Reflections on the 13th IRDR Annual Conference’s Conversation with Judge Mykola Gnatovskyy

With governments around Europe engaging in increasingly aggressive anti-migrant rhetoric and Russia’s war of aggression in Ukraine, the success of the European project and the role of international bodies such as the European Court of Human Rights (ECtHR) has come into question.

Dr Yulia Ioffe (IRDR) in conversation with Judge Mykola Gnatovskyy. Photo by Ilan Kelman.

With governments around Europe engaging in increasingly aggressive anti-migrant rhetoric and Russia’s war of aggression in Ukraine, the success of the European project and the role of international bodies such as the European Court of Human Rights (ECtHR) has come into question.

To explore this issue, the Institute for Risk and Disaster Reduction (IRDR) recently had the honour of hosting Judge Mykola Gnatovskyy of the ECtHR at the Institute’s 13th Annual Conference. The conversation was facilitated by IRDR’s Dr. Yulia Ioffe and explored the role of the ECtHR in the face of war, the distinction between international human rights law and international humanitarian law, and the role of the Court in safeguarding refugee rights.

The fate of the ECtHR itself may also come into question following the political developments of recent years.

When the European Convention of Human Rights was adopted in 1950, it was assumed that the Convention would apply only in times of peace, with international humanitarian law governing in times of armed conflict. However, the ECtHR has decided on the issues related to armed conflict, as seen, for example, from the case law on Chechnya and now again on Ukraine.

The ECtHR, set up in 1950 in the aftermath of World War II, was tasked with supervising human rights within the Europe and preventing war on the continent. Judge Gnatovskyy reminded the conference audience of some of the philosophical underpinnings surrounding the creation of the Court as a body safeguarding the human rights of individuals, following the belief that if the rights of individuals are truly respected, aggression simply cannot occur, as this would inherently violate these rights. In the practice of the Court, most cases have been brought by individuals in relation to alleged violations of their human rights. Of one thing Gnatovskyy was particularly clear: this liberal dream, unfortunately, has not come true in Europe.

The ECtHR is once again tasked with responding to a situation of warfare in Ukraine: a situation that the Court arguably was not designed to have jurisprudence over. Nonetheless, the ECtHR has accepted jurisdiction over claims arising in wartime, too. Thus, the Court has integrated concepts of international humanitarian law into the interpretation of the European Convention on Human Rights, despite theoretical insistence that international humanitarian law and human rights law are separate. Although initially the ECtHR incorporated international humanitarian law into its practice subtly, without explicitly citing the 1949 Geneva Conventions, for example, the Court has since more openly acknowledged that international humanitarian law is being taken into account in international human rights cases.

Judge Gnatovskyy’s astute insights left me with several questions about the fate of the ECtHR, the legal disciplines of international human rights law, and international humanitarian law, as well as the wider fate of the European project. It is clear that international humanitarian law will continue to be incorporated into the Court’s practice, but questions remain about the extent to which this will take place, and what the consequences will be for other international courts around the world and for the wider discipline of international law.

The fate of the ECtHR itself may also come into question following the political developments of recent years. It seems that the Court has failed at the task that it was set out to complete: to prevent the war in Europe. With the death of the dream of a Europe free from war, the role of the international institutions safeguarding this dream is uncertain. Moreover, rising populist nationalism and aggressive anti-migrant rhetoric within several European countries may pose a further threat to the Court, with the UK for example threatening to leave the Court, including following an issuance of interim measures preventing the UK government from removing asylum seekers to Rwanda. If the UK, historically a cornerstone within the Court, does follow through with these threats, the authority and power of the ECtHR will be considerably undermined, and its future may be called into question.

In his closing remarks of the conversation, Judge Gnatovskyy left the conference with a combination of optimism that a change for the better is possible and bleakness in the face of the war in Europe:

“When there is an understanding that things must change, they will change; and it will be too late. International law is usually one war too late.”

