January 8, 2020

Towards international recognition of the genocide of the Rohingya?

UK Human Rights Blog

Guest Contributor

In this article, Ruby Axelson and Wayne Jordash QC (with research assistance from Prachiti Venkatraman and Shireen Meghe) of Global Rights Compliance analyse the two cases which have been brought in the international courts relating to the persecution of the Rohingya people by the Myanmar authorities. To read more about Global Rights Compliance’s work with the Rohingya, please see:
Known as the world’s most persecuted ethnic group, the Rohingya have faced persecution and deprivation of their fundamental rights within Myanmar for decades. Effectively denied citizenship under the 1982 Citizenship Law, the Rohingya are one of the world’s largest stateless populations.

Following violent attacks in 2016 and 2017, there are now an estimated 909,000 Rohingya refugees living in Cox’s Bazar, Bangladesh. Undoubtedly, the Rohingya are the victims of a shocking array of international crimes, suffering ethnic cleansing, killings, sexual and gender-based violence, torture, forced starvation, enslavement, destruction of property, the arbitrary deprivation of liberty, and much more.

Once suffering in relative international silence, there is now growing recognition of their brutalisation, even if the precise legal categorisation may be debated. Indeed, building on the 2018 findings of the United Nation (‘UN’) Human Rights Council’s Independent International Fact-Finding Mission on Myanmar (‘FFM’) that there are reasonable grounds to conclude that “factors allowing the inference of genocidal intent are present” (para. 1441), there is growing international recognition that the apparent mass ethnic cleansing from Myanmar to Bangladesh, particularly in 2017, had an even darker purpose – the destruction of part or all of their people. Indeed, it is this debate that now promises some much needed attention.

Proceedings at both the International Court of Justice (‘ICJ’) and the International Criminal Court (‘ICC’) are now fully underway. The ICJ is seized of the case brought by the Gambia against Myanmar, which alleges that Myanmar is responsible for violating obligations under the Genocide Convention. Meanwhile, the ICC Prosecutor has recently been authorised to conduct a full investigation into the criminal responsibility of persons for crimes within the jurisdiction of the Court. As of yet, neither the ICC Prosecutor nor the ICC Pre-Trial Chamber (in finding jurisdiction or in authorising the investigation) have expressly considered the crime of genocide in relation to the Rohingya situation, instead narrowing their combined focus to crimes against humanity of deportation, persecution and inhumane acts.

However, upon closer examination of the ICC’s approach to the crimes, despite the differences in jurisdiction and potential remedies the two courts are more in step than might first appear. The ICC has left the door open for the investigation (and ultimate prosecution) of the crime of genocide. Together the ICJ and ICC promise several years of useful focus upon the central legal question – were the August 2017 ethnic cleansing crimes the consequence (or manifestation) of a slow burning genocidal campaign?

Proceedings before the ICJ

The legal determination of genocide is front and center of the ICJ proceedings. On 11 November 2019, the Gambia submitted its ‘Application Instituting Proceedings and Request for Provisional Measures’ (‘Application’) before the ICJ, alleging that Myanmar has acted in violation of its obligations under the Genocide Convention. On 10-12 December, public hearings took place before the ICJ. Whilst at this stage, proceedings were limited to the request for provisional measures, the submissions necessarily touched upon aspects of the factual allegations of an (ongoing) genocide (relying heavily on the FFM conclusions).

The Gambia has laid out the factual basis of its application, submitting that the genocidal acts committed during the ‘clearance operations’ were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction of villages (Application, para. 6).

A welcome focus has been placed on the gendered nature of genocide, in particular that sexual violence may be indicative of genocidal intent on the part of Myanmar. In particular, in describing the use of sexual violence as a means of committing of genocide, the Gambia, quoting the findings of the FFM report of September 2019, argued that “widespread sexual violence” committed against the Rohingya intended “to contribute to the destruction of the Rohingya as a group and the breakdown of the Rohingya way of life” (ICJ 10 December Submissions, p. 25 ). Further, the Gambia (again relying on the FFM report of September 2019) argued that “the enormity and nature of the sexual violence perpetrated against women and girls during the ‘clearance operations’” amounts to one of the seven indicators from which it inferred genocidal intent to destroy the Rohingya people as such (ICJ 10 December Submissions, pp. 26, 36).

