhine State and orchestrating mass killings, torture, gang rape of women, destruction of entire villages, immediate forced departures from Myanmar, and restrictions on humanitarian assistance for the remaining Rohingyas. At least 25,000 were killed in the first month of attacks,[56] 19,000 women and girls were raped, and hundreds of thousands of Rohingyas were injured and many more paralyzed.[57] More than 700,000 were pushed into Bangladesh, but many more left later to escape unbearable living conditions due to the destruction of 392 villages.[58] The Burmese military’s immediate response suggests there was pre-planning and careful preparation in anticipation of these events because the military exercised a policy of mass murder, torture, gang rape, and village burning.[59] The scale of the violence was so disproportionate that the 2018 Report of the Independent International Fact-Finding Mission on Myanmar found conclusive evidence of extermination and deportation and systematic oppression and discrimination that may amount to war crimes and crimes against humanity with genocidal intent.[60]
The extent of such heinous violence seems to be considered perfectly normal by Myanmar citizens. It is widely acknowledged that the Rohingya are illegal immigrants from Bangladesh who are permanently residing in Rakhine State.[61] Citizens interviewed by CNN in Yangon, Myanmar’s largest city, do not voluntarily use the term ‘Rohingya’, as if to emphasize, even through language, a further desire to deny any recognition of the minority. Even Nobel Peace Prize winner Aung San Suu Kyi, who was the leader of the opposition party to the military junta and State Councilor until the coup in 2021, remained in line with Burmese government policy, refusing to refer to the minority as ‘Rohingya’, as in the polarized context of Burma, this would be an act of recognition of the community’s rights, let alone its very existence.[62] Most people refer to the minority as ‘Bengali’ — a term that is often used disparagingly for illegal immigrants — rather than a distinct Burmese ethnic group, thus showing their little sympathy for the Muslim minority’s members, who are definitely not seen as citizens of Myanmar.[63] Therefore, their nonexistence within Myanmar’s legal system legitimizes symbolic, material, and physical violence, as well as actions of outright ethnic cleansing.
Conclusion
The 1982 Citizenship Law in Myanmar, which excluded the Rohingya minority from the ‘national races’ entitled to citizenship, was not only a creator of insecurity and vulnerability among Rohingyas, but also a genuine act of lawfare carried out by the Tatmadaw to legitimize violence against the community.
Indeed, citizenship status has major implications on the possession of rights that are capable of deeply shaping lives and choices of people residing in a particular country in different ways. Consequently, the randomness of being born with or without citizenship profoundly impacts people’s life conditions and opportunities. Applying the concept to the case study, it is clear how, under the 1982 Citizenship Law, the exclusion of Rohingyas from the taing-yin-tha eligible to apply for citizenship directly created a condition of insecurity among the minority — thus making attempts at citizenship inclusion a struggle for their physical, cultural, and social survival.
The Citizenship Law is perfectly configured as an act of lawfare, as depriving the Rohingyas of citizenship is part of an explicit government strategy to adopt collective laws aimed at them to restrict their rights. This leads to the total legal nonexistence of the minority and thus legitimizes the destructive violence necessary to transform the legal nonexitstence of the people into a literal, physical nonexistence.
The Citizenship Law is perfectly configured as an act of lawfare, as depriving the Rohingyas of citizenship is part of an explicit government strategy to adopt collective laws aimed at them to restrict their rights.
For this reason, regardless of what the mode of regime overthrow in Myanmar may look like – external intervention by the international community or deposition by the domestic opposition – the coming government cannot but proceed from constitutional reform to resolve the Rohingya crisis. Specifically, it cannot prescind the constitutional recognition of the Rohingya minority: lacking that, the preconditions for enacting lawfare against the minority will always be in place. Therefore, it is necessary to make sure that all minorities in the territory are recognized as taing-yin-tha, and granted citizenship and the rights associated with it. Without the recognition of such citizenship, the Rohingya will not have the rights that would protect them against acts of material, symbolic and physical violence.
Irene Rusconi is a Master’s Degree student in International Security at LUISS Guido Carli University in Rome. She was selected for the Erasmus+ program at the Sciences Po University in Paris. She is an intern at the Istituto Affari Internazionali (IAI) in Rome and has collaborated with European Studies Review in Brussels. The views contained in this article are the author’s alone.
[1] “Myanmar’s Rohingya Crisis Enters a Dangerous New Phase,” International Crisis Group, December 7, 2017, crisisgroup.org/asia/south-east-asia/myanmar/292-myanmars-rohingya-crisis-enters-dangerous-new-phase#:~:text=The%20mass%20flight%20of%20Rohingya,potential%20cross%2Dborder%20militant%20attacks.
[2] “Joint Response Plan for Rohingya Humanitarian Crisis,” UNHCR, January–December, 2019, humanitarianresponse.info/sites/www.humanitarianresponse.info/files/documents/files/2019_jrp_for_rohingya_humanitarian_crisis_compressed.pdf.
[3] Idem.
