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Protecting Minorities’ Rights in International Law: Towards a robust accountability mechanism The case of the Rohingya

By Mustapha Akoub*

The present refugee crisis afflicting the Rohingya population of Myanmar is one of the most intractable and challenging cases within contemporary international development and international human rights. The Rohingya, a Muslim minority group from Arakan province in the north of Myanmar, are not recognised by the government as part of the indigenous population of the country, have been historically denied citizenship and are consequently stateless. As a result, they constitute a vulnerable ethnic and religious minority within Myanmar that is extremely vulnerable to state-sponsored violence, arbitrary treatment, displacement and denial of their basic human rights. The case of the Rohingya raises the question of the status and protection of minorities under international human rights law, due to the fact that within the framework of human rights set out in the UDHR (Universal Declaration of Human Rights) the state itself is construed as the principal agent for guaranteeing the rights of its citizens. When the state itself moves to marginalise minorities, suppress their identities, and withhold their basic human rights, as is the case for the Rohingya in Myanmar, the question is raised: how may these groups be protected, and what is the responsibility of the international community to vis-à-vis the oppressed minorities?

In recent months the scale of state sponsored violence against the Rohingya as an ethnic and religious group has attracted international attention. Hundreds of thousands of refugees have fled the country to the neighbouring Bangladesh and Malaysia, with many more being internally displaced, subject to violent expulsion by the military, and denied basic human rights. The government of Myanmar has persistently maintained that those violently expelled from the country are illegal immigrants, frequently characterising the Rohingya as representing an extremist, imported, Islamist ideology that poses a direct threat to the state.This contradicts the claims of the Rohingya, supported by historical scholarship, that there has been a continuous Muslim presence in Arakan province since the 9th century, and that their unique cultural and religious identity is indigenous to Myanmar. The refusal of the state to acknowledge the Rohingya’s claims to citizenship as legitimate are regarded as a root cause of the violence and displacement that has occurred in Rakhine state in recent years, although this violence is embedded within the context of broader Islamophobia and division within the social fabric of Myanmar. As a result, international efforts have focused on mitigating the refugee crisis and campaigning for Rohingya rights within the state of Myanmar, but to date, these attempts have been largely unsuccessful.

Part of the reason why international efforts to resolve the status of Rohingya have been unsuccessful is due to the ambiguous and problematic status of minority rights within international law. Although there is some limited provision for minority rights within the universal human rights framework, the issue of minorities has remained somewhat ambiguous. In part, this is due to the inherent contradiction between the universal values that underpin the UDHR, and the potential communal divisions created by recognition of minority rights. The lack of clarity and consensus on this issue within international law has limited practical international support for the Rohingya, and to a large extent, the Myanmar state is permitted to continue its persecution of this vulnerable minority. Within the international legal framework there are a number of sources and instruments that provide minorities with the opportunity to challenge the exercise of state power, but the present state of ambivalence concerning the legal significance of minority rights has prevented clear and decisive action on the part of the international community. This paper aims to explore the issue of the Rohingya from the perspective of international law and minority rights, exploring the potential ways in which current provision within international law can provide some defence for the Rohingya against state-sponsored violence and persecution.

Historical context:

Myanmar is an ethnically and religiously diverse society, but the dominant nationalist narrative perpetuated by the state since independence has coalesced around a Buddhist-Bamar ethno-religious identity. The presence of minorities within Myanmar has historically been the source of internal conflict, as various groups have contested the state demanding greater autonomy, self-determination, or greater representation among political and economic elites. In the wake of the military coup of 1962, the position of minorities, particularly Muslim minorities such as the Rohingya, became even more tenuous, as they were excluded from positions of power and subject to the suppression of linguistic, cultural and religious identities. The current Rohingya population is estimated to be between 1.5 and 2 million people, with approximately 1 million still resident in Myanmar, primarily in Rakhine state.The Rohingya comprise one of Myanmar’s Muslim minorities, all of which have different ethnic origins, and which in total comprise less than 5% of the overall population. Myanmar remains primarily Buddhist, with 88% of the population reported to be Buddhist in the 2014 census. However, these figures are somewhat unreliable due to government efforts to emphasise Myanmar’s identity has primarily Buddhist dominance, which has in turn led to the depression of statistics relating to Muslims, Christians and Hindu minorities. Similarly, a lack of historical data relating to the ethnic and religious composition of the population of Arakan means that there are a number of radically divergent interpretations concerning the history of the province that have been used to bolster competing narratives.  

