Rohingya And Responsibility To Protection - Part (1)

Aman Ullah

RB Article

May 3, 2015

Along the nearly 1,000-kilometer refugee passage from western Burma to southern Thailand lies a string of mass graves occupied by a single ethnic group -- the Rohingya. United to End Genocide

The Burmese successive junta, its armed forces known as the “Tatmadaw,” and other armed groups under government control are committing gross human rights violations against ethnic and religious minorities. Extrajudicial killings, torture, and forced labor are prevalent; rape and sexual abuse by the Tatmadaw are rampant; and shows a complete disregard for the principle of distinction, intentionally targeting civilians with impunity.

All Burmese citizens are subject to government oppression. However, the above crimes appear to be targeted primarily at five ethnic groups: the Karen, Shan and Karenni in eastern Burma, and the Rohingya and Chin in western Burma. While international actors have focused on the repression of the pro-democracy movement by the military government, crimes perpetrated against ethnic minorities for years have received little international attention and show no signs of subsiding. 

The Rohingya, an ethnic Muslim minority, are likely the most oppressed minority within Burma with Human Rights Watch recently reporting that, “Even in Burma’s dreadful human rights landscape the ill-treatment of the Rohingya stands out.” Military operations in 1978 and the early 1990s resulted in mass arrests and torture which led hundreds of thousands to flee to Bangladesh 

Since June 2012, Anti-Muslim violence in Burma has been roundly condemned in statements from the UN, international governments, regional bodies, and human rights groups. Undeterred by negative international attention, the Burmese government has not attempted to provide a system of transitional justice for Muslims who have been attacked. On the contrary, government officials have participated in new attacks, tightened restrictions on Muslims, blocked aid from displaced Muslim populations, and segregated the mostly stateless Rohingya and other Muslims from the rest of the population.

Despite the government’s withholding of justice, the international community has failed to take necessary action to protect Muslim victims. Though the United Nations has acknowledged the role of Burmese authorities in “widespread” and “systematic” attacks against Muslims that “may constitute crimes against humanity,”

These violations perpetrated primarily by state actors on a widespread and systematic basis, rise to the level of crimes against humanity, ethnic cleansing and war crimes - three of the four crimes states committed themselves to protect populations from in endorsing the responsibility to protect (R2P) at the 2005 World Summit.

Humanitarian intervention

The international community in the last decade repeatedly made a mess of handling the many demands that were made for "humanitarian intervention": coercive action against a state to protect people within its borders from suffering grave harm. There were no agreed rules for handling cases such as Somalia, Bosnia, Rwanda, and Kosovo at the start of the 1990s, and there remain none today. Disagreement continues about whether there is a right of intervention, how and when it should be exercised, and under whose authority.

Since September 11, 2001, policy attention has been captured by a different set of problems: the response to global terrorism and the case for "hot preemption" against countries believed to be irresponsibly acquiring weapons of mass destruction. These issues, however, are conceptually and practically distinct. There are indeed common questions, especially concerning the precautionary principles that should apply to any military action anywhere. But what is involved in the debates about intervention in Afghanistan, Iraq, and elsewhere is the scope and limits of countries' rights to act in self-defense -- not their right, or obligation, to intervene elsewhere to protect peoples other than their own.

The Policy Challenge 

External military intervention for human protection purposes has been controversial both when it has happened – as in Somalia, Bosnia and Kosovo– and when it has failed to happen, as in Rwanda. For some the new activism has been a long overdue internationalization of the human conscience; for others it has been an alarming breach of an international state order dependent on the sovereignty of states and the inviolability of their territory. For some, again, the only real issue is ensuring that coercive interventions are effective; for others, questions about legality, process and the possible misuse of precedent loom much larger. 

NATO’s intervention in Kosovo in 1999 brought the controversy to its most intense head. Security Council members were divided; the legal justification for military action without new Security Council authority was asserted but largely un-argued; the moral or humanitarian justification for the action, which on the face of it was much stronger, was clouded by allegations that the intervention generated more carnage than it averted; and there were many criticisms of the way in which the NATO allies conducted the operation. 

At the United Nations General Assembly in 1999, and again in 2000, Secretary-General Kofi Annan made compelling pleas to the international community to try to find, once and for all, a new consensus on how to approach these issues, to “forge unity” around the basic questions of principle and process involved. He posed the central question starkly and directly: 

…if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica 

– To gross and systematic violations of human rights that affect every precept of our common humanity? 

