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

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

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

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

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

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

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