Payment of Reparations to the Rohingyas: The Way Forward

As the world is already aware, since August 2017, a brutal ‘ethnic cleansing’ campaign orchestrated by the Myanmar military against the Rohingya people in the Rakhine state of Myanmar has forced around 800,000 Rohingyas to flee to neighbouring Bangladesh. While the international community led by the United Nations has pressed Myanmar to investigate the alleged atrocities and to create a conducive environment for the repatriation of the refugees there has been no observable progress on either front. There have also been calls for investigation of the situation by the International Criminal Court (ICC) for alleged international crimes of crimes against humanity and genocide. It is indisputable that the Rohingyas deserve Retributive Justice through the punishment of the perpetrators of the alleged international crimes.

However, it must also be kept in mind that; as is the case in such situations, the Rohingyas also deserve Restorative or Reparative Justice through reparations. Reparation is an act of redress or expiation directed towards or made to the victims of an injustice. It is evident that the Rohingyas deserve reparations, but the crux of the matter is whether Myanmar is obligated to pay reparations to the Rohingyas? Myanmar does have a moral responsibility to do so. However, a claim for reparation in the international sphere is legally justified only if it arises out of an obligation under international law. Is Myanmar obligated under international law to pay reparations? The answer is the affirmative. It is argued that Myanmar owes reparations for gross violations of the customary international law elements of international criminal law, human rights law, and international humanitarian law. Irrespective of whether Myanmar is a signatory to the major humanitarian law and human rights treaties it is nonetheless bound by the customary international law on these issues. Hence, Myanmar has an international obligation to provide certain basic human rights, safeguards, and standard of humanitarian treatment to everyone, including the Rohingyas, which it failed to do. Consequently, under international law, it now has the duty pay reparations to the Rohingyas for the breach of the aforesaid obligations.

The United Nations’ Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005 enunciates that reparation may be of five forms: (i) restitution, (ii) compensation, (iii) rehabilitation, (iv) satisfaction, and (v) guarantees of non-repetition. Reparation may be paid in one or all of the aforementioned forms depending upon the nature and gravity of the violations of the human rights and international humanitarian law. It is argued that the victims of the atrocities in Rakhine deserve reparation in all five forms.

Firstly, as per Principle 19 of the Basic Principles, the Rohingyas are entitled to restitution through the restoration of their freedoms, civil and political rights, ability return to their homes, and return of their lands and properties which they were forced to leave behind. Additionally, many Rohingya farmers were forced to leave behind their crop fields, the crops from which were subsequently harvested under the stewardship of the Myanmar government. Hence, these Rohingya farmers are also entitled to the proceeds from the sales of the crops from their fields. Secondly, as per Principle 20, the Rohingyas who suffered physical harm; psychological trauma; lost opportunities in their employment and education; lost their earnings; incurred financial costs to escape the violence, to acquire basic amenities, medicine, and medical services as result of the ‘ethnic cleansing’ campaign deserve adequate and prompt monetary compensation.

Thirdly, as per Principle 21, moving forward the Rohingyas need to be provided with rehabilitative services in the form of medical and psychological help, and legal and social services so that they are able to recover from and receive help in dealing with the long-term effects of the ordeal they were forced to endure, and they must also be provided with the requisite legal help so as to enable them to seek appropriate judicial remedies to that end. Fourthly, as per Principle 22, the Rohingyas deserve satisfaction through Myanmar’s acknowledgment of the injustices and atrocities perpetrated against them; acceptance of responsibility and issuance of a public apology; the punishment of the perpetrators; the verification and public disclosure of the true facts regarding the perpetrated atrocities; the search for missing persons; the identification, reburial of the dead, and restoration of the dignity of the victims and their families; and lastly, inclusion of an accurate account of the atrocities in the history of Myanmar and in all educational materials so that future generations do not give in to such forms of hatred and xenophobia.

Fifth, last, and most importantly, as per Principle 23, Myanmar must undertake measures to guarantee non-repetition of such atrocities. In simpler words, it must guarantee such an ‘ethnic cleansing’ campaign will never happen again. This is vital because Rohingyas have also previously been subjected to similar mistreatment; in 1978 and 1990; forcing them to flee Myanmar; many of whom were subsequently repatriated but were forced to flee again in 2017. Therefore, unless this cycle of abuse and violence is not stopped there will never be lasting peace in the Rakhine. To that end, Myanmar must effectively reintegrate the Rohingyas into Burmese society; establish effective monitoring and preventive mechanisms in the government, military, and the judiciary to stop such atrocities from reoccurring; and lastly, it must reform and review laws; such as the infamous citizenship law, which contributes towards the mistreatment and the commission of such atrocities.

In conclusion, it is up to Myanmar, Bangladesh, and the other international stakeholders to politically determine the extent of realization of the aforementioned aspirations of reparations. The international community must ensure that a people who have been forced to flee their scorching villages, lost their loved ones, lost everything they had, and will forever be traumatised get justice; retributive and restorative alike. Lastly, it is obvious that such material assistance and symbolic gestures will never be able to make the lives of the victims whole again or make up for all the suffering that they had to endure but it will surely go some distance in helping them to rebuild their lives and establish the foundations for lasting peace in the Rakhine.

 

This article was originally published in The Daily Star on 13th May 2018; titled ‘Myanmar should pay reparations to Rohingyas’. The original version is available at: https://www.thedailystar.net/opinion/human-rights/myanmar-should-pay-reparations-rohingyas-1575334

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