Zezen Zaenal Mutaqin. Asia-Pacific Journal on Human Rights & the Law. Volume 19, Issue 1. 2018.
Hitler and Eichmann were the enemies of the Jews, but they were probably heroes to the Germans … In order for a country’s survival, the survival of a race, or in defence of national sovereignty, crimes against humanity or in-human acts may justifiably be committed … So, if that survival principle or justification is applied or permitted equally (in our Myanmar case) our endeavours to protect our Rakhine race and defend the sovereignty and longevity of the Union of Myanmar cannot be labelled as ‘crimes against humanity,’ or ‘inhuman’ or ‘in-humane’ [sic] … We will go down in history as cowards if we pass on these [Rohingya] issues to the next generation without getting it over and done with. (Green, MacManus, Venning, 2020)
Introduction
The Rohingya, a Muslim minority group residing in Rakhine State in western Myanmar, are among the most desperate people in the world. In the last several decades, they have been systematically marginalised, oppressed, and persecuted by both the state apparatus and an intolerant Buddhist majority. Some have said that the Rohingya are victims of genocide allegedly ‘coordinated by the Myanmar government.’ The Rohingya, relatively unknown to many Western audiences, are the biggest stateless group, making up 10 per cent of all stateless people worldwide. While estimates vary, before the last exodus in August 2017, around one million Rohingya lived in ghetto-like conditions, had no citizenship status, and were subject to forced labour, undesired birth control, sexual violence, forced removal, killing, and other types of persecution. Following the clash between the so-called arsa (Arakan Rohingya Salvation Army) armed group and the military force in August 2017, a hundred thousand Rohingya fled to Bangladesh (which, as of 7 January 2018, hosted around 647,000 refugees). In the last decade, another thousand Rohingya have taken dangerous sea journeys by boat to neighbouring countries like Thailand, Malaysia, Indonesia, and even as far as Australia.
According to a report by the United Nations (un), more than 94,000 people, mostly the Rohingya, have departed from the Bay of Bengal from 2014 to 2015, of which 1,050 died in the journey of various causes like starvation, malnutrition, on-board brawls, and drowning. Although most of these people were Rohingya, sea migration in Southeast Asia is a complicated issue because of its intersections with the smuggling of people, human trafficking, and economic migration. These factors can lead to confusion among states in the region as they respond to the migration crisis.
Shocked by finding mass graves of Rohingya victims at a trafficking camp in Songkhla province near the border between Thailand and Malaysia in 2015, Thailand, Malaysia, and Indonesia began anti-trafficking operations which resulted in tightening their borders and cracking down on the smuggling syndicates. One of the most notorious operations to deter the smugglers was high sea interception of the refugee boats by navy vessels, a practice that was labelled by international media as ‘maritime ping-pong’.
Thousands of the refugees were stranded when escaping smugglers abandoned them on the high sea. They drifted in squalid conditions for two months. Local fisherman from Indonesia’s Aceh province boldly towed the refugee boats to the Aceh coast, arguing that the Acehnese were helped by the international community during the tsunami and it was now their turn to help other desperate people. The crisis was handled swiftly by political decisions following international pressure on Southeast Asian countries to take immediate humanitarian actions to relieve the suffering of the ‘boat people’.
What is striking for everyone is the inability and indifference of the Association of South East Asian Nation (ASEAN) as a regional organisation in responding to the crisis. ASEAN closes its eyes and insists on inaction, arguing that the principle of non-interference should be upheld to keep the solidity of the institution. ASEAN is unwilling to see the Rohingya problem as a regional issue, although its member states have to accept the risks and effects of the crisis. ASEAN is also reluctant to see the problem of Rohingya as a refugee problem; ASEAN reduces it merely to a problem of migration and smuggling of people. Also, ASEAN is unwilling to recognise the Rohingya crisis as a regional humanitarian problem, arguing that it is a matter of Myanmar’s internal politics. Its institutional statements, ASEAN claims, may be seen by Myanmar as an act of interference in their internal politics, and that might create tension within the institution. However, ASEAN fails to acknowledge that the condition, which is now considered as genocide against the Rohingya, could not be treated simply as Myanmar’s internal affairs.