Recent studies have demonstrated, contrary to state narratives, that there appears to have been a Muslim presence in Arakan since the early expansion of Islam in south-east Asia in the 8thcentury. In the early modern period, moreover, there is strong evidence to suggest that a distinctive Muslim culture may be identified in the region, which counters the government’s claims that the Rohingya are predominately 20th century illegal migrants. In the colonial period, however, the British practice of encouraging economic migration throughout the imperial territories led to a rise in Muslim migrants from Bengal who came to Burma in order to participate in the agricultural development of the region. This type of immigration was resisted by many of the indigenous Buddhist population who resented the favour accorded to these groups of migrants by British rulers. The tendency, moreover, on the part of the British, to regard the indigenous population of colonised territories through ethnic and religious categories served to exacerbate these tensions, compartmentalise the population, and create schisms along ethnic and religious lines. For example, the British identified the Rohingya and the Muslim population of Rakhine state as having more in common culturally with their Bengali neighbours, and so created a vision of the Rohingya as particularly distinct from the Buddhist majority in the rest of the region. These social and cultural consequences of colonial rule were carried over in the post-independence period and are an important causal factor in the contemporary marginalisation of the Rohingya.  

According to state narratives, the Rohingya are primarily migrants from Bangladesh who had entered the country illegally during periods of violence, for example, following the independence of Bangladesh in 1971. This narrative aligns with the post-independence construction of a Burmese national identity, which was subject to state-sponsored initiatives designed to unify the population and erase ethnic and religious distinctions. This required the assimilation of minority populations to the nationalist discourse that was predicted on a Buddhist cultural identity. State efforts to reinforce this identity discourse have tended to manifest themselves in legal instruments designed to deprive certain ethnic groups of their citizenship rights and to exclude them from the construction of a contemporary Myanmarese identity. In particular, the 1982 Citizenship Act specifically predicated citizenship on the capacity of the citizen to prove that their ancestors had settled in the region prior to the colonial period. This meant that descendants of Bengali migrants who came to the region over the course of the 19th century were deprived of any form of citizenship and were effectively made stateless.

Legal framework:

The process of Rohingya marginalisation over the course of the second half of the 20thcentury lies in direct contravention of international human rights law, which contains provision for the protection of minority rights against the abuse of sovereign power. For example, the International Covenant on Civil and Political Rights (1966), and the Declaration on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities (1992) both specify the rights belonging to people who are members of minorities, who are not to be discriminated upon on the basis of minority membership and who are entitled to protection of their religious, cultural and ethnic identities from erasure by dominant groups in power. One of the core problems, however, is that minorities, particularly in post-colonial societies, have often been subject to state violence and political action that denies them of their citizenship, rendering them stateless and which in turn, deprives them of access to a wide range of human rights. The major concern in the case of the Rohingya is state-sponsored violence that results in displacement and at worst, genocide and ethnic cleansing. In this case, the international community is empowered to act in order to compel the state of Myanmar to assume responsibility for the protection of the Rohingya, either through the use of economic sanctions, or even the use of force.

