The Rohingya Crisis
The Rohingya crisis captured the world's attention in 2017 following the mass displacement of Rohingyas fleeing Myanmar to Bangladesh and the horrific state-violence in Myanmar’s Rakhine state (Dussich, 2018). Understanding why the nature of state-violence against the Rohingya constitutes genocide, as well as understanding the existing international response to the violence is essential to creating meaningful policy to put an end to the crisis.
Rohingyas are a stateless ethnic minority composed of Sunni Muslims and Hindus (Dussich, 2018). In Myanmar, Burman Buddhists occupy positions of power and Rohingya are marginalized (Anwary, 2020). Following a fact-finding mission in 2018, the United Nations Human Rights Council (UNHRC) called for an investigation into Myanmar’s military to determine their liability for genocide (Shahabuddin, 2019). John Dussich (2018) notes the many human rights abuses which Rohingya have suffered over the past decades, including: "forced labour, removal of citizenship, depopulation of their communities, severe abuse of children, elders, and women… prohibition of freedom of movement, confiscation, and destruction of property… denial of education, religious and ethnic discrimination, restrictions on marriage, systemic persecution and racism, mass rapes, massacres, ethnic cleansings and forced expulsions" (p. 6).
The International Criminal Court
Genocide falls within the jurisdiction of the International Criminal Court (ICC). The Rome Statute is the ICC’s founding treaty which defines the Court’s jurisdiction (Hale & Rankin, 2019).
The Rome Statute deals with genocide in both Articles 5 and 6 (“Rome Statute”, 2010). Article 5 determines that genocide falls within the ICC’s jurisdiction as it is a “most serious [crime] of concern to the international community” (“Rome Statute”, 2010, p. 3). Furthermore, Article 6 defines genocide as a range of acts done “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” (“Rome Statute”, 2010, p. 3).
The violence perpetuated by the state against the Rohingya falls under the Rome Statute’s definition of genocide. In addition to the ongoing “mass killings and displacements of Rohingya” there are mass rapes (Anwary, 2020, p. 98). Additionally, there are reports of Myanmar military members killing women who have been raped, all of which violates Article 6 of the Statute on the grounds that the military are killing and terrorizing members of the group with the intent to destroy the Rohingya specifically (Anwary, 2020; “Rome Statute”, 2010). Myanmar has also made efforts to eradicate Rohingya ancestral land, seizing their living spaces and making it impossible for them to return; this violates Article 6 as destroying land deliberately creates conditions sought to bring about the destruction of Rohingya people (MacLean, 2019; “Rome Statute”, 2010). Furthermore, Myanmar has barred Rohingya from the right to education, as well as their culture and religion further destroying the group (O’Brien & Hoffstaedter, 2020). Melanie O’Brien and Gerhard Hoffstaedter (2020) state that genocidal violence does not end once Rohingyas flee Myanmar as becoming stateless further contributes to the destruction of the group.
An important component of genocide can be the ideologies, like racism and purity, which motivate mass violence (Kiernan as cited in Anwary, 2020). Specifically, Myanmar perpetuates the ideology that Rohingyas are illegal immigrants (Anwary, 2020). This ideology is reflected through specific policy decisions including, denying Rohingyas’ citizenship and the right to elect government representatives, as well as politicians stating that Rohingya do not belong in Myanmar, calling them Bengalis, instead of Rohingya to deny their ethnic origins (Anwary, 2020).
Afroza Anwary (2020) outlines why the mass killings in Rakhine state cannot be explained as something other than genocide. One theory for violence against civilians is that it is necessary in order to diminish the support of insurgents threatening the state (Anwary, 2020). Indeed, Myanmar claimed that the Arakan Rohingya Salvation Army (ARSA) was to blame for “attacks on border security officers in 2017” (Anwary, 2020, p. 86). Anwary (2018) explains that Myanmar blaming ARSA’s actions for their need to target civilians is unreasonable, as the most prevalent insurgency in Myanmar, the Karen National Union, does not result in Karen civilians being targeted (Anwary, 2020). There is also proof that the mass killings and sexual assaults against Rohingya in 2017 were planned prior to the ARSA attacks (Anwary, 2020).
Contested Action by the ICC
Myanmar is not party to the Rome Statute (Hale & Rankin, 2019); however, the ICC has attempted to address the crisis by deciding to investigate forced deportations of Rohingya to Bangladesh (Hale & Rankin, 2019). While Myanmar is not a state party to the Rome Statute, Bangladesh is. This allows for the ICC to bring Myanmar’s forced deportations of Rohingyas under their jurisdiction given that the crime took place across the borders of the two states (Hale & Rankin, 2019). Forced deportations fall under Article 7 of the Rome Statute and constitute a crime against humanity (“Rome Statute”, 2010). Unfortunately, but not unexpectedly, Myanmar challenged the court’s jurisdiction by refusing to respond to the Court’s request for officials to submit observations (Hale & Rankin, 2019; Kumar, 2020).
