Photo by Kevin Frayer/Getty Images
October 1, 2018
With little fanfare, the State Department recently posted on its website the results of an empirical study of the acute violence in Myanmar against the Rohingya Muslims. The harrowing report is the result of an extensive investigation commissioned by the United States that surveyed over 1,000 randomly selected refugees in camps in Cox’s Bazar, Bangladesh in April. The State Department has confirmed that its conclusions are consistent with those of a United Nations-dispatched Fact Finding Mission (FFM), which recently released its own final report calling for criminal investigations into crimes against humanity and genocide.
Leaked documents suggest that Secretary of State Mike Pompeo is reportedly weighing whether to announce that this violence constitutes genocide as that crime is defined under international law. Indeed, press reporting suggests the release of the State Department’s study was delayed due to intense internal deliberations about whether and how to characterize the violence. Not surprisingly, headlines noted that the report “stopped short” of calling the violence genocide (or crimes against humanity for that matter), although Pompeo has already described the situation as one of “abhorrent ethnic cleansing.” State Department officials have insisted that the objective of the investigation was to document the facts in order to guide U.S. policy aimed at holding the perpetrators accountable, although it appears that a genocide determination may still emerge. The Myanmar investigation mirrors an earlier effort in Darfur, Sudan, that resulted in the U.S. government declaring that conflict to have resulted in genocide against Darfuri minorities.
I’ve conducted my own analysis (available here) of the violence in Myanmar based upon open-source reporting and interviews with individuals who have worked directly with this group of victims. I’ve concluded that a genocide determination is appropriate under the circumstances. In reaching this conclusion, I surveyed the major documentation efforts by human rights groups and the U.S. Holocaust Memorial Museum, academic literature, relevant jurisprudence emanating from the international criminal tribunals, statements of United Nations entities and other states, party and amicus curiae briefs filed before the International Criminal Court, and journalistic accounts of events in Myanmar, Bangladesh and elsewhere in the region, with an eye towards understanding the dynamics of violence against the Rohingya—deemed by many to be the most persecuted minority in the world.
In undertaking this analysis, I have operated primarily within an international criminal law framework, using as my guide the three core elements of genocide as interpreted and elaborated upon by international jurisprudence. Following this methodology offers perhaps the safest course for a non-judicial entity to make a genocide determination, because it is premised upon an elevated standard that could support a criminal indictment or the conviction of an identifiable individual. That said, this methodology is generally geared towards ascribing individual criminal responsibility on the part of discrete perpetrators, rather than undertaking a more collective or sociological determination that a genocide, writ large, is underway. Establishing whether an entire campaign of persecution is impelled by an intent to destroy a protected group, in whole or in part, might justify a different approach than that which would be taken by a penal tribunal. The disciplines of sociology and political science offer alternative frameworks for identifying the commission of genocide that might prove helpful in this regard and so are discussed briefly as well.
For the reasons outlined in greater detail in the longer paper, evidence suggests that a genocide is in fact underway in Myanmar through acts of genocide committed by discrete sets of actors (including various state organs, the Tatmadaw-Army, regional and local officials, and Rakhine civilians) acting with genocidal intent, and also by way of a genocide writ large against the Rohingya within Rakhine State, involving the central authorities working in collusion with, and through, regional actors. This opinion hinges upon four overarching observations.
First, the events since August 2017 must be placed in the wider context of a long history of oppression against this most vulnerable population. The Rohingya have been subjected to decades of discrimination and abuse. This protracted persecution—taking the form of legalized discrimination, physical segregation, infringements on births and marriages, and physical violence—has ratcheted up palpably over the years. Indeed, it is important to view events since August 2017 as part of a sustained progression whereby violence against the Rohingya has become normalized and measures short of mass extermination have significantly weakened the group—through the erosion of its social, economic, and civic foundations—but not yet led to its complete physical destruction within Myanmar. The most recent brutality marks the culmination of prior efforts to remove this population entirely from Rakhine State. Earlier attempts at ethnic cleansing have “failed,” in that members of the community have returned to Myanmar (sometimes forcibly so) after being purged, only to face heightened abuse. In crude terms, today’s acute violence reflects a desire by many influential actors to “finish the job” started decades earlier.
Second, the crime of genocide can be committed even without full-scale mass killings, although evidence of acts of extermination within Rakhine State exists. The Genocide Convention embodies the idea that a regime can “destroy” a group—a concept that encompasses both qualitative and quantitative components—by acts short of mass murder. Such a course of conduct has the cynical advantage of requiring fewer resource expenditures while facilitating international deniability. The Rohingya have thus been subjected to physical and mental harm and conditions of life calculated to either kill them outright or eventually lead to their demise—two enumerated forms of genocide. In addition, measures have been put in place to limit their ability to reproduce. The cumulative damage to this group easily surpasses any gravity threshold inherent to the crime of genocide: thousands of individuals have been outright killed, over 900,000 people are displaced, and countless more have died at sea, while trying to escape the country, and in the abject conditions in which they now find themselves. To be sure, in 2012 and thereafter, thousands of Rohingya took flight without being forcibly deported per se. But, these people have seen massacres before and so when violence restarted in 2017, they fled for their lives en masse. Under such threats of violence, the wholescale exodus of 2017 cannot be considered “voluntary” by any measure. And now their villages and homes have been destroyed so there is nowhere for them to return, except to internment camps being contemplated by the government. There is no question that this is a community that has been effectively destroyed and is at risk of being entirely eliminated from the mosaic of humankind.