Nevertheless, the complex legal issues surrounding minority rights have resulted in a lack of clarity regarding the role of the state and the international community with respect to the Rohingya in Myanmar. The principal issue here revolves around the apparent contradiction between recognition of minorities and minority rights, and the broader claims to universalism that underpins the international human rights framework. According to this framework, human beings possess essential characteristics that transcend geographical, ethnic, religious or cultural divisions, and therefore the conception of minority, or non-universal rights pertaining to a specific community can be understood as contradictory. Minority rights have therefore often been interpreted on an individualistic basis, relating to the rights of ‘persons belonging to minorities’, avoiding reference to the collective rights of minority groups themselves. As a result, within the international human rights framework, there is considerable ambiguity regarding the expectations and responsibilities placed on states in relation to minorities. At present, ensuring the substantive rights of minorities would necessitate particular treatment for members of minorities when compared to the majority population, which is construed as contradicting the normative basis of universalism that underpins the broader framework. This study suggests that there is a need to address these weaknesses at the heart of the international human rights legal framework, and aims to explore these issues through a case study of the Rohingya in Myanmar.

This paper aims to explore the problematic issue of minority rights through a case study of the Rohingya of Myanmar, with an emphasis on the existing legal provision that may assist in protecting them from state violence and ensuring access to their basic human rights.

The following research questions have been devised in order to frame the investigation:

How can the Rohingya be defended using international legal mechanisms to challenge state-sponsored ethnic cleansing?
Does international law allow military or economic intervention in order to stop mass violations of minority rights taking place?
1:  International tools designed for the protection of religious minorities.
    1.1 Minorities in international law

It is worth noting that up to now international law scholarship and international framework is unable to reach an agreement in what constitutes minorities. Pecker commented on this situation:

‘It has been correctly observed that international law supposes the existence of minorities both in general and of specific types. However, while the existence of human beings and states are ‘axiomatic’ in international law, the existence of human groups is problematic. Conceptually, international law struggles with the definitions of actors beyond the ‘State’; indeed the problem of defining actors has always troubled political theory in general and international relations in particular. …  The catalogue and content of individual human rights has become relatively clear, the specificity of protections for groups, particularly minorities, has remained largely uncertain. Paramount among this uncertainty has been the very definition of ‘the’ or ‘a minority’ to whom any rights may accrue.”

The most renowned definition we have is the one that had been coined by the former special Rapporteur to the United Nation, Francesco Capotorti in 1979. Such definition has become the beginning of any research that aims to embark in unpacking the subject of minority rights. According to Capotorti “a minority is a group which numerically inferior to the rest of the population of a state in a non-dominant position. Whose members possess ethnic, religious or linguistic characteristics which differs from the rest of the population and who if only implicitly, maintain a sense of solidarity directed towards preserving their culture, traditions, religion and language.”    

I this section I intend to lay down the international legal framework that is designed for the protection of religious minorities around the world. And discuss its efficiency in protecting their rights.

When it comes to minorities and group rights, The International Covenant on Civil and Political Rights ICCPR is considered as the primary point of establishing such rights, especially article 27.  Thornberry provides a list of the most useful mechanisms available for the protection of minorities rights, amongst the non-treaty documents which treat the subject matter to a very lengthy extent and is regarded as the most important text which aims at shielding groups rights, is the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Therefore, like many areas in many other disciplines the definition is sill unfinished business, but what is important is that a religious minorities can easily be distinguished from the majority of the population. However, a religious minority does not have to be completely different in its practices and religious doctrine of the majority in order to be recognised as a minority. Some religious groups, in the outset do not seem to look much different from then dominant culture an example of this is the Shia and Sunna groups in some majority Muslim countries.  

International legal framework provides some legal safeguards derived from ethnic, religious and linguistics characteristics and backgrounds. Here, I am going to ouch on some of these instruments and provisions that could shine some lights on the level and degree of protection and rights are aimed at minorities.    

1.2- Some International mechanisms available:

Starting with the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UNDM), the preamble of the UNDM sets out its main objective, which is to ‘ensure even more effective implementation of international human rights instruments with regard to the rights of persons belonging to national or ethnic, religious and linguistic minorities’. Despite the fact that the declaration has been hailed revolutionary and progressive in protecting minorities around the world because of its coverage of all three of the pillars of minority rights (identity, non-discrimination and participation), the declaration, however, protects individuals, not groups and it does not define who is a ‘minority’. The terms used (national or ethnic, religious and linguistic).