[4] Georgia Latremouille, “Fighting Fear with Fire: Analyzing the Causes of the Rohingya Conflict in Myanmar” (Diss., Augusta University, 2017), augusta.openrepository.com/bitstream/handle/10675.2/621688/Latremouille_Georgia_Thesis_2018.pdf?sequence=1&isAllowed=y.
[5] R.B.J. Walker, “After the Future: Enclosures, Connections, Politics,” Transnational Law & Contemporary Problems 9, no. 2 (1999): 427-450.
[6] Nehginpao Kipgen, “The Rohingya Crisis: The Centrality of Identity and Citizenship,” Journal of Muslim Minority Affairs 39 (2019): 61-74.
[7] Thomas Hobbes, Leviathan (Minneapolis: Lerner Publishing Group, 2017), I, xiii, p. 113. (Original work published 1651).
[8] Peter Nyers, “Introduction: What’s Left of Citizenship?” Citizenship Studies 8, no. 3 (2004), 203–215.
[9] Meghna Kajla & Nasreen Chowdhory, “The Unmaking of Citizenship of Rohingyas in Myanmar,” in: Citizenship, Nationalism and Refugeehood of Rohingyas in Southern Asia, edited by Meghna Kajla and Nasreen Chowdhory, 51-70. Singapore: Springer, 2020.
[10] Richard Bellamy, Citizenship: A very short introduction (Oxford: Oxford University Press, 2008).
[11] Peter Nyers, “Introduction: What’s Left of Citizenship?” Citizenship Studies 8, no. 3 (2004), 203–215.
[12] Jef Huysman and Xavier Guillaume, “Citizenship and Security. Interstitial politics,” in Citizenship and Security. The constitution of political being, (Oxon: Routledge, 2013),18-34.
[13] Peter Nyers, “Introduction: What’s Left of Citizenship?” Citizenship Studies 8, no. 3 (2004), 203–215.
[14] Alison Brysk and Gershon Shafir, People out of place: Globalization, human rights and the citizenship gap (New York: Routledge, 2004).
[15] Jef Huysman and Xavier Guillaume, “Citizenship and Security. Interstitial politics,” in Citizenship and Security. The constitution of political being, (Oxon: Routledge, 2013), 18-34.
[16] Jobair Alam, “The Current Rohingya Crisis in Myanmar in Historical Perspective,” Journal of Muslim Minority Affairs 39, no. 1 (2019), 1-25.
[17] Anthony Ware & Costas Laoutides, “Myanmar’s ‘Rohingya’ conflict: misconceptions and complexity,” Asian Affairs 50, no. 1 (2019), 60-79.
[18] Ken MacLean, “The Rohingya Crisis and the Practices of Erasure,” Journal of Genocide Research 21, no. 1 (2019), 83-95.
[19] Melissa Crouch, “States of Legal Denial: How the State in Myanmar Uses Law to Exclude the Rohingya,” Journal of Contemporary Asia 51, no. 1 (2012), 87-110.
[20] José Ramón Suberviola Gilabert, “Lawfare: El uso del derecho como arma,” Revista española de derecho militar 106 (2016), 189-230.
[21] Charles J. Dunlap Jr, “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts,” Humanitarian Challenges in Military Interventions Conference (Washington, DC: Kennedy School of Government, Harvard University, 2010).
[22] Brooke M. Goldstein, “Lawfare: The Use of the Law as a Weapon of War. The Lawfare Project,” 2013, web.archive.org/web/20130419184924/http://www.thelawfareproject.org/what-is-lawfare.html.
[23] Idem.
[24] Jaime Humberto Gándara Pizarro and Fabian Humberto Gándara Pizarro, “Lawfare,” Eunomía. Revista en Cultura de la Legalidad, 22, (2022), 267-287.
[25] Idem.
[26] José Ramón Suberviola Gilabert, “Lawfare: El uso del derecho como arma,” Revista española de derecho militar 106 (2016), 189-230.
[27] Martha Albertson Fineman, “The Vulnerable Subject: Anchoring Equality in the Human Condition,” Yale Journal of Law and Feminism 2, no. 1 (2008), 1-23.
[28] Penny Green and Tony Ward, State Crime: Governments, Violence and Corruption. (London: Pluto Press, 2004).
[29] Nick Cheesman, “How in Myanmar ‘National Races’ Came to Surpass Citizenship and Exclude Rohingya,” Journal of Contemporary Asia 47, no. 3 (2017), 461-483.
[30] Iqthyer Uddin Md Zahed, “The State against the Rohingya: Root Causes of the Expulsion of Rohingya from Myanmar,” Politics, Religion & Ideology 22 no. 3 (2021), 436-460.
[31] Anthony Ware and Costas Laoutides, “Myanmar’s ‘Rohingya’ conflict: misconceptions and complexity,” Asian Affairs 50, no. 1 (2019), 60-79.
