9 October, 2020
By Jessica Honan – Research Assistant
Rohingya Muslims in Myanmar’s Rakhine state are being subject to persecution by a coalition of non-Muslim Rakhine civilians, Myanmar’s police force, and Myanmar’s military – the Tatmadaw. The root cause of the persecution is the Rohingya’s status as non-citizens of Myanmar. Most Myanmar people consider Rohingya ‘Bengalis’ – coming from Bangladesh. This perception was legitimised by the government’s stripping of Rohingya’s citizenship in 1982. Since 2017, murders, torture and sexual violence has increased in an attempt to expel Rohingyas from Myanmar.
The result of the ongoing persecution is that an estimated 712,700 Rohingyas have fled into Bangladesh since 2017. This threatens the already fragile peace and democratic system of Bangladesh, and it has created tensions between Myanmar and Bangladesh on the issue of repatriation, with the potential of escalating to armed conflict or multi-State hostilities. Furthermore, the unsanitary conditions and fragile health infrastructure in Bangladesh refugee camps means the spread of COVID-19 in these areas would devastate the populations. This is an immediate threat to the refugees, especially the estimated half-million refugees in Cox’s Bazar in Bangladesh.
As the United Nations Security Council’s mandate under Chapter VI of the Charter of the United Nations is to maintain international peace and security, it has a responsibility to act to resolve the crisis. The possibility of conflict with Bangladesh and the threat of COVID-19 to the refugees illustrates that this crisis is a serious threat to international peace. Chapter VI of the Charter of the United Nations deals with International Dispute Resolution – specifically articulating the International Law mechanisms available to the UNSC for resolving international disputes. Foremost, the use of these mechanisms requires the existence of an international dispute.
The Rohingya refugee crisis has manifested into two clear legal disputes: primarily, as between the Rohingya and the Tatmadaw coalition regarding the expulsion of Rohingyas; and secondly, as between Myanmar and Bangladesh regarding the repatriation of Rohingyas in Bangladesh.
With respect to the first dispute, the disagreement is over whether the Rohingya have a right to live in Rakhine State. Whereas the Rohingya believe it to be their homeland, the Tatmadaw coalition believe they must relocate to Bangladesh. Rohingya Muslims in refugee camps have expressed a wish to return to Myanmar, but fear further persecution by the Tatmadaw coalition who continue to reject their claim, as they are non-citizens of Myanmar.
The government has demonstrated that it is unwilling to interfere in the dispute between the Tatmadaw coalition and the Rohingyas, and has consistently refused interference by the community as a way of keeping hold of its unstable democracy. After a period of military dictatorship, a democratic government came into power in Myanmar in 2015. However, the military is constitutionally entitled to 30% of government seats. The government recognises that the military could regain power if there was a confrontation between it and the Tatmadaw. The International Court of Justice (ICJ) ruled in The Gambia v Myanmar that the government must “take all measures within its power” to prevent the persecution. However, this decision did nothing to resolve the source of the conflict – the issue of citizenship.
With respect to the second dispute, Myanmar and Bangladesh have thus far been largely unable to agree on the repatriation of Rohingyas. As Myanmar perceives Rohingyas to be Bengali, it believes they should resettle in Bangladesh. Bangladesh’s position is that the refugees are from Myanmar and thus must return.
Both disputes are ultimately caused by Rohingya’s non-citizen status: Rohingya are persecuted because the coalition believes them to be wrongfully in Myanmar, and Myanmar and Bangladesh dispute over repatriation because neither perceive Rohingya as their citizens.
How has the United Nations Security Council (UNSC) responded to the dispute so far?
As of September 2020, the UNSC action has failed to address the citizenship issue fuelling the disputes. The Council has not acted under Chapter VI. Instead, it has been frequently briefed with reports from the International Fact-Finding Mission on Myanmar. This was established in 2017 by the UN Human Rights Council, rather than by the UNSC acting under their power to investigate contained in Article 34. This mandate ended in 2019 and the UNSC was briefed. Special Rapporteur Yanghee Lee called on the UNSC to act, but no resolution was made given Chinese and Russian opposition.
