The recent humanitarian catastrophe facing Myanmar’s Rohingya Muslims has attracted international news media attention and global condemnation. During last month’s U.N. General Assembly in New York, foreign diplomats were concerned about the worsening human rights crises. Aung San Suu Kyi, Myanmar’s de facto leader and Nobel laureate, canceled her visit to the meeting of world leaders.
Since August 25th of this year, more than half a million Rohingya fled their homeland seeking refuge in neighboring Bangladesh. According to government sources, the Arakan Rohingya Salvation Army (ARSA), a new insurgency group, attacked the police. Myanmar’s security forces launched a “counterterrorism” offensive that included raping women, burning villages and murdering children, among other human rights violations. Authorities also blocked humanitarian aid, like food, water and medicine, from reaching victimized civilians.
The U.N. has long characterized the Rohingya, a religious and ethnic minority community, as the world’s most persecuted group; as argued elsewhere their oppression spans a number of decades. More recently, U.N. officials called Myanmar’s military atrocities “ethnic cleansing,” whereby one group removes another ethnic or religious community by violent means.
Amid the humanitarian crises, however, a question has emerged: is this genocide?
While some use “genocide” and “ethnic cleansing” interchangeably the difference between them is legally significant. International law does not recognize ethnic cleansing as an independent crime. But the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) explicitly defines genocide as one. Whereas the International Criminal Court can investigate and try people for committing genocide, the same is not true of ethnic cleansing.
Genocide: What is it?
The term genocide dates back to the Second World War. In response to the horrors of the Nazi “Final Solution,” scholar Raphael Lemkin conceived the word to denote a crime aimed at the destruction of a group.
The U.N. General Assembly subsequently defined it as a crime in the Genocide Convention, which came into force in 1951. Article 2 depicts genocide 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:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.”
State parties to the Convention must prevent genocide and punish those (military authorities, government officials, individuals) who commit it. Significantly, Myanmar has been a party to the treaty since 1956. As such, it has explicitly agreed to these affirmative legal obligations.
“Ethnic Cleansing” v. “Genocide”
The U.N. described recent military atrocities against the Rohingya as “ethnic cleansing.” Such practices include torture, gender-based violence, forced displacement, destruction of property and murder. In fact, Myanmar government forces have committed armed attacks and set homes ablaze. They have also beheaded men, raped women and murdered children. This “textbook example of ethnic cleansing” can become genocide if government forces act with the requisite legal intent: to destroy or exterminate a protected group.
To better understand whether the Rohingya are facing genocide, here is brief legal analysis of the crisis.
According to international law, Myanmar is responsible for conduct that it effectively controls and directs. The country’s military and government authorities are responsible for the atrocities described above: raping women, murdering children, beheading men and torching villages. As such, Myanmar is criminally liable for their acts under the Convention.
A Distinctive Group
To qualify for legal protection, the Rohingya Muslims must be a distinct national, racial, ethnic and/or religious group. Historically, the Burmese saw the Rohingya as illegal immigrants from South Asia allowed in by their former British colonizers. Myanmar’s authorities have denied them citizenship rights on this basis even though their presence predates colonial rule. In fact, the country’s Citizenship Law codified the Rohingya’s legal exclusion in 1982 by refusing to grant them citizenship while recognizing more than one hundred other racial and ethnic groups. Today the Rohingya are the world’s largest “stateless” community deprived of legal protection from the government.
What is more, Suu Kyi, Myanmar’s de facto leader and Nobel Laureate, refuses to recognize the Rohingya as an indigenous group with a unique language, culture and history. Like many Burmese, she says the term “Rohingya” is inflammatory. Rather, the group is called “Bengali” (and told to go back to Bangladesh).
Ironically, however, Myanmar’s laws, policies and practices systematically singling out the minority religious and ethnic community evidence their distinctiveness as a protected group under the Convention. This not only includes the denial of citizenship rights, for instance, but also restrictions on religious freedom, forced displacement, extra-judicial killings, among other concerns.
The Convention requires that the persecutors had special intent to “destroy, in whole or in part” a protected group. This can be difficult to prove without a persecutor’s explicit confession. However, genocidal intent can be inferred from various factors such as the broader context, the scale of atrocities committed, systematic targeting of victims and derogatory language.
