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Rohingya Symposium: A Strategy for Strong Security Council Action on Myanmar

Published in: OpinioJuris

Three years ago, my organization reported on the brutal campaign of Myanmar’s military, also known as the Tatmadaw, as it committed countless atrocities and forced more than 740,000 Rohingya Muslims to flee to Bangladesh. In September 2018, the UN’s Independent International Fact-Finding Mission urged the investigation of the Tatmadaw’s generals for war crimes, crimes against humanity and genocide.

These devastating findings propelled some ground-breaking forward movement by international bodies. Yet the body with the authority to respond to the crisis through binding resolutions, the UN Security Council, is missing in action. Its November 2017 presidential statement remains the last formal council document. A formal session of the council to discuss Myanmar hasn’t been held since February 2019, even though only nine votes are needed to do so and there is no veto possible on procedural matters such as the council’s agenda.

Last November, Gambia brought a case to the International Court of Justice (ICJ) alleging that Myanmar had violated various provisions of the Genocide Convention. Two months later, the court unanimously adopted “provisional measures” ordering Myanmar to protect the remaining 600,000 Rohingya in Rakhine State from the threat of genocide. Also in 2019, the International Criminal Court (ICC) opened an investigation into the crime against humanity of deportation, which it could do because the Rohingya crossed into Bangladesh, an ICC member. In Argentina, a group of Rohingya and Latin American human rights organizations filed a criminal case against Myanmar’s top military and civilian leaders. 

Despite these important steps on the international stage, what’s striking is what remains unchanged three years later. The intensifying conflict between the Tatmadaw and the Arakan Army in Rakhine State has once again put on display the military’s brutal tactics, with civilians paying the highest price. Ethnic minorities across Myanmar – the Rakhine, Chin, Shan, Kachin, Karen, Karenni, Mon, Rohingya, and others – have long been targets of the military’s abusive, brutal campaigns.

The UN has expressed growing alarm. In April, the then-special rapporteur on the human rights situation in Myanmar, Yanghee Lee, concluded that “the Tatmadaw’s conduct against the civilian population of Rakhine and Chin States may amount to war crimes and crimes against humanity.” In June, UN high commissioner for human rights, Michele Bachelet, echoed her concerns about the intensifying conflict and flagged the Tatmadaw’s reported burning of “according to eyewitnesses and satellite images, areas where up to a dozen Rohingya villages once stood…”

In July, the special rapporteur on the human rights situation in Myanmar, Tom Andrews, expressed “regret” that  UN Secretary General Antonio Guterres’ appeal for a global ceasefire “is being ignored in many areas of Myanmar and the cost in human lives and human suffering is enormous.” And in his July policy brief on the Impact of Covid-19 on Southeast Asia,  Guterres warned that the hostilities in Myanmar “continue to displace communities, inflict casualties and reduce humanitarian access.”

The UN Human Rights Council and the UN General Assembly, through their respective annual resolutions, regularly convey “grave concern” about ongoing serious human rights violations and call on Myanmar to make improvements. But the Security Council’s silence is deafening, and it comes at a price.

Last year, the UN-commissioned report on the involvement of the UN in Myanmar from 2010-2018, led by Gert Rosenthal, found that because of the “absence of the support of the Security Council, which is frequently restrained due to its composition and system of governance, the options of the United Nations to address the challenge in a manner consistent with its values and principles is often rather limited.”

Skeptics point to the well-known polarization among the five permanent members as a barrier to Security Council action. But that view ignores the Security Council as a powerful platform to draw attention to the human rights situation in Myanmar, which can morph into threats to international peace and security, as Rosenthal rightly noted.

Public debate in the council keeps the world’s eyes on Myanmar and provides an opportunity for concerned Security Council members to reinforce the need for justice for grave crimes, including referring the entire situation to the ICC. Even without Security Council action, though, these signals matter to victims and survivors. And make no mistake: they are heard and felt in Myanmar.

Statements of concern by Security Council members are especially important given the ICJ’s provisional measures order, and the directive to Myanmar to protect the Rohingya from genocide. A formal session would give UN member states, including Organization of Islamic Cooperation members Niger and Tunisia, a high-profile opportunity to publicly raise questions and express concern – as part of the Council’s official record – about Myanmar’s concrete actions to carry out the court’s unanimous provisional measures.

There are other under-explored paths to put increased pressure on the Security Council.

The UN Human Rights Council and General Assembly resolutions articulate concerns about the human rights situation and outline recommendations for Myanmar to adhere to its international obligations.

But they could be more explicit in pressing the Security Council to be active on the Myanmar file. Such an approach has been effective before. In response to the horrific abuses comprehensively laid out in a damning UN commission of inquiry report on North Korea, both the Human Rights Council and the General Assembly adopted a more pointed approach to the Security Council, encouraging its ongoing consideration of the human rights situation and to “take appropriate action to ensure accountability.”

Further, as  Rosenthal recommended, Secretary-General Guterres should use Article 99 of the UN Charter, which allows him to “bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security,” to voice concerns about the security and humanitarian situation, and linked human rights violations, in Myanmar.

Guterres all but did so explicitly in his September 2017 letter to the Security Council expressing concern about the Rohingya crisis. Using Article 99 would elevate the UN’s voice in Myanmar and would be consistent with the Secretary-General’s recent “Call to Action for Human Rights.”

There is an urgent need to improve the human rights situation in Myanmar now, as well as a long game to improve democracy and good governance in that country. That’s precisely why more strategic, cohesive and sustained action by UN bodies in New York and Geneva is critical to protect the countless civilians in Myanmar whose lives remain at serious risk.

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