My article will argue that there are three inter-related levels of concern with regard to the Rohingya crisis: (1) a focus on persecution and nationality in Myanmar; (2) the issue of statelessness and displacement in the region; and (3) grave human rights violations amounting to international crimes, including genocide and crimes against humanity. Thus, this article will discuss two actions that ASEAN can and should take to help resolve this growing humanitarian crisis. To ensure that Myanmar willingly accepts the responsibility to resolve the problem at its source, the international community, particularly ASEAN, must stand firm against Myanmar’s gross violations of human rights. At the same time, ASEAN must deal with the refugee crisis by formulating a workable regional framework. This article will deal with an underlying conflict paradigm that appears in all refugee issues: how can we reconcile state sovereignty with humanitarian responsibility? In other words, we must balance state security concerns against human rights.
The Rohingya crisis is particularly complicated because almost all ASEAN member states, except the Philippines and Cambodia, are not party to the 1951 Convention Relating to the Status of Refugees (the Refugee Convention) or the 1967 Protocol Relating to the Status of Refugees (the Refugee Protocol). This is also probably part of the reason why ASEAN never officially uses the terms ‘asylum’ or ‘refugee’ in handling forced displacement crises in the region. Some accounts in this article are hypothetical and theoretical, rather than factual. Nonetheless, I hope my proposal can contribute to the development of ASEAN’s human rights protection mechanisms. ASEAN adopted its own Declaration of Human Rights (ADHR) in 2012, and the ASEAN Intergovernmental Commission on Human Rights (AICHR), established in 2009, serves as the regional body for human rights enforcement. In the regional context, where almost all ASEAN member states are not party to the Refugee Convention, linking the problem of involuntary or forced migration to humanitarian and human rights principles is the best approach to solve this issue. Thus, pursuant to article 16 of the ADHR that references the rights of asylum seekers and displaced persons, my proposal, I hope, contributes to the institutionalisation of human rights in the region.
The first part of this article discusses the magnitude of the Rohingya crisis, elucidates its historical roots, and explores its most significant problem. This article then argues that the situation in Rakhine state has become genocide, and considers possible proposals for action for handling the refugee crisis at the regional level.
The Rohingya: Statelessness and Genocide
Statelessness
Post-colonial legacies, the political structure of the authoritarian military junta, Islamophobia, and racism have played a crucial role in creating decades of atrocities and human rights violations in Myanmar, also known as Burma. The Myanmar government refers to the Rohingya as ‘illegal intruders’ who crossed the border from Bangladesh and have never become one of Burma’s 135 recognised ethnic groups. The government reiterates that ‘the Bengalis’ were brought by the British to Rakhine state during the colonial period to cultivate (and then grab) their fertile land. During World War ii, the Muslim Rohingya sided with the British while most of the Rakhine Buddhist supported Japanese power. As a result, the Rohingya have been accused of being allied with Myanmar’s enemies.
The Myanmar government has never used the word ‘Rohingya’ and urges its media, the entire government apparatus, and even international organisations working in Myanmar to instead refer to these people as ‘Bengali’ or ‘Kalars’, a racist and derogatory word. Dehumanisation and stigmatisation of the Rohingya has been systematically propagated by Myanmar since its independence in 1948. Currently, almost all elements within Myanmar society, including political parties, Buddhist organisations, civil society, human rights activists, and humanitarian workers echo that narrative. Furthermore, within Myanmar society in general, the Rohingya are referred to as ‘cockroaches’, ‘diseased’, or ‘unlike human’. All these insults have amounted to discrimination against Rohingya both by the state and civilians.
The crux of the Rohingya problem is that they are denied the right of citizenship. The rise of the modern nation-state has changed the traditional territorial boundaries and connection of these people to their land and identity. The Rohingya people have migrated across Southeast Asia for generations, migrating in and out long before national borders were created. Now, their migration is strictly limited and requires some form of national identification. Citizenship is the right to have rights. Without citizenship, stateless people do not have access to the common goods provided by the state like education, health, welfare, freedom of movement, and the justice system.
After the independence of Burma in 1948, the Rohingya were initially recognised as part of the minority ethnic groups in Myanmar. Its first Prime Minister U Nu once praised the loyalty of ethnic Rohingya to the nation. In 1950, the government also established a special administrative zone of townships for the Rohingya in the area of today’s northern Rakhine State, which includes Buthidaung, Maungdaw, and Rathedaung. The official encyclopaedia of Myanmar printed by the government in 1964, two years after the new military regime gained power, mentioned that those townships were 75 per cent inhabited by Rohingya. Importantly, The Union Citizenship Act 1948 stipulated that Rohingya were entitled to citizenship.
