The Trouble of Proving “Genocidal Intent”: The Modern Rohingya Crisis In Historical and Political Context

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The Trouble of Proving “Genocidal Intent”: The Modern Rohingya Crisis In Historical and Political Context
By Ashley S. Kinseth is Executive Director and Founder of the Stateless Dignity Project, which advocates for the rights, safety, and dignity of stateless groups around the world.

Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide—its first-ever international human rights treaty. As such, the Convention is arguably the most sacred text in modern international law—but also the most disregarded. The reasons for this indifference are largely political, yet typically explained away under the guise of law: governments routinely argue that it is impossible to know whether mass atrocities were intentional, as is required in the legal definition of genocide. The present Rohingya crisis, for which ample evidence of genocidal intent has emerged, provides a clear example of this blatant disregard for international law. As one of the worst genocides in the past century continues to unfold in Myanmar, nearly all states sit on their hands.

In the wake of the Holocaust, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide (Convention)—perhaps the most sacred text in modern international law.1 The Convention was the first human rights treaty adopted by the newly-formed body, addressing conduct considered, to this day, the “crime of all crimes.” Widely signed and ratified, the Convention rapidly attained the status of customary international law and, arguably, of jus cogens,4 thereby cementing genocide as the most heinous of all possible crimes in the minds of international lawyers and laypeople alike and, in the words of the UN Economic and Social Council, the “gravest violation of human rights it is possible to commit.”

Lacking, as Lemkin had, any better way to describe horrors like those of the Holocaust, the world latched on to the term genocide. With Lemkin devoted to its proliferation, general use of the term would burgeon over just a few short years. Still, genocide had yet to be given a precise legal definition and weight. Certainly, the general public understood genocide had something to do with the intentional annihilation of an entire group of people, yet many questions remained. For instance, would genocide encompass any other acts beyond killings and if so, which acts? Further, what types of groups would the term contemplate? While these questions had yet to be tackled, international momentum propelled Lemkin’s work as he began lobbying for a formal legal definition and international criminalization of genocide.

The Rohingya Crisis: Genocidal Intent as The Ultimate Political Pawn  — The legal definition of the crime of genocide, with three clearly articulated elements, is surprisingly straightforward to comprehend. Demonstrating the first two elements is typically easy. The third element is routinely the most challenging for international lawyers and human rights advocates to prove. This is exemplified by global treatment of the ongoing Rohingya crisis.

In the case at hand, for instance, states did not begin to take serious note of Myanmar’s discriminatory policies and ruthless treatment of the Rohingya until September 2017. At that time, the nation’s most brutal crackdown up to that point resulted in tens of thousands of Rohingya deaths37 and flooded Bangladesh with over 700,000 additional Rohingya refugees. However, both before and after the 2017 massacre, the Rohingya have long suffered both under military (Tatmadaw) rule and recent quasi-democratic rule. Indeed, four of the five genocidal acts outlined in the Convention were, and continue to be perpetrated against Myanmar’s Rohingya, with national, regional, and local authorities adopting systematic policies and practices that wear down Rohingyas living in Myanmar, including the 600,000 who remain there today.

Yet despite the Tatmadaw’s efforts to erase Rohingya ethnic group identity, there is ample evidence of Rohingyas’ long and rich history in Myanmar’s Northern Rakhine State.50 Not only have the Rohingya long self-identified as a distinct ethnic group, but the government itself recognized them as such just decades ago. Upon independence in 1948, the nascent Burmese government granted de facto citizenship to 144 recognized national “ethnic races”—among them the Rohingya.

Despite Burma’s founding fathers’ best intentions, in 1974 a coup d’état led by General Ne Win led to a new Constitution that functionally reduced the number of recognized national races from 144 to 135, a subset shortlisted by Ne Win himself and approved by the new military regime. Neither Myanmar nor other states and institutions can skirt their international obligations by denying the existence of a “national,  ethnical, racial or religious group” against whom numerous genocidal acts have been committed. However, members of the international community continually justify their inaction with the Convention’s third, and most amorphous, element: genocidal “intent.” States have raised this issue time and time again in the decades since the entry into force of the Convention. It is difficult to prove that individuals and/or states possess the requisite mens rea to destroy a group through its genocidal acts. As with other crimes, knowing and proving that which is in the mind of an alleged criminal is challenging, and is complicated further by the existence of multiple alleged génocidaires and co-conspirators.

With regard to the Rohingya Genocide, evidence of genocidal intent has increased immensely over the past year. As discussed above, numerous officials historically made no secret of their dreams of a Rohingya-free Myanmar. According to Myanmar officials, the crackdown was merely a defensive response. Government accounts and widespread domestic rumors asserted that it was the Rohingya themselves who razed their own villages and crops, butchered their brethren, doctored photos to garner sympathy, and somehow crafted eerily similar, gut-wrenching tales of widespread gang rapes, summary executions, and the slaughter of children and infants.

Not long after, on September 1 in the midst of the clearance operations, Myanmar military chief Min Aung Hlaing went on the record referring to the “Bengali problem” as “a long-standing one which has become an unfinished job”—one that, it seemed, that he intended to complete. In terms of widespread ground-level preparations, the human rights organization Fortify Rights also unearthed ample evidence highlighting the astonishing extent of Myanmar’s genocidal plans. Perhaps no crisis better demonstrates this evolving reality than the ongoing Rohingya Genocide, for which countless pieces of evidence of genocidal intent have come to light, and in which social media continues to play a massive role.

At the time of this writing, only one nation, Canada, has formally acknowledged the Rohingya Genocide as such.85 And while the UN Human Rights Council has also adopted a Report endorsing use of the term genocide, also noting that “[t]he critical element of the crime is ‘genocidal intent,’”86 its findings—while potentially persuasive—are binding neither on states nor on the UN Security Council. The Security Council possesses the sole authority to take meaningful international action. ##

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