Will the International Criminal Court prosecute the Myanmar Military for the Genocide of the Rohingya?

In a dramatic turn of events, ICC judges convened in the Hague to sift through horrific evidence of crimes perpetrated by Myanmar military including evidence of ‘Rohingya women tied to trees and raped for days by Myanmar’s military and men being pushed into mass graves, doused with petrol and set alight.’ (The Guardian 2018). Political leaders who have dismissed these atrocities as ”hate narratives from outside the country” (Aung San Suu Kyi, quoted in The Guardian 2018) have now to contend with ‘evidence… sent by a coalition of Bangladesh organisations to ICC prosecutors who are pushing to investigate allegations of forced deportation from a country where it has no jurisdiction.’ ( The Guardian 2018) .

The indifference and lack of empathy for victims of these atrocities evinced by Global leaders represented in the UN Security Council is morally and legally unjustifiable in light of the mounting evidence, including firsthand victim testimony, indicting the Myanmar Military and its leadership of unspeakable crimes:

”A document submitted to the ICC by the Asian Legal Resource Centre (ALRC) and its partner Odhikar, seen by the Guardian, included the story of Marwa, 10, whose family was shot dead before she, along with a group of other young girls from her village, were taken to nearby school where they were repeatedly gang raped.” ( The Guardian 2018) 

We are reminded by Raphael Lemkin, the creator of the term ‘genocide’, as well as as the Genocide Convention 1948 that the crime of genocide includes ‘ not only the deprivation of life, but also the prevention of life ( abortions, sterilizations)’ ( Lemkin p.145-146). It is increasingly apparent from the evidence emerging from the victims who survived that gender based forms of sexual violence were systematically carried out by the Myanmar military in what appears to be an attempt to not just eliminate the Rohingya race, but also to prevent this people group from flourishing as human beings.

The Social Etiology of Genocide in Myanmar

Denials by Myanmar of its role in committing atrocities against the Rohingya people ring hollow as damning evidence of the crime of genocide committed by its military continue to mount against the perpetrators. The International State Crime Initiative at the School of Law, Queen Mary, relying on the six stages of genocide posited by Daniel Feierstein has for a number of years warned of the Rohingya facing a ‘high risk of annihilation’.

Drawing from his research on Nazi genocides, Feierstein presents a paradigmatic approach to conceptualizing the ‘social practice of genocide’. Stage one of this paradigm has to do with stigmatization of groups in way that depicts the ‘negative other as a distinct social category’. (Feierstein, p.110).

It is arguable that in the years preceding the systematic killings and rapes of the Rohingya people that the world witnessed in 2017, there was evidence of the upper echelons of power in Myanmar ‘draw(ing) on symbols in the collective imagination, building new myths and reinforcing latent prejudices’ (Feierstein,p,110) to identify the Rohingya for exclusion from the social life of Myanmar.

For instance, Ibrahim argues that post 1962, ‘the military junta in effect created a new logic whereby only Burman Buddhists could really be loyal citizens.’ (Ibrahim p.4). This ‘logic’ was arguably promoted in a number of ways which included stripping the Rohingya of their citizenship, property and basic access to medical care and education. Linguistic and racial differences also underpin the unjust treatment of the Rohingya who, appearing to be ‘visibly alien’ in the color of their skin, in their language, and most of all in their religion, have borne the brunt of this discriminatory thinking’. (Ibrahim p. 4).

Although the nature of violence perpetrated against such a socially excluded group at this stage may be ‘verbal and symbolic’, ‘the categories of thought and perception will later lend legitimacy to the need for extermination.’(Feierstein,p,111). We are reminded of the ‘problematization’ of the Jews by the Nazis who pointed the accusatory finger at them for Germany’s defeat in the first world war and its subsequent high unemployment and economic woes in the 1920’s.  As Ibrahim asserts: ‘the current persecution and exclusion of the Rohingya’s reflect over 40 years of State propaganda designed to ensure that most Burmese now regard them as foreigners and a threat to Buddhist culture.’ (Ibrahim, p.10)

Stage 2 of Feierstein’s paradigm of the social practice of genocide deals with harassment which is ‘characterized by two types of simultaneous and complementary actions: bullying and disenfranchisement.’  Violent ‘sporadic attacks’ are perpetrated to ‘deepen the process of stigmatization and test society’s readiness to buy into physical violence’ .  (Feierstein, p.113).