Third, whether or not a genocide is underway will turn on whether genocidal intent exists—either at the level of the state or within a sufficient number of individuals directing and committing the violence. Although the open source record reveals overt expressions of genocidal intent by individual actors and entities, the law is clear that this intent—the crucial element distinguishing genocide from other international crimes—can be inferred from the relevant factual matrix. It is difficult to imagine a set of facts that would better support such an inference of genocidal intent. Indeed, all the factors that have been identified by authoritative commentators and tribunals to date to infer genocidal intent are present in Myanmar. These include:
The gravity of the harm caused;
The use of gratuitous violence that would be excessive to accomplish other objectives;
The targeting of all members of the group without distinction (to age, gender, involvement in opposition activities, or ability to harm or threaten the perpetrators);
The targeting of the group’s leadership in order to weaken the group but also remove individuals who could raise the alarm or engage with the international community;
The detrimental effect and long-term impact of the violence in terms of the future survival of the group;
The methodical and systemic nature of the attacks; the implication of multiple levels of a chain of command in the attacks;
Attempts to cover up the crime and grant impunity to perpetrators; attempts to bar humanitarian assistance to the victim group;
The fact that members of other disfavored groups are spared or subjected to less destructive forms of violence;
The utterance of derogatory language, or the issuance of propaganda, targeted to members of the group;
Potential motives of the perpetrators in terms of competition for resources or territory;
The existence of a political doctrine consistent with genocidal intent; and
Attacks on cultural or religious property or symbols associated with the group.
As the U.N. Fact Finding Mission recently noted:
The crimes in Rakhine State, and the manner in which they were perpetrated, are similar in nature, gravity and scope to those that have allowed genocidal intent to be established in other contexts.
In addition to the sheer scale and exceptionality of the physical harm perpetrated upon the Rohingya (including to children and to people already fleeing), this protected group has also been subjected to historical and cultural erasure as part of a national project dating back to the dawn of the military government, now unseated at least formally. This campaign includes virulent hate speech emanating from senior military and civilian officials (as well as private citizens), institutionalized racism and deep-seated structural discrimination in the form of the 1982 Citizenship Law etc., the elimination of cultural symbols and artifacts of the group, and restrictions on family life and reproduction. These manifestations of harm are all indicative of the existence of a pervasive and entrenched genocidal intent as well as a form of mental harm perpetrated on the group.
The most compelling counterargument that might cause one to pause before labeling the situation “genocide” is that the actors responsible for the multifaceted harm to the Rohingya are “only” committing an extreme campaign of ethnic cleansing in an effort to expel the Rohingya population from the country. In this way, ethnic cleansing has perversely “become a defense to genocide.” To be sure, not every interaction between members of the Rohingya community and their persecutors results in their death; sometimes victims are subjected to lesser forms of harm or are allowed to flee. This alternative hypothesis is perhaps conceivable, but it has become less and less plausible as signs of genocidal intent accumulate over the years, particularly when this evidence is aggregated. Indeed, there is jurisprudence to the effect that examples of “forewent opportunities” to kill members of the targeted protected group do not necessarily negate a finding of genocidal intent. Thus, if there are other indices of the intent to destroy the group in whole or in part, the fact that not every potential victim is killed should not be a bar to a finding of genocide.
Finally, my longer analysis maps the different formulations in which a genocide determination may be made and surveys how other authoritative observers are characterizing the plight of this community. The conclusions that a genocide is underway in Myanmar is consistent with other authoritative accounts and conclusions, including the U.N. FFM, non-governmental organizations working in the region, and academic commentators—although these sources all employ different formulations of their ultimate determination. Most importantly, the FFM’s recently released report calls for several named individuals to be investigated for the commission of genocide and also confirms the commission of war crimes and crimes against humanity. Given the state of the international law jurisprudence, a genocide determination by the U.S. government would be defensible. It would then be for a court of law to make a final adjudication. This could be by a tribunal charged with adjudicating either individual criminal responsibility or state responsibility. That said, it cannot be denied that the International Court of Justice’s (ICJ’s) genocide jurisprudence is rather conservative when it comes to determining affirmative state responsibility for genocide. Even under this heightened standard, however, the events in Myanmar would easily satisfy the ICJ’s standard for failing to prevent and punish genocide.
All told, and in the words of Professor Azeem Ibrahim in his magisterial text The Rohingya: Inside Myanmar’s Genocide:
The charge of genocide is a serious one to make: the current situation in Myanmar fully justifies the use of this word.
Before concluding, and as I have argued elsewhere with respect to the dithering over Darfur, I should emphasize that the question of whether or not the violence in Myanmar constitutes genocide should not alter the international community’s response to the acute harm being suffered by the Rohingya. At the point in time at which state responsibility is at issue and economic, political, and military solutions to mass violence are being contemplated, debating legal semantics about whether violence rises to the level of genocide simply has no place. Indeed, the methodology necessary to determine the commission of genocide is inapt—and the surrounding discourse discordant—when people are being systematically killed and expelled from their homes through violence on a mass scale. What matters is that the level of violence and the risk to humanity has reached a certain threshold. If international law creates a right—or even a duty—to respond to massive rights violations, such a right—or duty—has long since been triggered in Myanmar.
About the Author:
Beth Van Schaack
Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).
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