[32] Meghna Kajla and Nasreen Chowdhory, “The Unmaking of Citizenship of Rohingyas in Myanmar,” in: Citizenship, Nationalism and Refugeehood of Rohingyas in Southern Asia, edited by Meghna Kajla & Nasreen Chowdhory (Singapore: Springer, 2020), 51-70.
[33] Anthony Ware and Costas Laoutides, “Myanmar’s ‘Rohingya’ conflict: misconceptions and complexity,” Asian Affairs 50, no. 1 (2019), 60-79.
[34] Ken MacLean, “The Rohingya Crisis and the Practices of Erasure,” Journal of Genocide Research 21, no. 1 (2019), 83-95.
[35] Idem.
[36] Idem.
[37] Nasir Uddin, Voices of the Rohingya People: A Case of Genocide, Ethnocide and ‘Subhuman’ Life (Singapore: Springer, 2022).
[38] Ken MacLean, “The Rohingya Crisis and the Practices of Erasure,” Journal of Genocide Research 21, no. 1 (2019), 83-95.
[39] Nasir Uddin, Voices of the Rohingya People: A Case of Genocide, Ethnocide and ‘Subhuman’ Life (Singapore: Springer, 2022).
[40] Idem.
[41] Ken MacLean, “The Rohingya Crisis and the Practices of Erasure,” Journal of Genocide Research 21, no. 1 (2019), 83-95.
[42] Nehginpao Kipgen, “The Rohingya Crisis: The Centrality of Identity and Citizenship,” Journal of Muslim Minority Affairs 39 (2019): 61-74.
[43] Iqthyer Uddin Md Zahed, “The State against the Rohingya: Root Causes of the Expulsion of Rohingya from Myanmar,” Politics, Religion & Ideology 22 no. 3 (2021), 436-460.
[44] Idem.
[45] Idem.
[46] Nehginpao Kipgen, “The Rohingya Crisis: The Centrality of Identity and Citizenship,” Journal of Muslim Minority Affairs 39 (2019): 61-74.
[47] Melissa Crouch, “States of Legal Denial: How the State in Myanmar Uses Law to Exclude the Rohingya,” Journal of Contemporary Asia 51, no. 1 (2012), 87-110.
[48] Idem.
[49] Meghna Kajla & Nasreen Chowdhory, “The Unmaking of Citizenship of Rohingyas in Myanmar,” in: Citizenship, Nationalism and Refugeehood of Rohingyas in Southern Asia, edited by Meghna Kajla & Nasreen Chowdhory, 51-70. Singapore: Springer, 2020.
[50] Ian Holliday, “Addressing Myanmar’s Citizenship Crisis,” Journal of Contemporary Asia 44, no. 3 (2014), 404-421.
[51] Nasir Uddin, Voices of the Rohingya People: A Case of Genocide, Ethnocide and ‘Subhuman’ Life (Singapore: Springer, 2022).
[52] Idem.
[53] B Zawacki, “Defining Myanmar’s Rohingya problem,” Human Rights Brief 20, no. 3 (2012), 18-25.
[54] Ian Holliday, “Addressing Myanmar’s Citizenship Crisis,” Journal of Contemporary Asia 44, no. 3 (2014), 404-421.
[55] Idem.
[56] Eleanor Albert and Lindsay Maizland, “The Rohingya Crisis,” Council of Foreign Relations (2020), cfr.org/backgrounder/rohingya-crisis.
[57] Nasir Uddin, Voices of the Rohingya People: A Case of Genocide, Ethnocide and ‘Subhuman’ Life (Singapore: Springer, 2022).
[58] Masoud Mostajabi and Sachin Mathur, “Plight of Rohingya Worsens,” Atlantic Council (2018), atlanticcouncil.org/commentary/event-recap/plight-of-rohingya-worsens/.
[59] Iqthyer Uddin Md Zahed, “The State against the Rohingya: Root Causes of the Expulsion of Rohingya from Myanmar,” Politics, Religion & Ideology 22 no. 3 (2021), 436-460.
[60] Marzuki Darusman, “Myanmar: UN Fact-Finding Mission releases its full account of massive violations by military in Rakhine, Kachin and Shan States,” United Nations Human Rights (2018), ohchr.org/en/press-releases/2018/09/myanmar-un-fact-finding-mission-releases-its-full-account-massive-violations?LangID=E&NewsID=23575.
[61] Kristina Kironska and Ni-Ni Peng, “How State-run media shape perceptions: an analysis of the projection of the Rohingya in the Global New Light of Myanmar,” South East Asia Research 29, no. 1 (2021), 16-31.
[62] Ishaan Tharoor, “Why does this Buddhist-majority nation hate these Muslims so much?,” The Washington Post (2015), washingtonpost.com/news/worldviews/wp/2015/02/13/why-does-this-buddhist-majority-nation-hate-these-muslims-so-much/.
[63] Katie Hunt, “How Myanmar’s Buddhists actually feel about the Rohingya,” CNN (2017), edition.cnn.com/2017/09/19/asia/myanmar-yangon-rohingya-buddhists/index.html.