For instance, the cycles of violence perpetrated by the Myanmar military in 2012/2013 led to the Rohingya fleeing for refugee camps that emerged at that time within Myanmar. (Ibrahim p.10). As the Human Rights Watch 2018 reports: ‘The Rohingya have faced decades of discrimination and repression under successive Burmese governments. Restrictions on movement and lack of access to basic health care have led to dire humanitarian conditions for those displaced by earlier waves of violence in 2012 and 2016.’

Stage 3 of the social practice of genocide is depicted by Feierstein as the isolation of the persecuted group, the objective being to ‘to demarcate a separate social, geographical, economic, political, cultural, and even ideological space for those who are “different,” and at the same time to sever their social ties with the rest of society.’ (Feierstein, p.115). The ghettoization of the Rohingya was arguably a further step in alienating them from the rest of society.

Within the Aung Mingalar ghetto for instance, the Rohingya are deprived of the bare necessities of life,  and cowed into living ‘with the ever-present fear of violent attack.’ [ISCI Report Countdown to Annihilation: Genocide in Myanmar, 2014]. Feierstein argues that this stage ‘makes it easier for the genocidal forces to identify the victims and, at the same time, to hide the process of harassment and extermination from the public’ (Feierstein, p.115).

The isolation of the persecuted groups like the Rohingya by the State therefore allows for further degradation, brutality and eventual annihilation of the group that is to follow without the possibility of public scrutiny and questioning. ‘It gives the genocidaires much more room to maneuver and identify those they wish to annihilate, removes the process of discrimination, harassment, and destruction from the public gaze, and from the eyes of those who might raise ethical and moral objections’. (Feierstein, p.116).

One might even argue that the social and physical isolation of such victims who have been cut off from human interaction and contact with the rest of the world contribute to a sense of apathy or indifference by the international community to the plight of such victims.,  since access to the media, political leaders and humanitarian organisations are by now denied by the State.

It is instructive to note that the denial by the Myanmar government of the ethnic cleansing of the Rohingya in 2017 took place in the context of the Myanmar government ‘blocking aid agencies’ access to Rohingya still trapped in Myanmar — about 120,000 confined to camps in central Rakhine and tens of thousands more in desperate conditions in the north.’

( The New York Times, Oct 24,  2017)

 

 

Is the definition in the Genocide Convention satisfactory for either legal or criminological purposes?

To Raphael Lemkin, the term,’genocide’ is a hybrid of the Greek, ‘genos’ or race, nation or tribe, and the Latin, ‘cide’, meaning, killing. ( Lemkin, p.147).

In this formulation,  genocide includes ‘ not only the deprivation of life, but also the prevention of life ( abortions, sterilizations) and also devices considering endangering life and health (artificial infections, working to death in special, individual camps, deliberate separation of families for depopulation purposes and so forth.) Lemkin explains that ‘all these actions are subordinated to the criminal intent to destroy or to cripple permanently a human group.

Raphael Lemkin, argued that genocide should be recognized as a crime under international law. He poses the question of ‘whether sovereignty goes so far that a government can destroy with impunity its own citizens and whether such acts of destruction are domestic affairs or matter of international concern.’ (Lemkin, p. 145-146). Lemkin goes on to assert that ‘if the destruction of human groups is a problem of international concern , then such acts should be treated as crimes under the law of nations.’ ( Lemkin, p. 146).

Lemkin’s humane attempt to seek protection for groups of people against genocide led to the creation of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 . In Article II of the Convention, genocide means 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

 A major difficulty with prosecuting States under the Genocide Convention is proving the necessary intent possessed by the perpetrator, that is the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group.’  For instance, in the case of Vidoje Blagojevic, a former Bosnian Serb army commander, the argument was that he did not know that the mass murders of Bosnian Muslims would occur when he had helped to transfer them from Srebrenica.’. His appeal against a conviction for genocide was allowed in the Hague. (The Guardian, 13 May 2007).

