Rethinking ASEAN’s Response in Regional Conflicts: A Rohingya Study

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(1) ABSTRACT: RETHINKING ASEAN’S RESPONSE IN REGIONAL CONFLICTS: A ROHINGYA STUDY

The current ASEAN framework has failed to address and solve the growing refugee issue in Southeast Asia. The prolonged effort to a regional response has been delayed by the organisation’s internal body. This is clearly demonstrated in the Rohingya crisis. As one of the biggest human rights disasters in our era, the blame game has shifted from local governments, regional powers to international institutions. As an ethnic Muslim minority in Myanmar, the Rohingya people face genocide and an endless wave of violence committed by the elected government. This study aims to illustrate the historical development of the Rohingya people, and ASEAN as a regional institution. It also prioritises discussion on the non-interference policy, besides also determining the current frameworks that could be put into place to possibly solve the issue. In this context, this paper explores ASEAN’s Repatriation Policy, the Preliminary Needs Assessment and other efforts that have been pursued to suggest the resolve of regional issues such as the Rohingya refugee crisis.

(2) ROHINGYA & ASEAN: A HISTORICAL PROFILE

Chapter Objective: To illustrate the historical development of the Rohingya people, and ASEAN as a regional institution

Myanmar, or previously known as Burma, is a majority Buddhist country. In its West Coast resides the Muslim-majority Rakhine State, where a minority Muslim ethnic group called the Rohingya resides. They primarily come from descendants of Arakan State. The term “Rohingya” first used in the 1950s by Bengali Muslim intellectuals who were based in the North-Western part of Arakan. They were the direct descendants of Muslim immigrants from Chittagong in East Bengal, present-day Bangladesh. The British records had identified these people as “Chittagonians”. (Chan 2005).

There exists four different groups of Muslim communities in the State of Arakan, the Chittagonians Bengali since 1430; the “Kaman” — a descendant of Muslim mercenaries in Ramree Island; Muslims from Myedu, who were left behind after the Burmese invasion of Arakan; and the Arakanese Muslim themselves, who are recognised as local inhabitants (Chan, 2005). The crisis arises when modern-day Myanmar refuses to acknowledge the existence of this minority group, and all its right to citizenship.

The Muslim migration into Burma had mostly occurred during the British occupation in 1824. As the country was part of India, the influx of Muslims into the land was coined as internal migration. This perception was, however, rejected by the Burmese administration. The United Nations, on the other hand, had later deemed the Rohingya as the most persecuted minority in the world. (Who are the Rohingya people? 2019).

The timeline begins in the 1430s, when the Muslim migrants settled in the independent coastal kingdom of Arakan State. This was later conquered by the Burmese Empire in 1784, who were, then, later colonised by the British in 1824. Under the foreign rule, Burma fell under assimilation of 1948’s British India. The Bengals pouring into the state were subtly promised autonomy and a working government in exchange for aid during the second World War. This promise was never fulfilled by the British. (Who are the Rohingya people? 2019).

After independence, the Burmese government refused to legally acknowledge the Rohingya. Their position was clearly illustrated when they did not include the Rohingya people as one of the 135 ethnics formally recognised by Myanmar. In 1982, the Myanmar government denied the Rohingya citizenship and cast them out of the constitution. This put into effect the denial of their rights and the status of stateless. (“An Open Prison without End” 2020). This reality forced them to live in poor conditions as non-citizens in their own country, unafforded the access to request for legal documentation of their existence. As Rohingya civil servants were replaced by Buddhist Rakhine villagers, they were also denied access to any social services or education. The border to the Rakhine State was heavily guarded, and prevented the Rohingya from leaving. In 2014, the Myanmar government additionally introduced a strict marriage and birth control regulation to be subjected to the Rohingya. (Burma: Revoke “Two-Child Policy” For Rohingya 2013).

In 1950, the build-up of tension between Buddhist and Muslim communities in Rakhine had sparked the establishment of a Rohingya militant group reocgnised as the Mujahids. Primarily financed by terrorist groups in Pakistan, the Mujahids terrorised both non-Muslim and Muslim villagers in the region (U Nu, 1975). The negotiations between Myanmar and Pakistan that happened later resulted in the arrest of the group’s leader, Cassim. This gave room for the Burmese military to enforce a strict surveillance campaign onto the Rakhine state, and, in turn, suppressed any effort towards a rebellion. (BBC News 2021).

