1.0 INTRODUCTION
Have
you ever wondered when the war will finally cease? Is it possible for us and
our future generations to live in a world where only peace exists? War was created
since the beginning of human race due to many reasons, which most of the reason
is to satisfy the human greed. It got worse by time as human began to create
new weapons through technology such as nuclear bomb which could give a massive
damage to any country in just a blink of an eye like what had happened to
Nagasaki and Hiroshima in Japan during the World War II.
It
is important to know that every single time war is declared, loss of lives will
be the greatest effect to each country other than economic loss, destruction of
properties, and et cetera. This was shown during the bombing in Nagasaki and
Hiroshima by United States during World War II had killed more than 200, 000
people. Meanwhile during Iran-Iraq war, the number of civilian deaths had
reached 175,487 from year 2003 until 2016[1]. On
the other hand, civil war in Syria has shown that since year 2011, 11.5% of
Syria’s population has been killed which amounted to more than 470, 000 deaths until
now[2].
The statistic has shown that during Syrian civil war, about 400,000 deaths were
directly due to violence, while the remaining 70,000 fell victim to lack of
adequate health services, medicine, especially for chronic diseases, lack of
food, clean water, sanitation and proper housing, particularly for those
displaced within conflict zones[3].
In addition to that, we can also see the
loss of lives during conflict of Rohingya. UNHCR has declared that since
2014 more than 1,100
refugees who have departed by sea from Bangladesh or Myanmar have died, and
an additional 1,000 people who were thought to be at sea in May of that
year, remain unaccounted
for[4].
Even though the conflict in Myanmar and civil war in Syria is not to be
considered as war among states, and only relates to the internal state
disputes, however, the great number of refugees flee from that place and high
number of death toll is considered as the international problem as it led to
another huge issue, which is flooding of refugees to another country. This
happened, because their place and hometown no longer safe to live.
The
massive effects of wars as mentioned above, has led to the establishment of
United Nations[5]
where its main objectives are for preserving peace and promoting social,
economic and political cooperation among all nations[6]. Basically, international law is a body of
rules that States and other subjects of international law ought to follow and
binding upon them. Traditionally, it considered as a law that governs states in
their relation with each other. However, according to Oppenheim, international
law not just binds the states only but also international organization,
entities and to certain extends some individuals[7].
In
this research, we are going to focus mainly on the latest topic that are being
debated upon nowadays which are about implication of immigration[8]
and state responsibilities. This topic will mainly focus on the issue of the
civil war in Syria and also conflict of Rohingya. Both of this issues actually
has existed long time ago even though it just came to our knowledge recently. That
is why through this research, we are going to make comprehensive disclosure
about the history of conflict in Myanmar and also civil war that is happening
to Syria in order to let the readers know what had actually happened in those
two states, their historical backgrounds and also the reasons that triggered
those issues to arise. Apart from that, we are also going to reveal whether
each of the abovementioned states have violated the rule of international law
and whether question of state responsibilities arise. In addition to that,
through this research, we will also unveil the current position of Rohingya
people and Syrian civilian as well as the effects of immigration to the other
country especially the neighbouring country.
In
this report, we also would like to highlight our main objectives in conducting
this research which is to do a thorough discovery regarding conflict of
Rohingya and civil war in Syria, and then focus on how to overcome these
problems with reference to the international legislations especially UN Charter
and also based on decided cases. This is of course an effort to find the
solutions to the uprising problems that arose from the conflict of Rohingya and
civil war in Syria in hoping for the peaceful nations to live in.
2.0
CONFLICT IN SYRIA
2.1
History- The Chronology of Civil War in Syria
2.1.1
The al-Assad’s regime
The al-Assad’s dynasty in
Syria begins in 1970 with the reign of Hafez al-Assad[9].
Hafez, as a Muslim of the Shiite view, is battling the Sunni Muslim in the
country which is the majority religious group in Syria of 74% of the population[10]. He is also known for his ferocity towards
political protest against his government. This is seen in the battle against
the Ikhwanul Muslimin in 1982, which had killed more than 20,000 people. The
Basyar al-Assad regime begins after his father demised[11].
Initially, he was expected to reform the regime of his late father but, to the
people dismay it turns out to be a dictatorship reign. Throughout the dynasty,
uprising of the people constantly happen due to the brutality conserve by these
dictators.
An incident which took place
on March 2011 marks the set in of a war in Syria when a group of children was
held captive by the government for being involved in drawing the anti-
government graffiti. This incident which happened at the southern city of Syria
had infuriated the people, leading to a series of resistance to take place
later in many locations around the country. In order to put the situation back
in control, the al-Assad’s military had used violence to stop resistance,
resulting many being killed by the random shooting of the government army.
Violence increased after the opposition launched a counter-attack in the
neighboring area. The Assad’s military forces and the Free Syrian Army (FSA)[12]
often clashed, causing the number of casualties to increase day by day. At
first, the opposition groups only demands for reformation in the government and
not the resignation of Assad. But, after the regime launched a violent
attack, they start holding protests to overthrow the president.
Throughout its reigning, the
governmental forces is said to be responsible for acts of torture, unlawful
killing of civilians, failing to distinguish between military and civilian
personnel and objectives, attacking numerous hospitals, arbitrary arrests,
kidnapping, sexual violence against women, and also illegal use of chemical
weapons.
Various measures have been
taken by countries and international organizations to defuse tensions escalating
in the country but to no avail. The number of victims continues to rise,
forcing hundreds of residents to flee to the neighboring country such as
Turkey, Jordan and Lebanon.
