Confronting genocide in Myanmar

By Katherine Southwick

Policy Forum

December 2, 2016

The urgent need to prevent and protect

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.

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.

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.