This was, apparently, just the beginning. In 1962, Myanmar converted its internal administration into a military state. The acting government had willingly sponsored the execution of the Rohingya people. (“All You Can Do is Pray” 2013).

The country’s Operation Nagamin or “Operation Dragon King” had showcased the human rights abuses committed by Myanmar’s military force against the Rohingya people. The pillaging of villages and houses were followed with brutal rapes, inabitary arrests and rampant murder. (Ahmed 2012). The “Operation Clean and Beautiful Nation” had caused an estimated amount of 200 thousand Rohingya people to flee the country and seek refuge in neighbouring countries such as Bangladesh. It wasn’t until the United Nations and its urge to end all violence in the state that the mass-murdering campaigns were put on halt. (Quill).

In 2017, the Myanmar military caused the forced migration of an estimated 742 thousand refugees to flee to Bangladesh. These years of violence have attracted a considerable amount of concern from other countries, organisations and the global press despite the tight military control over the area. (Rohingya Crisis in Myanmar | Global Conflict Tracker 2015). In one article, the United Nations condemned Myanmar on its ethnic cleansing campaign of the Rohingya people, commissioning it as a crime against humanity. Similarly, Amnesty International had also reported the inhumane and dehumanising regime of Myanmar as an apartheid-like system. Within the same context, de-facto leader and Nobel Peace Prize awardee, Aung San Suu Kyi, was heavily criticised for her ignorance and lack of action against the genocidal attempts towards the Rakhine State.

As a regional institution, ASEAN is responsible for taking up the crisis in Myanmar. The Association of Southeast Asian Nations or ASEAN is an organisation established in 1967. It was intended to unify the neighbouring countries of Southeast Asia in addressing the security, political and economic issues in light of limitations unique to the Southeast Asian struggle post-independence. ASEAN operates by having a central chair that rotates annually among its members. This is assisted by a secretariat based in Jakarta, Indonesia. (Overview — ASEAN | ONE VISION ONE IDENTITY ONE COMMUNITY 2020). The important decisions obtained through consensus and consultations between its members are guided under the principles of peaceful resolutions and non-interference in its domestic affairs.

The Rohingya crisis in Myanmar has proven to challenge ASEAN. It highlights the lack of experience and political and legal framework in dealing with internal conflicts and the broader refugee narrative. (GAFFAR 2018). The ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers in 2007 had solely focused on migrant workers — it failed to mention refugees and asylum seekers. In ASEAN, there remains to be only two member states that have ratified either the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol: the Philippines and Cambodia. (The future of forced migrants in ASEAN — Thailand 2017).

In light of that, the institution’s non-interference policy (discussed further in the next chapter) restricts ASEAN state members to take up action against another member state.With no working framework and head authority, countries in Southeast Asia can reject boats hosting refugees and asylum-seekers coming onto their shores (Shivakoti, n.d.). It was with the help of the international media that countries like Malaysia and Indonesia were pressured into opening up their borders for the Rohingya’s temporary landing. This dilemma has attracted the trade of human traffickers to operate in the area. They have been reported to be heavily involved in the illegal transporting of Rohingyas across the border. According to Malaysian and Thai authorities, mass graves believed to belong to the Rohingya were discovered in 2015 at camps run by human traffickers along the border.

As countries with Muslim-majority communities, Malaysia and Indonesia has led the campaign against the Myanmar government. Malaysia, in particular, has been extremely vocal in condemning the nation — former Malaysian prime minister, Dato’ Seri Najib Razak, stated in 2015 that “the world cannot sit by and watch genocide take place” (The Guardian, 2016). This was followed with an emergency ministerial meeting in Kuala Lumpur hosted by the Organisation of Islamic Cooperation (OIC) at the request of the Malaysian government. This resulted in the unanimous request for ASEAN to conduct an investigation and coordinate humanitarian aid. In the same timeframe, Malaysia had also invited Aung San Suu Kyi for a meeting in Yangon between other ASEAN foreign ministers, in which she promised to cooperate with ASEAN on providing regular updates on the crisis and allowing aid efforts to be coordinated within the nation.

