To continue on the very large theme that is the Rohingya Refugee Crisis, I bring you another post to discuss just one legal concept….genocide. A sombre concept but frighteningly applicable to the events leading up to the Rohingya refugee crisis (background of this in last post). As previously stated, UN officials have gone as far as to describe the actions of the Myanmarese military and their Buddhist counterparts towards the Rohingya as genocidal. Unarguably the violence directed at the Rohingya was grave, devastating and fatal in nature. It was horrific enough to undoubtedly violate many international human rights, humanitarian and criminal laws. Yet, however much we would like to penalise the guilty party for genocide, does it legally fit the bill?
Definition of Genocide
We may all have in our minds our own idea of genocide that I imagine resembles something like ‘an outstandingly vile and catastrophic event whereby mass amounts of humans are arbitrarily killed’. However, to hold someone/something accountable for such a crime, it must have a legal definition and the actions of the guilty party must meet that definition exactly.
The official definition is contained in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide 1948. It states that Genocide is:
“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 injury 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;
- [and] forcibly transferring children of the group to another group“
This means that there are two parts to the definition. To make a charge of genocide there must be intent to destroy wholly or partly one of the four types of populations, and at least one of the acts bullet pointed must be committed. So, intent plus a specified act equals genocide. The proceeding narrative will focus on the aspect of genocidal intent because I suggest that with the overwhelming evidence it will be easy to satisfy the physical part of the definition, but the crux of a determination will depend on proving intent to commit genocide.
Intent to commit genocide
The issue with the application to the persecution of Rohingya Muslims is proving intent. From research and reports regarding the treatment of the Rohingya, it would seem that the first three specified acts from the definition have been committed, and therefore the genocidal act part of the definition seems to be satisfied. However, proving intent is a whole lot trickier, yet remains the most critical part of the definition. It is the intent of the offending nation which distinguishes genocide from other ‘normal’ criminal acts.
‘‘[W]hat sets genocide apart from crimes against humanity and war crimes is that the act … must be committed with the specific intent to destroy in whole or in part a national, ethnical, racial or religious group as such.” – William Schabas, Introduction to the International Criminal Court
Proving genocidal intent is complex. It has been the topic of much academic debate over the years and the manner in which it is proven has been heavily criticised. The two main theories of proving genocidal intent are that of specific intent, or knowledge based intent.
Specific intent requires that there is a special intent to destroy a particular group and the destruction is carried out in a systematic and organised way, in other words they possess ‘the clear intent to cause the offence’. Knowledge based intent however does not require this special intent to wipe out a particular group, but more simply that the perpetrator of the genocidal acts has knowledge that the consequences of their actions may result in the destruction of a group in whole or in part.
Using the knowledge based intent structure would undoubtedly be easier to prove and would enable more offenders to fall under the umbrella of a guilty verdict. However, landmark genocidal case law over the years has utilised the specific intent approach. In the seminal case of Akayesu (the Rwandan genocide), the court took intent to mean specific intent. In 1999 the International Criminal Tribunal for former Yugoslavia (ICTY), presided over the meaning of genocide in the Jelisic case (concerning the execution of Muslims and Croatians in Luka camp during the Bosnian war). Whilst there was not a determination of genocide in this case, the deliberation over the meaning of genocidal intent which was determined to mean specific intent, set an important precedent moving forward. Similarly, in the case of the undecided ‘Armenian Genocide’, the Turks deny that their ancestors possessed the specific intent to wipe out the Armenian race. Therefore, once again eluding to the fact that specific intent is the primary interpretation of genocidal intent.
Thus, for a more realistic analysis, despite uncertainty surrounding genocidal intent and the favoured approach on the academic playing field, it makes sense to approach an analysis of the Rohingya crisis with the specific intent test in mind.
Application to the Rohingya Crisis
What then do we make of the Rohingya Crisis? Did the military and other actors possess specific intent to destroy in whole or part the Rohingya Muslims? Short of a confessional statement from leaders stating that they intended to commit genocide, an unrealistic and absurd expectation, intent has to be inferred from circumstantial evidence.