‘Genocide is a crime with a double mental element, i.e. a general intent as to the underlying acts, and an ulterior intent with regard to the ultimate aim of the destruction of the group.’  (Ambos, p. 833). Should knowledge of the ‘genocidal context’ suffice for low level perpetrators? (Note Ambos, p.833)

 Today, establishing accountability for genocidal killings like that of the Rohingya will require one to surmount  jurisdictional hurdles imposed by States which continue to rely on the Hobbesian concept of sovereignty to assert their right to self – determination of the demogaraphic composition of their nation.  Further, in view of the fact that Myanmar itself is not a signatory of the ICC statute, a referral by the UN to the International Criminal Court (ICC) will be required before the perpetrators of the genocidal killings can be brought to justice, a possibility that is doubtful due to the support of members of the P5 such as Russia and China for Myanmar.

The UN Security Council has merely issued a Presidential Statement on 6^th November 2017 that ‘ calls upon the Government of Myanmar to ensure no further excessive use of military force in Rakhine State, to restore civilian administration and apply the rule of law, and to take immediate steps in accordance with their obligations and commitments to respect human rights, including the human rights of women, children, and persons belonging to vulnerable groups, without discrimination and regardless of ethnicity, religion, or citizenship status’ while reaffirming ‘its strong commitment to the sovereignty , political independence, territorial integrity and unit of Mynamar.’ (S/PRST/2017/22) http://undocs.org/S/PRST/2017/22

It remains to be seen whether UN Security council members visit to Myanmar and Bangladesh to meet with ‘humanitarian agencies, civil society groups, parliamentarians, and military and government officials’ will culminate in a referral of Myanmar to the ICC. The UK, for instance, has yet to pass a resolution in Parliament to refer the matter to the ICC.

Amnesty International reported that ‘while acknowledging a possible ICC referral, UK Ambassador, Pierce, told reporters that Aung San Suu Kyi assured council members that if evidence of violations was provided to her, the Myanmar authorities would undertake a “proper investigation.”

However, the constant denials since 2017 by the Nobel laureate together with the military of any complicity in the atrocities against the Rohingya give little hope for such a possibility. A glimmer of hope for the Rohingya victims remains as the ICC has been asked by its chief prosecutor, Fatou Bensouda, in April 2018 ‘to rule on whether the ICC can exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh, which is a party to the ICC.’

(Amnesty International, 2018)

References

Amnesty International 2018: UN Security Council: Refer Myanmar to ICC Stand Up for Rohingya Victims of Crimes Against Humanity https://www.hrw.org/news/2018/05/08/un-security-council-refer-myanmar-icc)

‘Across Myanmar, Denial of Ethnic Cleansing and Loathing of Rohingya’, New York Times, Oct 24, 2017. Online: https://www.nytimes.com/2017/10/24/world/asia/myanmar-rohingya-ethnic-cleansing.html

Feierstein, D., & Town, D. (2014). Genocide as Social Practice: Reorganizing Society under the Nazis and Argentina’s Military Juntas. NEW BRUNSWICK; NEW JERSEY; LONDON: Rutgers University Press.

Gang raped and set on fire: ICC pushes to investigate Myanmar Rohingya atrocities, The Guardian , 23 June 2018. Online: https://www.theguardian.com/world/2018/jun/23/myanmar-icc-pushes-to-investigate-rohingya-atrocities-rape-fire

‘The Genocide Loophole’, The Guardian, 13 May, 2007.Online: https://www.theguardian.com/commentisfree/2007/may/13/thegenocideloophole

Raphael Lemkin (1947) ‘Genocide as a Crime under International Law’, The American Journal of International Law, Vol. 41, No. 1 , pp. 145-151

Ibrahim, Azeem.  (2016).  The Rohingyas : inside Myanmar’s hidden genocide.  London :  C. Hurst & Co. (Publishers) Ltd

 “International State Crime Initiative (ISCI) publishes fifth edition of State Crime; The International State Crime Initiative (ISCI), based at Queen Mary University of London SCI REPORT COUNTDOWN TO ANNIHILATION: GENOCIDE IN MYANMAR 2014

Kai Ambos, (2009) ‘What does ‘intent to destroy’ in genocide mean?’, International Review of the Red Cross, Volume 91 Number 876,  pp.833-858.