International Law Failing the Rohingya Muslims

During the past few years, issues of immigration, refugees and displaced persons have transcended national jurisdictions. Since the start of the Syrian Civil War in 2011, nearly 13.5 million people have been in desperate need of humanitarian aid. More than 440,000 refugees have entered Europe in 2017 alone, and almost 3,000 have already gone missing. In Southeast Asia, a similar crisis has caught the attention of world community. In the predominantly Buddhist country of Myanmar, the government’s policies against, and its unrelenting persecution of, the Muslim Rohingya people have forced thousands of members of this community to flee their homes in order to save their lives. Many geopolitical analysts and commentators have noted many worthwhile similarities between the Syrian crisis and the one now unfolding in the Southeast Asian state of Myanmar.

While the Syrian refugee crisis emanated from a civil war that was greatly accentuated by geopolitical manoeuvres and foreign intervention, the Rohingya refugee crisis has been predominantly a domestic issue. Popular support from the media and the geopolitical importance of the Middle East has motivated the international community to help Syrian refugees. In Myanmar, however, the same has not been true, highlighting the fallacies of the international legal framework as an unenforceable and incomplete system.

The Syrian civil war is not the first example of the return of superpower politics. The Middle East has been the primary target of mismanaged foreign policies launched and conducted in the name of a global “war on terror,” dating back, at the very least, to the 1916 Sykes-Picot Agreement. As ISIL continues to lose ground, both the United States and Russia are actively working to create a post-ISIL regime that is favourable to their interests: the United States’ attempt to depose Assad and Russia’s preservation of his regime. As the unifying theme of eliminating ISIL wanes, the possibility of direct confrontation between two major world powers has increased, evidenced by the tense situation of the fighter jet incident in June 2017.

The international community has provided a fair amount of legal protection and guidance regarding refugee issues since the 1951 Refugee Convention and the establishment of the UNHCR. In July 2017, for example, the Lille Administrative Tribunal compelled the French government to provide migrants in Calais with access to drinking water, showers and food. Likewise, the 2004 Qualification Directive played a key role during the Syrian refugee crisis by imposing “a positive duty on EU states to offer protection to those who seek refuge from violence or war. Neighbouring countries like Lebanon and Jordan have been a large source of support, each hosting more than 750,000 and 525,000 refugees respectively. The UAE has provided polio vaccination for Syrian children and has given over DH 2.2 billion towards humanitarian aid efforts. There is no doubt that the refugee crisis is an ongoing, major problem, with few disputing the gravity of the situation facing the Syrian people.

At the same time, the international community has been dangerously silent on the flagrant cruelty suffered by the Rohingyas. While regional cooperation is key to solving such a crisis, ASEAN countries have different political interests at stake. As a bloc, ASEAN cannot legally intervene in issues of national sovereignty, although it could do much more to encourage transnational collaboration. China has voiced its support for the Myanmar government for “protecting its national security,” blocking concerted efforts to hold it responsible for its discrimination by employing China’s veto power at the UN Security Council. India has worsened the situation for the Rohingya population by announcing its efforts to deport 40,000 illegal Rohingya migrants. Similarly, Bangladesh, strained under the weight of 400,000 plus Rohingya refugees, has been pushing them back to Myanmar. Although this is illegal under the principle of non-refoulement (sending asylum-seekers back to a land that would persecute them) in the 1951 UN Refugee Convention and its 1967 Protocol, none of the surrounding states is a signatory to either agreement. Moreover, the UN has yet to form a regional refugee protection framework, and, even so, it is unlikely that Southeast Asian countries would sign one as parties. Such legal constraints are but one main hindrance to international efforts against the Myanmar government.

According to the United Nations, the Rohingya population is one of the world’s most persecuted minority, yet their plight has long been overlooked. The international response to the crisis has been inadequate thus far; limited to typical criticism and sympathy. While the US, Australia and Japan have pledged financial support for the refugees and Nobel Peace Prize laureates have condemned the fellow-winner Aung San Suu Kyi’s disturbing silence, international institutions have proved ineffective in providing lasting solutions. The lack of media coverage of the Rohingya refugee crisis thus far is striking, especially considering the many similarities between Syria and Myanmar: the deaths at sea of refugees fleeing persecution, the role of smugglers, and the initially feeble responses from “concerned” countries regarding migrants’ international protection. Social media and public support for the refugees were some of the largest forces behind the aid in the Syrian crisis. Will the lack of media attention doom the Rohingya crisis?

