R2P, Myanmar and Rohingya Repatriation

Presentation to Diplomatic World Seminar/Webinar, 'Rohingya Repatriation: A Pathway to Peace, Stability and Harmony in the Bay of Bengal Region', Dhaka, Bangladesh, 20 May 2023

The Rohingya crisis, and the larger Myanmar crisis of which it is part, continues to be one of the world’s most harrowing and heartbreaking.

It has been a tragedy for the Rohingya people, subject to genocidal persecution in their long-established Rakhine homeland, driven across the Bangladesh border in their hundreds of thousands, living in desolate camp conditions, seeing – so far anyway – no hope of repatriation and no easy path to resettlement elsewhere, and with internal community tensions, divisions and signs of breakdown multiplying.

It has been a nightmare for Bangladesh, a country with endless challenges of its own – not least with recurring natural disasters like last week’s cyclone – simply in no position to provide ongoing, open-ended humanitarian relief on the massive scale required to sustain those who fled to it for safety, and desperate to find a decent solution to this burden not of its own making.

And it has been a matter of shame for the international community that it has done so little to prevent the Rohingya crisis as it was evolving, to at least alleviate with generous humanitarian aid the misery and stress that it continues to generate, and to find a long-term solution to its underlying causes. ASEAN has proved itself impotent, and the wider international community indifferent, in the face of the massive affronts to international law, international norms of behaviour, and basic human decency that have been evident from the outset.

I have been particularly distressed, as many others both in Myanmar and around the world have been, by the failure of the principles of the Responsibility to Protect, or ‘R2P’ – in which so many have invested so much hope for the last twenty years, and which are so obviously relevant here – to gain any traction in the present ongoing crisis. As one of R2P’s original architects, and a fierce believer everything it stands for, I have not lost all confidence in its capacity to make a difference here, but it will be an uphill struggle.

R2P was born as a reaction to the failure to reach any kind of international consensus on how to respond to the calamitous genocides in Rwanda and the Balkans in the 1990s, with the only debate then being about the so-called “right of humanitarian intervention” by military force. The report in 2001 of the Canadian-sponsored Commission I has the honour of co-chairing laid the foundations for previously unachievable North-South consensus by changing the language of the debate from “right to intervene” to the “responsibility to protect”; by focusing heavily on prevention, not just reaction; and by making clear that the reaction toolbox had many more compartments than just military action.

The basic principles of R2P, as unanimously adopted by the United Nations General Assembly sitting at head of state and government level at its 60th anniversary World Summit in 2005, and subsequently accepted on many occasions by the Security Council, involve three distinct pillars:

• First, every state has a responsibility to protect its own population from genocide, ethnic cleansing and other crimes against humanity, and war crimes by neither perpetrating nor tolerating them.
• Second, every state in the wider international community in a position to do so has the obligation to assist others in meeting their individual responsibility to protect.
• And third, should a state “manifestly fail” to meet that responsibility, it is the responsibility of the wider international community to “take collective action in a timely and decisive manner,” including – at the most extreme end of the reaction spectrum – through military intervention, but only if endorsed by the Security Council.

The present crisis in Myanmar demands, unequivocally, to be treated as an R2P one. Myanmar as a state has manifestly failed to protect its own people: the Tatmadaw and the other security forces it directs have been, and continue to be, guilty of the most heinous crimes against humanity, both against Rohingya and those whom it sees as its opponents in the wider Myanmar community. It is a situation which cries out for the international community to take decisive collective action. It cries out for more robust UN Security Council action than just statements of concern. And it cries out for more committed, effective action, by every state and organisation, including ASEAN, capable of some impact, however small, in honouring the principles to which all of them signed up in 2005.

The key to resolving at least the Rohingya part of the equation, and to relieving the enormous stress it is placing on Bangladesh – is the safe, dignified and sustainable repatriation of those displaced, the subject of this seminar. Obviously, the ideal outcome would be for that to be achieved through diplomatic negotiation between the Bangladesh government and the Myanmar military regime, with the active engagement and support of Rohingya community leaders to ensure that their rights and interests are genuinely protected in the process, and that they are not just being forced out of the frying pan back into another fire, still not recognized as citizens of Myanmar and still not physically safe from persecution.

