The Rohingya crisis: ASEAN vs Red Cross

6 Sept, Jakarta Post

The cloud of gross human rights violations against the Rohingya Muslims during the last few weeks that have darkened Myanmar's sky will hinder the transformation of ASEAN into a single community of nations by 2015.

In its press release on Aug. 1, Human Rights Watch (HRW) stated that Myanmarese security forces had committed killings, rape and mass arrests against Rohingya Muslims after failing to protect both the Muslims and Arakan Buddhists during deadly sectarian violence in June.

Government restrictions on humanitarian access to the Rohingya community have left over 100,000 people displaced and in dire need of food, shelter and medical care.

However, ASEAN remains silent on this human rights violation in a part of ASEAN. This contradicts the ASEAN spirit of one vision, one identity and one community and the desire to show collective solidarity, compassion and the will to help each other.

 This spirit reminds us of what Jacques Delors (1996) said "The world is our village: If one house catches fire, the roofs over all our heads are immediately at risk. If any one of us tries to start rebuilding, his efforts will be purely symbolic. Solidarity has to be the order of the day: Each of us must bear his own share of the general responsibility."

ASEAN as a home for all its members, ironically, has not yet offered any solution to extinguish the Rohingya fire. ASEAN therefore has to restore its credibility as a common home for all ASEAN peoples including the Rohingyas by optimizing the ASEAN Inter-governmental Commission on Human Rights (AICHR), which has a special mandate to promote and protect human rights across the region.

It mandates promoting and protecting human rights and fundamental freedoms of the peoples of ASEAN, upholding the right of the peoples of ASEAN to live in peace, dignity and prosperity and contributes to the realization of the purposes of ASEAN as set out in the ASEAN Charter in order to promote stability, harmony, friendship and cooperation in the region, as well as the well-being, livelihood, welfare and participation of the ASEAN peoples in the ASEAN Community-building process.

In the spirit of non-interference, AICHR could facilitate the Myanmar government through various capacity-building supports for their law-enforcement officials such as community policing especially in the state of Rakhine.

This approach is in line with the mandate of the Outcome Document of the 2005 United Nations World Summit (A/RES/60/1, para. 138-140) and the Secretary-General's 2009 Report (A/63/677) on the Implementation of the Responsibility to Protect which stipulates that the state carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement.

The international community has a responsibility to encourage and assist states in fulfilling these responsibilities and the international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes.

If a state is manifestly failing to protect its population, the international community must be prepared to take collective action to protect people in accordance with the Charter of the United Nations.

If AICHR cannot address such gross human-rights violations, it will lose its credibility. In which case its role could be undertaken by the International Criminal Court (ICC).

The ICC was established by the UN to achieve justice for all, to end impunity, to help end conflicts, to remedy the deficiencies of ad hoc tribunals, to take over when national criminal justice institutions are unwilling or unable to act and to deter future war criminals.

The Rohingya crisis has likely met all these criteria.

Myanmar has acceded to all the treaties, declarations and agreements in ASEAN, starting with those outlined in the Bangkok Declaration and those elaborated and developed in various subsequent treaties, declarations and agreements.

Thus ASEAN could adopt a persuasive approach to pursuade the Myanmar government to take immediate action to end the gross human-rights violations and initiate prompt, independent and impartial investigations under both domestic and other mechanisms in line with the spirit of a single ASEAN Political-Security Community.

Due to ASEAN's silence, Indonesian Red Cross (PMI) chairman, Jusuf Kalla, proactively offered some lessons learned and best practices to address the Rohingya crisis. Kalla, former Indonesian vice president, has long experience on conflict transformation in various sectarian and horizontal conflicts in Indonesia.

The most prominent being his achievement of ending decades of conflict between the government of Indonesia and the Free Aceh Movement (GAM) through the Helsinki Peace Accord on Aug. 15, 2005.

The PMI has played a proactive role in the Rohingya crisis and sent aid to refugees from the deadly conflict. The PMI has a legitimate mandate to address such conflict.

The 1949 Geneva Convention and additional protocols, the core of international humanitarian law, regulate the conduct of armed conflict and seek to limit its effects.

They specifically protect people who are not taking part in the hostilities (civilians, health workers and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked combatants and prisoners of war.

Within the spirit of justice for all and impartiality, the Rohingya crisis should not be reduced and dichotomized into black and white issues of Muslims and Buddhists, otherwise there will never be any rainbow over Myanmar's sky and the ASEAN dream for a single community of nations by 2015 will simply remain a beautiful fata morgana.

The writer is a professor at the State University of Jakarta and former director general of Human Rights at the Law and Human Rights Ministry.