Additionally, the UNSC has been receiving briefings on the situation in Myanmar for more than a decade under ‘any other business’ in its closed consultations, and has adopted a Presidential statement condemning the persecution of Rohingyas. However, neither of these contributions have made any progress to settling the issue of citizenship.
Chapter VI to resolve the disputes
The UNSC has authority under Article 36(1) of the Charter of the United Nations to “recommend appropriate procedures or methods of adjustment”. As the UNSC has been briefed on the matter already, judicial settlement and mediation are dispute resolution tools that could make a meaningful contribution in resolving the crisis.
Firstly, the UNSC should refer the repatriation dispute between Bangladesh and Myanmar to the International Court of Justice (ICJ). The UNSC cannot refer the dispute between the Tatmadaw coalition and Rohingya to the ICJ because Article 34(1) of the Statute of the International Court of Justice requires that parties be States, and neither the Tatmadaw coalition nor the Rohingya population are such.
However, Myanmar’s unwillingness to repatriate could be considered complicity in genocide, and thus in contravention of Art III(e) of the Genocide Convention – of which Myanmar is a signatory. This would mean the dispute between Myanmar and Bangladesh could be referred to the ICJ on the basis of the compromissory clause in s XI, which attributes compulsory jurisdiction to the ICJ when disputes arise under the convention.
The ICJ would then conduct judicial settlement to decide on the legal obligations of both States pertaining to repatriation. An ICJ decision on the matter of repatriation will increase certainty over which State the Rohingyas belong to, and thereby increases the likelihood of a State recognising them as citizens.
Secondly, the UNSC should take up Japan’s offer to mediate a discussion with Myanmar and Bangladesh regarding Rohingyas citizenship. Japan has abstained from Myanmar-related UN resolutions and has not taken a stance on the crisis. This impartiality makes Japan a credible mediator that could meaningfully contribute to a dialogue on Rohingya citizenship. This mediation should be distinct from the Secretary General’s Good Offices to Myanmar, which have been employed to peacefully resolve the conflict. This broad mandate does not allow for the issue of Rohingya citizenship to be adequately addressed. The UNSC mediation with Japan should focus entirely on reaching an agreement on Rohingya citizenship.
Political Obstacles to UNSC Action
Firstly, it is not unlikely that Russia and/or China would veto UNSC action on the Rohingya crisis. Both are hesitant to acknowledge Myanmar’s human rights abuses given their poor human rights records. Russia has also indicated that it perceives the Rohingya persecution to be an internal Myanmar issue and does not want to impede on Myanmar’s sovereignty. Furthermore, China is hesitant to support any action the Myanmar government would oppose. This is because China requires access to Myanmar for its Belt and Road initiative. The instability caused by the crisis also improves China’s strategic position, as a weakened Myanmar gives Beijing more authority in negotiations.
The issue of a Russian or Chinese veto could be overcome if the situation were referred to the General Assembly on the basis that the UNSC had failed to act. This would be a procedural vote, so not subject to veto. The General Assembly could then refer the dispute to the ICJ or mediation under the authority of the Uniting for Peace resolution.
On top of the veto issue, UN action must be conditioned to not undermine the democratically elected government given the fragility of Myanmar’s democracy . The UN’s referral to the ICJ and mediation must be composed so as to respect the authority of the Myanmar government.
Finally, the Myanmar government has consistently refused foreign interference and may therefore be uncooperative to UNSC recommendations. The compromissory clause in the Genocide Convention means the ICJ has jurisdiction without Myanmar’s further consent. However, Myanmar could refuse mediation. In this case, the UNSC could incentivise cooperation by warning of increased sanctions on the Tatmadaw or by reducing the sanctions many States already have on Myanmar.
Ultimately, given that the UNSC has a responsibility under Chapter VI of the Charter of the United Nations to maintain international peace and security, it should recommend judicial settlement and mediation to resolve the issue of Rohingya citizenship, thereby settling the disputes between Bangladesh and Myanmar and between the Tatmadaw coalition and Rohingya.
Image: Kutupalong refugee camp in Bangladesh (Source: John Owens/VOA)