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Vol. 40 Managing Articles Editor
Since the start of the Myanmar military’s targeted attacks against the Rohingya, the international community – both individual States and the United Nations – has been reluctant to call out the violence as an act of genocide. Both in this instance and in other targeted campaigns, it is imperative that the international community become more willing to call such acts out.
The evidence of a campaign of genocide is clear. Since August 2017, more than 650,000 Rohingya have fled to Bangladesh to escape the Myanmar military’s violent efforts to drive these individuals away from the area. Myanmar security forces, sometimes working in concert with local vigilantes, have encircled Rohingya villages in the northern part of the Rakhine State. Soldiers and police officers open fire on the Rohingya men, women, and children attempting to flee the violence, killing or seriously injuring hundreds of people.
Military personnel have set fire to Rohingya homes, burning to death those unable to escape, particularly the elderly and disabled. They have laid mines at the border crossings used by Rohingya refugees attempting to flee violence, and conducted a “scorched earth campaign,” targeting and burning whole Rohingya villages across northern Rakhine State.
Military forces have also committed sexual violence: on August 30, 2017, Myanmar soldiers pursued and separated a group of Rohingya into the men and older boys, and the women and younger children. These soldiers opened fire on and executed scores of these individuals, and “took women in groups to nearby houses where they were raped.” The military has sent a clear statement that the Rohingya can neither stay in Myanmar nor leave – death must be the only fate of these people.
In addition to the military’s violence, extremist monks have preached that the Rohingya are reincarnated from snakes and insects. This rhetoric bears a striking resemblance to the media propaganda of the Rwandan genocide, in which broadcasters called Tutsis inyenzi (cockroaches) to rally Hutus to exterminate them. The monks’ words reveal a clear intent to target the Rohingya. Even if these monks are not agents of the Myanmar government, the government’s unwillingness to punish the rhetoric shows its complicity in the Rohingya’s targeting.
Also of note is the fact that the Permanent People’s Tribunal (PPT) “found the Myanmar government guilty of genocide, crimes against humanity, and war crimes.” This conclusion was based on “a long list of well-documented atrocities including systemic rape, murder and eradication of identity and culture,” including evidence taken by civilians on smartphones, sending videos and images in real-time. Although the PPT does not have formal legal authority like a court of law, it utilizes international legal standards and procedures to issue an opinion on cases involving the infringement of fundamental rights. In finding the Myanmar government guilty of genocide, the PPT advances how and when States may, in practice, determine that this crime is occurring.
Officials of the Myanmar government deny that the army has committed these atrocities against the Rohingya, though in December 2017, Doctors Without Borders estimated that there had been at least 6,700 Rohingya deaths, including 730 young children, resulting from the violent campaign that started in August. Despite the aforementioned overwhelming evidence, countries have been and still are hesitant to label the campaign as genocide.
While the international community dawdled on classifying this campaign as genocide, Rohingya have been tortured and murdered, and the Myanmar government – the perpetrators – has even derived a solution in an attempt to make up for the injury caused. Recently, the governments of Bangladesh and Myanmar agreed on a voluntary repatriation plan to solve the refugee crisis, set to go into effect this month. The Myanmar government has stated that during the repatriation process, refugees could live at a temporary relocation center – accommodating up to 30,000 people in tents – while villages are being rebuilt, or could return to their villages to help with the rebuilding process. In light of the Myanmar government’s agreement to repatriate the Rohingya refugees and to rebuild their villages, it seems even more unlikely now that the international community would be willing to label the violent campaign as genocide.
Nonetheless, even if the Myanmar government is sincere in making reparations for the violence it has caused, it is imperative that the campaign be declared an example of genocide. It has been suggested that the attacks on the Rohingya could be adequately described as “ethnic cleansing.” While labelling it “ethnic cleansing” would be a positive, forward step towards condemnation and compliance, it does not go far enough. Semantically, ethnic cleansing – referring to the expulsion, but not murder, of a particular group – does not carry the same degree of severity or urgency as genocide. And importantly, as will be explained, ethnic cleansing does not trigger as great of legal obligations from the international community to help the victims targeted by the violence.
