The Genocide Convention was adopted by the General Assembly of the United Nations in 1948 and entered into force in 1951. It declares that genocide is a crime under international law. It imposes affirmative legal obligations on states to prevent genocide from occurring and to punish perpetrators of genocide.
Article II of the Genocide Convention defines 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:
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.
As the Genocide Convention recognizes, “genocide is a crime . . . contrary to the spirit and aims of the United Nations and condemned by the civilized world,” the prohibition of the crime of genocide has become an undeniable part of customary international law. Furthermore, it is a principle binding on all states even if they have not consented to the obligation by ratifying the Genocide Convention.
Genocide is not a term to be used lightly. Genocide is the ultimate denial of the right to existence of an entire group of human beings. As such, it is the quintessential human rights crime because it denies its victims’ very humanity.
Recently, the Allard K. Lowenstein International Human Rights Clinic at Yale Law School has published a legal analysis for Fortify Rights, a human rights organization based in Southeast Asia, on the subject of genocide. The 78-page legal analysis — Persecution of the Rohingya Muslims: Is Genocide Occurring in Myanmar’s Rakhine State? A Legal Analysis— draws on nearly three years of research and documentation provided to the Lowenstein Clinic by Fortify Rights, including eyewitness testimonies, internal government documents as well as UN data, reports, and information.
It is worth noting here that the publication is the first to apply the law of genocide to the situation of the Rohingya in Myanmar. The legal analysis reads, “The Rohingya are a Muslim minority group in Rakhine State, which occupies the western coast of Myanmar. An estimated one million Rohingya live in Rakhine State, primarily in the northern townships. Since the government passed the 1982 Citizenship Act, Rohingya have been denied equal access to citizenship. Rohingya have also been subjected to grave human rights abuses at the hands of the Myanmar authorities, security forces, police, and local Rakhines (the Buddhist majority population in Rakhine State). These actors have perpetrated violence against Rohingya, claiming thousands of lives. Hundreds more Rohingya have been the victims of torture, arbitrary detention, rape, and other forms of serious physical and mental harm. Whether confined to the three townships in northern Rakhine State or to one of dozens of internally displaced persons camps throughout the state, Rohingya have been deprived of freedom of movement and access to food, clean drinking water, sanitation, medical care, work opportunities, and education.”
It continues, “This legal analysis assesses whether the abuses of Rohingya Muslims’ human rights in Myanmar’s Rakhine State amount to genocide. Part I presents a detailed historical account of the situation of the Rohingya since Myanmar’s independence. Part II applies the law of genocide to the treatment of Rohingya in Rakhine State. This Part considers three questions: First, do Rohingya constitute a protected group under the definition of genocide? Second, do the acts perpetrated against Rohingya fall into the categories enumerated in the Genocide Convention? Third, does the requisite “intent to destroy” Rohingya exist? This analysis concludes that Rohingya constitute a protected group and that the group has suffered enumerated acts. Although the analysis does not support a definitive answer to the third question, the information the Lowenstein Clinic has considered, assuming it is credible and comprehensive and accurately reflects the situation of the Rohingya in Myanmar, provides a strong foundation from which to infer genocidal intent by security forces, government officials, local Rakhine, and others. Thus, this paper finds persuasive evidence that the crime of genocide has been committed against Rohingya Muslims. The legal analysis highlights the urgent need for a full and independent investigation and heightened protection for Rohingya Muslims in Myanmar’s Rakhine State.”
In light of the findings, Fortify Rights said the United Nations must immediately establish a Commission of Inquiry into widespread and systematic human rights violations in Myanmar’s Rakhine State, including into whether the crime of genocide has occurred.
“Allegations of genocide should not be taken lightly,” said Matthew Smith, Executive Director of Fortify Rights. “Rohingya face existential threats, and their situation is worsening. Domestic remedies have failed. It’s time for the international community to act.”
The government of Myanmar has openly attempted to prevent Rohingya births, in policy and legislation. It denies freedom of movement to more than 1 million Rohingya, and at least 140,000 internally displaced Rohingya are confined to more than 60 internment camps throughout Rakhine State. The government is responsible for denying Rohingya access to adequate humanitarian aid, sanitation, and food, and these abuses have led to avoidable deaths. Authorities have effectively forced Rohingya to take deadly journeys by sea, particularly since 2012, knowing the risks of death they face in doing so.
“The plan of the government is to finish our people, to kill our people, but they cannot kill us all by the bullet,” a Rohingya man, 52, told Fortify Rights. “What they can do is deny us food and medicine, and if we don’t die, then we’ll opt to leave the country. [In these cases] the government has used a different option to kill the people. We must understand that.”
The Lowenstein Clinic identifies specific state actors—including the Myanmar Army, the Police Force, and the now-disbanded NaSaKa—as responsible for acts that could constitute genocide. It also exposes links between perpetrators and the central government in Naypyidaw.
Fortify Rights and the Lowenstein Clinic called on the UN Human Rights Council to urgently adopt a resolution mandating an international Commission of Inquiry to fully assess the totality of the situation in Rakhine State, including human rights violations against Rohingya Muslims as well as Rakhine Buddhists. A Commission should objectively evaluate the facts, identify responsible perpetrators, and provide clear recommendations for action to effectively address and prevent further abuses in Rakhine State, Fortify Rights said.