The meeting with Aung San Suu Kyi had also resulted in the establishment of the Advisory Commission. This was chaired by Kofi Annan, three international members and six national citizens of Myanmar. The commission has suggested several solutions on the issue at hand, like facilitating refugees through bilateral relations.

(3) NON-INTERFERENCE POLICY & THE LEGAL CALL TO RESPOND

Chapter Objective: To prioritise discussion on the non-interference policy in the issue of the Rohingya crisis and regional conflict

The growing diaspora of the Rohingya people who continuously face the prospect of living under a military regime that carries out genocidal activities against its people, is becoming a valid concern for ASEAN. Its inability to act as a collective organisation has managed to draw in global criticism, highlighting the relevance of it in regional balance and stability. The socio-political and ethical implications of the refugee numbers populating neighbouring states are similarly addressed in the context of security threats. The crisis has illustrated the contradictions of policing its member nations in accordance with international law. (Putra, Darwis and Burhanuddin 2019).

The clauses that govern ASEAN’s framework is guaranteed with the protection of state sovereignty — particularly in the policy of non-interference. In this sense, the term intervention is further defined as military or political action taken to change the existing structures of a national authority. (Sovereignty, Intervention and The ASEAN Way (3 July 2000) — ASEAN | ONE VISION ONE IDENTITY ONE COMMUNITY 2012).

In the more than 50 years it has operated, ASEAN has only contravened its strict non-interference policy in 1986 and again in 1997, with a political upheaval in the Philippines and a coup in Cambodia. Hence, it’s approach to dealing with the Rohingya crisis will be fundamental in setting the bar for future strategies in ASEAN’s dealings with geopolitical conflicts. This would additionally present a formal take of supreme power against any illegitimate authority that works against the elements recognised under international law. The persecution of the Rohingya Muslims in a campaign of “textbook ethnic cleansing” would be the first agenda on the block if this approach is taken up by the ASEAN board.

On the sole question of human rights violations and the principle of non-interference, it is even bolder to suggest that should this continue to prevent a regional intervention in the state of Myanmar, ASEAN would be complicit in the growing refugee crisis that is spawning from the issue at hand. The organisation, when pursuing this policy, is essentially jeopardising any attempt intended by neighbouring member states like Malaysia, Thailand and Indonesia to resolve the growing refugee population overflowing into their borders. It is trickier given the historical circumstances of ASEAN in any of its effort to centralise the human rights debate — the example of Thailand’s former prime minister, Thaksin Shinawarta threatening to walk out of an ASEAN Summit clearly illustrates this reality.

The current developments of the non-interference policy is portrayed through the Malaysian membership, where former prime minister, Tun Dr. Mahathir Mohamad urged his government and other ASEAN countries to discard the policy altogether, and instead threaten Myanmar with the complete removal of its association with ASEAN. The issue lies in the lack of political will and the collective effort of the international community to prioritise creating a workable solution with the Myanmar authorities.

This approach, however, can seem a little conflicting as regional stability in Southeast Asia is greatly attributed by ASEAN’s manner of conducting its inter-state relations. The particular issue with the non-interference policy comes through a variety of sources — the subject of expanded membership within ASEAN; the challenges of globalisation and the developing world; the growing demands for global democratisation; and the increasing focus of prioritising human security over state-sovereignty. This issue begs a lot of questions, one being, to what extent is ASEAN’s commitment to its non-interference policy relevant for upholding regional relations?

As it is later observed, the policy was never meant to be absolute. This comes with the introduction of other policies that allow more flexibility in the engagement process of states. In the context of growing public criticism, the region is gradually shifting towards a norm of humanitarian intervention. In short, the institution has moved beyond the original interpretation of its non-interference policy, as a way to accommodate international norms and the dominating West. This does not, however, attribute to the fact that a strict non-interference principle is not applied. As it is seen in the case of Myanmar and its attitudes towards its Rohingya people, the ASEAN principle continues to cripple any conduct in regional affairs.