Nonetheless, the declaration grants the persons belonging to minorities many positive and negative rights such as:

Article 1.1: Protection, by States, of their existence and their national or ethnic, cultural, religious and linguistic identity. This includes protection from genocide, assimilation, discrimination, etc., and requires states to encourage the conditions necessary for promotion of identity

Article 1.2: Requires states to adopt legislation to achieve the above

Article 2.1: The right to enjoy their own culture, to profess and practice their own religion and to use their own language in private and in public.

Article 9: UN Agencies should contribute to the realisation of the rights in the UNDM.

This is an important announcement, because it means that all UN agencies, such as UNDP, UNICEF, ILO, etc., should be paying attention to minority rights within their areas of work.

The declaration should be considered as a milestone in international human rights law as it highlights the importance of minorities’ rights particularly religious groups in international law. It strengthens such rights by tying them to the development of society as a whole and within a democratic and multicultural framework based on the rule of law, and also it reminds states that respect for minority rights contributes to political and social stability rather than a source of instability and social tension. The UNDM was adopted by consensus; therefore, NGOs can use this document to remind states that the principles in the UNDM are universally accepted ideals for religious minority protection. However, many states have not taken the Declaration seriously because simply it is not a legally binding piece of legislation. An attitude that manifests itself from time to time in heinous atrocities carried out by regimes that have no interests in solidifying its national and social fabric, which is the case in the regime of NayPyidaw. Also, the UNDM is not as well-known and famous as other UN instruments which is clearly another indicator that demonstrate that states are often reluctant to engage with minorities because states as the main actors in international arena tread carefully with the issues of minorities because it regards the issue as a source of tension an potential unrest rather than a source of diversity and strength. Minorities, on the other handshould boost the importance of the declaration on the international stage and remind states of their obligations at every platform and opportunity given.

Amongst the numerous legally binding human rights instruments, or treaties, a few have religious-specific provisions, and all have rights that are of relevance to minorities.

It is absolutely important to bear in mind that human rights are universal; therefore, members of religious minorities are entitled to all the rights set out in different regional and international mechanisms. Equal entitlement, enjoyment and non-discrimination clauses apply to all aspects of human rights, including civil, cultural, economic, political and social rights. There are eight main UN treaties protecting a range of human rights:

International Covenant on Civil and Political Rights (ICCPR)
International Covenant on Economic, Social and Cultural Rights (ICESCR)
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Convention Against Torture (CAT)
Convention on the Rights of the Child (CRC)
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)
International Convention on the Rights of Persons with Disabilities (CRPD)

The Convention on Genocide

The International Convention on the Prevention and Punishment of the Crime of Genocide is another important treaty to note in the context of religious rights.

It was adopted in 1948, declaring that the crime of genocide are prohibited for the first time. Article 2 of the Convention, defines the genocide as follows: “In this convention, the genocide consists one of the following acts which is committed with intent to destroy in all or a part of national, ethnic, racial or religious group as follows: (1) killing members of the group; (2) Creating severe damage to the physical or psychological health of members of a group; (3) To deliberate put a group under poor living conditions that lead to physical destruction in whole or in part of the group; (4) Implementing the measures that Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals are carried out to commit the crime. In some cases, overlap and compatibility between these two concepts is created.

Under the Genocide Convention the Rohingya characteristics and history shows without any doubt are considered as a national, ethnic, racial and religious group regardless to whether they are in possession of the citizenship of the country or not. Their language is distinctive from the majority and the most of them are from the Muslims faith. Therefore, their language and religion is different from other ethnic groups in Rakhine state and Myanmar as a whole.

