Inaction in the International Community: the Plight of Myanmar’s Rohingya

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In February, the Office of the United Nations High Commissioner for Human Rights (OHCHR) issued a report condemning the widespread human rights violations against the Rohingya population, a minority Muslim community, in Myanmar. The report states that a “calculated policy of terror” indicates the “very likely commission of crimes against humanity,” a view echoed by the UN’s Special Rapporteur for Human Rights in Myanmar, Yanghee Lee. Following the 34th Session of the Human Rights Council in Geneva in March, The UN Human Rights Council approved a resolution to “dispatch urgently” an international fact-finding mission to investigate alleged human rights violations by military and security forces against the Rohingya community. The Myanmar government, however, has rejected the UN probe for “inflaming” existent tensions, stating instead that the allegations are an “internal matter.”

Since deadly violence erupted in Myanmar’s Rakhine State in 2012, an estimated 140,000 people, mainly Rohingya and small groups of Rakhine Buddhists, have been internally displaced. Persecution by Rakhine Buddhists and the national government, which is controlled by the Bamar majority ethnic group, have forced even more Rohingya to flee Myanmar for neighboring countries, like Bangladesh. Myanmar’s lack of genuine commitment to the rule of law and to protecting the rights of the Rohingya further entrench exclusion, discrimination and marginalization, and violate a number of international human rights laws and norms.

Myanmar’s former military government never prosecuted those complicit in the systemic and discriminatory violence against the Rohingya. However, when Nobel Peace Prize laureate, Aung San Suu Kyi, led her party to win the 2015 electionthe first such national vote since a civilian government was established in 2011—the international community seemed convinced that the new regime would end the violence against the Rohingya. In a premature move, U.S. President Barack Obama lifted all sanctions against Myanmar in an attempt to ensure the democratically elected government and its people would “see rewards from a new way of doing business.”

Unfortunately, the “new way” is concerningly similar to the old. Myanmar’s state media continues to vilify the Rohingya, as do officials and influential nationalist monks. The government continues to restrict the group’s right to start a family and travel freely in Rakhine State, where over one million Rohingya live.

The tinderbox situation in Rakhine State worsened after insurgents killed nine police officers in October last year in the town of Maungdaw on the Myanmar-Bangladesh border, sparking violent attacks by security forces masqueraded as “counter-insurgency operations.” The attacks led to another estimated 66,000 Rohingya fleeing to neighboring Bangladesh and more than 90,000 people enduring internal or cross-border displacement. Immediately afterwards, a security lockdown on Maungdaw denied journalists access and cut off most humanitarian assistance to the area. UNICEF raised alarm about the thousands of malnourished children who now would have no access to food and medical care.

Civil society organizations began their own investigations into human rights violations to make up for the lack of credible government response. Human Rights Watch identified hundreds of buildings destroyed in various villages in Maungdaw by analyzing high resolution satellite imagery, before calling for an independent and urgent UN investigation. The OHCHR, based on its interviews with Rohingya victims, detailed accounts of grave human rights violations committed by Myanmar’s security forces: the slaughter of babies and children, torture, enforced disappearances, and mass gang-rapes and other forms of sexual violence.

The Myanmar government has not directly addressed this new wave of violence, but has established the Rakhine Commission. The Commission, headed by Kofi Annan, is tasked with submitting solutions later this year addressing conflict-prevention, humanitarian assistance, and development in Rakhine State. The Commission’s effectiveness, however, remains to be seen. In the meantime, the Myanmar government can immediately undertake bold and decisive actions to protect the rights of the Rohingya minorities, instead of seeking “firm evidence” of such violations.

One area of action that needs no more evidence is the issue of statelessness. Myanmar’s 1982 Citizenship Act, which denies citizenship to the Rohingya, should be repealed or amended to guarantee citizenship and accompanying rights. Unfortunately, neither Myanmar nor many other Asian nations (such as Bangladesh, Thailand, and Malaysia) are parties to key international treaties, including the 1954 Convention Relating to the Status of Stateless Persons and its 1967 Protocol, as well as the 1961 Convention on the Reduction of Statelessness. The 1954 and 1961 Conventions establish minimum standards for the treatment of stateless persons and ensure rights to education, employment, and identity.

The government of Myanmar must also protect the rights of women and children. Myanmar continues to delay passing a bill on the protection and prevention of violence against women. With such a lacuna in the law, sexual and gender-based violence, as documented by the OHCHR and others, continues across the country and in Rakhine. Current nationalist legislation, such as the “Protection of Race and Religion” laws, discriminates on grounds of religion and gender. These laws contravene international laws and standards, including Myanmar’s legal obligations under the Convention on the Elimination of Discrimination of All Forms Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Even though the former military regime was responsible for passing these discriminatory laws, the current administration has faced resistance from Buddhist nationalist groups, such as the Ma Ba Tha, in repealing sections of the laws that do not accord with international human rights norms.

A judiciary lacking independence also complicates human rights protections. Articles 296(a) and 378(s) of Myanmar’s Constitution guarantee that a person deprived of liberty has the right to petition for a writ of habeas corpus. It is high time that Myanmar’s lawyers use the constitutional writ of habeas corpus to challenge the legality of the arrest and detention of petitioners before a court. Unfortunately, because Myanmar lawyers believe that the judiciary lacks the independence to act as a check on the executive, there has not been a single successful habeas corpus petition since the writ was reintroduced by the 2008 Constitution. In fact, acts of violence fueled by religious discrimination and hate speech against religious minorities are rarely prosecuted.

As the judiciary takes steps to assert its independence, it must also learn how to ensure that refugees, migrants, and minorities facing human rights violations have unfettered access to judicial recourse. Hundreds of Rohingya migrants have been trafficked and left adrift at sea in Southeast Asia on packed trawlers without food. Myanmar has ratified the ASEAN Convention Against Trafficking in Persons, Especially Women and Children, is thus obliged to prevent trafficking and provide access to remedies to victims of trafficking.

Myanmar has a duty to protect the country’s Rohingya minorities and their rights. Moreover, it must be willing to act based on principles of non-discrimination and non-segregation. Despite promises to do just this, Myanmar has failed to consider acceding to the International Covenant on Civil and Political Rights. Myanmar has, however, signed the International Covenant on the Elimination of All Forms of Racial Discrimination, meaning it must now recognize its obligations under international human rights law to uphold its commitment not to discriminate based on race, religion, or national origin. A failure to live up to these standards could result in a Commission of Inquiry by the UN and a referral to the International Criminal Court for those responsible for grave human rights violations. If Myanmar chooses to continue denying human rights and undermining the rule of law, then the international community has a responsibility to act decisively and hold those guilty of committing crimes against humanity legally accountable for their actions.

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Vani Sathisan is a Singaporean litigator who was formerly based in Myanmar as the International Legal Adviser to the International Commission of Jurists. Vani had previously been involved in representing victims of mass crimes at the UN-backed Extraordinary Chambers in the Courts of Cambodia. She is currently pursuing her Masters in International Law at the School of Oriental and African Studies in London, with a focus on rule of law issues in Sri Lanka and Southeast Asia.

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