A systematic marginalisation, exclusion, and eradication of the Rohingya started in the 1960s during the military regime of General Ne Win, who took power by coup in 1962. Fuelled by anti-colonial sentiment, Ne Win solidified his political power by advancing the notion of the purity of Burma, vowing to decontaminate it from ‘guests and mixed blood’. In this spirit, in 1977, the military junta launched an operation known as Nagamin (Dragon King Operation) whose sole purpose was to ‘scrutinise each individual living in the state, designating citizens and foreigners in accordance with the law, and taking actions against foreigners who have filtered into the country illegally.’ As part of the operation, National Registration Cards (NRC) owned by Rohingya were forcefully taken by state officials and the military apparatus. By May 1978, 222,000 Rohingya crossed the border to Bangladesh, escaping the brutal operation. The following year, the Bangladeshi and Burmese governments agreed to repatriation of the refugees. The Bangladeshi government implemented a harsh policy (including withholding food aid) to force the Rohingya refugees to return to Burma. Between May and December 1978, 12,000 Rohingya died due the starvation in the camps. By December 1979, helped by the un High Commissioner for Refugees (UNHCR), around 178,280 refugees were repatriated to Rakhine State. This situation has apparently become a cyclical pattern, as indicated by the most recent exodus of the Rohingya from Rakhine State, starting in August 2017.
Triggered by the presence of a large number of the returnees, ultra-nationalist groups in Rakhine State urged the military junta to enact a new citizenship law, which was drafted in 1978. In 1982, the parliament passed the Citizenship Law of Burma (the Citizenship Law) to strip the Rohingya of civil and political rights. The promulgation of the Citizenship Law is exceptionally consequential: most Rohingya are now stateless; they are unable to avail themselves of state protection, and the state claims no responsibility for them because they are not citizens. As stateless illegal aliens, the Rohingya are subject to restrictions on their movement, forced labour, eviction, destruction of their homes, birth and marriage control, starvation, and denial of healthcare and education.
The wave of violence has erupted more often since 1982, including mass violence in 2012 when around 200 Rohingya were killed and 138,000 were displaced. Following the August 2017 crisis, using satellite imagery, Human Rights Watch concluded that nearly 214 Rohingya villages were burned to ashes. More than 640,000 Rohingya fled Myanmar while around 300,000 of them live in Internally Displaced Person (IDP) camps that, according to George Soros, are reminiscent of Jewish ghettos in the Nazi era. Disturbing images and videos of the killing and mass graves of the Rohingya recently published by Time and Reuters illustrate that the atrocities have reached the level of genocide.
Following Myanmar’s democratisation in 2015 where the National League for Democracy (NLD), a political party established by the Nobel Laureate Aung San Suu Kyi, won the election, the persecution persists. San Suu Kyi rarely comments on the humanitarian crisis and maintains her silence, worrying that she might lose majority support. Only after facing international pressure and condemnation, in September 2016, she invited the Kofi Annan Foundation to form an Advisory Commission on Rakhine State, with its main mandate to ‘examine the complex challenges facing Rakhine State and to propose responses to those challenges’. However, in my opinion, this ad hoc national body is more of a political gesture than a genuine effort to tackle the problem.
A more fundamental problem impeding the effort of handling the Rohingya crisis is the 2008 Myanmar Constitution, which still guarantees the power of the military within the state structure. The constitution stipulates that 25 per cent of the seats in parliament are to be allocated for the military without an election. It also prevents anyone with a spouse or children who are foreign nationals from occupying political position (precisely to prevent San Suu Kyi from taking office). Importantly, the 2008 Constitution gives full authority to the military to take over border control, defense, and home affairs. All these provisions effectively cede control of Myanmar to the military junta. As a result, the future of the Rohingya remains dark.
Genocide
At least two legal frameworks are potentially applicable to the situation of gross violations of human rights in Myanmar: crimes against humanity and genocide. Historically, these two distinct but related concepts entered international law through the Nuremberg Tribunal to describe atrocities committed by the Nazis against religious and racial groups like the Jews and the Roma. To borrow William Schabas’ description, both crimes against humanity and genocide were ‘forged in the same crucible and were used at Nuremberg almost as if they were synonyms.’ Nonetheless, they became separate legal frameworks. Crimes against humanity have a nexus to armed conflict (at least until 1994, before the establishment of the International Criminal Tribunal for Rwanda (ICTR)) while genocide can be committed in peacetime. Furthermore, the term ‘crimes against humanity’ focuses on the systematic and mass killing of a vast number of civilians while genocide focuses on the destruction of entire groups. Although several reports and legal analyses based on the framework of crimes against humanity have been published in the last ten years, my article evaluates the situation in Myanmar using the framework of genocide.