2.1.2
The ISIS intervention in Syria
Since 2013, an organization
known to the world as ISIS/ ISIL/ IS had become the third force that fight over
Syria, after the al-Assad regime and the FSA. ISIS is the abbreviation of the
Islamic State of Iraq and Syria which was formerly a fraction from the Al Qaeda
movement, during the Iraqi insurgency in 2003. This organization is led by Abu
Bakr al-Baghdadi who claimed himself as the caliph (leader) to the all the
Muslim states around the world. Since the outbreak of the Syrian Civil War in
2011, the ISIS delegated a mission to Syria led by al-Baghdadi. As of 2014, the
ISIS is no longer part of the al-Qaeda as the leader, al- Zawahiri had refused
to recognize the establishment of ISIS.
Throughout its occupation in
Syria, the ISIS had done massive destruction to the country, not only on the buildings
and facilities, but also the people. The crime towards people does not only
limit to the locals but also foreigners. There had been many cases reported on
kidnap, rape and killing of humanitarian activist, media people and other
foreigner who stayed in Syria. The people in Syria had suffered from human
right abuse and war crime in various ways. As of June 2014, United Nations
reported that ISIS had killed hundreds of prisoners of war and more than 1,000
civilians.
The people who lived in the
areas where ISIS is in power are compelled to live according to the ISIS version
of Sharia law interpretation[13].
Many reports stated that the group had been using death threats, torture and
mutilation to compel conversion to Islam. Other crimes include sexual violence,
slavery[14],
and execution by way of crucifixions, burning people alive, and throwing people
from tall buildings[15].
Till this date, there has
been no measure that is fully effective was carried out to take down the ISIL.
Even the airstrikes by the United States does not seem to slow down the
spreading of occupation of this group around the nation and the neighboring
area.
2.2
Issue (state responsibility)
In applying the
international law to the current situation in Syria, one must first confirm whether
the Syrian government had, by any means violated the International Law? At the
first look, it does not seems so as the war inside the Syria only involved the
government itself with two anti-government groups, the FSA and the ISIS which
therefore, making it an internal issue that should not be intervene by other
body or organization. However, with the use of chemical weapons against the
civilians, the government had contradicts the laws of conduct of armed
conflicts, the jus in bello norms.
The UN General Assembly had
approved the Chemical Weapons Convention (CWC) in 1992, prohibiting nations
from producing, stockpiling, and using chemical weapons. This had become a
customary international law. As of 2013, 189 states have ratified the CWC with
five non-signatory states, including Syria. Although not a party to the CWC,
Syria is still restricted from using the chemical weapons in the war since the
1949 Geneva Conventions and their Additional Protocols in the international
treaties that deals with the protection of civilians during conflict bound that
all parties to the Syrian civil war to distinguish between civilians and
military personnel. In addition, the International Committee of the Red Cross
(ICRC) had published a compendium in 2005 about customary international law
governing armed conflicts that includes the prohibition of chemical weapon
usage in conflict[16].
Therefore, the issue of state responsibility is not a question here as the
Syrian civil war does not involved any other country apart from Syria itself.
The state responsibility of
Syria in regards to ISIS does not seem to be discussable as the ISIS is an
independent organization which shall not be attributable to the country.
Professor Abdul Ghafur Hamid in his book[17]
stated that the conduct of private persons and entities that is not part of the
state organ or governmental authorities shall not be attributable to the state.
In principle, there are two requirements that have to be fulfilled to establish
the state responsibility namely, the attribution of conduct to the state and
breach of an international obligation by the state. Generally, a state organ is
recognized as acting on behalf of the state and its conduct is understood as an
act of the state. This is why the state holds responsibility towards the action
or omission of the organ. However, this does not apply to ISIS as it is an
independent organization, not supporting or supported by the government. In
other words, any conduct by private persons under their own private capacity
shall not be leaned on the state.
Abdul Ghafur Hamid also
mentions that the conduct of an unsuccessful or on-going insurrection, in this
case may be referred to the ISIS, can be assimilated to that of a private
individual action. Thus, the state will not take liability to its action unless
the state itself had proven to be in breach of good faith or had negligent in
suppressing insurgency, which the Assad regime had not.
In the case of Missionary
Society Claim[18],
the natives of Sierra Leone had resisted the implementation of new tax by the
British by attacking and destroying all the United States Missions, and killing
some of the missionaries. It was held
that, the state shall not take the blame for the act of some rebellious bodies
which committed violence with its own capacity, in consistent with the well-established
International Law principle that was highlighted previously.
In another case[19],
when an Italian sought for compensation from Venezuela for the loss he incurred
during the unsuccessful revolutionaries in the state, it was held that the
existence of such rebellion itself is to overthrow the government and is beyond
the power of the authorities. Therefore, it is unreasonable to put the
liability on the state for the act done outside its volition, unless and until
it can be proven that the state had not properly exercised its power to stop
such rebellion.
2.3
Current position of Syrian civil war
As a result of the so many
bloodsheds around the country, the Syrian has been forced to flee their homes
for it is no longer safe for them to stay. The pattern had previously shown
that the refugee opted to flee to the neighboring countries such as Turkey,
Jordan, Iraq and Lebanon that provides tens of refugee camp for the Syrian such
as the Ceylanpinar-Telhamut camp and Kahramanmaraş refugee camp in Turkey[20]
and also, Mrajeeb Al Fhood refugee camp and Zaatari camp for Syrian refugees in
Jordan.
However, the trend today had
changed where European countries seems to be more a favorable destination for
them due to the overwhelming number of refugee in the neighboring states. The
Germany is very active in granting asylum to the Syrian that it was reported in
2015, more than 880, 000 applications had been made by the Syrian to obtain
asylum across the EU member states with almost 45% was lodged in Germany[21]. Other states that are reported to be
accepting the Syrian refugee in their country are, inter alia, Sweden, Denmark,
Switzerland, Netherland, Norway, and Belgium[22].
An online newspaper reported
that the US governors’ gives a mixed response on the entrance of Syrian refugee
to the country, as it had accepted a number of them. Majority of them opposes
the idea of getting more refugee inside the country as it is feared that it
will take its toll on the national security. President Barrack Obama on the
other hand, had criticized the anti-refugee approach as being “un-American”.
