Determining the Genocide of Rohingya Refugees and the Accountability of Myanmar: Why Does it Matter?

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Author: Mohammad Minhazur Rahman | Department of Law & Justice, Jahangiragar University

August 25, 2020, marked three years since Myanmar military planned attacks that led to the mass displacement of more than 700,000 Rohingya —the bulk of Rohingya people who at that time lived in western Myanmar. The People of Rohingya remain among the world’s most persecuted populations. Close to 900,000 Rohingya refugees live in Bangladesh’s crowded camps, and about 600,000 Rohingya are facing ongoing abuses in Myanmar. Rohingya Population are amongst the most endangered in the wake of a global pandemic. Monsoon rains have brought high winds, floods, and landslides in recent weeks which have impacted tens of thousands of shelters. Hundreds of hopeless Rohingya refugees have been stranded at sea since turning back from Malaysia, and Bangladesh’s coasts and many are believed to have been drowned.

More than 80 international organizations and networks of legal professionals are engaged in a movement to promote and declare the State of Myanmar responsible for the crime of genocide. Global studies have persuaded that the State of Myanmar is responsible for killing thousands of Rohingya, among other abuses banned in the Genocide Convention, with “an effort to eliminate this population, in whole or in part.” The genocide determination involves a consideration of three primary elements: (i) enumerated acts of violence; (ii) committed against a protected group; (iii) with the intent to destroy this group in whole or in part.  When it comes to violence against Rohingya Muslims in Myanmar, the first two elements of genocide are easily satisfied. As is often the case, the genocide determination hinges on whether there is adequate evidence of the surplus of intent inherent to the crime of genocide: it must appertain to the applicable standard of proof that either the regime in question intends to destroy the group, in whole or in part, or that a sufficient number of individual actors, or actors with appropriate seniority, are committing enumerated crimes with that specific intent. Jurisprudence confirms that commanders and other superiors can be convicted under theories of superior responsibility if they knew, or had reason to know, that their subordinates were committing genocide. They failed to undertake the necessary measures to prevent such acts or to punish the perpetrators. So it is imperative to identify the genocide determinant and assert Myanmar’s responsibility in the heinous crime.

Secondly, it will identify a crime for what it is and strengthen attempts at accountability. Refugees International claims Myanmar’s determination to commit genocide. This is not a conclusion that they have reached easily. They relied on “the evidence of the widespread, systematic existence of the attacks on the Rohingya and the intent expressed in the Myanmar military’s rhetoric and actions inevitably leads to that conclusion.”

Only since then has knowledge of crimes against humanity and genocide grown. Doctors without Borders and Physicians for Human Rights conducted surveys,  which revealed at least 6,000 Rohingya were killed in the attacks. A study of 1,024 Rohingya refugees was conducted by the U.S. State Department and found that approximately 40 per cent of those surveyed experienced rape committed by Myanmar security forces. The study concluded that the violence was “extreme, widespread, and aimed at both terrorizing the civilians and driving out the residents of Rohingya. The reach and size suggested “well-planned and organized military operations.” An independent UN fact-finding mission found a history of racial and discriminatory words, together with the brutality of the attacks, the systematic use of sexual harassment and the coordinated nature of the attacks. These actions collectively indicate a pattern under Genocide Convention that infers genocidal intent on the part of the State to kill the Rohingya, in whole or in part, as a group.

A report of genocide will bring much needed global publicity that would help to deter more massacres. The Rohingya remain at the high potential for genocide. Lack of outside scrutiny is a primary risk factor for atrocity crimes. At a time when vital questions about ongoing violations are raised, a commitment to commit genocide will explicitly place Myanmar on notice that it is being watched.

Thirdly, a classification would help retain and raise international interest, which could bring international pressure to bear, including potentially targeted multilateral sanctions. The U.S. imposed sanctions on Senior General Min Aung Hlaing, and other top generals but other countries did not comply. A declaration of genocide will help express the severity with which the U.S. views Myanmar’s state crimes. This publicity may also play a role in dissuading more violations since almost all governments tend to escape embarrassment. Over time, it could also help pressure Myanmar’s government and military to establish conditions which could eventually enable the Rohingya’s return. This aversion to outside opinion was expressed in Aung San Suu Kyi’s appearance before the International Court of Justice last December in its genocide proceeding.

Lastly, a declaration of Genocide against Myanmar will signal global unity with countries such as Bangladesh hosting refugees from Rohingya and with Rohingya remaining in Myanmar. Bangladesh’s government has confiscated hundreds of thousands of refugees and is struggling to accommodate them. A display of concerted pressure on Myanmar will go a long way in showing that Bangladesh is not alone in helping the Rohingya. It could help to encourage more positive policies towards Rohingya refugees as long as they have to stay in the region.

The situation regarding human rights in Rakhine State remains intolerable. The Myanmar Military has engaged an ethnic militant faction known as the Arakan Army over the past few years. The struggle affected civilians across the State, including ethnic Rakhine and Rohingya alike. In June, military altered “clearance operations” that led to tens of thousands (mostly ethnic Rakhine) fleeing their homes. “Clearance operations” was the same term used in advance of the Rohingya mass expulsion.

Myanmar’s government has limited internet access in the comprehensive parts of northern Rakhine province. Entry to the region has long been limited for international humanitarian organizations. A group of humanitarian organizations operating in the Rakhine State cautioned last month the allegations of village burning and illegal detention of civilians in the recent fighting between the military and the Arakan Army. It would likely cause greater hunger, displacement and human misery at a time when communities are grappling with COVID-19 and heavy monsoon rains.”

In Rakhine State, more than 100,000 Rohingya remain in internal displacement camps which are open-air prisons. Rohingya homes were gone, and other ethnic groups had occupied Rohingya territories. Implementing proposals to close down some of the centres have been nothing more than pushing the displaced into buildings next to the camps and marking “villages” facilities. Restrictions on travel and access to health care and education continue even for those Rohingya who are not in camps. Evidence of arbitrary arrests and sexual harassment continue to occur at the hands of security forces. Such violence is not limited to the Rohingya but extends to other ethnic minority groups including the Chin, Kachin, Karen, Rakhine and Shan.

The International Court of Justice, hearing the case of Genocide against Myanmar, found sufficient concern to release provisional steps in January 2020 requiring Myanmar to demonstrate its preservation of evidence. However, COVID-19 acts as a threat to Myanmar’s ethnic minorities. Displacement and disenfranchising structural factors leave the Rohingya particularly vulnerable. The violation of Rohingya and other ethnic minority in Myanmar is not a thing of the past. As warned by an independent UN fact-finding mission, “The State of Myanmar continues to harbour genocidal intent, and the Rohingya remain at serious risk of genocide.”

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