Genocide is defined as,
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group (Convention on the Prevention and Punishment of the Crime of Genocide).
Under this definition, the crime of genocide has three prime elements: the existence of a protected group, their commission of one or more of the above prohibited acts, and the requisite intent.
The legal analysis conducted by Queen Mary University of London (written by Penny Green and her colleagues) details the six stages of genocide outlined by Daniel Feierstein which include: stigmatisation and dehumanisation; violence and terror; isolation and segregation; systematic weakening; mass annihilation; symbolic enactment by removing the victims from collective history. After delving into evidentiary evaluations, the report concludes:
The Rohingya have suffered the first four of the six stages of genocide. They have been, and continue to be, stigmatized, dehumanized and discriminated against. They have been harassed, terrorized and slaughtered. They have been isolated and segregated into detention camps and securitized villages and ghettos. They have been systematically weakened through hunger, illness, denial of civil rights and loss of livelihood. All of this places them at high risk of annihilation.
The report also warns that although the mass killing has not yet reached the scale of the German, Rwandan, Kosovan, or Cambodian genocides, the structure and ideological foundation for such large-scale genocide already exists in relation to the Rohingya. In fact, recent international media reports on the discovery of mass gravesites and satellite imagery of burning villages obtained by Human Rights Watch indicate that genocide is actually happening right now. The Rohingya are being annihilated through orchestrated massacre, forced displacement, and systematic weakening. Maung Zarni and Alice Cowley once called it the ‘slow-burning genocide.’ In his book, Azeem Ibrahim calls it ‘hidden genocide’, while I would like to simply name it a forgotten genocide.
Using clinical methods, a Yale Law School report reaches a similar but more rigorous conclusion. Based on the primary resources collected by Fortify Rights, a prominent human rights organisation based in Southeast Asia, and supported by an extensive literature review, the analysis tried to answer whether the three prime elements of genocide (protected group, acts, and intent) had been satisfied. While the first two elements were easily found to be fulfilled, the intent element is more difficult to prove. No single government, aside from Nazi Germany, would openly announce its intention to erase an ethnic group. However, the ICTR has concluded in the case of Jean-Paul Akayesu that a perpetrator’s intent ‘can be inferred through an examination of the totality of circumstances surrounding the commission of prohibited acts.’ In light of this authoritative interpretation of the law, the report concludes that the Myanmar government and local actors have intentionally perpetrated genocide against the Muslim Rohingya.
ASEAN and the Rohingya Refugee Crisis
If we assume that the Myanmar government and its local actors have perpetrated crimes against humanity or genocide, hundreds of thousands of Rohingyas who involuntarily crossed the border to Bangladesh or took the dangerous sea journey to neighbouring Southeast Asian countries have a well-founded fear of persecution and are entitled to refugee status. If we could also assume that Myanmar and its neighbours have ratified the Refugee Convention or its Refugee Protocol, the mechanism of refugee determination, the responsibility of the hosting countries as well as a durable solution might easily be outlined. However, countries in the region and regional institutions like ASEAN have seen the problem very differently; almost none of them have signed the Refugee Convention. Even if we assume countries in the region had signed the Refugee Convention, refugee law was created mainly to select refugees individually based on state interest rather than to embrace them en bloc based on purely humanitarian concern. The law grants only a few refugees legal protections while leaving most of them with a palliative safeguard based on something less powerful and less certain than the law, be it discretionary policy or the mercy of society.
Due to the very nature of current refugee law, in response to the ongoing refugee crisis and in preparation for possible similar situations in the future, ASEAN might not need to conform fully to the so-called universal but yet very Eurocentric standard of the Refugee Convention. ASEAN can craft a solution to the refugee crisis via extra-legal mechanisms, or by creating a legal framework that would be compatible with regional countries’ mutual interests and cultural situations. Nonetheless, a permanent regional legal framework is preferable than an ad hoc extra-legal approach because it will create more certainty and feasible action. ASEAN could follow the footsteps of African, Arabian, and Latin American countries, which have formulated their own regional refugee frameworks that have, to some extent, departed from the Refugee Convention.