Regarding context, the recent escalation of state sanctioned violence against the Rohingya is part of a larger pattern of persecution dating back to 1948 when Myanmar achieved independence from British colonizers. Authorities called them foreigners and denied them citizenship. Since then, Rohingya have suffered mass expulsions, gender-based violence, arbitrary arrests, unlawful detentions, among other human rights violations.
Additionally, since 1948, systematic messaging painting Rohingya as foreigners, illegal immigrants, Bengali – and more recently, as terrorists – creates, reinforces and spreads anti-Rohingya sentiment on a national scale. Such derogatory language not only dehumanizes the Rohingya. This allows for military and government authorities to justify mass human rights violations against the Rohingya as a disfavored, stigmatized and suspect group.
Finally, genocidal intent may also be inferred from the scale and nature of atrocities committed causing more than 500,000 Rohingya to flee to Bangladesh since August 25. In fact, a new report from the Office of the UN High Commissioner of Human Rights explains,
“Credible information indicates that the Myanmar security forces purposely destroyed the property of the Rohingyas, targeting their houses, fields, food-stocks, crops, livestock and even trees, to render the possibility of the Rohingya returning to normal lives and livelihoods in the future in northern Rakhine almost impossible.”
Tens of thousands of Rohingya have become internally displaced because of armed attacks and the military’s scorched earth policy. Further, international humanitarian aid has been blocked, preventing necessities like food, water and medicine from reaching a quarter of a million people.
Here, genocidal intent may be inferred from the totality of circumstances.
Killing Members of the Group
The Convention specifies “killing” members of the protected group as genocide. While the murders need not be premeditated, it must be intentional to trigger criminal liability. According to NGO reports, the military’s atrocities have left thousands dead. But a formal U.N. fact-finding mission may find additional proof of mass murders.
Causing Serious Bodily or Mental Harm to Members of the Group
The Convention and case law developed by the ad hoc international criminal tribunals have defined this category as encompassing torture, cruel and degrading treatment, persecution and gender-based violence (again, committed with the requisite intent to destroy the protected group).
Since August 25th, government forces have assaulted, raped and tortured Rohingya inflicting both physical and psychological injury. According to humanitarian aid agencies in Bangladesh, more than 350 Rohingya had received “life-saving care” relating to gender-based violence. What is more, U.N. medics report that attacks by Burmese forces against women are more aggressive.
A refugee in Bangladesh told Human Rights Watch that the army attacked her village in August, setting buildings ablaze while murdering people. They forced her and other women to watch as soldiers burned lifeless bodies. When she attempted to hide her infant daughter beneath her clothes, a soldier threw her baby into the fire. The soldiers also killed other children and raped her.
Satellite imagery from Human Rights Watch shows similar destruction of hundreds of Rohingya villages.
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
The third category of genocide includes acts that may lead to the slow death of the persecuted group. Many of the atrocities described above may similarly fit here as well, including the systematic expulsion of Rohingya from their homes and the deliberate deprivation of humanitarian aid like food, water and medicine.
Imposing measures intended to prevent births within the group
For decades, and not merely since August 25th, Myanmar’s Rohingya Muslims have been subject to the “two-child rule,” which are laws designed to control the group’s population growth. Prior to marrying, Rohingya couples must swear in a signed statement that they will not have more than two children.
An independent U.N. inquiry
Myanmar may have violated its legal duty to prevent genocide since August 25th. Further, human rights advocates, international groups and academics have previously accused Myanmar of engaging in “crimes against humanity” and “genocide.” Recent atrocities are part of a much broader pattern of persecution.
Myanmar has a legal obligation to protect all civilians from genocide and the international community should help it do so. To that end, a U.N. fact-finding mission must be permitted entry into the country.
A prior U.N. Human Rights Council resolution established the mission to investigate “alleged recent human rights violations by military and security forces and abuses in Myanmar, in particular in Rakhine State.”
To date, Burmese authorities have blocked the investigation.
Engy Abdelkader is a scholar, researcher and educator who teaches graduate seminars on international human rights law as well as undergraduate writing courses at Rutgers University.