Opinion: International Law Cannot Prevent The Rohingya Genocide Because It Was Not Designed To

Mass killing, rape, burning villages, inflammatory rhetoric, and impunity, it is the relentless cycle that plagues Myanmar’s ethnic Rohingya minority. It is systematic and unrelenting and has continued unabated for the past few years. But with COVID-19, the world seems to have all but forgotten about one of the most persecuted groups in the world.

The Rohingya are an ethnic minority Muslim group in Myanmar’s Rakhine State that has been subject to continuous persecution by the Myanmar government, who regards them as illegal Bangladeshi immigrants despite having lived there for generations.

They have been denied citizenship since the 1982 Citizen Law and has faced marginalization, discrimination, and structural racism before and since then. In recent years, the eruptions of violence and horrific human rights abuses that the United Nations Fact-Finding mission has called the “gravest crimes under international law” have led to the mass exodus of Rohingya refugees to neighboring countries.

A Muslim Rohingya man walks among tents in the Kyaukphyu Internally Displaced Persons (IDP) camp in Kyaukphyu township in the western Myanmar Rakhine state on November 1, 2012. Myanmar’s neighbours should prepare to accept refugees from the country’s Rohingya minority who may try to flee abroad to escape bloody communal violence, refugee organisations said.

The Rohingya are still at risk today. Not only do the refugees live in squalid, cramped conditions, but those still in Myanmar are blamed for the coronavirus outbreak by government officials; this is despite the International Court of Justice’s preliminary ruling ordering Myanmar to prevent to do all in its power to prevent genocidal acts against the Rohingya. 

Of course, the Myanmar government, and its de facto leader and once-revered Nobel Peace Prize winner Aung Sung Suu Kyi, categorically denies that genocide is happening (in a convoluted logic, it backs its own government-formed Independent Commission of Enquiry’s conclusion that only war crimes and human rights abuses may have occurred, but there is insufficient evidence of genocide). What is more disappointing, though not unexpected, is how hesitant the international community at large is to use the g-word, perhaps fearing some obligation involved in its use. 

Indeed, words have power.

Especially the word “genocide”, which carries the weight of the crime of all crimes. In a twisted way, this is why the term “ethnic cleansing” – which has no legal obligations attached – is much more palatable.

The Convention on the Prevention and Punishment of the Crime of Genocide states that genocide is an act “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” The document which was adopted by the United Nations General Assembly in 1948 following the horrors of the Holocaust is so wishy-washy that its efficacy should be questioned.

There are several reasons for this.

First, the Convention criminalizes the intent to destroy a group – but the legal bar of proving genocidal intent is near insurmountable before the genocide occurs. The definition fails to adopt a stadial approach; it presupposes that genocide is a discrete event, rather than a process. Its emphasis on the mass killing precludes discussion if what sociologists believe is the wider harm of genocide: the denial of the right of a group to exist, the generational loss of culture, and all future contributions the group could have made to humankind.

As Amdama Dieng, the UN Secretary-General’s Special Adviser for the Prevention of Genocide, stated, genocide is a process. The Holocaust did not start with the gas chambers. It started with hate speech. Similarly, the process in Myanmar began not with mass killing, but with a rhetoric of hate, othering, and forcing Rohingya to live without dignity. But how can you prove intent to destroy the Rohingya, especially when there was nothing but words?

(In this file photo taken on November 28, 2017, Rohingya Muslim refugees wait to be called to receive food aid of rice, water and cooking oil in a relief centre at the Kutupalong refugee camp in Cox’s Bazar. Buddhism may be touted in the west as an inherently peaceful philosophy but a surge in violent rhetoric from small but increasingly influential groups of hardline monks in parts of Asia is upending the religion’s tolerant image. In Myanmar, ultra-nationalist monks led by firebrand preacher Ashin Wirathu have poured vitriol on the country’s small Muslim population, cheering a military crackdown forcing nearly 700,000 Rohingya Muslim into Bangladesh.

Even a mass killing on a scale atrocious enough for the world to condemn it as genocide may not be called such in legal terms. Darfur was a case in point. Despite mass killing, raping, and pillaging, the United Nations Report of the International Commission of Inquiry on Darfur concluded that no genocide occurred in Darfur, as the mass killing was not committed with the intent of genocide as such; rather, it was committed with the intent to forcibly remove victims from their homes. Moreover, in Bosnia and Herzegovina vs. Serbia and Montenegro, the International Court of Justice refrained from finding the 1992 Bosnian killings as genocide; while it did describe the 1995 Srebrenica massacre as genocide, it failed to find sufficient proof that Serbia was responsible.

With such high evidentiary proof, I fear that the case for the Rohingya may reach a similar conclusion in the ICJ, especially since the ICJ now does not have the assistance of a tribunal to establish facts, as the Bosnian case did. This is the issue with determining genocide on a term as subjective and multifaceted as intent.

What good is the Convention if the way it defines a term does not reflect reality? 

Secondly, even if the International Court of Justice does find that the government of Myanmar has committed genocide, a structural problem remains: the court has no enforcement mandate. Violations can only be redressed through resolutions in the United Nations Security Council, where Myanmar has the backing of China – a country that also would not want to set a precedent of action when they have a similar controversy in their own backyard.

This leads to my final point: contrary to popular opinion, there is no specific legal obligation for other states, including Thailand, to act once the ICJ finds a state guilty of genocide. While the Convention does require states to prevent and punish genocide (Article 1), this obligation only applies to the state’s own territory (Artice 6). As Thailand has shown, we want little to do with the situation next door – citing the ASEAN non-intervention principle – until it literally spills over onto our shores.

The Convention which the ICJ interprets is inherently too narrow and reactive to prevent genocide. We must recognize the Rohingya genocide for what it is without waiting for the court to call it as such. Although legal responsibility may not be found, we cannot allow other states to deflect political and moral responsibility as well.

As the Rohingya case in the International Court of Justice dredges on, it has become increasingly clear that it is just a cog in the leaden wheels of justice.

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