The UN have gathered evidence from existing genocidal jurisprudence to outline factors that can be analysed to prove this intent. Based on this, to find evidence of intent we should look at actions of the accused and those working for the accused. We should look for evidence of plans and preparation developed by Myanmar against the Rohingya. It will also be useful to analyse the violent acts to identify any consistencies in the actions of Myanmar which would suggest a premeditated plan. Furthermore, we can look at the breadth and scale of the attacks on the Rohingya, and even to consider factors such as the language used towards the Rohingya by the security forces.
“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,” Independent International Fact-Finding Mission on Myanmar.
As a starting point we can refer to the years of persecution faced by the Rohingya outlined in the last blog post. The post outlined the years of discrimination that the Rohingya have faced, being excluded from laws, from citizenship and stripped of their human rights. Whilst this may not amount to genocide, this is the starting point of proving intent. It allows us to recognise that the Myanmarese government have a long standing problem with the Rohingya, thus providing context and support for a finding of intent to commit genocide.
Against this backdrop, the violence that broke out in August 2017 has the potential to amount to genocide. The actions taken which ordered indiscriminate mass killings and rapes, and wiped out whole villages whilst burning them to the ground, were so severe and wide spread that we could argue they couldn’t have been carried out with any intention less than destroying the Rohingya population.
However, in order to find the specific intent, there must be large amounts of circumstantial evidence. It is easy for us to read accounts and speculate that the actions infer that genocide was intended, given their severity it is hard to imagine that anything less was on the agenda. However, for a genuine prosecution, actual evidence of the alleged abuses inflicted on the Rohingya will need to be gathered. Luckily, the UN have embarked on a fact finding mission to do just that.
The UN report
A fact finding mission mandated by the Human Rights Council was prompted after the UN security council were granted access in March 2018 to the Rohingya refugees and witnesses in Bangladesh, for the first time since violence broke out. The atrocities recounted to the council and the catastrophic impact on Rohingya lives witnessed, sparked an immediate investigation. During the mission, investigators were denied access to Myanmar who repeatedly deny allegations of genocide, however they were able to interview 875 refugees in detail about the violent events. Based on accounts of what happened, they also utilised satellite images, documents, photographs and the little video footage that victims managed to retain from attacks in Myanmar. In many instances, the UN team were able to verify facts of the stories with the use of these secondary sources. See the interactive map included on this BBC article which demonstrates the destruction of just one village based on two different dates.
The mission gathered evidence of indiscriminate murder, rape, gang rape, arson, torture, persecution, false imprisonment, assault, sexual assault, forced disappearances, enslavement and sexual exploitation. Children were not spared from such abhorrent attacks. After extensive analysis and compilation of these facts, the UN mission were satisfied to state that such acts satisfied the physical requirements of the genocidal definition. What’s more, the brutality, frequency and patterns of these acts also contributed towards the finding of genocidal intent.
The UN, as suspected, relied on satisfying the criteria of ‘special intent’. To do so they drew on many factors to analyse “the acts and conduct of the accused persons themselves, or the acts and conduct of others acting at their behest.”. To prove the existence of special intent, the mission focused on 5 different indicators of the Rohingya attacks which, based on prior genocidal jurisprudence, can contribute toward a positive finding of genocidal intent.
- Use of derogatory language – in general Myanmar rhetoric towards the Rohingya is derogatory. Phrases such as “illegal immigrants” or “Bengali’s” are used in an alleged attempt to “debase and humiliate” the Rohingya and dehumanise in front of the nation.
- Specific language used and statements of government and religious officials – such as “you don’t belong here”, “we will kill you all”, “go away”
- Discriminatory plans with the intent to change the demographic and ethnic composition of Rakhine state – the obsession with the demographic of Rakhine state is dated back to laws introduced by Myanmar to exclude them
- Systematically organised plans of destruction – for example the response to so called Rohingya terrorist attacks in August 2017 was within hours, indicating that there were existing organised plans in place to attack the Rohingya
- The severity and brutality of the attacks – for example the fact that women and children were not spared is indicative of the targeting of an entire national/ethnic group
“I have never been confronted by crimes as horrendous and on such a scale as these.” – UN Fact Finding Mission
The UN document is an interesting read and is thoroughly more detailed and articulated than the summary here. For a more comprehensive overview of how the circumstantial evidence was used to build a legal finding of genocidal intent, I recommend reading pages 358 – 367.