There are two other important effects of the label. First, it would help bring smaller targeted campaigns under the umbrella of genocide, rather than confining the label to large-scale instances such as the Rwandan Genocide or the Holocaust. Second, the label would protect the legal regime surrounding the use of force. In the case that the Myanmar government restarts its violent campaign in spite of its stated efforts to rebuild Rohingya villages, it would give other countries a legal basis to intervene to stop the violence.
After World War II, genocide was first established as a crime in international law under the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”). The purpose of creating this crime was two-fold: first, to hold perpetrators of genocide accountable for their egregious actions; and second, to ultimately prevent targeting killing campaigns – such as what occurred during the Holocaust – from recurring in the future.
Despite the forward-looking purpose of the term, this classification has only been applied retroactively reactively, rather than proactively. It is only once thousands or millions are dead that bystander states take even minimal action to stop the slaughter from continuing. Legally, genocide has an incredibly – almost impossibly – high burden of proof. To qualify as genocide, the acts of violence or harassment must have been committed against a group because of their membership to the group. This need not be the sole reason for targeting the group. Genocidal intent may, “in the absence of direct explicit evidence, be inferred from” circumstantial evidence. However, “that inference must be the only reasonable inference available on the evidence.” In other words, to convict an individual of the crime of genocide, the prosecutor must provide enough evidence to show that there is no other reasonable explanation for the violence suffered by a group’s members.
It makes sense that genocide requires a high level of proof; genocide is a serious accusation with potentially long-lasting consequences for a country’s reputation in the international community. As a consequence, however, the high burden of proof makes it hard to employ the label in a preventative manner to stop genocide that is occurring in the present.
Another reason for States’ hesitance to use the label is they are often unwilling to take the actions that would be consistent with fulfilling their obligations triggered with a designation of genocide. The genocide label triggers obligations from state parties to the Genocide Convention, and from Member States of the United Nations as related to the Responsibility to Protect (“R2P”), to get involved and stop the situation from worsening,
On the contrary, ethnic cleansing does not have the same legal potency as the word genocide. While R2P requires Member States to protect populations from ethnic cleansing, R2P was approved in a General Assembly Resolution – not a Security Council Resolution. The obligations of R2P do not have the same binding nature as a treaty, such as the Genocide Conventions.
Despite these concerns, there is a significant reason why states should want to use the genocide label with more ease: to preserve state sovereignty. It is conceivable that a state or a coalition of states could intervene in Myanmar either for the humanitarian purpose of ending the violence towards the Rohingya, or to prevent the violence from spilling over into other areas of the region. Without consent from the international community on whether the situation constitutes genocide, these measures would violate the general prohibition on the use of force and the principle of state sovereignty.
This hypothetical is not unthinkable. After all, this type of intervention occurred in Kosovo where, in the face of Security Council gridlock, NATO decided to enter Kosovo and conduct a bombing campaign to induce compliance from officials of the Former Yugoslavia. It also occurred in Libya where, although there was consensus that intervention was appropriate, many critics argue that the U.S. and others should not have gone as far as removing Ghaddafi to achieve the humanitarian ends sought.
What Kosovo and Libya have in common are that the intervening states (1) only had partial backing by the international community, with some component that wasn’t backed; (2) they therefore were not able to justify their measures under international law; and (3) they had to resort to policy arguments claiming a responsibility for the international community to get involved because the populations there had no other option.
However, policy arguments – while valuable and persuasive – are not legal arguments. Using policy arguments to justify an illegal action puts the international legal regime in limbo. And humanitarian legal doctrines, such as “R2P”, contemplate states taking action consistent with the jus ad bellum.