Issued in 1967 in the Bangkok Declaration, the non-interference policy was outlined as a principle that ensures the domestic stability of a member state and the region as a whole through the prevention of external interference. The internal affairs of an ASEAN country was explicitly referenced in the 1976 Treaty of Amity and Cooperation in Southeast Asia, and remains to be one of the fundamentals of the association’s framework.

The uniqueness of this particular principle is its adoption as both a behavioural norm, and the practices of member states in reference to this norm. As Bellamy and Drummond (2011 p.185) state: “Despite the fact that the Association has made no attempt to define what it means by ‘interference’, regional practice prior to the mid 1990s suggests that it was construed as a continuum of involvement in the domestic affairs of states that ranged from the mildest of political commentary through to coercive military intervention”. This broad interpretation suggests that the non-interference policy functions as a prevention clause against any acts by ASEAN member states to undermine or upset the existing authority of the dominant political elite. It is, hence, regarded as an ideal and a political tool. (ASEAN and the Principle of Non-Interference 2012).

These political factors are fundamental in the development of ASEAN’s normative framework. It is oftentimes referred to as the “ASEAN Way”.

Firstly, the element of state-sovereignty as defined by Southeast Asian states is greatly preserved in the ASEAN norm as a result of their historical experience — colonial rule, the Cold War and the many attempts to export communism — all of which are events that have reinforced internal conflict within these member states, and led ASEAN to perceive sovereignty as a key element in ensuring regional as well as domestic stability. (ASEAN and the Principle of Non-Interference 2012). The second factor comes at the preservation of domestic stability. As this is primarily stemming from the fragility of social and political orders in the region, the decision to prioritise the domestic field as a main security focus was necessary.

It is further argued that ASEAN’s principle of non-interference has allowed member states to concentrate on nation-building and regime stability, while maintaining cooperative ties with other states in the region. But, as it is seen with the case of Myanmar, the principle has been exploited as a tool for legitimising state-behavior in the interests of the dominant political and economic elite. Although the new developments of allowing criticism among member states, especially where the affairs of regional security is put on the line, it is generally acknowledged that ASEAN has moved beyond its traditional non-interference approach. Their responses to the Rohingya situation remains to be pivotal in determining new interpretations of the principle. In light of globalising events and the growing refugee crisis, the non-interference policy still acts as a comparatively strong restraint on ASEAN’s behavior in regional affairs. The pursuit to establish a new code of conduct as an appropriate replacement would enable and enforce the institution’s position in the region as a collective continuing to maintain domestic and regional stability.

(4) EXPLORING ASEAN’S FRAMEWORK IN REGIONAL CONFLICTS

Chapter Objective: To explore ASEAN’s Repatriation Policy, the Preliminary Needs Assessment and other efforts that has been pursued by ASEAN

In the study of Myanmar in its profile and history, and as a member of ASEAN, the domestic conflicts that continue to plague the country and the region as a whole begs the question of a solution and if an intervention of member states will deliver that.

As it is discussed in the previous chapter, member states are bound by the ASEAN principle of the non-interference policy. In the ASEAN Charter, Article 1(7) prescribes that the advocacy and protection of human rights is a member state’s fundamental commitment (Limsiritong,2017). Despite that, the organsation is established to preserve the policy rather than fully committing themselves in accordance to the Charter. Therefore, this begs another set of questions: how long does the non-interference policy play as a significant factor in protecting the sovereignty of a state? And to what extent does the policy play out and not go beyond the lines of moral obligation such as in the Rohingya crisis?

It is widely understood that disputes are inevitable, whether it is between states and states or states and citizens. There will always be a conflict between two parties where one’s interest is not being fulfilled. In this part of the paper, there will be discussions on ASEAN’s framework in dealing with regional conflicts, with a particular focus on the Rohingya issue. In the statements above, it can be observed that the non-interference policy is complicit in containing panic and restricting external action against crimes like the ethnic genocide taking place in Myanmar. It was, therefore, held in November 2018, that the 33rd ASEAN Summit was to be in Singapore. During the Summit, ASEAN Head of States assert and endorse their support to Myanmar’s repatriation process (AHA,2019).