Generally, the Americans are
not too fond with the idea of allowing the Syrian refugee to enter their
country due to the fear that the Paris attack might repeated itself in America.
The Islamophobia that vigorously spreads throughout the country after the September
11 incident is also not of any help to the current situation. However, as far
as America is concern, the fear deemed to be groundless[23] as
the Syrians flown to the country are the most strictly vetted group of people
currently allowed to enter the US, according to the State Department.
The effect of migration to
the economy of the country who received the refugee is discussed in a study by
the OECD’s International Migration Outlook. Basically, the net direct
contribution of migrants is smaller the locals as they are paying less taxes
for their lower level of employment.
Nevertheless, the entrance
of these refugees had been proven to beneficial the host countries’ economy, as
experienced by the Lebanon, Jordan and Turkey who had been hosting the migration
of the Syrian refugee way before the European countries did. It was reported
that the economies of these countries continues to grow after the entrance of
the refugee. The Lebanese is enjoying an estimated increase of 25% in its real
GDP this year, despite the negative impact on its tourism and investment
industry due to the war outbreak in the Syria[24].
The massive entrance of the refugee to the country also increases the demand
for local services, savings and international humanitarian aid.
The Turkey stated that the
incoming of Syrian refugee had substituted the use of local workforce in the
informal and part time sector. This however, increases the rates of employment
of local Turkish in formal sector, leading to higher rate of average wages.
This therefore rejected the view that the entrance of these refugees will
negatively affect the economy of the local by stealing the job opportunity of
the locals.
It was further explained
that a wealthy, open and de-regularized society will needs more migrants labor
and if the migrants are deny entrance through the legal channels, they will be
brought into the country through illegal channel by way of smuggling to meet
the needs and demand for these labor.
But, in another report by
the BBC[25],
it was told that the massive number of migration into Lebanon had negatively
affected the locals, as stated by Patricia Mouamar, an advocacy and
communications officer in the World Vision Lebanon. She reported that the
Lebanese employer are firing the local worker to fill in the position will the
Syrian worker, as they are willing to be paid for less. Many Syrians are also
getting into debt. They asks for things like bread, rice and beans in small
shops but are unable to pay for them, which eventually left the Lebanese- owned
shop with negative account. She also strengthens her view by assuming that the
future will not be very optimistic for both parties as poverty will leads to
tension.
The massive migration of
Syrian had also affected the Lebanese in their social life. The Lebanese had
been sharing almost everything that they enjoyed in the country, from the
utilities, infrastructure and education system with the Syrian since the
beginning of the Syrian war. However, there has been increasing tension among
them. The drastic increase in population gave a lot of pressure on the health
services and education services.
The issue had been very
clear at school where the children from both countries have different levels of
ability. Obviously, the Syrian children who had left school for a long time
will have a hard time to catch up with the lesson, leaving the Lebanese student
feeling left out in the class as the teacher will have to pay more attention on
the Syrian children.
There are also space issue
and lack number of teacher. Since there is not enough space for everyone, the
teachers are forced to work longer hour to divide the teaching hour into two
sessions where they will be teaching the Lebanese for half a day and the
Syrians in the second half.
3.0
CONFLICT OF ROHINGYA
3.1
Historical Background of Rohingya People in Myanmar (Burma)
Rohingya people (minority
muslims) are one of the unrecognized ethnic groups stipulated under the
Government of Myanmar (Burma). This ethnic had been denied of its citizenship
since year 1982 when General Ne Win's government enacted the Burmese
Nationality Law as they claimed that Rohingyas are not Burmese[26].
According to Professor Imtiaz Ahmed, a group of scholars suggest that Rohingyas
are the descendants of Moorish, Turk, Pathan and Bangali soldiers and migrants
who arrived between the 9th and 15th centuries[27].
Somehow a smaller group of scholar claims that Rohingyas are the descendants of
the people of Chittagong (Bengalis) but significant number of scholar agree
that the history of Rohingyas begin in the earlier 7th to 8th
century.
During the 8th
century, it was recorded that Muslims were probably arrived in the kingdom of
Arakan (Rakhine) and its composition were mostly seafarer and traders from the
Middle-East. In 16th to 17th century, Arakanese launched
regular raids into neighbouring Bengal where thousands of Bengali Muslims were
captured by the marauding Arakanese. According to the article entitled ‘The
Rohingyas: The Most Persecuted People on Earth’, some of the Bengali Muslims
were forced to serve in the king of Arakan’s army and others were sold as
slaves and yet more were forced to settle in Arakan[28].
During the year 1785, the
kingdom of Arakan then was conquered by the Burmese king. At this time there
was a little tension between the Muslims and the Arakanese. In 1825, the
kingdom of Arakan was again being conquered by the British. As Arakan and Burma
were administered as part of British India, thousands of Bengalis came into
Arakan to work. This mass immigration had boosted the colonial economy somehow
the local Arakanese resented it as they believed that their jobs and lands were
taken by the Bengalis whom to them those people are illegal immigrants.
In 1942, there was a civil
conflict which constituted a bitter fighting between Muslims and the local
Buddhist Arakanese as the Japanese invaded. During this period the political
affiliation of the Arakanese became clear as the Arakanese Buddhists (Rakhines)
supported the Japanese while the Arakanese Muslims (Rohingyas) supported the
British[29].
By year 1948, Burma later obtained independency from Britain and renamed as
Myanmar.
In post-war Burma, the
Rakhine, like the other 135 officially recognised ethnic groups of the country
such as the Kachin, Karen and Chin, were discriminated against by the Burmese
military governments as one of the Rakhine politicians claimed that they are
the victims of Muslimisation and Burmese excessive patriotism. Therefore,
Myanmar’s post-independence governments saw themselves as the victims of
British colonial oppression so both the Rakhine and the Burmese authorities
have been more concerned with their own sense of victimhood than any claims of
the Rohingyas. This is why until now the Myanmar’s governments have never granted
the Rohingyas with citizenship or even recognized them as an indigenous ethnic
group.