It was in response to this challenge that the Government of Canada, together with a group of major foundations, announced at the General Assembly in September 2000 the establishment of the International Commission on Intervention and State Sovereignty (ICISS). The Commission was asked to wrestle with the whole range of questions – legal, moral, operational and political– rolled up in this debate, to consult with the widest possible range of opinion around the world, and to bring back a report that would help the Secretary-General and everyone else find some new common ground. 

Why the Responsibility to Protect, R2P?

The political uprisings in Libya and the Libyan government’s brutal repression are reminders that the world is far from achieving “freedom from fear”, one of the grounding purposes for the establishment of the United Nations in 1945. Often in the twentieth century, crimes against humanity provoked condemnation. The world has said “never again” many times. In reality, however, “again and again” would be a more accurate description. As each subsequent slaughter has occurred, in places like Rwanda and the Balkans, little has been done to prevent or avert mass atrocities.

However, in the past decade the international community has started to develop new terminology to address such atrocities, in the hope that new tools to prevent and respond to them will follow. Most notably, the Responsibility to Protect (R2P) is a new and evolving concept in international relations that addresses the failure of states — whether unable or unwilling — to protect their populations from mass atrocities. R2P was clarified with the 2001 Report of the International Commission on Intervention and State Sovereignty (ICISS). The ICISS Report made a profound assessment of all previous research and practice of “humanitarian intervention”, a hotly debated topic amongst political scholars and practitioners.

R2P has been put forward as a solution for these disagreements by shifting the focus away from the rights of states to intervene via humanitarian intervention, and towards the rights of victims to survive. Typically, states pursuing their own strategic interests rarely reach consensus on the circumstances in which humanitarian intervention is justified. Historically, humanitarian intervention has been viewed by third parties as a means to pursue non-humanitarian, neo-imperial interests. This cynicism is understandable given that the concept has been abused frequently by aggressors, from Hitler’s invasion of Czechoslovakia in 1938 to George W. Bush’s invasion of Iraq in 2003, to name just two examples.

Core principles 

(1) Basic Principles 

A. State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself. 

B. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect. 

(2) Foundations

The foundations of the responsibility to protect, as a guiding principle for the international community of states, lie in: 

A. obligations inherent in the concept of sovereignty; 

B. the responsibility of the Security Council, under Article 24 of the UN Charter, for the maintenance of international peace and security; 

C. specific legal obligations under human rights and human protection declarations, covenants and treaties, international humanitarian law and national law; 

D. the developing practice of states, regional organizations and the Security Council itself. 

(3) Elements the responsibility to protect embraces three specific responsibilities: 

A. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk. 

B. The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention. 

C. The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert. 

Tenth anniversary of the UN’s adoption of the Responsibility to Protect

This year marks the tenth anniversary of the UN’s adoption of the Responsibility to Protect. Adopted in 2005 as part of the UN Reform Summit, R2P is intended to ensure that civilians will be better protected against mass atrocities such as war crimes, crimes against humanity and genocide. 

As outlined in the UN Secretary-General’s 2009 report, Implementing the Responsibility to Protect, R2P obligations include: 

--> That each individual state has the primary responsibility to protect its populations from genocide, war crimes, crimes against humanity and ethnic cleansing. States also have responsibility for prevention of these crimes. 

--> That the international community should encourage or assist states to exercise this responsibility. 

--> The international community has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means to help protect populations threatened by these crimes. When a state manifestly fails in its protection responsibilities, and peaceful means are inadequate, the international community must take stronger measures, including collective use of force authorized by the Security Council under Chapter VII of the UN Charter. 

According to Dr. Simon Adams, Executive Director at the New York-based Global Centre for the Responsibility to Protect, “Ten years since the adoption of R2P . . . We have won the battle of ideas. We now have near universal acceptance of the abstract concept that all states have a responsibility to protect their populations . . . The only real debate at the UN these days is about how individual states and the international community should uphold their responsibility to protect in specific cases. The discussion now is about implementation of the most appropriate measures and means, not whether a responsibility exists. This is an enormous and historic change from just ten years ago."

To be continued........