The Summit had also led to the establishment of the ASEAN Emergency Response and Assessment Team, also known as ASEAN-ERAT. This comprised ten nations that were set out to travel to Myanmar in April 2019 to gather intel on the creating a framework for the Preliminary Needs Assessment. This was directed to evaluate the status of Reception and Transit Centers in Myanmar, which had included Potential Migration Destinations that are recognised by the public authority. The discoveries of the Preliminary Needs Assessment is intended to manage and supervise the improvements of the Comprehensive Needs Assessment.

The ASEAN-ERAT built up a structure that is designed and directed towards the assortment, handling and examination of data and information. The system gave a thorough thought on two prominent parts: the readiness of gathering and transit centers, and the secured and stately life. For the primary part, the ASEAN-ERAT assessed the preparation of the Reception and Travel Centers which included cycles, frameworks, techniques, administrations and preparations in both centers. For the latter, the ASEAN-ERAT took a gander at the point of view and experience of existing networks for Secured and Dignified Life. It looked at the current conditions inside the networks utilised by the group as an indicator.

This group later went through interviews with various ethnic groups in the Maungdaw area, and considered taking up issues on the legitimate status, admittance to occupation, arrangement of fundamental administrations, and the social union. The data was indispensable in identifying the conditions and circumstances that returnees may expect as they return and reintegrate back into their communities.

According to a newsletter by The Nation Thailand (2019), on the second and third of November, the 35th ASEAN Summit was held in Bangkok. During the Summit, ASEAN members encouraged effective dialogue between Myanmar and Bangladesh to accommodate for the repatriation of Rohingyas to their place of inception in Rakhine State. In light of that, Myanmar had also attended an informal meeting with China and Bangladesh in September to discuss the exertion of a bilateral agreement on repatriation between Bangladesh and Myanmar. The results of those meetings, however, did not translate to on-ground action — Myanmar has not reclaimed a solitary Rohingya from Bangladesh over the course of two years. The country is also in the business to “misdirect” the international community by claiming the 397 dislodged individuals were voluntarily returned to Myanmar from Bangladesh.

Moreover, the two repatriation processes that were put in place were deemed ineffective as Myanmar neglected to eliminate the trust deficiency among the Rohingyas and there was an absence of favorable environment in Rakhine for their return. This led to Bangladesh blaming Myanmar for staying occupied to an “industrious mission” to deceive the global locals as a way to dodge its commitment for a sustained repatriation and reintegration of the Rohingyas.

The lack of cooperation from one party in the issue of the displacement of Rohingya is fundamentally illustrated in the efforts designed by Myanmar and Bangladesh. This remains to be one of the challenges in the mission of bringing back the Rohingyas to their homeland.

As ASEAN can be recognised for having played a significant role in regional stability, the limitations and challenges that the institution would have to face in the issue of the Rohingya is prominent to re-enforcing ASEAN as a major player in the region. The most prominent limitation of ASEAN to intervene in the Rohingya crisis is the ASEAN principle of non-interference, later considered as a formal mechanism in the form of treaties (Chareonwongsak, n.d.). Another form of limitation is consensus. According to Professor Kriengsak, ASEAN drafted a protocol in the ASEAN Charter on Dispute Settlement Mechanisms, and aligned it with the ASEAN Charter on peaceful conflict resolutions. It underlines the methods for counsel, placation or intervention, and assertion in addressing solving conflicts, precluding any economic disputes. To add on, any distressed parties that disagree on setting up arbitrators can approach the ASEAN Coordinating Council to consider proposing a prosecutor to settle conflicts.

Therefore, to uphold a conclusive consensus, solving Myanmar’s Rohingya issue would require every ASEAN member to acknowledge the matter, most importantly, Myanmar, as they would provide the necessary provisions for ASEAN to properly intervene and proceed with the consultation stage. But, as this solution appears, it is difficult to assume how well Myanmar will agree on the consensus regarding the humanitarian crisis happening in their own land. This uncertainty limits ASEAN intervention in terms of solving the internal conflict as per the ASEAN principle of non-interference policy and the need for authorisation from Myanmar to involve themselves in the Rohingya issue.

(5) BIBLIOGRAPHY

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