3.2
Chronology of 2012 Rakhine State Riots Which Lead to 2015 Rohingya Refugee
Crisis
The
2012 Rakhine State riots were a series of conflicts between ethnic Rakhine
(Buddhists) and Rohingya (Muslims) in northern Rakhine State, Myanmar. The
riots came after weeks of sectarian disputes including a gang rape and murder
of a Rakhine woman by Rohingyas and killing of ten Burmese Muslims by Rakhines[30].
On 10 June 2012, Rohingyas started to burn Rakhine's Buddhist and other ethnic
houses after returning from Friday's prayers in Maungdaw township. It was
recorded that many residents have been killed in a riot by Rohingya Muslims.
According to state TV, the state of emergency was declared in Rakhine which
allowing the military to participate in administration of the region in order
to response to unrest and terrorist attacks and intended to restore security
and stability to the people immediately[31].
Afterwards,
realizing the insecurities and worrying towards the increase of Rohingya
people, Burma’s Minister of Home Affairs, Lieutenant General Ko Ko, stated that
the Border Regions Immigration Inspection Command Headquarters is tightening
the regulations in order to handle travelling, birth, death, immigration,
migration, marriage, constructing of new religious buildings, repairing and
land ownership and right to construct buildings of Bengalis under the law. This
means, Myanmar is likely deny the Rohingya community and its fundamental human
rights.
In
late October 2012, violence between Muslims and Buddhists in Myanmar broke out
again. According to the Burmese government, more than 80 people were killed,
more than 22,000 people were displaced, and more than 4,600 houses were burnt[32].
The outburst of fighting brought the total number of displaced since the
beginning of the conflict to 100,000. The violence was said to begin in the
towns of Min Bya and Mrauk Oo by the muslims, but it was spread across the
state. Though the majority of Rakhine state's Muslims are Rohingya, Muslims of
all ethnicities were reported to be targets of the violence in retaliation.
3.3
Issue
The
conflict happened in Myanmar was basically on the basis of the right of
citizenship of Rohingya people. The effect
of the Burma Citizenship Law 1982 is seems to make it almost impossible for the
Rohingya to gain citizenship as the Burma Citizenship Law 1982 created three
categories of citizens consist of citizens, associate citizens and naturalised
citizens[33]. Full citizenship is restricted to nationals
of specific ethnic groups who settled in Burma prior to 1823. Burma does not
consider the Rohingya to be a national ethnic group. The Rohingya are therefore
excluded from full citizenship. Meanwhile, as for the Associate citizenship, it
only applies to individuals who had already applied for citizenship under the
Union Citizenship Act 1948. The deadline for applying for associate citizenship
passed on 15 October 1982. Few Rohingyas are believed to have applied while the
rest were unaware of the 1948 Act. Naturalised citizenship may be applied by
the individuals and their offspring born within Burma. Pursuant to the law,
Rohingya are not stipulated within the scope of citizenship provided.
3.4
Current Position
Due
to the violence between the two groups broke out in 2012, it was estimated
about 120,000 people to flee out from the country. Since 2012, the region's
displaced population, mostly Rohingya, has been forced to take shelter in
squalid refugee camps. Approximately 140,000 Rohingya are still housed in camps
in western Myanmar[34].
However, thousands of Rohingya choose to flee out from the country due to the
fleeing repression and extreme poverty. According to the International
Organization for Migration (IOM) it was recorded that more than 88 thousand
migrants have taken to sea from the Bay of Bengal since January 2014.
According
to UN High Commissioner for Refugees (UNHCR) it was estimated that many
Rohingya have sought refuge in nearby Bangladesh, which hosts more than thirty
two thousand registered refugees and more than two hundred additional
unregistered Rohingya refugees are believed to live in the country.
Meanwhile, it was also
estimated that more than 137,000 refugees from Myanmar were registered in Malaysia
as of September 2014 including tens thousands of Rohingya. The Global Emergency
Overview, which tracks humanitarian crises, tallied more than 40,000 unregistered
Rohingya as of last December, but activists say there are roughly an equal
number of unregistered Rohingya in the country. Kuala Lumpur has recently
signaled a growing unease with the migrant influx. In May 2015, Malaysian
Deputy Home Minister Wan Junaidi Jafaar stressed out that our local government
has treated migrants humanely but they cannot be flooding our shores like this[35].
Furthermore, the Rohingya
have also begun to seek refuge in Indonesia although the number of refugees
there remains relatively modest, with an estimated two thousand Rohingya as of
June 2015. Earlier in May, Indonesia's military chief expressed concerns that
easing immigration restrictions would spark an influx of people[36].
3.5
Resolution (State Responsibilities)
In
September 2005, the UN General Assembly in its statement during the Outcome
Document to the 2005 World Summit stated that each individual State has the
responsibility to protect its populations from genocide, war crimes, ethnic
cleansing and crimes against humanity. This responsibility entails the
prevention of such crimes, including their incitement, through appropriate and
necessary means. UN accepts that responsibility and will act in accordance with
it. Where an individual state fails to protect its population, it falls upon
the international community to do so in example the international community,
through the United Nations, also has the responsibility to use appropriate
diplomatic, humanitarian and other peaceful means, in accordance with Chapters
VI and VIII of the Charter, to help protect populations from genocide, war
crimes, ethnic cleansing and crimes against humanity. In this context, UN also
are prepared to take collective action, in a timely and decisive manner,
through the Security Council, in accordance with the Charter, including Chapter
VII, on a case-by-case basis and in cooperation with relevant regional organizations
as appropriate, should peaceful means be inadequate and national authorities
manifestly fail to protect their populations from genocide, war crimes, ethnic
cleansing and crimes against humanity.