The case of forced deportations reflects the global nature of crimes which the ICC and the Rome Statute preside over. The decision of the ICC to undertake the case of forced deportations was significant as it stretched the judicial reach of the ICC (Hale & Rankin, 2019). The expansion of the Court’s jurisdiction is promising for future cases against Myanmar as well as other cases of genocide where the perpetrators are not party to the Rome Statute as the move “demonstrated a willingness to adhere to the law over politics” (Akhavan, 2019; Hale & Rankin, 2019, p. 27). However, the Court’s decision to open this dispute is contested and some believe that the reasoning behind expanding jurisdiction was unpersuasive and neglected preliminary examinations prior to deciding on the issue (Kumar, 2020). Payam Akhavan (2019), counsel to Bangladesh before the ICC, holds a differing view. Akhavan believes that given the transboundary nature of the Rohingya crisis, the ICC has developed “a strict interpretation of deportation”, and because the violation ended in a state party to the Statute the Court is protected “against accusations of jurisdictional overreach” (p. 344). However, Akhavan (2019) emphasizes that the Rohingya case does not end with the issue of forced deportations, and that other violations are also important to examine.
The UN Security Council (UNSC) also has the ability to refer cases to the ICC under the UN convention against genocide established in 1951 (Dussich, 2018). Unfortunately, despite pressure on the UNSC to do so, they have taken no action in drafting a resolution to decide if the case should be forwarded to the ICC (Akhavan, 2019). International law is unlikely to be the force that resolves the Rohingya crisis and genocide due to the weak enforcement mechanisms (Shahabuddin, 2019), which are made evident in the inability of the UNSC and the ICC to enact significant change in the crisis.
Looking Ahead: Resolving the Crisis
In order to properly address this issue, the Simon-Skjodt Centre for the Prevention of Genocide has put forward two recommendations to Myanmar and the international community (Dussich, 2018). The Centre demands that Myanmar “should immediately cease its attack on Rohingya civilians and investigate and prosecute those responsible for human rights violations and atrocity crimes” (Dussich, 2018, p. 23). Additionally, they should condemn the violence while working to end the anti-Rohingya ideologies throughout Myanmar (Dussich, 2018, p. 23). Moreover, to aid the Rohingya currently suffering, Myanmar should allow humanitarian organizations and journalists into Rakhine State (Dussich, 2018, p. 23). Finally, the Centre emphasizes that the international community must take unilateral action from “[i]ndividual governments and institutions, including the UN Security Council and UN General Assembly” to condemn, monitor, and enact targeted sanctions and arms embargoes against Myanmar (Dussich, 2018, p. 23).
The consensus of the literature suggests that the Rohingya crisis constitutes genocide as defined by the Rome Statute. Clearly the crisis must be acted upon swiftly and seriously, however, current action taken by the ICC and the international community pale to the reality of what is required to enact real change.
Akhavan, P. (2019). The Radically Routine Rohingya Case: Territorial Jurisdiction and the Crime of Deportation under the ICC Statute. Journal of International Criminal Justice, 17(2), 325–345. https://doiorg.proxy.bib.uottawa.ca/10.1093/jicj/mqz012
Anwary, A. (2020). Interethnic Conflict and Genocide in Myanmar. Homicide Studies, 24(1), 85-102. DOI: 10.1177/1088767919827354
Dussich, J. P. J. (2018). The Ongoing Genocidal Crisis of the Rohingya Minority in Myanmar. Journal of Victimology and Victim Justice, 1(1), 4-24. DOI: 10.1177/2516606918764998
Hale, K., & Rankin, M. (2019). Extending the ‘system’ of international criminal law? The ICC’s decision on jurisdiction over alleged deportations of Rohingya people. Australian Journal of International Affairs, 73(1), 22-28. https://doi.org/10.1080/10357718.2018.1548565
Kumar, A. (2020). Resolving the “Dispute” Under Article 119(1) of the Rome Statute. Asian Journal of International Law, 10(1), 3-49. DOI:10.1017/S2044251319000274
MacLean, K. (2019). The Rohingya Crisis and the Practices of Erasure. Journal of Genocide Research, 21(1), 83-95. https://doi.org/10.1080/14623528.2018.1506628
O’Brien, M., & Hoffstaedter, G. (2020). “There We Are Nothing, Here We Are Nothing!”—The Enduring Effects of the Rohingya Genocide. Social Sciences, 9. doi:10.3390/socsci9110209
Rome Statute of the International Criminal Court. (last amended 2010). International Criminal Court. https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf
Shahabuddin, M. (2019). Post-colonial Boundaries, International Law, and the Making of the Rohingya Crisis in Myanmar. Asian Journal of International Law, 9(2), 334-358. http://dx.doi.org.proxy.bib.uottawa.ca/10.1017/S2044251319000055