The Rohingya: Genocide in the Modern Era?

By Kate Akkaya

For full text with links, see original webpage

Ethnically and religiously distinct from the majority population, the Rohingya people in Myanmar face state-sponsored discrimination, and mounting evidence of serious human rights abuses, according to numerous recent reports. Increasingly urgent reports – including from the US Holocaust Memorial Museum, the International State Crime Initiative and Yale Law School – argue that this state-sponsored violence rises to the level of genocide. While the term “genocide” is often wielded in relation to a range of mass atrocities, it is a specifically defined crime under international law. Does the evidence in the case of the Rohingya support the claims of genocide? And perhaps more importantly, if the evidence points to genocide, what actions can or should be taken by the government of Myanmar, or the international community more generally?

Genocide under international law

The definition of genocide can be found in the 1948 Genocide Convention, which refers to “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” with enumerated acts including killings, causing of serious bodily harm, preventing births in the group, and “[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”[Art. 2]. We can thus establish three core elements: i) prohibited violent acts; ii) made against a specific protected group; iii) done with specific intent to destroy the group, in whole or in part. This post will examine each of these elements in turn in the case of the Rohingya, and then turn to the question of investigation and prosecution.

Do the violent acts against the Rohingya fit the definition of genocide?

The Genocide Convention sets out five specific prohibited categories of violence, any of which may amount to genocide:

(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.

In the context of Myanmar, extensive resources exist detailing numerous acts of violence that would fall under the above categories. The most grievous crimes include the massacre of Rohingya by security forces in 2012, the use of killing squads and state-organized riots, the intolerable condition of camps for displaced persons (which likely amounts to deliberate infliction of conditions calculated to bring about destruction of the group), and mass arrests, raids, torture, and rape of Rohingya by security forces. Furthermore, official policies limiting the ability of the Rohingya to marry, prohibiting non-married individuals from cohabitating, forcing Rohingya to use birth control, and the imposition of a two-child policy that applies only to Rohingya couples are a clear attempts by the state to limit and prevent births in the group. While the state has denied all allegations of abuse, discrimination, and genocide, it is important to note that under the Genocide convention, each act may be committed outright or by omission, meaning that failure to prevent or stop such acts would also fulfill these criteria.

Are the Rohingya an enumerated protected group?

Turning to the second element of genocide under the Convention, any attack set out above would need to be committed against either a national, ethnical, racial or religious group. In this case, the government of Myanmar has consistently refused to acknowledge the existence of the Rohingya as an ethnic group, but has generally classified them as Bengalis or simply illegal immigrants. While there has been some immigration from Bangladesh into the Rakhine province over the past hundred years, both with and without state approval, the Rohingya people have had a recorded presence in the Rakhine state since the late 18th century. They have continuously self-identified as a unique ethnic group, and have a distinct linguistic, cultural, and religious identity. While unique culture, history, and self-identification is generally sufficient to prove ethnic identity under the Genocide Convention, the behavior of the state towards the specific group may also be considered, and provides evidence toward both the classification of the group and the proof of state intent to commit acts amounting to genocide.

Furthermore, Myanmar’s government has clearly distinguished between the Rohingya and other ethnicities though extensive policies and public statements, including a memorable senior diplomat’s letter to the media in 2009 that included statements comparing the Rohingya to ogres, and claiming that, “[i]n reality, Rohingya are neither Myanmar people nor Myanmar’s ethnic group.” Counter intuitively, state officials’ identification of the Rohingya as a non-native ethnic group may be seen as evidence of a pervasive understanding of the Rohingya as a distinct group of people, albeit a persecuted one.

Is there evidence of intent to destroy the Rohingya, in whole or in part?

Turning to the third element, intent to commit genocide is an essential aspect to any determination relating to the possible commission of genocide, yet is also extremely difficult to prove. Due to the inherent challenges and ambiguity of state intent, the search for evidence of intent is often the defining feature of a genocide investigation, rather than evidence of mass atrocities, which alone are not sufficient to prove the existence of genocide. The challenge for establishing intent is simply that, understandably, few modern regimes keep explicit records of their intent to destroy a group of people.