In
Malaysia, the UN refugee agency has registered more than 35,000 Rohingyas over
the years, and believes there are more out there[37].
While UNHCR provides documentation, and support for the most vulnerable among
them, a lot of support comes from the community itself. Those who came earlier
are now hosting relatives and fellow villagers who have arrived more recently.
Malaysia seems basically cares for ‘refugee’ as well due to their countryless
status as the Myanmar government does not recognize the citizenship of the
Rohingya. However, under present legislation it was clearly stated that
refugees are not permitted to be employed in any job sector as they are all
categorized as illegal migrants. Further, the Rohingya also do not possess any
travel documents or passports to enable job facilities to be arranged, which
automatically makes them illegal occupants in the country, and it is illegal to
hire illegal immigrants to work. Therefore, Deputy Prime Minister Ahmad Zahid
Hamidi previously told the parliament that the proposal upon the issue of
refugee will take into account the safety, security, legislation, documentation
and welfare of Rohingya who have been granted refugee status by the United
Nations High Commissioner for Refugees (UNHCR)[38].
4.0
ANALYSIS OF LAW
4.1
The Link between Migration and its Implication
Throughout history,
migration has been a fact of life. The reasons people migrate are varied.
Basically, migration comes into picture in two ways, either by voluntarily or
involuntarily. Thus, it is important for us to realize on the difference
between the terms ‘migrant’ and ‘refugee’[39]. A migrant is a person who makes a conscious
choice to leave their country to seek a better life elsewhere. This means, he
makes the decision after considering certain factors such as their new home and
employment opportunities. Also, they are free to return home if they had
changed their minds or if things do not work out as they had hoped. On the
other hand, refugees are forced to leave their country because they are at risk
of, or have experienced persecution. Relatable aspects will concern on human
rights and safety, not economic advantage. They leave behind their homes while
some are forced to flee with no warning. They might also have experienced
significant trauma or been tortured or otherwise ill-treated.
International Law provides
protection for those people regardless of how they arrive in a country and for
what purpose, migrants, refugees and asylum-seekers’ rights. For instance, the
Universal Declaration of Human Rights (Article 14), states that everyone has
the right to seek and enjoy asylum from persecution in other countries. Also,
the 1951 UN Refugee Convention protects refugees from being returned to
countries where they risk persecution. Besides the law, there are many
organizations which concern on humanitarian law takes initiative on upholding
this group’s rights. For example, Amnesty International has been working with
refugees and migrants for decades. They did from helping to prevent refugees
being returned to be persecuted to protecting the most vulnerable migrants from
being exploited and abused by their employers, traffickers and smugglers.[40]
4.1.1
Laws Concerning Migration
Article
14 UDHR
1.
Everyone has the right to seek and to enjoy in other countries asylum from
persecution.
2.
This right may not be invoked from non-political crimes or from acts contrary
to the purposes and principles of the United Nations.
Article 14 of the Universal
Declaration of Human Rights marks the end of the first phase and the beginning
of the second phase in the refugee policy of the 20th century. The
international community should also request countries to afford protection to
the individuals who are subject to human rights violations and thus, "the
right to seek and enjoy asylum from persecution" became the 14th human
right.[41]
Article 14 provides clear direction and guidance in respect of the issue of
"right to refuge".
Other than that, the 1951
Refugee Convention by UN is the key legal document of today’s international
refugee protection.[42]
It defines who is a refugee and the kind of legal protection refugees should
receive from the states that have signed up to it. Based on the provision in
the Convention, refugees should not be returned to a country where they fear
persecution. It also provides on refugees’ obligations towards their host
government and spells out that certain categories of people such as war
criminals, shall not qualify for refugee status.
4.1.2
Conflict in Syria and Rohingya
Based on the conflicts
occurred in Syria and Rohingya, we spot the similar causes had led to the
impactful incident in both states which are violence. As in Syria, it began
with the clash from the Assad’s military forces and the Free Syrian Army (FSA)
before the Islamic State of Iraq and Syria (ISIS) came into intervention. Two
phases of these events had involved humanitarian rights being violated. The
governmental forces is said to be responsible for acts of torture, unlawful
killing of civilians, attacking numerous hospitals and few other destructions
caused. On the other hand, in the case of Rohingya, the basis of the right of
citizenship of Rohingya people is the root toward the conflict. For instance,
violence between Muslims and Buddhists in Myanmar in 2012 had rendered more
than 80 people being killed, more than 22,000 people were displaced, and more
than 4,600 houses were burnt.
Due to these reasons,
migration then takes place among the people. This refugees do not feel safe and
left with no option except than leaving own state. The effect of migration mainly is centered on
the economy of the country who received the refugee. There might be pros and
cons in this regard. For example, the entrance of these refugees had been
proven to beneficial the host countries’ economy, as experienced by the
Lebanon, Jordan and Turkey. Nonetheless, the Lebanese employer opted for Syrian
worker instead of local people as they are willing to be paid for less. Also,
the massive migration of Syrian had also affected the Lebanese in their social
life especially in education system where its own children seem to be left out
in order to give priority to the Syrian children.
However, the significant of
migration of the Rohingyas is to be looked at a positive view as they demanded
a place for shelter and safety. Until now the Myanmar’s governments have never
granted the Rohingya people with citizenship or even recognized them as an
indigenous ethnic group. Therefore, they are forced to move out of the State to
seek refuge at another country.
The people of both sides are
having a hard time coping with the frustration from the migration. The
international community really needs to give aid and assistance to both sides
and the government should play its part by taking the leadership role to find a
solution instead of leaving the communities to deal with the situation. The
effect of migration is likened to the two sides of a coin. It can either be
good, or bad according to our view on the matter and the way we deal with it.