Without greater willingness to call out what is occurring in Myanmar as genocide, it becomes even more difficult to realize the achievement of these humanitarian ends within the legal framework. Moreover, if an intervention occurs, it is likely that the international community would not punish the intervening states because of the humanitarian purpose of the intervention or the positive net effect it had on the situation. This is exactly what happened after the Kosovo campaign: although NATO’s use of illegal force was condemned, it is also seen as principally responsible for forcing Yugoslav forces to withdraw from Kosovo. While it seems silly to punish states for their humanitarian actions, silence on the illegality also serves as tacit consent to illegal intervention.
Beyond the legal concerns, labeling Myanmar’s campaign against the Rohingya as “genocide” would serve to show that a genocide does not necessarily have to be a large-scale occurrence such as a Rwandan Genocide or the Holocaust. Otherwise, if “genocide” is only to be applied to larger-scale occurrences, there would be virtually no legal regime to identify smaller slaughter campaigns or to prevent such targeted violence from growing into a larger campaign.
With what is occurring in Myanmar, the international community has been given an opportunity put more force behind the international humanitarian legal regime. If this campaign does not qualify as genocide, then perhaps it is time to reconsider this label’s standard so as to make it more practical and forward-looking rather than retrospective and only applicable once blood has been shed.
 Myanmar: Crimes against humanity terrorize and drive Rohingya out, Amnesty Int’l (Oct. 18, 2017, 12:01 AM), https://www.amnesty.org/en/latest/news/2017/10/myanmar-new-evidence-of-systematic-campaign-to-terrorize-and-drive-rohingya-out/.
 Myanmar: New landmine blasts point to deliberate targeting of Rohingya, Amnesty Int’l (Sept. 10, 2017, 9:41 AM), https://www.amnesty.org/en/latest/news/2017/09/myanmar-new-landmine-blasts-point-to-deliberate-targeting-of-rohingya/.
 Myanmar: Scorched-earth campaign fuels ethnic cleansing of Rohingya from Rakhine State, Amnesty Int’l (Sept. 14, 2017, 5:31 PM), https://www.amnesty.org/en/latest/news/2017/09/myanmar-scorched-earth-campaign-fuels-ethnic-cleansing-of-rohingya-from-rakhine-state/.
 Azeem Ibrahim, There’s only one conclusion on the Rohingya in Myanmar: It’s genocide, CNN (Oct. 23, 2017, 11:31 AM), http://www.cnn.com/2017/10/23/opinions/myanmar-rohingya-genocide/index.html.
 Mark Tilly, Tribunal finds Myanmar guilty of genocide, Khmer Times (Sept. 29, 2017), http://www.khmertimeskh.com/5084211/tribunal-finds-myanmar-guilty-genocide/.
 Mandate and functions, Permanent Peoples’ Tribunal (last visited Feb. 13, 2018), http://permanentpeoplestribunal.org/mandate-and-functions/?lang=en.
 Richard C. Paddock, Rohingya Militants in Myanmar Claim Responsibility for Attack, N.Y. Times (Jan. 7, 2018), https://www.nytimes.com/2018/01/07/world/asia/myanmar-rohingya-militants.html?_r=0.
 Hannah Beech, At Least 6,700 Rohingya Died in Myanmar Crackdown, Aid Group Says, N.Y. Times (Dec. 14, 2017), https://www.nytimes.com/2017/12/14/world/asia/myanmar-rohingya-deaths.html.
 Michael J. Kelly, Genocide – The Power of a Label, 40 Case W. Res. J. Int’l L. 156 (2008) (explaining that “withholding the label ‘genocide’ [. . .] made the struggle for Darfur intervention more difficult by undercutting efforts by Darfur action groups to mobilize public support”); Adam Chandler, How Meaningful is the ISIS ‘Genocide’ Designation?, Atlantic (Mar. 19, 2016), https://www.theatlantic.com/international/archive/2016/03/isis-genocide-designation/474414/ (“When people use the word ‘genocide,’ at least implicitly, there is some kind of assumption that some form of obligation is involved[.]”).
 Convention on the Prevention and Punishment of the Crime of Genocide art. 2, Dec. 9, 1948, 78 U.N.T.S. 277. Article II of the Convention defines “genocide” as “any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
 Id. at art. 1 (“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international aw which they undertake to prevent and punish.”).
