‘Ethnic Cleansing’ and the Rohingya: A Venn Diagram of International Law.

This post has been contributed by Professor Urfan Khaliq, Module Convenor for International protection of human rights.

Law book with wooden judges gavel on table in a courtroom or law enforcement office.In recent weeks and months, the global news media has again highlighted the plight of the Rohingya in Myanmar. Their suffering highlights a perpetual problem – at the heart of most, if not all, human rights violations is discrimination of some sort. Refusal to employ someone, treat a medical condition, rent a property to or sell goods to as well as violence are all manifestations of discrimination.

Although it is disputed by the authorities in Myanmar, there is little doubt from objective evidence that the military in Myanmar are systematically forcibly removing ethnic Rohingya from Rakhine state in Myanmar. These actions have been subject to widespread condemnation from most of the international community. The question arises, however, what is the role of international law – especially international human rights law – in stopping all this? The answer is complex and highlights some of the artificiality of dividing international law into ‘fragments’ such as international criminal law, international humanitarian law and international human rights law. The aim of this blog is to briefly examine the overlapping of the relevant international rules.

The first thing to note is international law does not prohibit ‘ethnic cleansing’. The term is not a legal one. The term came into being during the civil war in the former Yugoslavia in the early 1990s but describes a long utilised technique. In essence, ‘ethnic cleansing’ is the idea that a minority of some description is persecuted, killed or forcibly removed from a territory to ‘cleanse’ the territory. This is obviously prohibited by numerous international human rights treaties. The issue specific treaties, such as the 1965 Race Convention, will clearly prohibit such activities when done on the basis of race or ethnicity. The 1984 UNCAT will prohibit acts of torture, inhuman and degrading treatment and that threshold will often be crossed where persons are forcibly expelled from their homes and their possessions and property destroyed. The general treaties, such as the ICCPR and ICESCR are also engaged and the State responsible for the violation of numerous rights. ‘Ethnic cleansing’ will entail the violation of the right to life, for example, as well as the right to housing and food, in terms of specific rights protected by these treaties. In this respect, international human rights law is clearly engaged but Myanmar is not party to either the ICCPR, ICESCR, UNCAT nor the Race Convention although aspects of the rights in question are part of the corpus of customary international law. But the gravity of the situation goes further than human rights treaties per se.

The 1948 Genocide Convention, specifically makes genocide a crime and in Article II, genocide is defined to include killing or causing serious bodily or mental harm to members of the group. The Convention does require that this is done with the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group.’ The notion of ‘intent’ and what it entails has been controversial – the ICJ dealt with the issue in a case involving Serbia and Croatia and required a ‘specific intent’ which is very difficult to prove. While States cannot be tried (although they can be considered responsible in international law for their policies and actions) individuals can. We thus enter the realm of international criminal law. The 1948 Genocide Convention as noted requires genocide be made a crime in domestic law. Myanmar is a party to the Convention but the probability of members of the military of Myanmar being prosecuted for atrocities committed against the Rohingya are so remote that we need not consider them. Myanmar is probably in breach of its obligations under the 1948 Geneva Convention but there is no treaty specific mechanism for considering non-compliance. Universal Periodic Review in the Human Rights Council may provide a measure of censure – but is unlikely to have much practical effect. But there are other options here. Genocide is a crime of universal jurisdiction. Any State can try any individual if the State considers that individual has committed acts of genocide. But evidential burdens and also the motive for prosecuting are often insurmountable obstacles for unconnected States although examples of such trials are not unknown. The statute of the International Criminal Court also prohibits genocide in Article 6 and the court can try individuals for carrying it out. In the case of Myanmar, it is unsurprisingly not a party to the ICC – so the likelihood of the Court exercising its jurisdiction with regard to the Rohingya is extremely limited although not entirely beyond the realms of possibility if the Security Council of the UN decides to refer the situation to it. It remains to be seen whether it will do so.

In sum, we can see there is a complex web of international law and responsibilities and obligations at play. All are part of international law but what is entailed and for whom differs. Events over the coming months will play out and it is important for you to keep an eye on them and bear in mind the role international law plays. Politics will ultimately determine what happens but international law in its different manifestations will also be key.

3 comments

  1. Sir I am quite glad that you wrote this piece on the Rohingya Crisis especially when it comes to the practical implementation of the rule of international law and what can be done. As a student of International Protection of Human Rights this year from SZABIST, Karachi, Pakistan – I am curious as to the clause of ‘crimes against humanity’ and if that can not be applied in the case before us. Can the international bodies not justify action against Myanmar under that premise?

    International Criminal Court Statute Article 7 states that:

    For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

    (a) Murder;
    (b) Extermination;
    (c) Enslavement;
    (d) Deportation or forcible transfer of population;
    (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
    (f) Torture;
    (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
    (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
    (i) Enforced disappearance of persons;
    (j) The crime of apartheid;
    (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health;

    In your own words in the essay above “(d) Deportation or forcible transfer of population” is occurring at the very least let along other crimes against humanity by the Myanmar government/military.

    M. Cherif Bassiouni argues that crimes against humanity are part of ‘jus cogens’ and as such constitute a non-derogable rule of international law.

    Your thoughts and comments sir.

    Respectfully Submitted,
    Syed M Shah
    UoL Student

    PS: We conducted a Rohingya Seminar on campus under our SZABIST Rule of Law Center (SRLC – please see link) inviting an eyewitness to the atrocities on the ground and an expert on International Relations.

    Like

    1. Thank you.

      The fundamental issues are that Myanmar is not party to the ICC and thus the Court has no jurisdiction in that regard. The situation can be referred to the ICC by the Security Council but that brings in all the political considerations of Security Council action. The Security Council itself may adopt measures under Ch VII of the Charter such as sanctions but that also seems unlikely at the minute. Some bodies such as the EU and states such as the US have adopted sanctions against the regime in the past but these were withdrawn further to the elections. They may adopt measures again – we will have to see. Unfortunately it is the way of things that killings in a ‘far off place’ often leads to no effective action.

      Best of luck with your studies.

      With best wishes,
      Professor Urfan Khaliq

      Like

  2. Dear Syed M Shah,

    Thank you so much for your comment, which has been forwarded to Professor Urfan Khaliq’s attention. I hope to receive a favourable reply to your question as soon as possible.

    Best wishes,
    Undergraduate Laws Programme

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s