4.1.3
Critics and Suggestions for improvement
The main legal provision
that can be used to deal with this matter is the UN Charter. The charter had
made exception to the principle to outlaws war in the case of self-defense.
That, however, is inapplicable in the Syrian case as Article 51 of the UN
Charter only empowers a state to have legitimate use of force in conditions
where it has been attacked by any member of the UN. Since the FSA is not a
member to the UN, such use of force is not allowed.
The UNSC also recognizes the
use of force in order to maintain the international peace and security.
Moreover, a country also holds the responsibility to protect policy (R2P) where
a country have to protect its own people from genocide, war crimes, ethnic
cleansing, and crimes against humanity. Failure to do so may results to
interference from other countries by collective actions to stop the killings.
But, since there is no treaty on the R2P, any collective action to be taken
must come with the UNSC authorization.
For the conflict in Syria,
The UN General Assembly (UNGA) could step in if the UNSC refuse to authorize an
intervention in Syria. However, to pass a resolution at the UNGA will be
complicated and time-consuming. Another option to help is by enforcement
actions against Syria by the Western powers, as it what happened on Yugoslavia
during the Kosovo War. This would however violate the UN Charter. Therefore,
the only possible legal course to be taken is to get the UN authorization for
an intervention in Syria.
On the other hand, for the
conflict of Rohingya, it seems to be no solution in regards to its country of
origin. The current position would be, Rohingya people do not belong to any
State and also, no State is willing to take them to be part of its people.
However, 1951 Refugee Convention provides as protection as it recognized the
international scope of refugee crises and the need for international
cooperation and responsibility sharing among states. Thus, the right of Rohigya
people to seek and to enjoy in other countries asylum can be maintained as in
accordance with Article 14 UDHR.
The General Assembly has
stressed that flows of refugees unleashed by one country affect the entire
international community. Indeed, this simple truth finds confirmation in the
fact that persons having lost the protection of their home State must be given
a place to stay, food, shelter and medical care. On that reason, the UN has
created the office of the UNHCR in order to assist national governments in
performing this task. It requires to be financed by the members of the
international community.
In addition to that, the
international community can make use of the powers of the Security Council to
implement the responsibility of the State of origin provided that the
requirements for action in accordance with Article 39 of the UN Charter - a
threat to or a breach of the peace or an act of aggression are met.
Intervention by the Security Council can serve in particular to stop the actions
that have set in motion.
In conclusion, the United
Nation plays a vital role in ensuring all states obliged with the state
responsibility under the International Law. Therefore, the state in which the
refugee seeks for refuge has the responsibility to maintain and provide them
with necessary protection.
5.0 CONCLUSION
In the nutshell, the issue
immigration and refugees in other countries is not a new issue, in fact it has
existed for so long before came to our knowledge and became a hot debated
topic. Islamophobia making it worst as most of the western countries objecting
the immigration of muslim refugees into their country in order to avoid
terrorist attack in their country like what had happened during Paris attack.
Even Donald Trump has said that he is objecting such immigration to United
States and suggested that only non-muslim refugees should be allowed to enter
their country. However, despites of opposition shown by few people, there are
actually more politicians who supporting the entrance of refugees to their
country like German, Turkey and also Lebanon. This has shown that the sense of
humanity is greater than fear of Islamophobia.
Apart from that, when it comes to
the issue of state responsibility, we also can conclude that state
responsibility does not arise in Syria. Like has been mentioned earlier, the
act of terrorist or individual organization will not be attributable as conduct
of state. Therefore Syria shall not be liable for any attack and destruction
caused by FSA and ISIS even though the whole world seemed like blindly blaming
Syria over this. On the other hand, the issue of state responsibility arises in
Myanmar as the country has responsibility to protect people in their border,
failing to do so amount to violation of international law. However, there seems
like no solution in Myanmar as they will not accept Rohingya as part of them.
Therefore, like has been mentioned, there shall be something done by the other
countries and the law itself to stop this kind of terrorist inhumane act both
in the issue of Syria and also Rohingya. The most thing other countries can do,
is helping to aid the refugees and give them shelter in their country. Even
though this has been done by few countries, but still lot other countries has
been opposed in accepting refugees to their border. We are not supposed to shut
our eyes and keep silent about this especially on what is happening in Syria
just because we are not the victim to it. We do not know when our peace in the
place we are staying would end. Our country also might be a target for
terrorist attack and when that happened, it would be sad if the world would not
do anything about it. It all comes to humanity in accepting the refugees in
each country therefore, support shall be given.
In addition to that, it must be
noted that by just accepting the refugees entering other countries, will not
stop the cruelty done by FSA and ISIS. The law must be used against them and
not just because they are not party to United Nations, meaning that we can just
let it be. Therefore the only possible course of action that can be taken to
end the civil war in Syria is through get UN authorization for intervention,
and also with the use of Article 39 of UN Charter which stated that
intervention by Security Council to stop the act of violence and aggression.
Last but not least, we shall not
just let what is happening to Rohingya and Syrian by doing nothing about it.
Some people who has fear of Islamophobia especially thought that muslims in
Syria deserve it because they are the cause of terrorist act, and some people
thought it is Rohingyan people who caused the conflict in Myanmar happened.
But, that shall not be reason for us to let it happen. Mahatma Gandhi had said
that an eye for an eye will make the whole world blind. Therefore, instead of
blaming each other, why not we help each other? We do not know when our time
will come. If the whole world cooperates in protecting people of the other
nation and fight together to wipe out terrorists, there will surely be peace
ahead of us without any conflict and war. Like what has been said by Elbert
Einstein, peace cannot be kept by force, it can only be achieved by
understanding.
6.0 REFERENCES
Books:
Noortmann, M. (2005). Enforcing International Law; from Self-help
to Self-contained Regimes. England: Ashgate Publishing Limited.
Nussbaum, M. C. (2004).