 E.g., Prosecutor v. Krstić, Case No. IT-98-33, Trial Judgment, ¶¶ 599, 645 (Int’l Crim. Trib. For the Former Yugoslavia Aug. 2, 2001), http://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf. The International Criminal Tribunal for the Former Yugoslavia judicially recognized the mass killings in Srebenica as genocide six years after they occurred in Prosecutor v. Krstić; in Rwanda, much of the world stood by though it was clear that the violence was part of a widespread and deliberate campaign to exterminate the Tutsis – the UN only began investigating violations of international humanitarian law in July 1994, S.C. Res. 935, ¶ 1 (July 1, 1994), and created the International Criminal Tribunal for Rwanda in Resolution 955, S.C. Res. 955, ¶ 1 (Nov. 8, 1994), to try those who may have been responsible for committing genocide.
 Prosecutor v. Akayesu, Case No. ICTR-96-4, Trial Judgment, ¶ 521 (Sept. 2, 1998), http://unictr.unmict.org/sites/unictr.org/files/case-documents/ictr-96-4/trial-judgements/en/980902.pdf.
 Prosecutor v. Niyitigeka, Case No. ICTR-96-14, Appeals Chamber Judgment, ¶¶ 51-53 (July 9, 2004), http://unictr.unmict.org/sites/unictr.org/files/case-documents/ictr-96-14/appeals-chamber-judgements/en/040709.pdf.
 Prosecutor v. Jelesić, Case. No. IT-95-10, Appeals Chamber Judgment, ¶ 47 (July 5, 2001), http://www.icty.org/x/cases/jelisic/acjug/en/jel-aj010705.pdf.
 Prosecutor v. Krstić, Case No. IT-98-33, Appeals Chamber Judgment, ¶ 41 (Int’l Crim. Trib. For the Former Yugoslavia Aug. 2, 2001), http://www.icty.org/x/cases/krstic/acjug/en/krs-aj040419e.pdf (emphasis added).
 E.g., Douglas Jehl, Officials Told to Avoid Calling Rwanda Killings ‘Genocide,’ N.Y. Times (June 10, 1994), http://www.nytimes.com/1994/06/10/world/officials-told-to-avoid-calling-rwanda-killings-genocide.html (“But American officials say that so stark a label could inflame public calls for action the Administration is unwilling to take. [. . .] ‘Genocide is a word that carries an enormous amount of responsibility[.]’”); Mark Kersten, You Say Genocide, I Say Genocide: Some Thoughts on the Genocide Debate, Justice in Conflict ((June 5, 2011), https://justiceinconflict.org/2011/06/05/you-say-genocide-i-say-genocide-some-thoughts-on-the-genocide-debate-2/.
 G.A. Res. 60/1, 2005 World Summit Outcome, ¶ 139 (Sept. 16, 2005).
 Fernando R. Tesón, Kosovo: A Powerful Precedent fort he Doctrine of Humanitarian Intervention, 1 Amsterdam Law Forum, no. 2, Jan. 2009, at 42, http://amsterdamlawforum.org/article/view/62/119; see also NATO’s role in relation to the conflict in Kosovo, NATO, https://www.nato.int/kosovo/history.htm (last updated July 15, 1999) (providing NATO’s justification for conducting the air raid campaign).
 David Rieff, R2P, R.I.P., N.Y. Times (Nov. 7, 2011), http://www.nytimes.com/2011/11/08/opinion/r2p-rip.html?pagewanted=all&_r=0.
 See generally U.N. SCOR, 54th Sess., 3988th mtg., U.N. Doc. S/PV.3988 (Mar. 24, 1999); Id. (“Proponents of the intervention in Libya often respond [. . .] that the main utility of R2P was always to serve as a moral and political warrant for any humanitarian war they deemed necessary, whatever its legality.”).
 2005 World Summit Outcome, supra note 21, ¶ 139.
Vol. 39 Online Editor: William Yau