Yemen, Syria, Somalia, Myanmar. These countries are home to some of the world\u2019s worst humanitarian crises. Millions have suffered as conflicts drag on, fleeing war, violence and persecution. But what power, if any, do our global legal institutions have to enact change?<\/p>\n
Curtin international law expert Dr Mostafa Haider says the existing responses from legal institutions are insufficient and ineffective.<\/p>\n
\u201cOur international legal and humanitarian bodies are largely \u2018name and shame\u2019 institutions,\u201d he says forcefully. \u201cThey call out countries and suggest ‘remedies’, but in effect they have little power to enforce change.\u201d<\/p>\n
Dr Haider says the crisis engulfing the Muslim-majority Rohingya people is a good case study to better understand the complexities associated with humanitarian crises.<\/p>\n
The Rohingya, a minority community living in Buddhist-majority Myanmar, are widely considered to be among the most persecuted people in the world. Their plight attracted global attention in 2017 when Rohingya militants attacked the Myanmar army, igniting a wave of anti-Rohingya violence. Hundreds of thousands fled to Bangladesh, escaping what the United Nations described as a \u2018textbook example of ethnic cleansing\u2019.<\/p>\n
In November 2019, The Gambia lodged a case with the International Court of Justice (ICJ), accusing Myanmar of violating the Genocide Convention for its actions against the Rohingya people.<\/p>\n
\u201cThe ICJ case against Myanmar is an important example of how legal institutions respond to humanitarian crises,\u201d says Dr Haider. \u201cPositively, the ICJ\u2019s involvement brings critical global attention to the crisis, highlighting the injustices the Rohingya people have faced.\u201d<\/p>\n
This attention creates hope for the Rohingya people and can empower international humanitarian organisations to act on their behalf. However, Dr Haider says, the ICJ has no substantive power to enforce its ruling.<\/p>\n
\u201cEven if it determines that the military\u2019s actions in 2017 amount to genocide, it requires the cooperation of the country\u2019s leadership to enact change. And with the current state of politics in Myanmar, that is highly unlikely.\u201d<\/p>\n
In December 2019, Myanmar\u2019s democratically elected leader Aung San Suu Kyi defended the military violence against the Rohingya population, shocking Western observers.<\/p>\n
\u201cShe went to the ICJ to argue the case for Myanmar, that this wasn\u2019t genocide, it was simply the military cracking down on terrorist activities within the Rohingya community,\u201d says Dr Haider.<\/p>\n
\u201cShe was trying to please the military and solidify her own power within the country. But she damaged her reputation internationally.\u201d<\/p>\n
Highlighting the country\u2019s fragile state of democracy, Aung San Suu Kyi was arrested on 1 February 2021 during a coup d\u2019\u00e9tat by the Myanmar military and charged with criminal offences.<\/p>\n
\u201cIt’s important to remember that progress is a slow process,\u201d says Dr Haider. \u201cFor example, when we look at the gay rights movement, it started with instances of protests here and there, but it took many, many years for those voices to be heard, recognised and certain legal rights accorded.<\/p>\n
\u201cThe Rohingya people understand these international legal cases give legitimacy to their movement and strengthen their argument for citizenship. But they\u2019re not able to pack their bags and return home yet. Their suffering is not over.\u201d<\/p><\/blockquote>\n
The limits of legal protection<\/h2>\n
Displaced from their homes and stripped of their citizenship, what legal status do the Rohingya people have today?<\/p>\n
\u201cGenerally speaking, when we think of human rights, we are actually referring to the rights of citizens,\u201d explains Dr Haider. \u201cBut the majority of Rohingya people have been stripped of their citizenship, severely limiting the aid they can access.\u201d<\/p>\n
However, they can still claim specific legal statuses which offer some protection.<\/p>\n
\u201cThe Rohingya who still live in Myanmar are known legally as \u2018internally displaced persons\u2019 or IDP, and those overseas are \u2018refugees\u2019. These are legal statuses which allow humanitarian organisations to step in and offer assistance.\u201d<\/p>\n
However, Dr Haider says, these legal protections are often difficult, if not impossible, for the Rohingya people to access, and frequently jar with international politics.<\/p>\n
\u201cThe problem is that the Rohingya have little voice and standing in world politics. Who is going to negotiate their case? Who is going to take them in? And at what cost?<\/p>\n
\u201cWealthy countries like Canada and Australia have specific refugee programs but, to be frank, Australian immigration policies are deeply discriminatory. And even if countries take in 10,000 or 20,000 refugees, it doesn\u2019t address the root cause of the problem.\u201d<\/p>\n
Additionally, countries like Australia and now Bangladesh, are seeking offshore solutions to house refugees, subjecting them to further violence and poor living conditions.<\/p>\n
\u201cMaintaining basic facilities in offshore centres in Bangladesh is a huge challenge,\u201d says Dr Haider. \u201cThere have been outbreaks of infectious diseases. It\u2019s just layer upon layer of trauma.\u201d<\/p>\n
A new role for Australia?<\/h2>\n
Dr Haider argues that a more effective response to the Rohingya crisis is dialogue.<\/p>\n
\u201cWhile it\u2019s not a bad thing to adjudicate these issues in international courts, it\u2019s insufficient,\u201d he says. \u201cWhat could be far more useful, is bringing together interested parties who hold real power.\u201d<\/p>\n
And this is where Australia could play an important role.<\/p>\n
He says Australia tends to mimic the positions of the US and the UK instead of pushing for a more independent voice in world politics.<\/p>\n
\u201cIf Australia could work more collaboratively with south-east Asian nations like Thailand, Malaysia and Indonesia; it could work to bring China into dialogue. China has major economic interests in Myanmar and its military and has blocked many of the international pushes for reform. I think there is a good chance that the Myanmar military would listen to China but it would require major diplomacy.\u201d<\/p>\n
He says power can also exist in unexpected places.<\/p>\n
\u201cWe often think big, formal institutions hold the power, but power is more diffuse than that. It belongs to people and places we wouldn\u2019t necessarily think about. For instance, billionaire Bill Gates holds more power than the secretary-general of the United Nations.\u201d<\/p>\n
So, what does the future hold for the Rohingya people?<\/p>\n
\u201cI don\u2019t think there will be any drastic change in the short term,\u201d says Dr Haider. \u201cIt\u2019s a long struggle and I don\u2019t think it will end via a legal resolution. But if we can bring countries like India, China and Myanmar\u2019s neighbours to the table and commence a dialogue, that could spark real change. I think Australia can play the role of a responsible international citizen here, which it has yet to take up.\u201d<\/p>\n
Researcher profile<\/h2>\n