The global impact of the Syrian Civil War, the unifying theme of terrorism, and the sheer number of refugees make the situation in Syria internationally significant. The crisis in Myanmar, on the other hand, pertains to historical social and economic discrimination against certain sects of the country’s population. While the Syrian civil war contains elements of religious animosity, it’s not a religious conflict at its core. In Myanmar, by contrast, Muslims, the Rohingya in particular, are subject to deep-rooted Islamophobia in a predominantly Buddhist state. Surrounded by Islamic countries like Bangladesh, Malaysia and Indonesia, the Buddhist Rakhine community in Myanmar feels suffocated by what they perceive as an attack on their lifestyle and faith. The Rohingyas don’t vote for the Buddhist parties; they compete for the few jobs and opportunities available in one of the poorest areas of the country. It is difficult for the international community to fight against discrimination that is so deeply entrenched in the country’s history.

The most alarming aspect of the Rohingya crisis is that such discrimination is institutionalized. Ever since the establishment of Myanmar in 1948, at the end of the Second World War, the Muslim minority has faced constant legal and socio-political discrimination. The transition from military rule to a civilian democracy in 2016 created a political electoral system based on majority rule without any authorized minority protection. While the Rohingyas were loyal to the British during the War, the remaining population, comprising mostly of Arakanese, sided with the Japanese. This sowed the seeds of ethnic and religious hatred, giving the military junta, in the 1970s, an alibi to find a hollow legal pretext to carry out violent episodes against the Rohingyas. Such pretext was formalized politically with the 1982 Citizenship Law, which denied them Burmese citizenship. Even today, Myanmar’s government has not recognized the Rohingyas. Herein lies one of the most important differences between Syrian refugees and the Rohingyas: As a consequence of being stateless, Rohingyas have no legitimacy to contest discrimination to national authorities. Those very same authorities have deemed these atrocities acceptable.

International law cannot replace domestic law, and the lack of uniform or standardized enforcement mechanisms remains one of the key problems of international law. Organizations like the United Nations, the International Criminal Court and treaties such as the Geneva Conventions have the status of binding legal agreements for signatories. As there is no global policing force, international law works on the removal of reciprocal entitlements of statehood by other nations against the country in question. These can include economic sanctions and removing diplomatic immunity – removing primary entitlements given to all states that would otherwise be considered illegal under international law. The United States had applied sanctions on Myanmar, which were quite effective at singling out those responsible for human right violations. However, in 2016, the then US President Barack Obama terminated these honouring Myanmar’s considerable efforts to foster democracy, a move that has been disastrous for the Rohingya minority. Just a week after sanctions were lifted, a Rakhine state official announced the destruction of 12 mosques and 35 Islamic schools.

If Myanmar government continues to enforce anti-Muslim legislation, the West will have no authority to dismiss, condemn or abolish it. The negative effects associated with the removal of sanctions on Myanmar in 2016 were only compounded by the World Food Programme’s recent announcement that there would be a reduction in food aid for the impoverished. The Rakhine State Advisory Commission, chaired by former UN Secretary General Kofi Annan, was made to examine the complexities of inter-religious conflict, but it proved ineffective at protecting the rights of the Rohingya population. With no economic or political leverage, countries will only be able to depend on diplomacy and strong rhetoric to help the Muslim minority, which may not prove effective and could even worsen tensions. Hundreds of Buddhist monks and Burmese nationalists, for example, disapproved of the use of the term “Rohingya” in a US statement for a group they consider “illegal Bengali migrants,” protesting at the US embassy in Myanmar in May 2016 – an affront on the diplomatic approach.

While the international community has been instrumental in shaping the rights of those categorized as refugees, it does not provide guidance to states on how these rights ought to be supported and upheld, as international law will always be subservient to domestic law. Individual states can conclude whether or not a person has the refugee status, in effect undermining the entire, carefully-crafted international legal framework. The Rohingya community has been denied fundamental rights, including freedom of movement, religion, freedom of marriage, employment and education, and the international community has chosen to circumvent the line between sovereignty and global responsibility, instead silently standing by. The help given by European countries and surrounding states to Syria shows that the international community is not limited by international law in helping refugees. States are fully capable of implementing sanctions, funding humanitarian efforts for refugees, opening borders to refugees fleeing persecution and a host of other effective actions. Now, the international community, especially Southeast Asia, has a moral and global responsibility to step up to the plate, even if they might not have geopolitical or economic interests at stake.

Courtesy: Brown Political Review