However, in a situation where most member states of ASEAN are not parties to the Refugee Convention, a regional refugee framework could also be in the form of any agreed structure (not necessarily legalistic) based on other mechanisms of international human rights law. As opined by Professor Vincent Chetail, the founding Director of the Global Migration Centre, human rights and refugee law should be treated as an integral narrative to assure that involuntary migrants are protected. From this perspective, ASEAN, as well as its member states, bears an obligation to protect anyone who is forcibly displaced from their homeland. Based on this assumption, ASEAN, for instance, could agree on a code of conduct and standard operational procedures (sop) as well as basic protection mechanism in addressing the refugee crisis. Critical appraisal of current refugee law supports this assumption.
James Hathaway, a prominent expert in this field, argued that the Refugee Convention was designed by western European countries to tackle the European refugee problem. Disembarking from a general assumption, Hathaway argues that the definition of refugeehood does not ‘fully embody either humanitarian or human rights principles’. Rather, it selects principles based on western liberal values. History of the drafting shows that the Eastern powers opted out of the process, arguing that the draft of the Refugee Convention relied upon ‘false premises’ and would only lead to the protection of ‘traitors who are refusing to return home to serve their country’. The draft was an effort of the Western states to advance a ‘sinister political purpose’. This explains why the definition of refugee mirrors civil and political rights entrenched in Western political thought and interests. Thus, although the Refugee Protocol of 1967 removed time and spatial limits of the Refugee Convention, the very nature of the convention is still Eurocentric, aiming to regulate and control the flow of people for the sake of their economic interests and security, based on a particular ideological foundation. The Convention is not a mechanism to alleviate human suffering of forcibly displaced persons by embracing entirely humanitarian principles, but rather an instrument to limit them and fit them within state interests and ideology.
The Refugee Convention leaves the door wide open for a substantial margin of discretion in making specific protection decisions. The recognition of refugeehood is not a right of the refugees but a privilege decided and granted by the state. This explains the fact that there are many desperate people in exile outside the boundary of refugeehood while very few of them enjoy the protection of the Refugee Convention. Most of those who are granted refugee status receive it from states that see the decision as being within their geopolitical and economic interests.
Hathaway also adds that, ‘the needs of non-European refugees were left to be addressed institutionally rather than in law, with the assumption that adjacent states would cope with the human displacement if afforded financial assistance by the Western states.’ However, Western countries have proven to be unhelpful in coping with the refugee crisis. For instance, in response to the arrival of a small number of refugees from Asia and Africa, Western countries in Europe and Australia have demanded that neighbouring countries of the refugees’ countries of origin open their doors and accommodate more refugees in return for financial compensation. Sadly, these developed nations act as though they bear most of the burden while millions of refugees have been hosted by the countries neighbouring the refugees’ countries of origin for decades. While poorer countries like Turkey (2.8 million refugees), Pakistan (1.6 million refugees), Lebanon (1 million refugees), Iran (978,000 refugees), Ethiopia (742,700 refugees), Jordan (691,800 refugees), Uganda (512,600 refugees) host millions of refugees, Western countries have been occupied with building sophisticated domestic procedural controls, screening mechanisms, and unfair refugee determination processes as well as interdiction to deter them from coming. This is consistent with what Hathaway calls ‘institutional policies of containment in the Third World’ that to a large extent has been facilitated by expanding the mandate of UNHCR.
More than anything else, the idea of a universal system of protection for refugees – based on an archaic premise of the right to exile – would become meaningless because nation-states persistently assert their self-interest by controlling immigration. Existing refugee law was designed to tackle a regional crisis in Europe based on European ideology and culture, but has been pushed to be recognised as a universal norm. The regional arrangements that exist today in Africa, Latin America, as well as Arabian countries, where the generosity and mutual interests are agreed based on cultural similarity, are simply emulating the European model. This also affirms that universal refugee law does not and will not fit with reality. While echoing this idea, Hathaway concludes that regional arrangements to tackle refugee crises are more realistic and preferable than persistently pushing for universal rules.
Thus, in my opinion, this moment is a critical time for ASEAN to formulate a workable refugee framework that adapts to ASEAN culture, values, and conditions. Following the analytical approach suggested by Hathaway and Cole, I propose at least two recommendations for ASEAN to form the basis of a regional refugee framework. These proposals are based on the idea that, to resolve the forced displacement crisis, refugee law should be re-linked with the human rights protection approach and humanitarian principles. Similar approaches have also been supported by other scholars such as Colin Harvey, and more radically by Professor Vincent Chetail. In his thought-provoking article, ‘Are Refugee Rights Human Rights’, Chetail proposes a radical idea: to tackle the worsening involuntary migration crisis, we have to switch to the notion that ‘human rights law is the primary source of refugee protection, while the Refugee Convention is bound to play a complementary and secondary role’.
