International law does not provide solutions, as we know only too well, but it does provide a framework, telling us what must be done, what must not be done, and whether we have made progress in meeting international legal obligations. The system is not complete and there are grey areas, but certain rules and principles are crystal clear – among them, the provisions of the 1989 Convention on the Rights of the Child (CRC).
The applicable law on child rights is central to the Joint Legal Opinion which Jason Pobjoy and I drafted but some may still ask, To what point? First, because even though it is not a complete answer, international law must be part of the solution; as one refugee in Bangladesh put it recently to UN Secretary-General António Guterres, ‘We need security... and citizenship. And we want justice...’ To these ends, our Opinion aims to state the law, to apply the law to the facts, and to draw out what needs to be done next.
The ‘facts’ relied on may be queried, but we have based ourselves on a variety of sources – United Nations bodies, including the Human Rights Council and the Special Rapporteur on the situation of human rights in Myanmar; and NGOs, such as Human Rights Watch, Fortify Rights, Amnesty International, and Physicians for Human Rights, several of whose reporting has often been cited by approval by the European Court of Human Rights, among others.
We are in no doubt that this evidence is sufficient today to establish prima facie responsibility of the state of Myanmar for the greater part of the harm done and the displacement which resulted from the events of 25 August 2017 and thereafter. It also opens the way to further investigation, beyond the overarching responsibility of the State, to the question of individual liability for crimes in international law; or, in the absence of judicial process, to the goal of national reconciliation and return, where knowing and understanding what has happened will be key factors in building a future.
Given the scale and the immensity of this tragedy, one may still ask, Why focus on children and on the Convention on the Rights of the Child? Quite simply, because child rights are often sidelined in the broader picture, and because the Convention offers a powerful entry point and a sure foundation on which to judge the conduct of the State.
Adopted by the General Assembly in 1989, the CRC entered into force the following year and was acceded to by Myanmar in 1991. The Convention is a veritable charter of the rights of the child, and Myanmar’s name is at the bottom, together now with that of every other UN Member State save one.
The CRC is not just a catalogue of rights, obligations and performance targets, however; it is also a positive commitment to childhood as a protected asset. Once gone, childhood doesn’t come back, which is why the Convention gives special value to this time of life, and to the education and preparation of the child for adulthood and a meaningful life in community. And that is also why attacks on children are attacks on the very future of communities themselves.
Most frequently cited for its affirmation of the best interests of the child principle and for its endorsement of non-discrimination without exception, the Convention also clearly calls for the substantive protection of rights we might otherwise take for granted – protection against unlawful and arbitrary killing, torture, cruel and inhuman treatment; protection against sexual and gender-based violence, against arbitrary detention, or denial of access to education, healthcare and food. These rights call for protection in good times and bad, with no exceptions and no derogation.
In addition, the substantive rights are backed by procedural obligations, requiring the State to investigate, prosecute and punish those alleged to be responsible for violations and abuse. Here, as we know, nothing has been done, even though the State is primarily responsible for protection and for fulfilling its obligations towards all children within its territory and jurisdiction; and it is the State, through its military and other organs of government, which bears the responsibility that flows from the attribution of acts in violation of international law.
Faced with inaction, it is therefore right and proper that others take up the question of accountability. Myanmar is legally responsible, not just to the wider community, but also to every other State party to the CRC.
How should accountability be pursued? The Committee on the Rights of the Child exists primarily to examine States’ progress in ‘achieving the realization of the obligations undertaken’ in the Convention, but it is not a forum for the adjudication of disputes, complaints, or for inquiry into the serious violations witnessed in recent months.
These events demand a different response. The facts speak for themselves, and are good grounds for inferring the existence of policies adopted at the highest level with the intent to enforce flight and prevent return through killing, violence and despoliation, in which children were not to be spared.
Here, the Convention offers just one of several ways ahead, but its strength lies in its clear enunciation of both substantive and procedural obligations. In the absence of credible action by national authorities, the duty to investigate, prosecute and hold to account falls to the United Nations, given its institutional responsibilities for human rights, but also to each and every one of the other States party to the CRC, all of which have a legal interest in Myanmar’s compliance with its international obligations.
The case for State responsibility is clear enough, but more is needed. As Special Rapporteur Yanghee Lee has said, ‘Far too many crimes have been committed...’, and if the jurisdiction of the International Criminal Court fails to be engaged for any reason, then another credible mechanism must be empowered to investigate and prosecute. As events have shown, that mechanism will need to be both gender- and child-sensitive – effective protection of the rights of the child is essential now and in any future of return and reconciliation, of security and accountability.
Read the full legal opinion.