Authors: Tanaya Thakur and Amit Kumar*
The issue of violence against Rohingya muslims in the Rakhine state of Myanmar has been a cause for global as well as regional concern for the past many years. Rohingya Muslims have been allegedly facing violence and discriminatory practice in the Buddhist dominated state since 1970s; on the grounds of ethnicity, language, and religion. The matter has however gained global prominence only in 2015; when mass exodus of the Rohingya muslim population happened from Myanmar to nearby South-Asian states. The migration was a result of clash between Arakan Rohingya Salvation Army (ARSA) and the Myanmar army. Post the clash, Myanmar military launched a clearance campaign against them which resulted in burning down of several Rohingya villages and forcing around seven hundred thousand to flee and settle in other states. The Rohingya crisis has been dubbed by the international community and academic commentators as border lining the heinous offence of genocide. The matter has been debated in the United Nations, regional forums, within domestic jurisdictions of south Asian states, and also in international courts, namely the International Court of Justice (ICJ) and the International Criminal Court (ICC).
On 23rd January 2020, the ICJ pronounced certain provisional measures to be adopted with respect to the Rohingya refugees; holding that Myanmar should take all possible measures to prevent the commission of acts falling within the scope of the definition of genocide (Article II of the Genocide Convention); ensure that its military and any organizations or persons subject to its control, direction or influence do not commit acts of genocide and any ancillary offence, take effective measures to preserve any evidence related to allegations of genocidal acts; and submit a report to the Court on all measures taken to give effect to the Order within four months and thereafter every six months until a final decision on the case is rendered. The order was then communicated to the Security Council by the Secretary General; who also expressed hope that Myanmar would ensure compliance of the ICJ’s order.
Due to the difference in their structure from domestic judicial bodies, international courts such as ICJ do not have the means to ensure the enforcement of their judgments. For this purpose they have to rely on state machineries themselves or on organizations such as the United Nations (Articles 94, 98, 99 of the UN Charter). In most cases the Security Council (UNSC) is vested with the responsibility to enforce ICJ judgments, even though the General Assembly has the power to work towards enforcement. Pursuant to this, a meeting of the UNSC members was called for to work out a method to ensure compliance of the ICJ provisional measures. The meeting was however vetoed by China and Russia and hence a conclusive plan of action could not be achieved.
China and Russia have time and again expressed that it is a bilateral issue between Myanmar and Bangladesh and should not be discussed at international forums. This view was also previously expressed at a meeting between UN and ASEAN to discuss provisional measures’ compliance and role of UN-ASEAN co-operation for the same. In another instance, China and Russia along with Equatorial Guinea voiced opposition when Marzuki Darusman, Chairperson of the United Nations Independent International Fact-Finding Mission on Myanmar was supposed to address the council as to its finding on the refugee crisis. They stated that the mission’s mandate was not to brief the Security Council. It was also asserted that the UNSC’s duty was limited to protect international peace and security it should not get involved in country-specific human rights violations. It was the UN General Assembly which then on the basis of findings of the same commission adopted a resolution that condemned the violence and discrimination towards Rohingyas and called on Myanmar’s government to combat provocation of hatred against the Rohingya and other minorities in the states of Rakhine, Kachin, and Shan.
This is not the first time that the Security Council is failing to take any action in a crisis situation due to usage of veto power. In the case of Rohingya refugee crisis, the veto has been used by China and Russia; in other matters of UNSC interest it has been some other nation to use the power. The veto power vested with the Security Council to ensure maintenance of world peace through co-operation and coordination has in fact played a counter-effective role with overuse and misuse to achieve the five permanent nations’ own agendas.
The Rohingya crisis has been acknowledged as an international concern by majority states. The independent fact-finding mission by United Nations in its report presented evidence of gross human rights violations driven by the Myanmar military against the Rohingya population. Evidence of systematic cleansing through killings, violence, rampage, sexual assault and rapes were discovered by the mission and presented in its detailed report. The mission confirmed ‘genocidal intent’ on part of higher official’s in the Myanmar army and recommended prosecution. The government of Myanmar has however continued to deny any form of genocide and has maintained that at most it is a war crime that would be dealt domestically by the state. Apart from denying any form of systematic cleansing, the Myanmar government has also, with its passive approach in the issue, failed to ensure safe return of Rohingyas from other states. Most of the Rohingya population has been rendered stateless and is reduced to a situation of abject poverty. They lack basic amenities like food, water and education and have been refused refugee status in states like India, Thailand and Indonesia where they are considered illegal immigrants. When evidence of state supported violations of human rights are available in Myanmar; gruesome enough to create heavy displacement in the region – it can no longer be said to be internal matter of the state.