Operationally, a commission should collate existing UN data, hold hearings, interview victims, survivors, government officials, political operatives, leaders of the Buddhist sangha, and others in Myanmar and Southeast Asia.
The UN Human Rights Council, Security Council, General Assembly, Secretary General, and Office of the High Commissioner for Human Rights all have authority to establish commissions of inquiry. Examples of such commissions exist throughout the world. Most recently, the UN established inquiries into serious human rights violations in Libya, the occupied Palestinian territory, Syria, North Korea, Sri Lanka, and the Central African Republic.
“The UN should truly put human rights up front in Myanmar,” said Matthew Smith, referring to the UN Secretary General’s Human Rights Up Front initiative—an effort to prevent and respond to large-scale violations of human rights. “UN member states should stop tolerating these abuses and take action.”
As a keen observer of the Rohingya crisis for more than a decade, I am not surprised with either the findings of the Fortify Rights or the conclusion of the legal experts of the prestigious Yale Law School. The question of genocide of the Rohingya people has come up a few times in various conferences, especially since 2012 when they, rightly considered the most persecuted people on earth, are targeted for extermination in a national project in the Buddhist majority Myanmar.
Seven months ago (March 30, 2015) I had the privilege to deliver a lecture at the Gerald R. Ford School of Public Policy, University of Michigan, Ann Arbor, and share the podium with Professor John Ciorciari discussing the same subject “Is genocide unfolding in Myanmar?”
Following a trip in March of this year in the Rakhine state of Myanmar, the United States Holocaust Memorial Museum staff believed that ‘conditions are ripe for genocide’ of Rohingyas.
Nearly two years ago, at the First International Rohingya Conference in the USA, “Stop Genocide and Restore Rohingya’s Citizenship Rights in Myanmar,” held at the University of Wisconsin, Milwaukee, the experts, which included Dr. Greg Stanton, a foremost authority on genocide, concurred that the Rohingyas were victims of genocide. For the last two years, the Genocide Watch has also been arguing that Rohingyas are facing genocide.
On October 21, 2015 the U.S. lawmakers expressed deep concerns about Burma’s backsliding on human rights and commitment to democratization at a hearing by the House Foreign Affairs Subcommittee on Asia and the Pacific. Repression and disenfranchisement of the Rohingya along with the military’s constitutionally guaranteed 25% of parliamentary seats means this election will not be free or fair, before even a single vote is cast. United to End Genocide President Tom Andrews was a featured witness, testifying before the Subcommittee warning of ongoing hate campaigns and abuses that put the country at risk of future mass atrocities and even genocide.
Professor Penny Green of Queen Mary University, UK has also issued a dire warning, “Myanmar’s Rohingya are being slowly annihilated through sporadic massacres, mass flight, systematic weakening and denial of identity. A genocidal process is underway in Myanmar and if it follows the path outlined in our report, it is yet to be completed. It can be stopped but not without confronting the fact that it is, indeed, a genocide.”
The International State Crime Initiative (ISCI) at Queen Mary University of London, based on an 18-month investigation, has recently found “compelling evidence” that Rohingya face “mass annihilation” by the government of Myanmar (formerly known as Burma) and that a genocide has been taking place for three decades. Myanmar’s Rohingya minority population is in “the final stages of a genocidal process” comparable to that in Nazi Germany in the 1930s and Rwanda in the 1990s, and attacks against them are planned at the highest levels of government, according to this new report from the British research institute. The 106-page report includes evidence from leaked government documents and detailed accounts from witnesses about the severe lack of food and employment opportunities; difficulties trying to obtain health care; and discrimination and violence from Buddhist monks and non-Muslim villagers.
“You don’t need to engage in mass killing to obliterate an ethnic group. You can do it by other means,” says Professor Penny Green, a professor of law and globalization at Queen Mary University of London and lead researcher of the report who spent four months on the ground in Rakhine as part of her research. Green and her team of researchers were denied access to northern Rakhine state by the government. “You can make life so intolerable that they leave, and those remaining have no agency and are effectively in detention camps,” says Green. “You create a very fragmented diaspora around the world.”
“It’s really important to construct genocide as a social process, because if we don’t, we can never intervene before mass killing takes place,” Penny Green told Newsweek. She added that the elections “reinforce the elimination of the Rohingya from the political realm of responsibility of Myanmar.”
The Rohingya are now two steps away from all-out genocide, having already been subjected to four stages: stigmatization, harassment, isolation and systematic weakening, according to the ISCI. There is evidence that the remaining two stages—extermination and “symbolic enactment,” or erasing the group from Myanmar’s history—are already well underway, says Green. The systematic weakening of the group has been so successful that the Rohingya’s rights have been “effectively destroyed” and “those who can, flee, while those who remain endure the barest of lives,” the report says.
The ISCI report also criticizes the international community for its lack of action.
It goes without saying that the UNSC and the international community have to take up the matter of genocide of the Rohingya people immediately failing which it must bear the responsibility for not stopping the crime.