Aggression towards Rohingya Muslims: is the use of Force under Humanitarian Intervention Legal?

Rohingya Muslims, for a long period of time hitherto, have been subjected to humanitarian violations in Myanmar, including the mass exodus of this ethnic minority, killings, sexual violence and detention. Furthermore, despite the United Nations General Assembly’s resolution condemning the atrocities of the Myanmar military on the ethnic minority, the state refused to admit the accusations against them, instead referring to this as double standard political pressure. Therefore, if Myanmar’s humanitarian crisis continues despite the existing UNGA’s resolution, humanitarian intervention through the use of force -according to international law- can1 legally be applied against Myanmar through two (2) major means; first, through treaty law, in particular, the UN Charter/Security Council; secondly, through customary international law.

First, humanitarian intervention can only be applied in the presence of an alarming humanitarian crisis, whereas reports show that there is an influx in the displacement of ethnic minority groups in Myanmar due to the grave physical abuses and killings (especially within the Rakhine State), forced labour is clearly evident which includes arbitrary detention, rape and assault, and rapid growth of AIDS crisis without necessary state actions. This collective humanitarian condition justifies the legitimacy of an armed humanitarian intervention and could incite the Security Council to take action under Chapter 7 (Article 39) and Article 24 (1) of the UN Charter in an aim to maintain international peace and security.2 The argument that prohibits the use of force on the member states, as mentioned in Article 2(4 & 7), is not absolute as long as it conforms to any principle or purpose of the U.N. as written in Article 13 . A legitimate case can be found in the Israel bombing of a nuclear reactor in Iraq in 1981. In addition, the universality of human rights has been among the major focus of the international community, as shown in the past humanitarian cases like in Somalia in 1992 and East Timor in 1999, and was the major concern in the Vienna World Conference on Human Rights in 1993.4,5,6 As mentioned above, persisting human rights abuse record lists violations of political, civil, social, economic and cultural rights of the Burmese as a whole using the armed forces of the state -the junta- and such clear threats justify an intervention of states to conduct humanitarian protection and support if additional prerequisite were met.7 Through the universality of human rights, humanitarian intervention is able to prevail over state sovereignty. Therefore, humanitarian intervention by force in Myanmar in response to the Rohingya crisis would be justified by the UN Charter and would find the approval of the International Court of Justice (ICJ).

Secondly, the right to intervene under customary international law has its legal grounds in the use of force in humanitarian intervention in a State, in this case- Myanmar, if certain conditions are met. The International Court of Justice (ICJ) in 1986 pronounced that “reliance by a State on a novel right or an unprecedented exception to the principle (of non-intervention) might, if shared in principle by other States, tend toward a modification of customary international law”.8 There are considerably enough cases that successfully applied and legally justified this right to humanitarian intervention during the 1990s. In 1999, North Atlantic Treaty Organization (NATO) did an air strike against Serbian armed forces in response to ethnic persecution targeting Muslims in Kosovo, and the use of armed force by force in Libera carried by the Economic Community of West African States (ECOWAS) in 1990 in order to halt a humanitarian crisis.[9] But it must be kept in mind that armed force is exclusively used for the limited purpose of stopping atrocities and restoring respect for human rights.

Therefore, the UN Charter and international customary law serve as legal grounds for the right to intervene in Myanmar by force. In terms of legality, both hold legal grounds; however, vis-à-vis feasibility to happen, this is close to impossibility because either China will veto the action or Myanmar would pursue non-intervention.

Bibliography:

Cassese, Antonio. (1999). “Ex Injuria Ius Oritur: Are We Moving towards Legitimation of Forcible Humanitarian Countermeasures in the World Community?”. 10 European Journal of International Law p. 26.

Gordon, Ruth (1996). “Intervention By The United Nations: Iraq, Somalia, And Haiti”. 31 Texas International Law Journal. p.43

Harris, D.J.. (1998). “Cases and Materials on International Law. London: Sweet and Maxwell”, 5th edition. pp. 890–894.

Nanda, Ved. (1992). “Tragedies in Northern Iraq, Liberia, Yugoslavia and Haiti-Revisiting the Validity of Humanitarian Intervention under International Law — Part I”. 20 Denver Journal of International Law. & Policy. p.305

Pietschmann, Marek & Sarkin, Jeremy. (2006). “Legitimate Humanitarian Intervention Under International Law in the Context of the Current Human Rights and Humanitarian Crisis in Burma/Myanmar”.

Rothert, Mark. (2000). “U.N. Intervention in East Timor”. 39 Columbia Journal of Transnational Law 257

United Nations (n.d). “Chapter VII”, (para. 1). Retrieved from https://www.un.org/en/sections/un-charter/chapter-vii/index.html

[1] If we define the word “can” as ‘does it have legal grounds’ instead of ‘is it possible to happen’.

[2] United Nations, “Chapter VII”. Para. 1

[3] Pietschmann, “Legitimate Humanitarian Intervention Under International Law”, p. 21

[4] Gordon, “Intervention By The United Nations”, p.43

[5] Rothert, “U.N. Intervention in East Timor”, p.257

[6] Harris, “Cases and Materials on International Law”, pp. 890–894.

[7] Cassese, “Are We Moving towards Legitimation?”, p. 26.

[8] ICJ, “Nicaragua case”, par. 207.

[9] Nanda, “Tragedies in Northern Iraq”, p.305