Comment: Why Asean must act on ICJ ruling on the Rohingya

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  • Sunday, 23 Feb 2020

Fleeing genocide: In this file photo taken on April 25,2018, Rohingya refugees gather behind a barbed-wire fence in a temporary settlement setup in a “no man’s land” border zone between Myanmar and Bangladesh. –AFP

Myanmar’s treatment of its ethnic minorities and its handling of the crisis in Rakhine state has implications for the entire region.

THE persecution of the Rohingya population, amounting to the gravest crimes under international law, has been hanging over Myanmar for decades.

In November 2019, The Gambia, backed by the Organisation of Islamic Cooperation, brought a case to the International Court of Justice (ICJ) alleging violations of the 1948 Genocide Convention. The Gambia claims that the Myanmar military carried out genocidal violence during “clearance operations” in Rakhine state in August 2017, which caused almost 800,000 Rohingya to flee to refugee camps in Bangladesh. While international calls for peace and justice for the Rohingya have largely fallen on deaf ears or been met with blanket denials until now, Myanmar has accepted the jurisdiction of the ICJ and defended itself against the allegations of genocide.

Myanmar’s defence has mirrored the findings of the country’s own Independent Commission of Enquiry into events in Rakhine state, which was widely criticised for its lack of independence and impartiality. Aung San Suu Kyi, who led Myanmar’s delegation to the ICJ, conceded that disproportionate force amounting to war crimes may have been used, although she framed this firmly within the context of an internal armed conflict and legitimate counter-terrorism operations. Nonetheless, admitting such serious atrocity crimes at the ICJ, while still denying genocidal intent, is a significant change in Myanmar’s position.

In a landmark decision in January of this year, the ICJ directed Myanmar to take provisional measures to prevent the commission of genocidal acts and to submit a compliance report within four months, and then every six months until the final verdict. Although rulings of the ICJ are legally binding, the court does not have a strong mandate to enforce its judgments.

It has often been said that international law only works if everyone plays by the rules, yet how much longer can Myanmar ignore its legal obligations, particularly after explicitly recognising the court’s authority? By refusing to comply with the ICJ, Myanmar will only increase global condemnation, boycotts and sanctions, which will ultimately affect the economic development it seeks.

The international response to the events in Rakhine state differs across the political spectrum. China is a powerful ally of Myanmar and has tended to support its narrative that this is a domestic issue which should be resolved internally. However, it has assisted with plans for the repatriation of Rohingya refugees from Bangladesh, although this has been unsuccessful due to conditions in Rakhine state, which are still not conducive to a safe return. Significantly, China has a veto on the UN Security Council, which recently failed to agree upon a statement relating to the ICJ decision.

Elsewhere there are calls for accountability and justice for the Rohingya, including the restoration of their rights, citizenship and, when appropriate preparations have been made, their voluntary, safe and dignified return to their homes and villages. The UN General Assembly has passed several resolutions, most recently in December 2019, condemning rights abuses against the Rohingya and calling upon the Myanmar government to combat the incitement of hatred against them.

The UN Independent International Fact-Finding Mission on Myanmar (FFM), which concluded that Myanmar’s top military leaders should be prosecuted for genocide, crimes against humanity and war crimes for their role in the crackdown against the Rohingya, has handed over its evidence to the Independent Investigative Mechanism for Myanmar (IIMM), a new mechanism mandated by the UN Human Rights Council. The IIMM has begun further investigations and is collecting evidence and other materials that may be used for eventual prosecution. The FFM has also called for an arms embargo and targeted sanctions against a network of businesses run by the Myanmar military, which are financing its operations and facilitating gross human rights violations nationwide, including against the Rohingya.

Legal resolutions are also being sought elsewhere, with prosecutors from the International Criminal Court (ICC) investigating crimes by virtue of Bangladesh’s membership of the ICC, and another case filed by human rights groups in Argentina calling for domestic courts to prosecute Myanmar’s military and civilian officials for international crimes under the principle of universal jurisdiction.

As a member of the Association of Southeast Asian Nations (Asean), Myanmar’s treatment of its ethnic minorities and its handling of the crisis in Rakhine state has implications for the entire region. Asean must support a rights-based resolution which is compliant with international law to ensure peace, security and stability in the region.

Asean has responded to the humanitarian element of the situation, with the Asean Coordinating Centre for Humanitarian Assistance carrying out a preliminary needs assessment in 2019 on repatriation of the approximately one million Rohingya refugees in Bangladesh. However, the report was developed without input from the Rohingya themselves and focuses on repatriation without any guarantee of protection of their basic rights. Asean has also agreed to set up an ad hoc task force to monitor the implementation of the report, but an approach which encourages repatriation without addressing the root causes of the crisis and durable solutions is impractical and unlikely to be accepted by the Rohingya refugees.

At the political level, the approach of Asean to date has been one of constructive and quiet diplomacy, rooted in the principles of non-interference and decision making by consensus. However, at the 73rd UN General Assembly in September 2018, Prime Minister Tun Mahathir Mohamad argued that the principle of non-interference should not be construed to mean that nations can carry out severe human rights abuses while the rest of the world does nothing. It is time for Asean to stop viewing the crisis in Rakhine state as an internal affair of Myanmar which is therefore not subject to the “interference” of other Member States.

Besides fleeing to Bangladesh, tens of thousands of Rohingya refugees have arrived on the shores of Thailand, Malaysia and Indonesia. Such unprecedented movement of vulnerable people across the region has facilitated human trafficking and other unlawful activities. Such exploitative and criminal operations also undermine security by stirring conflict, driving displacement and unsettling communities. This is a truly regional, if not global, issue which affects all Asean Member States.

Although the “Asean way” has been criticised, it is undeniable that with Myanmar as a member, it holds a unique position and can use this to convince the government to comply with the ICJ rulings and make greater efforts to resolve the Rohingya crisis. However, in maintaining the balance of its relationship with Myanmar to ensure continued engagement and opportunities to assist with resolving the situation, Asean must not gloss over inconvenient or sensitive issues. Asean needs to ensure that its high-level statements of its support for addressing emergency situations and protecting human rights are matched by real commitments and actions on durable solutions for the Rohingya crisis and supporting Myanmar’s compliance with its international obligations.

There are lessons to be learned from history and how global justice mechanisms in the present day are increasingly holding those responsible for the gravest crimes to account. We know that the ICJ does not have great powers of enforcement. The court ordered provisional measures during the Bosnian war, yet this did not stop Bosnian Serb forces from massacring about 8,000 Muslim men and boys in Srebrenica in 1995. But we also know that those fighting for justice and accountability will not give up easily and are prepared for the long haul. Years after the mass atrocities in Sudan’s Darfur region from 2003 to 2008, former president Omar al-Bashir will be handed over to the ICC by Sudan’s new government to face charges of genocide, crimes against humanity and war crimes.

As international developments have shown, not least at the ICJ, the Rohingya crisis will not simply go away. The world will continue to ask questions of Myanmar and urge them to respect and guarantee the rights of the Rohingya, as efforts to secure and enforce legal remedies persist.

Asean is at risk of becoming a bystander while the resolution to the Rohingya crisis is sought elsewhere. Yet these issues strike at the core of the very purposes of Asean - to maintain and enhance peace, security and stability in the region, to promote and protect human rights and fundamental freedoms, and to enhance the well-being and livelihood of all the peoples of Asean. It is therefore crucial that Asean demonstrates not just humanitarian support, but strong political will and commitment to an enduring resolution.

Eric Paulsen is the Representative of Malaysia to the Asean Intergovernmental Commission on Human Rights (AICHR). The views expressed here are solely the writer’s own.

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