The latest incident of the Rohingya refugee influx into Bangladesh has produced a scenario which is different from earlier influxes in two aspects: one is humanitarian, which can be legally interpreted in various ways, from forced displacement to genocide.
Killings, torture, rape, forced expulsion and starvation has driven nearly one million Rohingyas to take refuge in Bangladesh since August 2017. The second aspect is the extent of cruelty the Myanmar state has unleashed on a particular community by curtailing the minimum chances of their survival.
This was evident when the Myanmar government blocked the activities of all United Nations (UN) humanitarian aid agencies and stopped vital deliveries of food, medicine and water to the thousands of civilian Rohingyas who have been trapped amidst the violence.
There is no denying the fact that the UN is the only legitimate organisation to address the Rohingya crisis and also to hold the perpetrators accountable for their crimes.
However, the response of the UN Security Council (UNSC) to the Rohingya refugee crisis has so far been very limited because of the opposition from China and Russia. The deadlock at the Security Council in September 2017 had decisively restricted the scope of activities of other organs and specialised agencies of the UN to carry out humanitarian activities.
Without an enforcement action, the UN could not establish any base or safe zone inside the Rakhine state for aid delivery and civilian shelter. The UN High Commissioner for Human Rights and the UN Secretary General have been limited in their scope to only making statements condemning the Myanmar army and pledging to stop the “ethnic cleansing”.
Throughout its history the UNSC had been paralysed numerous times because of the use of veto by its permanent members. The “Big Five” permanent members (P-5) are not always willing to authorise humanitarian intervention in places distant to their national interests and/or if the state in question is an important ally of any of them.
In the period from 1946 to the end of 2018, 202 resolutions on substantive issues were vetoed, sometimes by more than one of the P-5. China used only one veto during the Cold War. After the end of the Cold War, till today, China applied veto on 10 occasions and Russia on 22. And Russia and China have now emerged as a new dominant bloc in using the veto power.
This is a new power game within the UNSC as well. In recent years, most vetoes have been used to block decisions of humanitarian intervention, or issues related to international peace and security in Syria, Rwanda, Kosovo, Sudan among others.
Given this frustrating context, the only ray of hope now for Bangladesh lies with the UN General Assembly (UNGA). It adopted a resolution urging the Myanmar government to end military attacks against the Rohingyas and called for the appointment of a UN special envoy, by a vote of 122 to 10 with 24 abstentions on December 23, 2017.
There has been no effective measures from the UNGA to stop or to intervene in the crisis yet, but there is still a scope for collective measures or recommendation to the council for effective measures. Looking at the voting result of the resolution, Bangladesh can be hopeful and focus more on attaining support for a new resolution calling the Rohingya refugee crisis a genocide.
Since the latest outbreak of violence, the UN has been calling it “ethnic cleansing”, a term which represents a history of UN's past attempts to deliberately avoid enforcement actions in humanitarian crises.
There is no international law that specifically interprets or prohibits ethnic cleansing. It is not even specifically listed as a grave crime in the Rome Statute of International Criminal Court whereas genocide, crimes against humanity, war crimes and crime of aggression are.
The horrific stories of the Rohingyas have been well documented by the UNHCR, the BBC, Reuters, CNN, Human Rights Watch, CSIAF, and other INGOs and NGOs. From the interviews and accounts of the refugees, the international community are well aware of the extent of the violence on the Rohingyas committed by the Myanmar army, with the intention of destroying the community on the basis of their ethnicity and religion. Yet the UN is avoiding the term genocide in the Rohingya crisis. The UN has done this before, for example in the case of Rwanda, Bosnia, Kosovo, and Darfur.
Here again, the UNGA can be the forum where Bangladesh can do diplomatic manoeuvring to make use of the resolution Responsibility to Protect (R2P) taken in the UN World Summit in 2005. The General Assembly unanimously adopted the R2P resolution to protect populations from genocide, war crimes, crime against humanity and even ethnic cleansing. This is the only resolution which has a provision for ethnic cleansing.
The R2P framework affirms that states have the primary responsibilities to protect the individuals within its jurisdiction from genocide, crimes against humanity, war crimes and/ or ethnic cleansing.
If a state manifestly fails to protect its population from the grave crimes mentioned above then the international community would take collective action in a timely and decisive manner, and can even take decisions on the use of force for protection purposes under Chapter VII of the UN Charter.
The UN office of the Prevention of Genocide and the Responsibility to Protect has recently announced its plans to investigate the five acts of genocide by the Myanmar government against the Rohingyas. Here again, there are the complications of investigation and prosecution.
Myanmar is not a member of the International Criminal Court and will not be able to carry out investigation, and any attempt of prosecution will require UN Security Council authorisation. In such a circumstance, China and Russia being a friend of the Myanmar government will be able to block any authorisation under Chapter VII. Not only that, the Security Council can defer an investigation or a prosecution by the International Criminal Court for 12 months if it agrees unanimously and renew the deferral as many times as it wishes.
The only way to reduce the dependency on the UNSC for humanitarian actions and offset the politics of the five permanent members of the UN will be to bring the decisions about effective measures to the appropriate organs of the UN which work for the protection and promotion of human rights and humanitarian issues. The General Assembly, with an almost universal membership, will be the most appropriate organ.
The UNGA can also invoke the Uniting for Peace principle that the General Assembly undertook for intervention in the Korean War in face of deadlock in the Security Council, and recommend the Security Council to take appropriate actions to stop the perpetrators as well as punish them for their grave crimes.
If that becomes too difficult, Bangladesh should at least try to get a resolution passed by the General Assembly recognising and identifying the perpetrators in the Rohingya crisis with the acknowledgement that they committed genocide, crimes against humanity, ethnic cleansing and/or war crimes. With this recognition, there will be a possibility of at least creating international pressure on the Security Council to act according to the Responsibility to Protect norms.
So far, the diplomatic effort of Bangladesh in the UNGA has not been well-defined. Bangladesh needs to explore its options there to attain support from the members to invoke the principle of R2P regarding the Rohingya crisis.