This blog post will examine the historical background of Burma and Rohingya. The Rohingya Muslims are living in northern Burma, and they are about 1.33 million. Burma, officially known as the Republic of the Union of Myanmar, is a sovereign state in Southeast Asia, which gained its independence from the UK in 1948. Its population is about 51 million with 4% of Muslims. A civil war started since its independence between Rohingya Muslims, the government and non-governmental groups in Arakan state. The Burmese regime does not recognize them as Burmese citizens under the citizenship law of 1982. However, they are recognized as a minority group and stateless Bengali Muslims. They are not allowed to travel without official permission from the government; they are prohibited from owning lands, and are required to sign a commitment to just have two children. At least 100,000 Rohingya have escaped from Burma in the last two years, fearing violence and oppression.
In 2005, the government started engaging in violence and mass killing against Rohingya. The main reason for the situation in Burma is the tension between Buddhists (majority) and Muslims (minority). The government’s actions against the Rohingya are due to their religion, as the former claim that Rohiingya do not belong to the Burmese nation. This is in addition to the Rohingya’s support for rebellious movemebts. The Burmese government treats the Rohingya as stateless Bengalis.
There is no possible justification for the mass killings perpetrated by Burma’s government against its own people, whether or not they are the minority or stateless group. For the religion issue, as stated in the Universal declaration of Human Rights (UDHR) “Everyone of us is born free and equal in dignity and rights. Whatever our nationality, place of residence, gender, nationality or ethnic origin, color, religion, language, or any other status”. This is reaffirmed in article 2 of the 1966 International Covenant on Civil and Political Rights (ICCPR), which are international human rights treaty concerned with the civil and political rights listed in the UDHR. Also, “The ICCPR prohibits the removal of a person from a territory to another and in substantial situations before removing a person, states have the duty to ensure that he or she would not be exposed to a real risk of threat to life, torture or other crule, inhuman or degrading treatment or punishment”. In addition, the 1989 UN Convention Against Torture and other Inhuman, Vruel or Degrading Treatment or Punishment (CAT) prevents and punishes torture around the world, and has prohibited the forcible removal of refugees. However, Mynamar is not a part to either.
Nonetheless, the Responsibility to Protect doctrine (R2P) – is Opinio Juris (under international law it is the second element necessary to establish a legally binding custom), “The R2P doctrine is generally described either as en emerging norm of customary international law or as new binding principle of customary international law”. R2P is a binding customary international law and it clearly states that the state has the responsibility to protect its citizens (Is The R2P the Greatest Marketing Campaign International Law Has Ever Seen). The Rohingya therefore have the right and freedom to choose and manifest their own religion, and the government does not have the right to deprive them of their basic human rights.
Harvard case study on violations against Rohingya
In Myanmar, throughout history, “military personnel have been accused of committing grave abuses including attacks on civilians, extrajudicial executions, forced relocation, forced labor, torture against civilian populations during counterinsurgency operations”. A research conducted by Harvard provides evidence of acts done perpetrated by the Burmese military against Rohingya, in order to collect proof of the occurrence of crimes against humanity. The attacks took place from 2005 to 2008, and it was the largest military operation done by the government since 1997. It began in 2005, when soldiers from Southern Command and Light Infantry Division 66 (LID 66) were assigned to attack different villages for three years. During the campaign, tens of thousands were displaced and about 370 civilians were killed excluding the number of prisoners used during the offensive. In November 2005, soldiers from Intelligence Bureau 75 (IB 75) arrested villagers from Shoser village and forced them to guide their unit to HeeDaw Kaw village. Soldiers started their operation by attacking HeeDaw Kaw village by firing mortars and machine guns at the village causing the fleeing of the residents to the near jungle. Before leaving, soldiers burned about 30 homes and laid landmines. As a result of this attack, two thousand villagers were displaced. More attacks were done in different villages in Eastern Burma. The report shows that the military had committed crimes against humanity and war crimes. According to the Rome Statue of the International Criminal Court (ICC), which Myanmar has not ratified, crimes against humanity includes attacks directed against civilians, murder, rape, persecution, torture and enslavement, while war crimes include attacking and displacing civilians, destroying enemy property, pillage, murder, execution without due process, torture and outrages upon personal dignity (Legal Memorandum).