The recognition of genocidal acts, beyond killings, and particularly in relation to sexual violence are to be welcomed. For anyone who has read the survivors’ accounts, to not do so would be to ignore the overall impact of these crimes on the health and survival of the Rohingya. Despite sexual violence and rape first being recognised as a means through which genocide can be committed in the 1998 Akeyesu Trial Judgement, there remains a continued conception of genocide as being committed predominantly through organised mass killings (Beyond Killing: Gender, Genocide & Obligations under International Law, p. 2). Unsurprisingly, this narrow construction of the crime of genocide was advanced by Myanmar’s legal team, which focused on the (allegedly small) numbers of those killed, studiously ignoring the thousands of incidents of the most destructive acts of sexual violence.

Nonetheless, despite these obvious tactical manoeuvrings, these proceedings have crystallised and highlighted the contours of the central legal debate. This is where the legal debate should be. There is no question that the Myanmar authorities are responsible for a range of crimes associated with ethnic cleansing. The only real question is whether the Myanmar authorities intended, whilst committing these crimes, to destroy the group.

The centrality of this question was admitted (almost) by civilian leader and Nobel Peace prize winner, Aung San Suu Kyi, who, whilst defending at the ICJ in the Gambia’s application for provisional measures, asserted that Myanmar had the right to defend itself, stating that “genocidal intent cannot be the only hypothesis” (ICJ 11 December Submissions, p. 16 [emphasis added]).

In other words, the ICJ proceedings have forced the Myanmar authorities to show their poor hand. Whether ultimately successful or not, the Gambia’s claim has already exposed much of Myanmar’s moral and legal responsibility for their crimes. As ICJ cases are measured in years, not months, and the genocide claim rests upon proof of many underlying courses of criminal conduct, these proceedings are an excellent vehicle for continuing to clarify these issues — a much needed win for the Rohingya, wherever the proceedings end up.

Proceedings before the ICC

The proceedings at the ICC began on 9 April 2018 with a Prosecution request before the Pre-Trial Chamber (‘PTC’) for a ruling on whether the Court can exercise jurisdiction over the crime of deportation of the Rohingya from Myanmar to Bangladesh. It was argued that, as the crime of deportation was only completed at the time when the Rohingya victims fled across into Bangladesh (a state party to the Rome Statute), the ICC could exercise jurisdiction over suspects and conduct that began in Myanmar (a non-state party). Given the (arguably massive) extension of the ICC’s jurisdiction and the potential political fallout (impacting the ICC’s future work and relationship with non-state parties), the Prosecutor wisely lowered the temperature by eschewing any claim of genocide, instead limiting her arguments to the crime of deportation.

Not only was this the most certain legal argument, it also helped to focus minds on the most easily proven conduct — the massive displacement of the Rohingya into Bangladesh in August 2017. In limiting the scope of her request, the Prosecutor was able to lower (or hide) the political sensitivity of her application, namely the invitation to begin a process that could lead towards trials of Myanmar’s generals for genocide, the crime of all crimes. It must be recalled that at the time of the application, no other international court was looking at the question of genocide. Moreover, the FFM had not determined the presence of indications of genocide. Better to steady the horses with a focus on deportation, than to rush headlong into allegations of genocidal intent. As wisely determined by the Prosecutor, legal discretion may sometimes be the better part of prosecutorial valour.

However, as argued by Global Rights Compliance (‘GRC’), in our submissions of 30 May 2018 to the ICC on behalf of 400 women and girl victims (Shanti Mohila), if the ICC had jurisdiction over deportation on the basis that an essential element of the crime occurred in Bangladesh, then the Court also had jurisdiction over the crimes of persecution, apartheid and genocide. In short, similar to deportation, these crimes “involve a course of conduct, part of which continues to be perpetrated in Bangladesh” and therefore the Court may exercise jurisdiction over them (para. 60). As regards genocide, by continuing to ensure that the relevant harm accumulates and the Rohingya’s legally protected interests under article 6(c) (genocide by deliberately inflicting conditions of life calculated to bring about its destruction) of the Rome Statute continue to be infringed, and as long as they are subjected to such conditions at the will of the perpetrator- including in Bangladesh- then the perpetrators will be responsible for genocide within Bangladesh (para 118).