For ASEAN, the reason for this proposal is both pragmatic and theoretical. ASEAN has a relatively well-established institution on human rights, namely the AICHR, which has successfully triggered the adoption of two important regional instruments: the ADHR in 2012 and the ASEAN Convention and Plan of Action Against Trafficking in Persons Especially in Women and Children (ACTIP) in 2015. Despite pessimism about the relativistic nature of the ADHR and its implementation, especially amongst Western scholars and NGO activists, following Tan Hsien-Li, we have to view it as a gradual step towards institutionalisation and acculturation of human rights in the region. Thus, in light of this positive development, the proposal of a regional refugee framework is reasonable and should be considered.
Interim Protection Approach
People who are forced to leave their habitual residence, for reasons such as war, persecution or disaster, do so as a last resort. They leave their homes because their basic rights as human beings are endangered. Some of them find a safe place inside their country, while many others must cross the border because they have no other choice. However, among those who are forcibly displaced, only people who have a well-founded fear of persecution ‘for reason of race, religion, nationality, membership of particular social group or political opinion’ will receive the benefit of protection under the law. Recognising the limited capacity of this definition, regional refugee frameworks such as the OAU Convention and the Cartagena Declaration widen the definition to include those who are victims of external aggression, occupation, foreign domination, events seriously disturbing public order, generalised violence, and massive violations of human rights. Although experts like Hathaway and Shacknove have proposed wider alternative definitions of refugee, the limited criteria stipulated by the OAU Convention are preferable in the ASEAN context. ASEAN does not need to reinvent the wheel. It can rely on a well-established definition. Nonetheless, for our consideration, we should retain the basic assumption that refugeehood is an outcome of the absence of meaningful protection of fundamental rights.
From this basic assumption, the interim protection approach, following Hathaway and Coles, argues that a feasible solution for Southeast Asia’s refugee problem is to restore the individual rights to return and rejoin one’s community. If the Myanmar government or its society did not dehumanise, marginalise, and orchestrate violence against the Rohingya, neighbouring countries would not face this crisis. Of course, there are two other options for a durable solution: local integration and resettlement. However, in the context of the Rohingya, sending the victims to a third country for resettlement or integrating them into local society of the host country may look benevolent, but indirectly help the act of genocide. The sole purpose of genocide is to remove an ethnic group from a certain territory by any means. In 2012, for example, President Thein Sein requested Antonio Guterres, then UNHCR chief, ‘to send all the Rohingyas to any third country that will accept them.’ Permanently rooting the Rohingya in a new land through local integration and resettlement means helping the Myanmar government clear the Rohingya out of their legitimate homeland. It also means that the government is cleansing its hands of the responsibility to restore human and civil rights to the Rohingya. When challenging the ‘exilic bias’ of refugee law, Coles rightly says:
An assumption of external settlement as the correct durable solution to the refugee situation in structuring law and policy could not be justified on either humanitarian or political grounds. It would effectively relieve the country of origin of its serious responsibility to take whatever measures were possible and necessary to enable people who had fled its territory to return … and it would institutionalise exile at the expense of the fundamental rights of the individual to return to his country and to enjoy his basic human rights.
This does not mean that the Rohingya, or other forced migrants, can be repatriated once they reach the receiving countries. Non-refoulement must become the core foundation of this approach, and because of that, no one who meets the criteria of refugeehood should be sent back to their country of origin. Despite the ongoing debate, the principle of non-refoulement has been gaining recognition as part of customary international law, meaning that the principle should be respected by any country, including within ASEAN member states, regardless of whether they have ratified the Refugee Convention. It has also been recognised by several human rights conventions like the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (cat) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The refugee can only be repatriated or re-established once the situation in their country of origin is restored and the full protection of human rights is guaranteed. Of course, the receiving countries should provide, at minimum, the same rights to refugees as to other foreign legal residents. A determination process based on an expanded refugee definition as mentioned above, if needed, could be jointly carried out by the UNHCR and the member states based on an agreed standard.
