Confronting genocide in Myanmar: The urgent need to prevent and protect

(AP Photo/ Gemunu Amarasinghe, File)

 

 

Interethnic divisions in a young democracy cannot be downplayed or
wished away, and it’s time Myanmar’s government and the international
community acknowledge strong evidence that genocide is being
perpetrated against the Rohingya and act to end it, Katherine
Southwick writes.

Violence in Myanmar’s western Rakhine State escalated after a 9
October attack on border guard posts, leaving nine officers dead.
Humanitarian assistance and media access to the area have been cut off
for weeks while the Myanmar authorities conduct a counterinsurgency
operation against allegedly Rohingya assailants. Responsibility for
the initial attack remains unclear, however. More than a hundred
people are thought to have died already, with 30,000 internally
displaced adding to the 160,000 people who have been subsisting in
squalid displacement camps since previous outbreaks of violence in
2012 and 2013. Human Rights Watch has released satellite imagery
showing that over 1,200 buildings in Rohingya villages have been razed
in the past month. Government soldiers have reportedly gang-raped
Rohingya women and girls.

Bangladesh, which for 30 years has permitted more than 230,000
registered and unregistered Rohingya refugees to shelter in its
territory, has been turning people back who seek refuge across the
border. Thousands have already crossed and continue to gather at the
Bangladesh-Myanmar border.

These events mark a dramatic deterioration in what has long been a
desperate situation for a minority that many have identified as among
the most persecuted in the world. Most of them are stateless, with the
government designating them as “Bengalis” or “illegal immigrants,”
despite many having had citizenship in the past and having lived in
the region for generations. They have been subjected to forced labour
and confined to displacement camps where they do not receive adequate
food and medical care, leaving pregnant women and children
particularly at risk of agonising illness and death.

Rohingya are subject to harsh restrictions on marriage, family size
and movement. Their religious buildings have been destroyed, and those
who flee on rickety boats to other countries such as Malaysia or
Thailand have, in the past, been turned back to the open seas to die
or suffer at the hands of traffickers or languish in indefinite
detention.
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A question that haunts Myanmar’s government, and the international
community, is whether what is happening to the Rohingya constitutes
genocide. By now a credible claim can be raised that the
internationally recognised crime of genocide is taking place in
Myanmar. Accordingly, based on international legal obligations, the
Myanmar government and other nation states should be taking all
necessary actions to stop and avert the gravest kind of humanitarian
catastrophe.

Under Article II of the 1948 Genocide Convention, which Myanmar has
ratified, “genocide” is defined as “…any 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.”

The Yugoslav tribunal has elaborated further on Article II (c) that
deliberately inflicting conditions calculated to bring about a group’s
destruction can include “subjecting the group to a subsistence diet,
systematic expulsion from homes and denial of the right to medical
services. Also included is the creation of circumstances that would
lead to a slow death, such as lack of proper housing, clothing, and
hygiene or excessive work or physical exertion.”

There is little doubt that for years the Rohingya population has
suffered the acts listed in Article II (a) – (d) of the Genocide
Convention.

On the intent requirement of the crime – that the acts are committed
with the intent to destroy, in whole or in part, an ethnic or
religious group – courts have taken a highly contextualised,
case-by-case approach, to determining whether intent can be inferred
from factual circumstances. Such an inference must be “the only
reasonable one available on the evidence.” Additionally, as the
Rwandan tribunal has stated: “The offender is culpable because he knew
or should have known that the act committed would destroy, in whole or
in part, a group.”

This case-by-case approach to intent, along with the high burden of
proof requiring the evidence to be “fully conclusive,” renders
genocide determinations unavoidably contestable. Other analyses could
suggest that the overall intent of perpetrators in Myanmar is better
understood as “ethnic cleansing,” which reflects the idea that the
actual intent is to forcibly transfer or expel the Rohingya rather
than physically destroy them.


In the 2015 case of Croatia v. Serbia, which also included evidence of
killings, sexual violence, forced labour, and displacement, the
International Court of Justice did not find genocidal intent on the
part of the Serbs against the Croats in the context of the Yugoslav
war. Key considerations were that the conflict was seen as territorial
and the Serbs had organised transportation for Croats to evacuate the
territories that Serb forces had occupied.


The difference in the Rohingya case is that there is no clear escape
from the abject misery and high risk of death or extreme abuse at the
hands of traffickers or by other countries’ immigration authorities.
There are no systematic measures to officially deport the population,
either through providing transportation or agreeing to formal
arrangements with receiving countries. Moreover, Rohingya are deterred
from departing through restrictions on movement and punishments for
leaving, such as by the removal from household lists, the extortion of
family members left behind and imprisonment for “illegal” re-entry.
Hundreds, possibly thousands of babies born in squalid camps have
suffered preventable deaths due to lack of food and medical care. The
overall conditions are such that those persons imposing them over a
prolonged period either know or ought to know, that the eventual
outcome will be the physical destruction of the group, in whole or in
part.
The complexity of proving genocide is ill-matched to the urgency of
preventing and responding to genocidal situations when they arise. We
could be waiting years for an international tribunal or a panel of
experts to conclude authoritatively that genocide is or is not taking
place. This scenario would come as too little too late for the many
victims and their families, not to mention the domestic political
fallout and economic disaster which would ensue after the fact. At the
same time, the moral and political costs – the enduring stigma and
potential criminal liability – of not acting to stop genocide are
severe.
International law and institutions extricate us from this quandary
through their emphasis on genocide prevention as an obligation that is
at least as equally strong as protection. The 1948 Convention
obligates states to prevent and punish genocide. The widely affirmed
Responsibility to Protect doctrine requires states to prevent and
protect victims from war crimes, crimes against humanity and genocide
in the absence of a meaningful government response.


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We can now draw on ample scholarship and case law to identify
situations that look very much like genocide and compel robust
responses to live up to these obligations to prevent and protect. In
2015, the London-based International State Crime Initiative released a
report based on a social scientific study and concluded that,
“genocide is taking place in Myanmar” and warning of “the serious and
present danger of the annihilation of the country’s Rohingya
population.” Others have made a legal case for genocide, or the high
risk of genocide, such as scholars Zarni and Cowley, Yale Law School’s
human rights clinic, and former deputy prosecutor of the Yugoslav
Tribunal, Sir Geoffrey Nice, among others.

Some might argue that the label for a crime should not matter, and in
a sense they are right. These crimes too often occur along a spectrum
that, without corrective action, can lead to the same calamitous
result; massive loss of life and destruction.

We might think the responses would be the same, regardless of the
words we choose to define the crime. However, too many international
conferences and diplomatic meetings over the years have lamented the
long list of persecutions and suffering this group has endured over
decades, resulting in responses that are disproportionately inadequate
to the gravity of the Rohingya’s plight. Tepid policies toward Myanmar
and the Rohingya betray a deep-seated reluctance to label these crimes
as genocide for fear of subverting the narrative so many in the world
have waited for; an enlightened democratic transition. The notion of
genocide in Myanmar risks turning the country back into an
international pariah rather than an international darling.

But the current violence painfully illustrates that interethnic
divisions in a young democracy cannot be downplayed or wished away. It
is time for Myanmar, the Association of Southeast Asian Nations, the
United Nations and others to face facts, to confront the prospect of
genocide being perpetrated against the Rohingya. They must be open to
judgment for their inaction, or more hopefully, take action and commit
the resources needed to save lives throughout the region and preserve
Myanmar’s future.

 

 

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