Jasmine is an undergraduate student in UCL IRDR Year 2021-2024 on the Global Humanitarian Studies programme.

Reach out: jasmine.andean.21@ucl.ac.uk

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Rohingyas are a predominantly Muslim minority from the Rakhine State (former Arakan) of Myanmar (former Burma). Since they are not recognised as citizens by the Myanmar authority, Rohingyas have faced widespread discrimination forcing more than one million of them to flee their country since 1970. The United Nations (UN) labelled the Rohingyas as the “world’s most persecuted minority“. In August 2017, killings, rape, torture and other massive human rights violations resulted in ethnic cleansing, which forcibly displaced Rohingyas, mainly to South and Southeast Asian countries. The case is currently under investigation by the International Criminal Court (ICC) and the International Court of Justice (ICJ) (The Gambia v. Myanmar on violations of the Convention against Genocide). 

In September 2021, over 900,000 Rohingyas were registered with United Nations High Commissioner for Refugees (UNHCR) and living in camps in Cox’s Bazar, Bangladesh. There were also some Rohingyas living in Saudi Arabia, India and Malaysia. However, the exact numbers of displaced Rohingyas worldwide are uncertain since many are not registered with the United Nations High Commissioner for Refugees (UNHCR). Moreover, none of these host countries is signatories of the Convention Relating to the Status of Refugees (1951) nor have national asylum legislations. Consequently, the Rohingya – stateless people who enter these countries mostly undocumented – are classified as irregular migrants under their migration legislation. In this blog post, we discuss how Rohingyas are protected in these countries, considering the role of  UNHCR and new developments in the global asylum regime with the Global Compact on Refugees (GCR) and the Global Refugee Forum (GRF) framework. The military coup in Myanmar on February 01, 2021, may initiate a new influx of Rohingya (and other) refugees to these host countries and prevent future possibilities of their safe and voluntary return to Myanmar.

UNHCR and the protection of Rohingyas in national cases

Bangladesh is the country most affected by the latest Rohingya exodus. The country shelters Rohingya refugees in camps in Cox’s Bazar in south-eastern Bangladesh. UNHCR, together with other UN agencies, international non-governmental organisations (NGO) and local organisations, have provided relief and services to this refugee population. While the Government of Bangladesh has recognised Rohingyas as prima facie refugees in previous influxes like 1991-1992, Rohingyas that entered the country after 2017 are classified as Forcibly Displaced Myanmar Nationals (FDMN). Bangladesh is granting physical protection for Rohingyas. They have access to medical care, shelter, education, food and essential supplies. However, Rohingyas have no right to work and free movement inside Bangladesh. The right to higher education is also limited in the camps. The support to the Rohingya population is highly dependent on international aid, which makes the current situation in Bangladesh unsustainable in the long term. The ongoing pandemic could also affect the funding to the Rohingya response in Bangladesh. 

In Saudi Arabia, India, and Malaysia, UNHCR registers refugees and conducts refugee status determination following its mandate to identify people in need of international protection. UNHCR identification cards allow refugees to stay in these countries, which prevents the risk of refoulement. However, being recognised as refugees by UNHCR does not grant them access to fundamental rights available to nationals such as education, healthcare, work and free movement. UNHCR Help webpage of Saudi Arabia recalls that “Registering with UNHCR, even if recognised as a refugee, does not give the applicant any special status […] Registration with UNHCR does not mean the applicant will have the right to public healthcare, education, and employment“. In some countries, such as India, refugee children between 6 and 14 years old have access to education. All refugees have access to healthcare. In Malaysia, Rohingya children cannot access the local educational system because UNHCR refugee cards are not recognised as identification documents. Refugees pay higher fees than nationals to access healthcare but have a discount of 50% because of a partnership with UNHCR. 

