Published the Lowenstein International Human Rights Clinic at Yale Law School
This legal analysis considers whether the ongoing attacks on and persecution of the Rohingya Muslim population in Myanmar constitute genocide, as defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The paper begins with a detailed, historical account of the human rights situation of Rohingya since Myanmar’s independence. It then uses the Genocide Convention’s definition of genocide to analyze the treatment of Rohingya. This analysis does not conclude definitively whether genocide is occurring. Such a conclusion would require a full and independent investigation by an appropriately authorized institution with investigatory powers and provisions for the accused to respond to allegations. However, assuming that the information to which the Lowenstein Clinic has had access is credible and comprehensive and accurately reflects the Rohingyas’ situation, the paper finds strong evidence that genocide is being committed against Rohingya.
The Genocide Convention, which was adopted by the General Assembly of the United Nations in 1948 and entered into force in 1951, declares that genocide is a crime under international law. It imposes affirmative legal obligations on states to prevent genocide from occurring and to punish perpetrators of genocide. The proscription of the crime of genocide, as defined by the Convention, has become an unequivocal part of customary international law. Furthermore, it is a jus cogens norm, a principle binding on all states even if they have not consented to the obligation by ratifying the Convention.
Article II of the Genocide Convention defines genocide as: [A]ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group. Under this definition, the crime of genocide consists of three essential elements: the existence of a protected group, the commission of one or more prohibited acts, and the requisite intent. Thus, to analyze whether genocide has been, or is being, committed, one must consider: 1. Whether the victims constitute a group under the Convention; 2. Whether the acts perpetrated are among those enumerated in the Convention’s definition; and 3. Whether these acts were carried out with intent to destroy the group, in whole or in part.
As the Genocide Convention recognizes, “genocide is a crime . . . contrary to the spirit and aims of the United Nations and condemned by the civilized world.” Genocide is not a term to be used lightly. Genocide is the ultimate denial of the right to existence of an entire group of human beings. As such, it is the quintessential human rights crime because it denies its victims’ very humanity. The Genocide Convention imposes affirmative, binding obligations upon all state parties to the Genocide Convention to prevent and punish the crime. As a result, some states are reluctant to employ the term. Yet the gravity of the crime and the irrevocability of its result require states and other actors to consider and investigate seriously allegations of its existence.
The Rohingya are a Muslim minority group in Rakhine State, which occupies the western coast of Myanmar. An estimated one million Rohingya live in Rakhine State, primarily in the northern townships. Since the government passed the 1982 Citizenship Act, Rohingya have been denied equal access to citizenship. Rohingya have also been subjected to grave human rights abuses at the hands of the Myanmar authorities, security forces, police, and local Rakhines (the Buddhist majority population in Rakhine State). These actors have perpetrated violence against Rohingya, claiming thousands of lives. Hundreds more Rohingya have been the victims of torture, arbitrary detention, rape, and other forms of serious physical and mental harm. Whether confined to the three townships in northern Rakhine State or to one of dozens of internally displaced persons camps throughout the state, Rohingya have been deprived of freedom of movement and access to food, clean drinking water, sanitation, medical care, work opportunities, and education.
This legal analysis assesses whether the abuses of Rohingya Muslims’ human rights in Myanmar’s Rakhine State amount to genocide. Part I presents a detailed historical account of the situation of the Rohingya since Myanmar’s independence. Part II applies the law of genocide to the treatment of Rohingya in Rakhine State. This Part considers three questions: First, do Rohingya constitute a protected group under the definition of genocide? Second, do the acts perpetrated against Rohingya fall into the categories enumerated in the Genocide Convention? Third, does the requisite “intent to destroy” Rohingya exist? This analysis concludes that Rohingya constitute a protected group and that the group has suffered enumerated acts. Although the analysis does not support a definitive answer to the third question, the information the Lowenstein Clinic has considered, assuming it is credible and comprehensive and accurately reflects the situation of the Rohingya in Myanmar, provides a strong foundation from which to infer genocidal intent by security forces, government officials, local Rakhine, and others. Thus, this paper finds persuasive evidence that the crime of genocide has been committed against Rohingya Muslims. The legal analysis highlights the urgent need for a full and independent investigation and heightened protection for Rohingya Muslims in Myanmar’s Rakhine State.