Actions taken by international organizations
Actions by the European Union (EU), United Nations (UN) and the USA, have attempted to stop what is happening in Burma. Starting with the UN General Assembly, in November 2010 the Third Committee approved resolution A/C.3/65/L.48 on Human Rights in Myanmar “strongly condemning the ongoing systematic violations of human rights and fundamental freedoms” and calling on the Burmese military regime “to take urgent measures to put an end to violations of international human rights and humanitarian law” (Approved Resolution in Myanmar). Different bodies of the UN also took action in 2005. For example, the UNCHR assisted the displaced of Rohingya. However, this act was threatened by claims of human rights abuses in the refugee camps. In addition, the EU and USA, applied economic sanctions against Burma in order to make the government stop these actions. The US House of Representatives tried to take a position against the violations, when it passed Resolution 418 calling on the government of Burma to respect internationally recognized human rights for all religious minority groups in Burma (House Resolution 418). However, after these actions, nothing has changed in Burma and about 140,000 Rohingya remain in Internally Displaced Person (IDP) camps.
The Global Justice Center stated that the only option to end violations in Burma is referring of Burma to the ICC. The ICC has jurisdiction over individuals who have perpetrated crimes against humanity, war crimes and genocide. However, Burma cannot be referred to the ICC, as it did not ratify the Rome Statue. However, the Security Council may refer the situation in Burma to the ICC through a binding resolution. Also, under the Geneva Conventions and the Genocide Convention, which were ratified by Burma, “Burma pledged to investigate and prosecute heinous crimes and consented to the Security Council’s role as the ultimate enforcement of accountability for such international humanitarian law treaty violations”. However, the Security Council failed to adopt a resolution referring the situation in Burma to the ICC, as it was vetoed by Russia and China. Russia vetoed because other UN bodies were considering Burma’s situation and it considered it unacceptable to discuss issues not related to Security Council’s purview. But China had a different reason. It stated “the situation in Burma is an internal affair of a sovereign state and does not pose a threat to international peace and security” (Failed Resolutions). It is likely that China’s position was motivated by political consideration and its support for communists in Burma, who are associating with insurgent armies along the border with China. There is a clear lack of mechanisms to stop the violence, because the Security Council is prevented from acting due to the Russian and Chinese veto.
If the situation in Burma will be referred to the ICC, the government has possibly perpetrated three of the four crimes over which the ICC has jurisdiction, and there is proof that official military documents have ordered the attacks. Also for officers from Southern command and LID 66, they are legally responsible for crimes they committed in Burma under article 25 and 28 of the Rome Statue. The situation in Burma indicates a clear double standard in the UN system. The Security Council could have authorized a peacekeeping forces or enforcement action under Chapter VII to end the humanitarian crisis. The Security Council took such action in resolution 794 on Somalia and resolution 819 on Bosnia. The UN does not have a similar resolution on Burma, as this could have been the result of the strategic interests of permanent members of the Security Council.
How to solve the problem
The situation in Burma indicates that there is a failure on the part of the international community to address humanitarian crises and atrocities. In Burma’s case the political dimension is different, as it is not the USA that is opposed to resolutions condemning the human rights situation. The solution now is easier, as the Security Council permanent members are gradually accepting the referral of Burma to the ICC. Burma is not strategically unimportant, as it has oil, natural gas, gems and precious stones. To respond to the Security Council’s failed resolution, UN bodies and other international organizations have to find a way to convince vetoing states to change their position towards Burma and the media could also help (as there is a clear lack of media coverage of massacres happening in Burma). Moreover, the UN has to find other solutions to this case and also solutions to remedy what the Rohingya have been through.