UNHCR registered refugees have access to UNHCR services (e.g., learning centres in Malaysia) and partnerships. However, they are not legally allowed to work in any of these countries. Unlike the situation in Bangladesh, most Rohingya refugees are not in refugee camps and in receipt of aid to meet their basic needs in these countries. They have to work to survive, and they do so in the same way as irregular migrants. This situation puts them at risk of detention and even deportation. There were cases of detention of Rohingyas in Malaysia, Saudi Arabia, and India. 

Since these countries are not part of the 1951 Refugee Convention, they can adopt ad hoc approaches in recognising some groups of people based on their national interests. For example, Saudi Arabia granted residency to Rohingya refugees who arrived before 2011. However, those that arrived after that faced detention and are considered irregular migrants. This approach of providing protection and rights to some groups or nationalities put the Rohingyas in an unstable situation. Furthermore, agreements with the UNHCR and the current approach of protection may change at any time depending on the political will of the national governments, which may result in forced return and refoulement of Rohingyas to Myanmar.

These countries do not recognise local integration as a durable solution to the Rohingya refugees. Host governments fear that granting rights would allow refugees’ local integration and could attract more Rohingyas to their territories. Besides that, some of these host countries are categorised as least developed or developing countries facing internal struggles such as persistent poverty, illiteracy and inequality. Bangladesh – the country sheltering most Rohingya refugees globally (> 95%) – is the least-developed country facing environmental, economic and social challenges. Bangladesh does not have the means to guarantee local integration as a sustainable solution for hundreds of thousands of Rohingyas living in one of its poorest regions. Resettlement is an option only for Rohingyas registered with UNHCR in Malaysia.

Nevertheless, the number of refugees worldwide and Rohingyas in need of protection in a third country is larger than the resettlement quotas of receiving countries. Consequently, the Rohingyas’ host countries advocate returning to Myanmar as the only possible solution for this population. While this is also the preferable solution for Rohingyas, they wish to return to a place where their safety and rights will be guaranteed. Rohingyas need to be recognised as citizens by the Myanmar government and have access to rights, safety and security. Perpetrators of crimes against Rohingyas need to be held accountable too. Other human right treaties (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the case of Bangladesh and Saudi Arabia, and International Covenant on Civil and Political Rights in the case of Bangladesh and India) forbid host governments to return Rohingyas to a place where they may be subjected to torture or cruel, inhuman or degrading treatment or punishment.

Protection of Rohingya refugees and new multilateral developments on Asylum

On December 17, 2018, the Global Compact on Refugees (GCR) was approved after a process of two years of consultations with different stakeholders (states, NGOs, individuals) coordinated by the UNHCR. As this organisation recalls, the GCR is a non-binding framework that does not substitute for the 1951 Refugee Convention and its protocol but builds on them to foster responsibility-sharing and international cooperation. Some Rohingya host countries like Bangladesh, India, and Saudi Arabia provided written contributions to draft this document. Although the GCR is not mandatory and does not mention specifically the situation of Rohingyas, it is an important protection tool for refugees in general with a clear mechanism of regular revisions that considers the situation of stateless people and discusses possibilities of international and regional cooperation to address forced displacement and durable solutions. 

Besides that, the GCR created the framework for the organisation of the Global Refugee Forum in 2019 when states, organisations, universities and individuals presented voluntary pledges and contributions regarding forced displacement worldwide. The pledges directed to the Rohingya situation involve: guaranteeing protection, safe childhoods and child-sensitive services with no discrimination (education, child protection, healthcare, and mental health and psychosocial support) for Rohingya children and host communities’ children; empowering refugee children through sports in Cox’s Bazar, Bangladesh; providing funding to UNHCR to respond to the Rohingya crisis; creating a working group on education involving actors in Cox’s Bazar, Bangladesh and Rakhine, Myanmar; expanding livelihood opportunities and empowerment for Rohingyas and host communities; improving the environment for Rohingyas including psychological support; granting funding to playful learning for refugee children; providing support to survivors of sexual violence; implementing a joint approach with the World Bank and the Government of Bangladesh to support refugees and host communities medical, nutritional and educational needs; advocating child-rights based solutions and the inclusion of refugees in national educational systems. 