Hiding from Humanity; Disgust, Shame and the Law. New Jersey: Princeton
University Press.
Law journals:
Debbas, M. N. (Ed). (2011). The Problem of Refugees in The Light of
Contemporary International Law Issues. Papers presented at the Colloquium
organized by the Graduate Institute of International Studies in collaboration
with the Office of the United Nations High Commissioner for Refugees.
EN. (2013). Current Challenges for International Refugee
Law, With a Focus On EU Policies and EU Co-operation With the UNHCR.
Europian Parliament.
Saul, H. (2015). Isis Raqqa wives subjected to 'brutal'
sexual assaults after marrying militants. The Independent (London).
Websites:
Alan, Y. (2015). Should Americans fear those attacks like in Paris?
Retrieved on 15th May
Black, I. (2016). Report on Syria conflict finds 11.5% of
population killed or injured.
Retrieved on 15th
May 2016, from http://www.theguardian.com/world/2016/feb/11/report-on-syria-conflict-finds-115-of-population-killed-or-injured
Boghani, P. (2016). A staggering new death toll for Syria’s war
- 470,000. Retrieved on 15th
May 2016, from http://www.ps.org/wgbh/frontline/article/a-staggering-new-death-toll-for-syrias-war-470000/
Cassidy, J. (2015). The economics of Syrian refugees.
Retrieved on 15th May 2016, from
David, A. G. (2015). Burma
Doesn't Want the Rohingya but Insists on Keeping Them.
Retrieved on 7th
May 2016, from http://www.theatlantic.com/international/archive/2015/06/burma-rohingya-migration-ban/395729/
Ghai, K. K. (n.d.). United Nations: Objectives and roles of
United Nations. Retrieved on 15th
May 2016, from http://www.yourarticlelibrary.com/uno/united-nations-objectives-and-roles-of-united-nations/40332/
Imtiaz Ahmed. (2015). The Rohingya: From Stateless to Refugee.
Retrieved on 1st May 2016,
Juan, C. P. (2013). The Syrian conflict through the lens of
international law. Retrieved on
Lauren, G., Patrick, K.,
& Alberto, N. (2015). Syrian refugees
in America: separating fact
from fiction in the debate. Retrieved on 15th
May 2016, from http://www.theguardian.com/us-news/2015/nov/19/syrian-refugees-in-america-fact-from-fiction-congress
Lifeline Syria | Facts and
Statistics. Retrieved on 15th May 2016, from
Mizanul Rahman. (2016). Rohingya crisis: Politics of denial.
Retrieved on 7th May 2016, from http://www.thedailystar.net/op-ed/politics/rohingya-crisis-politics-denial-1219666
(n. a ). (n. d). Amnesty
International Website. Retrieved May 13, 2016, from https://www.amnesty.org/en/
(n. a ). (n. d). UDHR Website. Retrieved May
13, 2016, from http://www.unhcr-centraleurope.org/en/resources/conventions/refugee-convention.html
(n.a.). (2012). Memahami pergolakan di Syria. Retrieved
on 15th May 2016, from http://www.sinarharian.com.my/rencana/memahami-pergolakan-di-syria-1.31733
[1] (n.a.). (2013). Viewpoints: Impact of Syrian refugees on
host countries. Retrieved on 15th May 2016, from http://www.bbc.com/news/world-23813975
(n.a.). (n.d.). What is the difference between a refugee and
a migrant. Retrieved on 15th May 2015, from http://www.ssi.org.au/faqs/refugee-faqs/148-what-is-the-difference-between-a-refugee-and-a-migrant
Statista | Number of
documented civilian deaths in the Iraq war from 2003 to 2016. Retrieved on 15th
May 2016, from http://www.statista.com/statistics/269729/documented-civilian-deaths-in-iraq-war-since-2003/
Philip, J. V. (2015). Amnesty International says Rohingya death
toll higher than UN estimates. Retrieved on 15th May 2016, from http://america.aljazeera.com/articles/2015/10/21/amnesty-report-on-rohingya-migrant-deaths.html
Portilla, J. C. (2013, August 1). The Syrian conflict
through the lens of international law. Retrieved on 28 April, 2016 from, http://www.fletcherforum.org/2013/08/01/portilla/
UNHR Government of Turkey |
Syria Regional Refugee Response. Retrieved on 15th May 2016, from http://data.unhcr.org/syrianrefugees/country.php?id=224
Yuhas, A. (2015, November 18). Should Americans fear an
attack like what happened in Paris. Retrieved on 29th April 2016,
from http://www.theguardian.com/usnews/2015/nov/18/should-americans-fear-an-attack-like-what-happened-in-paris
Statutes:
Universal Declaration of Human Rights Document
1951 UN Refugee Convention
Burma Citizenship Law 1982
Newspaper:
McCoy, T. (2013). ISIL, beheadings and the success of horrifying violence. The
Washington
Post.
Saul, H. (2015). Isis Raqqa wives subjected to 'brutal' sexual assaults after marrying
militants.
The Independent.
Saul, Heather (2015, January 22). Isis publishes penal code listing
amputation, crucifixion
and stoning as punishments – and vows to vigilantly
enforce it. The Independent.
Dictionaries:
Oxford Advanced Learner’s Dictionary (International Student’s
Edition).
