On December 5, 2017, the U.N. Human Rights Council held a Special Session, the highest priority in its administrative structure, devoted to the conditions of the Rohingya of Myanmar fleeing to Bangladesh. The High Commissioner for Human Rights, Prince Zeid Ra’ad al-Hussein highlighted that the Myanmar security forces “deliberately and massively targeted civilians.” He added “Can anyone, can anyone, rule out that elements of genocide may be present?”
Non-governmental organization representatives at the Council have used the term “genocide,” but this is the first time that a high-level member of the U.N. Secretariat has used the term regarding this matter. Previously the High Commissioner had used the term of “ethnic cleansing,” but the term “genocide” elevates the charge to the gravest of crimes against humanity. The High Commissioner’s appeal is a call to States who have signed the 1948 Genocide Convention to take action.
As the High Commissioner said, “My Office and succeeding Special Rapporteurs have for many years repeatedly and publicly reported the long-standing, systematic and institutionalized discrimination against the Rohingya in policy, law, and practice, and have offered the authorities assistance in making essential changes… I deeply regret that the Government of Myanmar has largely failed to act on the recommendations regarding the situation of Rohingya Muslims and other minorities which have been made by the human rights mechanisms and by my Office.”
Other minorities discriminated against in Rakhine state include the Kaman, Mro, Daignet and Hindu communities. The Special Session was called as a result of preliminary findings of a fact-finding mission of the Council under the leadership of Marzuki Darusman who reported to the Special Session via video. Additional information was presented in person by Pramila Pattern, the U.N. Special Representative on sexual violence in armed conflicts. She described testimony to her of women and girls who had died while being raped by gangs of men or raped and then left to die as their houses were burned down.
The U.N. mission and Special Rapporteur have not been allowed by the Myanmar government to enter the country. Therefore, their reports are based on extensive interviews with refugees in Bangladesh and a smaller number in India.
The Convention for the Prevention and Punishment of the Crime of Genocide of 1948 requires action on the part of governments once genocide has been determined. Although any state party to the Convention can bring the situation to appropriate bodies of the United Nations, no state has ever evoked the 1948 Genocide Convention. However, the Convention is clear that a group need not have been totally destroyed for acts to be considered genocide. Intent is the key concept. Article VIII of the Convention states “Any Contracting Party may call upon the competent organs of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide, or any of the other acts enumerated in Article III.”
The Genocide Convention in its Article III states that the following acts shall be punishable:
- Conspiracy to commit genocide
- Direct and public incitement to commit genocide
- Attempt to commit genocide
- Complicity in genocide.
Article IV states that “Persons committing genocide or any of the other acts enumerated in Article III shall be punished whether they are constitutionally responsible rulers, public officials or private individuals.”
The Burmese military has, since shortly after the independence of the country in 1947, carried on a policy of repression against national minorities advocating independence of their area, later modified to demanding greater autonomy within a federal Union of Burma. The first and second (1974) constitutions of Burma took over the nationalities policy designed by Joseph Stalin when he was Commissioner of Nationalities in the then newly created USSR. A state within the Union would be named after a dominant ethnic group with a larger homeland of provinces for the majority population. Thus there were seven ethnic minority states: the Chin, Kachin, Karen, Kayah (formerly called Karenni), Mon, Shan, and Rakhine (or Arakan) and seven divisions which are largely inhabited by the majority, sometimes called Burman or Bamar. As in the USSR, states had people other than the dominant nationality which gave its name to the state. Some were ethnic minorities which had always lived there; others were people living there who had moved from elsewhere for work, marriage or other life events. Some were Chinese or Indians who had moved to Burma for economic reasons.
In these conflicts, war crimes have been committed by the military and reported to U.N. human rights bodies nearly always by the representatives of NGOs:
- arbitrary arrest and torture
- enforced disappearances
- systematic rape
- confiscation of property
- internal displacement of populations.
However, only in the case of the Rohingya can one speak of an intent of genocide – with calls by some nationalists and military to make Myanmar “Rohingya free.” Among the ‘nationalists,’ there are ‘Buddhist extremists.’ A form of Buddhist influence has grown since 2012 when speech and media restrictions fell away, opening a vacuum that extremists have helped to fill.
The chief difference between the Rohingya case and those of the national minorities along the Thai and China frontiers is economic. The Burmese military are brutal but also corrupt, especially among the officer corps. The minorities along the Burma-Thai-China frontiers are deeply involved in the trade of drugs, arms, gem stones, timber and the trafficking of women to Thailand and China. There are close economic links between the Thai and Burmese military as well as between the military and the armed insurgencies.
As long as the military get their cut of the income from trade, they are willing to put up with periodic cease-fire agreements, are selective in their scorched-earth policy, and close their eyes to certain cross-frontier economic measures. Unfortunately for the Rohingya, they live in a poor, subsistence agriculture area next to a poor, subsistence agricultural part of Bangladesh. There might be oil resources off the coast of Rakhine state but they have not been exploited. Thus there is no money among the Rohingya with which to bribe the military. The idea of getting rid of the Rohingya is not so wild a dream as most had already been declared as “stateless” in a 1982 citizenship law.
As government representatives are reluctant to raise the issue of genocide, in part for fear that they might have to do something, it has been the representatives of non-governmental organizations who have publicly highlighted the issue of genocide, although no government has followed.
At the UN, on behalf of the Association of World Citizens, I had raised the issue of genocide concerning the Fur and related groups in the Darfur, Sudan violence. Darfur means “House of the Fur” but there are also other small tribal groups in the area whose way of life may be destroyed by the systematic killing of old persons, those who hold tribal history and tribal law in memory – there being no written records.
In 2004, in a document for the U.N. Sub-commission on the Promotion and Protection of Human Rights entitled Darfur, Sudan: Non-impunity and Prosecutions for Genocide, I stressed the systematic nature of the violence against the Fur, Massaleit, Zayhawa and Birgit. After citing the evidence from public U.N. staff reports, I wrote “The evidence of systematic actions – to quote from Article II of the Genocide Convention – committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such – is clear. What is less clear is the determination of the Member States of the United Nations to act to end this violence. Until now, the efforts of governments in Darfur have been inadequate as reliable reports indicate that human rights violations have grown worse. The Genocide Convention provides an adequate framework for urgent action. Only one State needs to call on the United Nations to act under Article VIII. We need political will for rapid UN action to stop genocide in Darfur now – and not after it is all over, when the cry will go up, as in the past ‘Never Again!'”
A month after our appeal, the Acting High Commissioner for Human Rights, Dr Bertrand Ramcharan, firmly stressed the Darfur situation in its harshest light: “First, there is a reign of terror in this area, second, there is a scorched-earth policy, third, there is repeated war crimes and crimes against humanity, and fourth, this is taking place under our eyes.”
However, governments were able to avert their eyes, and no government invoked the Genocide Convention.
We continue to face the same issue with the massive flight of the Rohingya from Myanmar to Bangladesh and India. The welcome of the Rohingya by these governments has been cool if not hostile. It is very likely that a “Rohingya-free Myanmar” could be created as few persons are likely to return to Myanmar. The current challenge includes how the Rohingya will be re-settled in Bangladesh and India without creating new socio-economic tensions. The wider issue is to what extent representatives of governments are willing to act creatively using the few structures of international law which they have created.
Rene Wadlow is President, and a Representative to the U.N. (Geneva), of the Association of World Citizens.