Yemen, Syria, Somalia, Myanmar. These countries are home to some of the world’s worst humanitarian crises. Millions have suffered as conflicts drag on, fleeing war, violence and persecution. But what power, if any, do our global legal institutions have to enact change?

Curtin international law expert Dr Mostafa Haider says the existing responses from legal institutions are insufficient and ineffective.

“Our international legal and humanitarian bodies are largely ‘name and shame’ institutions,” he says forcefully. “They call out countries and suggest ‘remedies’, but in effect they have little power to enforce change.”

Dr Haider says the crisis engulfing the Muslim-majority Rohingya people is a good case study to better understand the complexities associated with humanitarian crises.

The Rohingya, a minority community living in Buddhist-majority Myanmar, are widely considered to be among the most persecuted people in the world. Their plight attracted global attention in 2017 when Rohingya militants attacked the Myanmar army, igniting a wave of anti-Rohingya violence. Hundreds of thousands fled to Bangladesh, escaping what the United Nations described as a ‘textbook example of ethnic cleansing’.

A case for genocide

In November 2019, The Gambia lodged a case with the International Court of Justice (ICJ), accusing Myanmar of violating the Genocide Convention for its actions against the Rohingya people.

“The ICJ case against Myanmar is an important example of how legal institutions respond to humanitarian crises,” says Dr Haider. “Positively, the ICJ’s involvement brings critical global attention to the crisis, highlighting the injustices the Rohingya people have faced.”

This attention creates hope for the Rohingya people and can empower international humanitarian organisations to act on their behalf. However, Dr Haider says, the ICJ has no substantive power to enforce its ruling.

“Even if it determines that the military’s actions in 2017 amount to genocide, it requires the cooperation of the country’s leadership to enact change. And with the current state of politics in Myanmar, that is highly unlikely.”

In December 2019, Myanmar’s democratically elected leader Aung San Suu Kyi defended the military violence against the Rohingya population, shocking Western observers.

“She went to the ICJ to argue the case for Myanmar, that this wasn’t genocide, it was simply the military cracking down on terrorist activities within the Rohingya community,” says Dr Haider.

“She was trying to please the military and solidify her own power within the country. But she damaged her reputation internationally.”

Highlighting the country’s fragile state of democracy, Aung San Suu Kyi was arrested on 1 February 2021 during a coup d’état by the Myanmar military and charged with criminal offences.

“It’s important to remember that progress is a slow process,” says Dr Haider. “For example, when we look at the gay rights movement, it started with instances of protests here and there, but it took many, many years for those voices to be heard, recognised and certain legal rights accorded.

“The Rohingya people understand these international legal cases give legitimacy to their movement and strengthen their argument for citizenship. But they’re not able to pack their bags and return home yet. Their suffering is not over.”

The limits of legal protection

Displaced from their homes and stripped of their citizenship, what legal status do the Rohingya people have today?

“Generally speaking, when we think of human rights, we are actually referring to the rights of citizens,” explains Dr Haider. “But the majority of Rohingya people have been stripped of their citizenship, severely limiting the aid they can access.”

However, they can still claim specific legal statuses which offer some protection.

“The Rohingya who still live in Myanmar are known legally as ‘internally displaced persons’ or IDP, and those overseas are ‘refugees’. These are legal statuses which allow humanitarian organisations to step in and offer assistance.”

However, Dr Haider says, these legal protections are often difficult, if not impossible, for the Rohingya people to access, and frequently jar with international politics.

“The problem is that the Rohingya have little voice and standing in world politics. Who is going to negotiate their case? Who is going to take them in? And at what cost?

“Wealthy countries like Canada and Australia have specific refugee programs but, to be frank, Australian immigration policies are deeply discriminatory. And even if countries take in 10,000 or 20,000 refugees, it doesn’t address the root cause of the problem.”

Additionally, countries like Australia and now Bangladesh, are seeking offshore solutions to house refugees, subjecting them to further violence and poor living conditions.

“Maintaining basic facilities in offshore centres in Bangladesh is a huge challenge,” says Dr Haider. “There have been outbreaks of infectious diseases. It’s just layer upon layer of trauma.”

A new role for Australia?

Dr Haider argues that a more effective response to the Rohingya crisis is dialogue.

“While it’s not a bad thing to adjudicate these issues in international courts, it’s insufficient,” he says. “What could be far more useful, is bringing together interested parties who hold real power.”

And this is where Australia could play an important role.

He says Australia tends to mimic the positions of the US and the UK instead of pushing for a more independent voice in world politics.

“If Australia could work more collaboratively with south-east Asian nations like Thailand, Malaysia and Indonesia; it could work to bring China into dialogue. China has major economic interests in Myanmar and its military and has blocked many of the international pushes for reform. I think there is a good chance that the Myanmar military would listen to China but it would require major diplomacy.”

He says power can also exist in unexpected places.

“We often think big, formal institutions hold the power, but power is more diffuse than that. It belongs to people and places we wouldn’t necessarily think about. For instance, billionaire Bill Gates holds more power than the secretary-general of the United Nations.”

So, what does the future hold for the Rohingya people?

“I don’t think there will be any drastic change in the short term,” says Dr Haider. “It’s a long struggle and I don’t think it will end via a legal resolution. But if we can bring countries like India, China and Myanmar’s neighbours to the table and commence a dialogue, that could spark real change. I think Australia can play the role of a responsible international citizen here, which it has yet to take up.”

Researcher profile

Dr Mostafa Haider is a lecturer at the Curtin Law School. He completed his PhD in global law and politics at the University of Sydney and held a residential fellowship at Harvard Law School’s Institute for Global Law and Policy. His research covers a wide array of topics, from the efficacy of legal institutions in humanitarian crises to women and microcredit in eradicating global poverty.