As far as the material element of this crime is concerned it should be noted that the material

factors of the genocide crime constitutes of fivefold measures which are listed  in Article 2

of the Convention and detailed explanation of these measures has been defined in case law.

the four first action- intentional killing, injuring to the body and soul of victim’s groups, imposing difficult living conditions, somehow it lead to physical destruction in all or part of a group, preventing from birth of the group. All of above which has been committed by the Myanmarese army against the Rohingya. The UN Human Rights Council in Geneva, Zeid Ra’ad Al Hussein further denounced the “brutal security operation” against the Rohingya in Rakhine state Hussein said. “The situation seems a textbook example of ethnic cleansing.”This situation raises the question of international protection and wonder if, there is a ground for humanitarian intervention in the case of the Rohingya persecution?

1.3:  Humanitarian Intervention:

Fundamentally speaking, sovereignty is one of the corner stones of the international legal framework. The right to intervene in humanitarian cases is a thorny issue between international scholarship, governments and non-governmental organisations (NGOs). From time to time international community is faced with tragic situations and appalling human calamities. What would be the best policy for the international community to adopt in order to stop grave human rights abuses committed by states, as in the case of Myanmar or non-state entities like terrorist organisations as the case of the Yazidis or Christian communities in Iraq and Syria? The restriction to this founding principle has to be based on hard evidence and legitimate grounds. Under (Article 24 (1)) of the UN charter and in order to maintain international peace and security, it would be adequate for the Security to oversee the situation. The humanitarian situation of refugees and the fleeing women and children across the Naf River, the burning of villages, homes and belongings, the killing of innocent people and the use of rape as an instrument of salvaging people, justifies measures of peaceful dispute settlement under Chapter VI. The council could authorise regional and international agencies to step in and halt a humanitarian catastrophe. Based on the above, the right to humanitarian intervention can emerge from either international treaty or customary international law. In its preamble The Genocide declares:” genocide to be a crime under international law, contrary to the spirit and aims of the UN. Article I, imposing an obligation upon states to halt genocide, provides that “genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish”. Genocide as a crime is defined in Articles II and III, which correspond to the wording of Article 3 of the International Criminal Tribunal for Rwanda Statute. However, more importantly the most crucial provision, as far as the Convention is concerned, is Article V, which states the possibility to execute regulations to give effect to the Convention to bring the perpetrators of genocide to face criminal charges by an international penal tribunal (Article VI). Crimes under genocide are also “a core crime under customary international law.’

Arguing further for a robust and effective mechanism which can protect religious minorities one can refer to the 1951 International Court of Justice (ICJ) reservations to the convention on Genocide case which held that civilised nations upheld  that the Genocide Convention as binding on states, even in the absence of a conventional obligation. The court considered that the Genocide Convention was intended to be universal in scope. Thereby, the ICJ recognised the customary character of the obligations deriving from the

The ICJ and went further and held that the prohibition of genocide has attained the level of ius cogens. Furthermore, humanitarian intervention principle can be found in one the highest document in international law which is the UN Charter which is set up: “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”.

The intervention of NATO in Kosovo, has set precedent in international law in the eyes of many European countries, which justified its intervention on the ground of humanitarian grounds. However, using military force can have devastating impact on human rights and freedoms which goes against Article 2(4) of the charter which calls on states to: “”refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”

To conclude, Minorities in general and religious minorities, specifically, have under international law and international human rights law, the right to be respected and helped to thrive and become vibrant in the societies they are in. Be it a small Christian minority in Iraq or a Kurdish group in Syria or a Coptic community in Egypt or a religious Jewish minority in Morocco, their lives, institutions and culture should be not only protected but also facilitated by the state. The duty of protection of religious minorities should be one of the genuine preoccupations of international community and not to be used as a Trojan horse to destabilise countries and bargain on lives of millions of vulnerable people around the globe to achieve political advancements. Humanitarian intervention must be the last resort and only employed to protect basic and fundamental human rights in order to maintain international peace and stability.

 

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