Bangladesh presented one pledge to design innovative refugee solutions. India presented two pledges: committing to build capacities of states – including beyond neighbourhood (e.g., Africa) and reaffirming its commitment to building solutions together. Malaysia also submitted one pledge to promote the objectives of the GCR and the 2030 Agenda. Saudi Arabia pledged $1 million to implement the GCR on Yemen. Moreover, other States in the world did not present any specific pledges about Rohingya refugees to fulfil the GCR’ objectives of “easing the pressures on host countries” and “expanding access to third-country solutions”.

While these actions are essential for the immediate protection of Rohingya refugees, they do not guarantee the long-term protection of this population (against refoulement or forced return as previously discussed) or durable solutions. Besides that, the central host countries of the Rohingyas presented only broad pledges regarding the implementation of the GCR with no specific guarantee of rights or protection to Rohingya refugees. None of the host countries presented any pledges to become parts of the 1951 Refugee Convention and its protocol or create national asylum systems to protect refugees.

Recommendations 

Rohingya refugees are physically protected in non-signatory countries that are not currently returning them to Myanmar. Nevertheless, while Rohingyas may be recognised as refugees under the UNHCR mandate, they are treated as irregular migrants. At the same time, host countries perceive their return as the only possible solution, and their agreements with UNHCR may change according to their national interests, which put Rohingyas at risk of unsustainable repatriation. Besides that, while host countries were part of the Global Compact on Refugees, host countries did not present specific pledges on protecting the Rohingya population. Considering this, we propose two primary recommendations to protect the Rohingyas:

1. The protection of Rohingya refugees is a responsibility of the international community and not only the host countries. The international community should pressure Myanmar to stop persecuting this minority and guarantee their safe and voluntary return as their preferable durable solution.
2. If their safe and voluntary return is not possible (especially considering the February 2021 coup in Myanmar), the international community should follow the principle of responsibility sharing and implement other solutions to Rohingyas, such as the design of specific resettlement programs for this population and the adoption of complementary pathways for admission to third countries as described in the GCR including family reunification, humanitarian visas and corridors, educational opportunities and private and community-based sponsorship programmes.

Authors

Patrícia Nabuco Martuscelli, Social Science Research Fellow in Conflict and Migration, Institute for Risk and Disaster Reduction, University College London (UCL).

* Bayes Ahmed, Lecturer in Risk and Disaster Science, Institute for Risk and Disaster Reduction, University College London (UCL); Corresponding author: bayes.ahmed@ucl.ac.uk

Peter Sammonds, Director, Institute for Risk and Disaster Reduction, University College London (UCL).

** The reflections are part of the “Resilient Futures for the Rohingya Refugees” and “Rohingya Journeys of Violence and Resilience in Bangladesh and its Neighbours” projects developed at the Institute for Risk and Disaster Reduction, University College London (UCL). We thank the funding of the Royal Society (Royal Society Award Reference: CHL\R1\180288) and the British Academy (British Academy Award Reference: SDP2\100094). 

On Monday 16th March 2015, UCL IRDR hosted a public forum panel discussion on “Human Rights and Disaster Risk Reduction” as a side event of the UN World Conference on Disaster Risk Reduction in Sendai. David Alexander, UCL IRDR Professor of Risk and Disaster Reduction, convened the panel to explore whether failure to mitigate disaster risk may be related to a failure to guarantee basic human rights, and if disaster situations can sometimes be used as an opportunity to deny rights. David proposed that whilst the articulation of human rights – as outlined by the UN, EU, and in national conventions and laws – are often ineffective in practice due to loopholes, exclusions and varying interpretations, and although externally imposed rights may clash with local cultures and traditions, there is a need to be more courageous about asserting human rights. Starting from the assumption that human rights are indeed universal, and that they have a direct bearing on disaster risk reduction, he requested that the panel consider (among others) the following questions:

• Do disasters lead to particular violations of human rights?
• Is denial or restriction of human rights diagnostic of marginalisation, and how does this make people and communities vulnerable to disasters?
• To what extent is the freedom and development of women and girls a human rights issue, and how does this bear upon resilience against disaster?
• Will an improved dialogue on human rights (a more explicit treatment of the question in open public discussion and official agreements) lead to reductions in disaster risk?
• How universal is the concept of human rights, and does it have a cultural dimension?
• How does the assertion of fundamental rights fit with the need to assume responsibility for disaster risk reduction?