In light of the general lack of conclusive, “smoking gun” evidence, the International Criminal Court (ICC) has held that intent “may be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts” [Prosecutor v. Jelisic, paragraph 47]. While a formal inquiry would be necessary to conclusively determine the facts and circumstances necessary to prove intent, the public actions and statements of government officials, prejudicial laws, and active enforcement of discriminatory policies including disenfranchisement, displacement, and enforced statelessness are only some examples of the compelling allegations that may provide evidence of the Myanmar government’s deliberate intent to commit genocide. Without a thorough investigation by an impartial commission, however, the allegations cannot be substantiated and no further action may be taken.

Investigation and Prosecution

As outlined above, the recent reports raise serious concerns regarding the existence of genocide in Myanmar. What, then, would it take to trigger domestic or international investigation or prosecution?

On the question of investigation, there is no single evidentiary standard for the creation of a commission of inquiry into suspected war crimes, including genocide. However, the UN, normally through the Secretary General’s office or the Human Rights Council, may decide whether or not to establish such commissions on an ad hoc basis. If a neutral and impartial commission can establish credible evidence relating to genocide, its findings could serve as a strong foundation for eventual prosecution.

With or without a commission of inquiry, however, what steps are available to punish those responsible? It is important to note that the Genocide Convention establishes clear obligation of all states to prosecute: perpetrators of genocide “shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals”[Art. 4].

In terms of individual criminal responsibility, one legal option would be international prosecution at the International Criminal Court (ICC). The Rome Statute grants the ICC jurisdiction over genocide, using the same definition as the Genocide Convention. However, the Court may only exercise jurisdiction if:

The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court; The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or The United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime. Myanmar is not State Party to the Rome Statute, nor has it otherwise accepted the jurisdiction of the Court. Without this jurisdiction, it is possible for the UN Security Council to refer a situation to the ICC, as occurred in Libya in 2011, though this requires political consensus which is often difficult to achieve within the Council. China, for example, maintains a strategic interest in Myanmar that may cause it to veto any proposed referral.

Short of international prosecution at the ICC, United States courts could provide an avenue for domestic legal action in the form of a civil suit under the US Alien Tort statute (ATS), which has previously been used to prosecute human rights violations that occurred outside of the US. Successful ATS cases, however, are notoriously complex, expensive, and rare; among other requirements, the defendant must be a former foreign government official responsible for the human rights violation, and must be served while in the United States. Despite these onerous conditions, a coalition of Muslim groups is currently pursuing an ATS case against Myanmar’s former President Thein Sein in New York state court. As ATS cases are civil suits, the coalition may only seek compensatory and punitive damages, and even if the plaintiffs win the case, the damages will be awarded only if the defendant has sufficient assets in the United States that may be seized by the court. Ultimately, the pursuit of an ATS case appears to be more useful as a tool to generate publicity and political will, rather than to bring about justice for the victims. Moreover, domestic prosecution of course remains a possibility in other states.

Ways forward

The presidential elections on November 8 seem, at the time of this writing, to be a cause for hope. Opposition leader Aung San Suu Kyi has worked for decades to improve democracy and human rights in Myanmar, and her party, the National League for Democracy (NLD), won a significant parliamentary majority. If the United Nations heeds the call for an inquiry into the allegations of genocide against the Rohingya people, it would fall to Suu Kyi and the NLD to fully cooperate with the investigation, cease violations of international law, including discriminatory and possible genocidal acts, resolve the conflict, and make restitution with the Rohingya people. This is a tall order for any new leader, let alone one in a country as fractiously partisan as Myanmar; Suu Kyi has thus far remained noticeably silent on the issue of the Rohingya. Encouragement of and cooperation with a commission of inquiry into the case of the Rohingya could be a first step towards reform and restitution, and Suu Kyi’s broad support as evidenced by the recent elections presents a unique opportunity for a change in state policy. It is crucial to keep the spotlight of international attention and diplomatic pressure directly on the government of Myanmar in order to force policy change and stop what very likely amounts to grave violations of human rights, if not outright genocide, of the Rohingya people.