Under this proposal, ASEAN should also create a mechanism where refugees from its member states are entitled to economic and social rights, including primary rights to education. In fact, refugees could become a development asset, both to countries of first asylum and their country origin, if they are given the right to work. Countries like Thailand and Malaysia, which host most of the refugees and have not permitted them to work, have benefited from the abundant cheap workforce of refugees entering the job market through human trafficking and forced labour. By providing legal permission to work, the host countries and refugees themselves would enjoy economic benefits, with formal taxation for example, while at the same time avoiding the practice of human trafficking. The Malaysian government apparently realises this reality. In 2015, the Malaysian government and UNHCR discussed the possibility of allowing refugees to work formally. After long and careful consideration, in March 2017, the Malaysian government finally agreed to a pilot project allowing Rohingya to take jobs.
In line with this step, I would also like to propose what I call a ‘refugee education scholarship quota.’ While the us or Europe often agree on certain quotas for refugee resettlement, ASEAN countries could agree on quota for education of selected refugees. The true solution to the refugee crisis is to restore the hope and rights of refugees to return to their homeland, and education is a crucial enabling instrument during the interim protection period. This must be emphasised because, for instance, around 70 per cent of the registered school-aged refugees in Malaysia, mostly the Rohingya, do not have access to education. If selected refugees gain valuable skills and education while they stay in their receiving countries, they will have at least basic skills and education to survive once they return to their homeland.
Following Hathaway and Coles, ASEAN should consider two other steps in its interim protection approach: the creation of a regional supervisory agency and a regional fund for refugees. Firstly, AICHR can initiate a mechanism where the supervisory agency for refugees would be a combination of the member states’ representatives, prominent experts, human right organisations, and an envoy of the refugees. The supervisory agency would be given clear limits and mandates. The agency’s main mandate and mission would be to lead the regional coordination of refugee protection, partnering and mirroring the UNHCR with a particular focus on Southeast Asia. Secondly, in order to equalise the burden of refugee protection among member states, ASEAN should create a regional durable solution fund. This, historically, is not a new idea. During the refugee crisis of the Vietnam War when ASEAN previously faced tremendous refugee problems, a durable fund with a $25 million budget was proposed. While facing an influx of refugees in the last decade, the European Union (EU) has established various funding schemes like the European Refugee Fund, the European Return Fund, and the European Fund for the Integration of Third-country Nationals. Importantly, establishing regional funds is not a novel practice for ASEAN itself. In 2015, ASEAN committed $1 million to a fund for combating human trafficking and assisting victims. Thus, it is practically feasible for ASEAN to create a regional durable solution fund for refugees, and that will help spread the burden of refugee protection among the member states.
Dealing with the Root of the Problem
Assuming that the protection of refugees in the receiving countries are only temporary until the situation is fully resolved and the refugees can return to their homeland, promotion of human rights in the country of origin is a core step in finding a durable solution under the interim protection approach. Without dealing with the root causes in the country of origin, the interim protection approach seems irrelevant. However, this is a tricky step because it will confront the established doctrine of state sovereignty. While human rights and state sovereignty are widely discussed, especially concerning countries’ responsibility to protect human rights, this part will focus on how realistic this approach is given ASEAN’s central non-interference principle. How can ASEAN member states engage with the norm of responsibility to protect (R2P) using the ‘ASEAN way’ of diplomacy?
ASEAN was established in 1967 and currently has ten member states. It is the only solid regional organisation in East Asia. Key to the solidity of the organisation are its six principles, dubbed as the ‘ASEAN way’ which include: respect for sovereignty and territorial integrity, freedom from external interference and coercion, non-interference in the internal affairs of one another, peaceful settlement of disputes, renunciation of the threat of use of force and effective cooperation. Based on these principles, since its establishment, no ASEAN member state has been involved in an armed conflict with another. This has helped ASEAN achieve economic development in the last three decades. Indeed, the main purpose of its establishment by the five original members (Indonesia, Malaysia, Thailand, the Philippines, and Singapore) was to create a mechanism to prevent war and to manage conflicts between the member states. Among the six principles, arguably the single most important principle underpinning ASEAN regionalism is the doctrine of non-interference in the internal affairs of member states.
However, in the context of ASEAN, the principle of non-interference, which is rooted in the principle of non-intervention in international law, is Janus-faced: on the one side, it has created a secure and stable region that has led to unprecedented economic development; on the other side, this has made ASEAN indifferent to the gross violations of human rights committed internally by individual member states like Myanmar.