On considering whether there is a human right to DRR, the first panelist, Richard Olson, Professor and Director of the Extreme Events Institute, Florida International University, posed the question ‘Is there a human right to life-safety?’. He stated that a major driver of loss of life from natural disasters derives from land use and building standards. These are planning issues with long-established solutions for which ignorance is no longer an acceptable excuse. Yet many decision makers continue in their behavior of ‘non-decision making’. That is to say, they keep issues that could address the human right to life safety off the agenda, such as improved building code enforcement and land use planning.

The second panelist, Terry Cannon, Senior Research Fellow at the Institute of Development Studies (IDS), questioned the universality of the concept of human rights, proposing that human rights can be perceived as a colonial imposition of the western world on other cultures. He explored the notion that some nations and cultures may not conform to the western interpretation of the ‘right’ way and questioned the relevance of legally backed rights in changing cultural behaviour. He suggested that human rights as viewed by western capitalist nations may not be appropriate for different political systems at different stages of development, and that the ‘push back’ against an external imposition of rights could in fact make the situation worse.

Virginie Le Masson, Research Officer at the Overseas Development Institute (ODI), also considered the culturally variability and universality of the concept of human rights, through the lens of gender rights. She advocated that although DRR workers do not have the right to impose their cultural values onto the communities where they are engaged, there is a moral obligation inherent to development assistance that compels one to oppose inequality, especially in the context of women’s rights. DRR is premised on the reduction of vulnerability, and this vulnerability frequently arises from inequality and disadvantage. If human rights are an imposition, claimed Le Masson, then so too is DRR.

Panelist Arif Rehman, Vulnerability and Resilience Coordinator at LEAD Pakistan, offered practitioner examples from experiences of DRR in Pakistan. He reported that although human rights are formally guaranteed by the state, the devolution of responsibility for these rights to local governments has resulted in strengthening existing power structures and local elites, rendering the notion of state-guaranteed rights redundant, especially given that many of the most vulnerable people are already beholden to local interest groups such as landowners.

The next panelist, Nanako Shimizu, Associate Professor in the Faculty of International Studies, considered the human rights issues that resulted from the Fukushima nuclear disaster. She claimed that the causes of nuclear health risk issues to the population surrounding the nuclear power plant were, (1) failure of prevention, (2) insufficient or misleading post-accident measures, and (3) lack of awareness within the population to realise their rights in a post-disaster context.

The final panellist, Cassidy Johnson, Senior Lecturer at the UCL Development Planning Unit, considered human rights in the aftermath of an earthquake in Turkey. Immediately after the earthquake, the disaster served as an economic leveler between the rich and poor, all of whom lost homes, family, and livelihoods. However, compensation measures implemented by the state in the recovery phase resulted in aggravating inequality by providing property to past owners and depriving tenants of the right to new housing. Cassidy’s case study highlighted how the continuation of pre-existing property regimes into a post-disaster context can amplify rights inequality.

Much of the discussion at the event centred around the question of whether human rights are an imposition or a necessity in the implementation of an effective and just DRR system. Whilst a few of the audience agreed with Cannon’s view, that human rights should not be externally imposed on other societies, many challenged it. Relating more closely to the issue of DRR within human rights, several audience members highlighted examples where the presence of pre-existing human rights violations left societies more vulnerable to disasters, so there is still much more to debate on this issue.