Rohingya’s are an ethnic group, the majority of whom are Muslim, who have lived for centuries in the majority Buddhist Myanmar. Currently, there are about 1.1 million Rohingya in the Southeast Asian Country. Nearly all of the Rohingya in Myanmar live in the western coastal state of Rakhine and are not allowed to leave without government permission. It is one the poorest states in the country, with ghetto-like camps and a lack of basic services and opportunities. Since the 1970s, a number of crackdowns on the Rohingya in Rakhine State have forced hundreds of thousands to flee to neighbouring Bangladesh, as well as Malaysia, Thailand and other Southeast Asian Countries. During such crackdowns, refugees have often reported rape, torture, arson and murder by Myanmar security forces.

The Rohingyas have always been a marginalised section in Myanmar which was a factor that led to their persecution. However, the trigger was a Rohingya insurgent group by the name of Arakan Rohingya Salvation Army (ARSA). ARSA attacked 24 police posts and an army base which resulted in several casualties for the both the army and the police force, thereafter a crackdown on villages where Rohingya lived ensued, during which government troops were accused of an array of human rights abuses including extrajudicial killing, rape and arson.

This article focuses on the Indian government’s obligation towards Rohingyas under the international law, mainly focussing on ‘Responsibility to Protect’ and ‘Humanitarian Intervention’.

The customary practice of intervention on the basis of humanitarian grounds is historically significant to the concept of Responsibility to Protect (R2P), because while the principle of R2P has been made clear by the Resolution adopted unanimously by 191 states at the UN World Summit (Para 138,139, UN World Summit, 2005), it is unclear as to whether or not it limits the scope of humanitarian intervention.

Before R2P came into existence in 2005 the practice of ‘humanitarian intervention’ had served a somewhat similar purpose whereby states would intervene militarily or non-militarily in cases of gross human rights violations. Several instances can be enumerated for the same, especially from the 1990s which is identified by scholars as the ‘decade of humanitarian intervention’ (for example the intervention in Kosovo in 1999).  India too, has, in the past intervened on humanitarian grounds, on several occasions by military (Indian Annexation of Hyderabad in 1948, intervention in East Pakistan in 1971, and intervention in Sri Lanka in 1987) and non-military means (Granting of Political Asylum to Tibetan refugees, granting of asylum to Bangladeshi refugees).  Hence, there has been a long drawn state practice of intervention on humanitarian grounds.

An essential element of customary law, apart from the actual practice (state practice) is the psychological element (opinio juris) which refers to the belief of a particular state that it is lawfully obligated to engage in a certain kind of behaviour. However, sometimes it is hard to understand whether an act is done by virtue of legal obligation or principles of morality because states do not restrict their behaviour to what is legally required. Therefore, it becomes hard to ascertain whether there is opinio juris in a state’s conduct or not. Hence, a grey area exists with this respect.

It is contended that over time the ‘right to humanitarian intervention’ has not remained a “right” but has rather become a customary ‘obligation’. The same is clear from US President Bill Clinton’s statement at the time of the intervention of Kosovo by NATO forces in 1999, where he says that it is ‘morally imperative’ for them to intervene, that they ‘must apply that lesson in Kosovo before what happened in Bosnia happens there too’ (referring to the genocide that happened in Bosnia) (Statement of the President of United States of America on Kosovo made on March 24, 1999). While enlisting the reasons for intervention in Somalia President Clinton said ‘our conscience had had enough’ (with respect to atrocities in Somalia). As far as India is concerned it is clear from the statements of the then Prime Minister Mrs Gandhi that it was imperative for India to intervene in East Pakistan because of the atrocities occurring there. India had been active in the 60s and 70s in justifying humanitarian intervention as it went so far as to persuade the United Kingdom to intervene in Rhodesia.

Recently, the Modi Government has expressed its intentions of granting citizenship to those refugees who have faced religious persecution which can fit into the category of non-military means of intervention.

Such conduct of states falls within this grey area, where it is hard to ascertain whether there is opinio juris or a mere action based on principles of morality. Nevertheless, it is important to recognize that even if a particular practice is based on principles of morality, it does not preclude it from becoming law. It is contended, that the practice of intervention on humanitarian grounds may have crystallized into a custom (which is why later, in 2005 the UN General Assembly unanimously adopted a Resolution binding themselves with R2P, hence, somewhat codifying earlier custom).

In the case of Vellore Citizens Welfare Forum vs Union of India, the Supreme Court has ruled that it is almost accepted provision of law that the rules of Customary International Law which are not contrary to municipal law are applicable domestically (AIR 1996 SC 2715). In India, there isn’t any Statute or Ordinance that speaks on the subject of refugees. Therefore, if this practice has actually crystallized into a custom, it means that the same can be made enforceable simply by way of Public Interest Litigation in favour of the Rohingya Muslims who fled from their homeland in Myanmar and sought asylum in several other states including India which did not allow them entry as refugees.

However, it is noteworthy that in accordance with paragraph 139 of the Resolution adopted in 2005 the international community is obligated to act after authorization from the United Nations for both military and non-military intervention, therefore the question arises as to whether the resolution limits the scope of the customary obligation (established previously) of ‘humanitarian intervention’, because if it does, then the Indian government’s obligation would be subject to the authorization of the UN.  With respect to this question, it is interesting to look at the behaviorB4972261-096C-42CD-B686-3FD6A6657BF6_cx0_cy4_cw0_w1023_r1_s of states in the Syrian Civil War. In order to invoke R2P the Security Council has to authorize the same, in case of Syria, Russia and China used their Veto to block such a resolution from passing. However, this did not stop states such as USA, Turkey, Saudi Arabia, Russia and Iran from intervening militarily and non-militarily and creating a proxy war sort of a situation. This, to some extent would indicate that while the authorization of Security Council is necessary with respect to R2P, same may not be the case with respect to ‘humanitarian intervention’.

Hence, it seems that R2P does not limit the scope of ‘humanitarian intervention’. This in turn means that the same does not limit the scope of obligation of states under customary international law, hence, confirming the obligation of India with respect to ‘humanitarian intervention’ both by way of non-military means (granting of asylum to Rohingya refugees) military means (military intervention in Myanmar to stop the ethnic cleansing of Rohingyas).

Co-Authored by: Paranjay Tripathi (Fourth Year Learner) & Bhavya Sareen (Second Year Learner) Symbiosis Law School, NOIDA.

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