The United Nations was established with the primary purpose of maintaining world peace and security (Preamble and Article 1(1)). It has the obligation to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace. The Preamble to the Charter also mentions that the Charter reaffirms faith in fundamental human rights, and in the dignity and worth of the human person. The UN Security Council has been conferred with the primary responsibility for the maintenance of international peace and security in accordance with the principles and purposes of the UN Charter. Thus, an issue of the magnitude of Rohingya crisis falls into the ambit of the United Nation’s goals. The UNSC taking action on the matter in no way oversteps boundaries and in fact would be a step forward in realizing its objectives.
Considering the facts, question arises as to why permanent members such as China and Russia have been using their veto powers to stop the UNSC from discussing the issue. There are a number of reasons that explain China’s position. First, China has several multi-million dollars economic projects lined up in Myanmar as part of the China-Myanmar Economic Corridor (CMEC) under China’s Belt and Road Initiative. Myanmar has already been cautious about China’s investment plans and has treaded with more caution than any other developing nation regarding the project. If China speaks up against the Chinese government in an international forum or becomes party to any debate on the matter – it would lose Myanmar’s faith which has taken years to develop. Second, with USA receding from the international economic market; China has found an opportunity to position itself as the new global power-center.
Establishing itself as the regional power-center is a stepping stone in achieving that objective. Securing Myanmar’s trust by using it powers in the UNSC could be one way to protect this objective. Third, China has maintained that its general international policy is one of non-intervention and non-alignment. It has stated that it shall work in the international forums only on issues of extremism, terrorism and separatism. It also maintains that ‘westernized’ ideas of human rights should not be imposed on states and they should be allowed to develop their own rights. It further argues in favour of internal safety and security. Intervening in the Rohingya crisis would go counter to China’s international relation policies (for further understanding reference can be made to Shanghai Cooperation Organization). This is also one reason why it speaks in favour of an internal arrangement in Myanmar on the Rohingya issue. Fourth, discussion on the Rohingya crisis in the UNSC could act as a catalyst in opening the floodgates to similar problems of violence been discussed. This could potentially lead to trouble for China which itself is accused of behaving similar to Myanmar in the case of Uyghur muslims. Last, Russia has been a close ally to China for some time and has similar international policies; which would explain its veto in the Rohingya case. Russia also has a history of alleged genocidal acts and persecution against its muslim population.
In the Rohingya issue there were several steps that the Security Council could have otherwise taken to ensure that the situation was brought under control and the human rights violations were stopped. It was not necessary that the persecutors of Rohingya’s were prosecuted internationally. The UNSC could have over the period pressurized the government into conducting a fairer domestic trial of those involved. Rohingya muslim’s safe return to Myanmar and a domestic settlement between the parties could have been ensured through a threat of sanction from the UNSC. Had personal interests been kept aside by UNSC members, the UN Charter could have been used to find means of settlement between the Rohingya muslims, Myanmar and Bangladesh – which has borne the maximum burnt of the crisis. Though, individual efforts have been taken by certain countries, like the USA which has imposed sanctions upon certain military officials from Myanmar for the extrajudicial killings of Rohingya Muslims – barring them from entry to the United States; a collective action from the UNSC has been missing.
The Myanmar army which is being accused of perpetrating the alleged genocide of Rohingya muslims, is vastly funded from the revenues generated by two companies owned by it, apart from funding from the state. These military owned firms were found to be a “risk contributing to, or being linked to, violations of international human rights and humanitarian law” by the UN fact finding mission. The UNSC could have imposed an embargo upon those companies which have trade relations with military owned companies in Myanmar.
Apart from these options, the council could have either set up a criminal tribunal or referred the matter to the International Criminal Court (ICC). The council has previously resorted to the mechanism of setting up tribunals to try and punish those individuals who were accused of committing grave breaches of Geneva Convention, genocide or crimes against humanity in case of conflict in Rwanda and Yugoslavia. In case of South Sudan (Darfur), the UNSC had referred the situation to ICC. The Rome Statute gives power to the UNSC to refer any situation to the ICC for investigation of war crimes, genocide, crimes against humanity and crimes of aggression. The UN mission had identified involvement of military and police officials in the commission of these crimes in Myanmar. Even though the matter reached ICC; it came as a reference not from the Security Council but from Bangladesh. The Court relied on an expansive interpretation of the Statute to establish its jurisdiction on the issue, as Myanmar was not a party to it. Had a UNSC reference been made, it would have been easier for the Court to answer the question of jurisdiction.
It goes on to demonstrate how the Security Council has been unsuccessful in performing its responsibilities because two of the permanent members used their veto power to further their interests. Veto power has been used by the permanent five as a tool for manipulation, rather than as the shield it was meant to be. If the Security Council is to work towards its goal, the veto power needs to be re-imagined. With the sword of veto hanging over, important decisions which require the Security Council’s intervention will fail to get due attention. However, due appreciation should here be meted out to other international organs – the UNGA and ICC, which stepped up when the UNSC failed and worked towards restoring faith in international law.
*Authors are Research Scholars at, IIT Kharagpur (RGSOIPL). They have completed their masters in international law from South Asian University, New Delhi.