[1]
Statista | Number of documented civilian deaths in the Iraq war from 2003 to
2016. Retrieved on 15th May 2016, from http://www.statista.com/statistics/269729/documented-civilian-deaths-in-iraq-war-since-2003/
[2] Boghani,
P. (2016). A staggering new death toll
for Syria’s war - 470,000. Retrieved on 15th May 2016, from http://www.ps.org/wgbh/frontline/article/a-staggering-new-death-toll-for-syrias-war-470000/
[3]
Black, I. (2016). Report on Syria
conflict finds 11.5% of population killed or injured. Retrieved on 15th
May 2016, from http://www.theguardian.com/world/2016/feb/11/report-on-syria-conflict-finds-115-of-population-killed-or-injured
[4] Philip,
J. V. (2015). Amnesty International says
Rohingya death toll higher than UN estimates. Retrieved on 15th
May 2016, from http://america.aljazeera.com/articles/2015/10/21/amnesty-report-on-rohingya-migrant-deaths.html
[5]
Established on 24th October 1945 after World War II
[6]
Ghai, K. K. (n.d.). United Nations:
Objectives and roles of United Nations. Retrieved on 15th May
2016, from http://www.yourarticlelibrary.com/uno/united-nations-objectives-and-roles-of-united-nations/40332/
[7]
Abdul Ghafur Hamis., & Sein, K. M. (2011). Public international law: A practical approach, (3rd
Ed.). Petaling Jaya; Thomson Reuters Malaysia Sdn Bhd. Pg 2.
[8]
The process of coming to live permanently in a country that is not your own.
Oxford Advanced Learner’s Dictionary.
[9]
Bröning, M. (2011). The foreign affairs: The
sturdy house that Assad built. Retrieved on 15th May 2016, from https://www.foreignaffairs.com/articles/syria/2011-03-07/sturdy-house-assad-built
[10] (n. a.). (n. d.). (2006). Syria -
International Religious Freedom Report 2006. Retrieved on 28 April, 2016 from, http://www.state.gov/j/drl/rls/irf/2006/
[11]
(n.a.). (2012). Memahami pergolakan di Syria. Retrieved on 15th May
2016, from http://www.sinarharian.com.my/rencana/memahami-pergolakan-di-syria-1.31733
[12] A
group of defected Syrian Armed Forces officers and soldiers with the goal to
bring down the Assad government.
[13]
McCoy, T. (2013). ISIL, beheadings and
the success of horrifying violence. The Washington Post.
[14]
Saul, H. (2015). Isis Raqqa wives
subjected to 'brutal' sexual assaults after marrying militants. The
Independent (London).
[15]
Saul, H. (2015). Isis publishes penal
code listing amputation, crucifixion and stoning as punishments – and vows to
vigilantly enforce it. The Independent (London).
[16]
Juan, C. P. (2013). The Syrian conflict
through the lens of international law. Retrieved on 15th May
2016, from http://www.fletcherforum.org/2013/08/01/portilla/
[17]
Abdul Ghafur Hamid., & Khin, M. S. (2011). Public international law: Practical approach (3rd Ed.).
Selangor: Thomson Reuters Malaysia Sdn Bhd.
[18]
[1920] 6 RIAA 42
[19]
Sambaggio case [1903] 10 RIAA 499
[20]
UNHR Government of Turkey | Syria Regional Refugee Response. Retrieved on 15th
May 2016, from http://data.unhcr.org/syrianrefugees/country.php?id=224
[21]
Lifeline Syria | Facts and Statistics. Retrieved on 15th May 2016,
from http://lifelinesyria.ca/facts-and-statistics/
[22]
Lauren, G., Patrick, K., & Alberto, N. (2015). Syrian refugees in America: separating fact from fiction in the debate.
Retrieved on 15th May 2016, from http://www.theguardian.com/us-news/2015/nov/19/syrian-refugees-in-america-fact-from-fiction-congress
[23]
Alan, Y. (2015). Should Americans fear
those attacks like in Paris? Retrieved on 15th May 2015, from http://www.theguardian.com/us-news/2015/nov/18/should-americans-fear-an-attack-like-what-happened-in-paris
[24]
Cassidy, J. (2015). The economics of
Syrian refugees. Retrieved on 15th May 2016, from http://www.newyorker.com/news/john-cassidy/the-economics-of-syrian-refugees
[25] (n.a.).
(2013). Viewpoints: Impact of Syrian
refugees on host countries. Retrieved on 15th May 2016, from http://www.bbc.com/news/world-23813975
[26]
The Economist: Myanmar’s Rohingyas No help, please, we’re Buddhists
[27]
The Rohingyas: From The Stateless To Refugee
[28]
The Economist: Rohingyas, The Most Persecuted People On Earth
[29] Ibid para 2
[30]
Rape-Murder of a Buddhist girl by Muslims led to riots: Myanmar Ambassador
[31]
Q&A: Unrest in Burma's Rakhine state". BBC News. 11 June 2012.
Retrieved 3 May 2016
[32]
Burma violence: 20,000 displaced in Rakhine state. BBC News. 28 October 2012.
Retrieved 1 May 2016.
[33]
Burma Citizenship Law 1982
[34]
Eleanor A. The Rohingya Migrant Crisis.
17 June 2015. Retrieved 1 May 2016
[35]
Eleanor A. The Rohingya Migrant Crisis.
17 June 2015. Retrieved 1 May 2016
[36] Ibid
[37]
Rohingya In Malaysia Open Doors To Newcomers. 28 April 2014. Retrieved 5 May
2016
[38] Malaysia
Mulls Opening Job Market To Rohingya Refugees. 17 November 2015. Retrieved 5
May 2016
[39] Settlement Services International
(SSI) website. SSI is a community-based, not-for-profit humanitarian
organisation providing a range of services in the areas of humanitarian
settlement, accommodation, asylum seeker assistance, multicultural foster care,
disability support and employment services in NSW. Retrieved on 15th
May 2016, from http://www.ssi.org.au/faqs/refugee-faqs/148-what-is-the-difference-between-a-refugee-and-a-migrant
[40] Amnesty
International is a global movement that is campaigning for a world where human
rights are enjoyed by all. https://www.amnesty.org/en/
[41] Adapted
from Morten Kjaerum in Asbjorn Eide et al, Eds., The Universal Declaration of
Human Rights: A Commentary (1992) 218.
No comments:
Post a Comment