Just 20 days after Asean celebrated its 51st anniversary, the United Nations Independent International Fact-Finding Mission on Myanmar reported on August 28 that genocide and other atrocities had been committed by the military in Kachin, Rakhine and Shan states.
The mission was convinced there were grounds to hold senior generals accountable for an intent to destroy the Rohingya as both an ethnic and religious group in Myanmar, in whole or in part. In the last 10 years, numerous reports and legal analyses have indicated that Myanmar, which joined Asean in 1997, has persecuted the Rohingya.
What makes this mission’s report important is its finding of “genocidal intent”.
The mission established that the intent to destroy was pre-planned, under army chief Senior General Min Aung Hlaing, to solve the “unfinished job of the long-standing Bengali problem”. The military’s actions met four of the five defined prohibited acts in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, of which Myanmar is a signatory: (a) killing; (b) causing serious bodily or mental harm, (c) inflicting conditions of life calculated to bring about the physical destruction of the group in whole or in part, and (d) imposing measures intending to prevent births.
The enforcement of the prohibition of genocide rests on two pillars.
First, genocide is a crime under international law. According to the 2001 Princeton Principles on Universal Jurisdiction, crimes that are harmful to international interests such as genocide, crimes against humanity, war crimes and torture oblige states to bring perpetrators to justice, regardless of the crime site or the nationality of perpetrators or victims. Asean member states might consider the concept of universal jurisdiction to address the genocide of Rohingya.
Second, prohibiting genocide is the collective responsibility of states as enshrined under the UN Charter, and within the purview of the R2P (responsibility to protect) doctrine states may intervene in a country where a genocide is taking place to protect the targeted group. Asean member states are thus responsible for preventing or punishing genocide in Myanmar.
The mission recommended that Asean engage Myanmar to develop strategies to hold the perpetrators accountable for their acts. But because of the bloc’s principle of non-intervention, Asean has dealt with the Rohingya crisis behind closed doors without concrete measures to solve the problem.
Asean’s blanket application of non-intervention not only hinders development of peace, security and economic growth, but also compromises the protection of human rights in the region.
Member-states need to revisit the advice of Rudolfo Severino, the Asean secretary-general from 1998 to 2002, who called for dilution of non-interference on grave issues such as genocide, the use of rape as a weapon of war, the worst forms of child labour, deployment of child soldiers, trafficking in illicit drugs and the curtailment of religious freedom.
Indonesia’s President Joko Widodo has warned that the Rohingya crisis will affect peace and stability in the country as well as economic and political progress in Asean if it remains unaddressed. In her response, Myanmar leader Aung San Suu Kyi assured Indonesia that the country was committed to finding a solution to the problem and complying with the recommendations issued by the Advisory Committee for Rakhine state.
On July 30, Myanmar announced the formation of a Commission of Inquiry to investigate allegations of gross human rights violations against the Rohingya. Civil society criticised this commission as another attempt to avoid international oversight – an impression reinforced when its members stressed that their mission was not to blame anybody for the violations.
The Rohingya crisis is not an internal affair of Myanmar, but a regional and international crisis. Asean’s inaction on the Rohingya issue is evidence of a regional moral crisis.
The regional grouping should first, therefore, positively recognise the UN mission’s report and take steps to ensure accountability for the perpetrators in support of an international justice mechanism. At the very least, Asean member states should refrain from obstructing the international justice system, which deals with the criminal responsibility of individuals.
There is a grave consequence of allowing gross human rights violations to proceed unchecked. It allows for anyone living in this region to be the object of persecution on the basis of group affiliations or who they or we are. It is an offence to Asean’s core values of diversity, human rights and peace.
Yuyun Wahyuningrum is a PhD researcher at Erasmus University Rotterdam in The Hague.