So, the UN have done us all a favour in grappling with the tricky task of trying to prove genocidal intent. Their comparative analysis of the Rohingya crisis with past genocidal jurisprudence has allowed them to develop a convincing case which would see a positive finding of genocidal intent. This finding, coupled with the more obviously present genocidal acts, has culminated in a recommendation by the UN that Myanmar be tried for genocide, war crimes and crimes against humanity.
The conclusions of the report call for six Myanmarese officials to be tried by the International Criminal Court for the crime of genocide. This is a conclusion I’m sure the Rohingya trying to survive in Cox’s Bazar at present would support. The fact that they have named six officials is damming and suggests they have strong evidence that enables the UN to confidently accuse such individuals of having intent to commit genocide and having acted accordingly. Obviously, these six individuals did not act alone, but because of the previously discussed legal structure of proving genocidal intent (specific), it captures only those at the top tier (leaders) of the genocidal mission. For a more blanket prosecution which includes more of the military who partook in the horrendous acts, the knowledge based approach of proving intent which requires only that they were aware of the potential consequences of their actions, would have to be adopted. Whilst this would seem like more justice was being served, hundreds of findings of genocide also risks diluting the pertinent sting of a genocidal prosecution.
Myanmar, obviously, reject the report and the label of genocide and imply that the report is not accurate as the mission did not visit the affected areas personally. However, everyone knows that it was Myanmar themselves who denied access, thus questioning how this could be a valid defence to the accusations. The denial of access merely strengthens the critique that they have something to hide.
However, Myanmar have not lost their battle yet. To be tried by the International Criminal Court (ICC), a nation has to be a member of the Rome statute. To Myanmar’s advantage, they are not a member of this statute. Thus, to fall under the ICC jurisdiction, Myanmar would need to be referred by the UN security council. The conclusions of the UN fact finding mission recommend that the UN security council do just this, however this is yet to happen.
The International Community
In the mean time, it is down to the international community to intervene, punish, and prevent Myanmar from committing any further atrocities. Article 1 of the convention states that “The Contracting Parties confirm that genocide…is a crime under international law which they undertake to prevent and to punish”. Thus, according to the convention, whether other action is being taken or not, those party to it are obligated to take it upon themselves to intervene.
This is politically loaded. Whilst no one wants genocide, it is also suggested that no one wants a charge of genocide. A charge of genocide means their Article 1 obligation is invoked and they must act to help the Rohingya and stop Myanmar. This is a problem because most nations don’t want to get involved. Intervention carries with it the risk of war, more casualties, and damage to their own political reputation and agendas. The prime example of this is the USA’s lack of intervention during the Rwandan genocide, which latterly exposed information suggests they were fully aware of. After having recently pulled troops out of Somalia, the USA were reluctant to become involved in another war in which they had no stakes and did not understand. Therefore, despite the word being used in private, and reports from the ground using the term genocide, the USA refrained from publicly terming the actions in Rwanda as genocide in order to avoid prompting any kind of responsibility under the genocide convention.
It has been suggested that the lack of intervention on behalf of the international community is representative of this rhetoric. Subsequently it seems likely that without a referral from the UN Security Council and a finding of genocide by the ICC, Myanmar will continue to evade the punishment they deserve. This seems unjust when there is a wealth of evidence which portrays the severity of abuse endured by the Rohingya. Myanmar within itself has fostered a culture of impunity regarding the attacks, with its leader being accused of complicity in the crimes. This cannot continue. In this light, the UN calls on the international community to take action and prevent Myanmar from adding to their atrocious list of crimes.
So, progress has been made. The mission of the UN has facilitated the compilation of a breadth of evidence which suggest the actions taken were indeed severe enough to warrant a finding of genocide. Additionally, their hard work has diminished the chance of Myanmar being able to deny intent to commit genocide, thus removing the ‘easy’ way out. We seem to be getting closer to justice being served.
So the answer to the question posed in the title, was it genocide? Probably yes. Should it be called genocide? Well, that sparks a whole other debate which questions the effectiveness of a prosecution for genocide and what help this will actually be for the Rohingya living as refugees. That question remains for another post. For now, we can but hope that the new report by the UN sparks an increase in international aid for the Rohingya while we await to see if the UN will refer Myanmar to the ICC.