While there have been some reported developments on this front over the last two months, with Bangladeshi officials and refugee representative meeting Myanmar regime officials and visiting possible repatriation camp sites, there seems little sign of regime willingness to meet basic Rohingya concerns by making any concessions on citizenship, free movement and other basic rights, or allaying fears that its identified repatriation locations will be nothing more than relocated refugee camps. Bangladesh, while clearly anxious for faster progress, seems to be still recognising that any repatriation, to be defensible, has to be voluntary on the part of the refugees, and that position is to be applauded.

What if anything can R2P do to resolve this impasse? Some Rohingya leaders are pinning their hopes on the use of military force, the most extreme end of the permissible response spectrum when a state is ‘manifestly failing’ to protect its own people from atrocity crimes, is. But it is very hard to see how this could possibly be a realistic option here, for three reasons:

First, it is a basic requirement of R2P, as agreed by the UN General Assembly, that any such use of force be authorised by the Security Council – but we know that, with China and Russia both inevitably wielding vetoes, there will never be such agreement.

Second, while it may that a moral – if not legal – case can be made for military intervention without Security Council approval if such vetoes are seen by most of the rest of the world as indefensible, that moral case can really only begin to be made if a number of prudential criteria, identified in the original Commission report, are satisfied. The most relevant of them for present purposes are ‘Last Resort’ (ie that nothing other than military force will secure the desired objective) and, above all, ‘Balance of Consequences’ (ie that military intervention will do more good than harm).

• It is hard to conceive of any military campaign, short of one to conquer the entire country, that could result in the protected movement back home, and safe permanent residence there, of up to a million people: the Tatmadaw would be a formidable opponent, enabling no easy disabling strike, and absolutely guaranteeing a protracted and very bloody war. It is hard to believe that a bad situation would not become very much worse

Third, and this is probably the most decisive objection of all, no country in the region or anywhere else, so far as I am aware, has shown the slightest willingness to take up arms against Myanmar, with or without Security Council authorisation.

But military intervention is just one element in the R2P reaction toolbox, and there is plenty of room for further focus on diplomatic naming, shaming and isolation; stronger and more widely imposed targeted sanctions; better coordinated arms embargoes; and threats of international criminal prosecution. In all these areas, unlike military action, if the Security Council fails to act, as probably will remain the case, other states still legally can. It is true that such of these measures as have already been adopted, like some targeted sanctions, have had little impact to date, but they should not be abandoned.

As depressing as the present situation continues to be, there are four things happening which give me a flicker of hope that the generals will eventually be brought to their senses.

The first is that Myanmar’s recent moves to construct a relocation centre and talk with Bangladeshi and Rohingya representatives, empty PR gestures though they may be, are signs that it is feeling the international pressure and the need to respond somehow to it.

The second is that the International Court of Justice action against the Myanmar regime for perpetrating genocide against the Rohingya people, initiated by Gambia, is still under way, and has a reasonable chance of resulting in a hugely adverse, conscience-shocking, finding: if this happens it will re-energise commitment to basic R2P principles and be a wake up call both for the generals and the wider world.

Thirdly, there are signs that the dynamic within ASEAN is changing and there is a growing recognition that its credibility is suffering badly from its perceived complete impotence in responding to Myanmar’s disgraceful behaviour. The election of Anwar Ibrahim in Malaysia, and the election result in Thailand, if it is followed through with a new government, will give Indonesia much more support than it has so far had to impose some real pressure on the regime, and should again concentrate the minds of the generals.

Fourthly, the Myanmar military, for all its self-isolating and self-disciplined remoteness, must now be acutely aware that the popular resistance of 2021 is infinitely more universal, and determined to prevail, in every corner of the country than anything it has encountered in the past. And importantly for the Rohingya cause, the opposition government or government in exile, such as it is, the National Unity Government (NUG), has embraced the Rohingya people as truly part of the nation’s fabric, in a way that the NLD under Daw Aung San Suu Kyi was never able to accept.

None of this is going to result in quick or easy improvement in the situation. But it does give hope that if international pressure is both increased and sustained, and if internal resistance can continue, stay reasonably united, and strengthen to the point where it makes the country effectively ungovernable, then there will come a point when the military regime has to yield. The critical need is for all of us working to bring this crisis to an end to stay energetic, active and above all optimistic: change only ever happens when we believe it is possible.

Thank you for giving me the opportunity to try to keep at least a little of that flame of optimism alive.