While it is widely agreed that the principle of non-interference has become a sacred playbook for ASEAN, some challenges to and a deviation from this principle are apparent, especially since the 1990s. The shifting global paradigm from a traditional concept of state sovereignty to the acceptance of responsibility has, to some extent, triggered the adjustment and reconceptualisation of principles in the region. ASEAN has to negotiate these two different principles in a way that will not hurt the long-established norm of non-interference while still adopting the R2P principle. Bellamy and Drummond, when analysing this process of negotiation in the context of ASEAN conclude:
R2P has been revised to limit its capacity to legitimize coercive interference, whilst non-interference is in the process of being recalibrated to permit expressions of concern, offers of assistance and even the application of limited diplomatic pressure in response to major humanitarian crises. Thus, while the region remains largely hostile to doctrinal revisions to non-interference, subtle changes are evident in practice.
Thus, in light of this development, non-coercive interference to deal with the crisis in Myanmar is a tangible action for ASEAN. ASEAN cannot remain silent and inert when facing genocide against the Rohingya. The Rohingya’s right to return to their homeland should be restored so that the refugee crisis can be resolved.
Indeed, it is apparent that ASEAN member states are ready to take action as they are growing impatient after decades of human rights violations against the Rohingya. The Prime Minister of Malaysia, Najib Razak, who led the protest rally condemning the genocide in Myanmar said that he would send a clear message to the Myanmar government and Aung San Suu Kyi that ‘enough is enough’. During the rally, he said that, ‘I will not close my eyes and shut my mouth. We must defend them (Rohingya) not just because they are of the same faith, but they are humans, their lives have values.’ He vowed to fight for the restoration of the Rohingya’s rights.
While Najib pushes the Myanmar government to welcome the Rohingya by openly condemning the violations, the Indonesian government has actively used closed-door diplomatic pressure to deal with the crisis. The Indonesian government has urged Myanmar to grant citizenship to the Rohingya as part of its effort to resolve the problem. In the context of negotiations, Indonesia has also offered humanitarian assistance for people in Rakhine state, both Muslim and Buddhist.
Both Najib’s open condemnation and pressure as well as Indonesia’s expression of concern and closed-door negotiation marked a departure from the classical principle of non-interference. Indonesia, Malaysia, and other states must push the Myanmar government to willingly accept its obligation to protect their citizens, pursuant to international human rights law principles.
Unfortunately, while member states like Indonesia, Thailand, and Malaysia have reacted, ASEAN as an institution remains silent. In my opinion, due to the magnitude of the violation, AICHR as a human rights body in the region must take more proactive action by coordinating the regional effort in dealing with the restoration of the Rohingya’s fundamental rights. AICHR should formulate a systematic and comprehensive plan of action to end the human rights abuses that have amounted to genocide in Myanmar. Only by taking this step can a durable solution to the refugee crisis in Myanmar be fulfilled. It is time for ASEAN to open its eyes and accept the reality of gross violations of human rights and willingly act to solve it.
Conclusion
As a result of several decades of persecution and forceful displacement from their ancestral land, the Rohingya have suffered loss in terms of their dignity, lives, and property. This genocide must be stopped. For a short-term step, all neighbouring countries (especially the member states of ASEAN) must receive them on humanitarian grounds. It is a shame for the countries in the region and for ASEAN to not try to save their most vulnerable fellow neighbours. Nonetheless, creating a comprehensive, workable framework to deal with the refugee crisis has to be a priority for ASEAN. Refugee and forced migration, in general, cannot be handled based on an ad hoc, case-by-case approach. ASEAN needs to formulate a tangible long-term solution.
Based on an assumption that the best durable solution for the refugee crisis is to restore the right of refugees to return to their homeland, my article proposes an interim protection approach for handling the Rohingya crisis. While waiting for the situation in Rakhine state to be resolved by the Myanmar government and the international community, the receiving country should invest in enabling refugees by giving them basic economic and social rights. Once the situation has been resolved and they return, the refugees will have skills to start a new life in their homeland.
Dealing with the root of the problem in the country of origin is a crucial step in the interim protection approach. The international community (in this case, ASEAN, specifically) must act decisively yet non-coercively to end the persecution and help the Myanmar government resolve the situation. At the very essence of this proposal is sliding refugee law closer to a human rights perspective. Though it needs further exploration, I hope my proposal can contribute to enhancing the discussion on human rights and refugee law in Southeast Asia.