On 6 September 2018, PTC I issued its Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’ (‘Jurisdiction Decision’). Surprising many observers, the PTC’s findings went beyond the Prosecutor’s request. Instead of limiting their Jurisdiction Decision to the finding that only “acts of deportation initiated in a State not Party to the Statute (through expulsion or other coercive acts) and completed in a State Party to the Statute (by virtue of victims crossing the border to a State) fall within the parameters of Article 12(2)(a) of the Statute” (para. 73), the PTC went further. In sum, it was found that the ICC may exercise territorial jurisdiction

if at least one element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory a State Party to the [Rome] Statute (para. 72).
The PTC found that this latter rationale may apply to other crimes, including persecution and other inhumane acts (para. 74-79). However, the PTC curiously did not mention genocide, when it could have done so. As may be viewed from their discussion of both these crimes, the critical question for the PTC was whether an element or part of the crime was committed in Bangladesh. In relation to inhumane acts, the court noted that, following their deportation, members of the Rohingya people live in appalling conditions in Bangladesh and the Myanmar authorities allegedly impede their return to Myanmar.

Consequently, the PTC found that it is possible that an element of this crime (i.e., unlawfully compelling the victims to remain outside their own country) is taking place on the territory of Bangladesh (para. 78). In other words, and without any leaps of logic or faith, there can be no bar to the ICC having jurisdiction over genocide, providing, as argued by GRC, that part of the crime continues in Bangladesh.

Despite the compelling logic that genocide (at least of the kind in Article 6(c)), was now on the jurisdictional table, the Prosecutor took a similarly discrete approach, requesting the authorisation of a full investigation only into the three crimes expressly mentioned in the Jurisdiction Decision, namely deportation, other inhumane acts and persecution. However, of note is that the Prosecutor’s assertion that any authorisation of an investigation into deportation, persecution and inhumane acts are “without prejudice to the possible identification of other crimes which may arise from the authorised investigation” (Prosecution Request for Authorisation, para 86).

In the 14 November 2019 Authorisation Decision, PTC III observed that although they were granting authorisation specifically for “the alleged crimes of deportation and persecution”, the Prosecution was entitled to investigate other crimes:

the Chamber does not consider it necessary to form any view in relation to the facts identified as relevant to the Prosecutor’s submissions concerning the alleged crime of other inhumane acts. Nevertheless, the Chamber stresses that the Prosecutor is not restricted to investigating only the events mentioned in her Request, much less their provisional legal characterisation. (para. 111).

In other words, despite the genocide-lite approach, PTC III did not limit the Prosecution to investigating only these two crimes. As foreshadowed by the Prosecutor’s Request, GRC’s submissions, and the Jurisdiction and Authorisation Decisions, the door has been left wide open for the Prosecutor to conduct investigations into the crime of genocide, providing the evidence establishes that an element or part of the crime was committed on the territory of Bangladesh. Genocide is clearly on the table.

Concluding remarks

2019 has provided a much needed boost to the Rohingya’s claim that they are victims of genocide. Looking back to the days before the ICC Prosecutor’s request on 9 April 2018, there was no obvious forum for deciding these international legal claims. The Prosecutor should be applauded, for both the courage and tactical nous of her approach to the central genocide question. Of course, the Gambia has now stepped forward and should be congratulated for initiating ICJ proceedings that expressly call for a determination of Myanmar’s responsibility for genocide, along with its recognition that genocide can by committed by acts beyond killing, including through sexual and gender-based violence – an acknowledgement that international justice has, since the seminal Akeyesu Trial Judgement in 1998, honoured more in theory than in practice.

But let us not forget the ICC and individual responsibility. Whilst the limitations and travails of the ICC are well known and need no rehashing here, the ICC Prosecutor has quietly set out on a path that may also establish that (named) Myanmar authorities intended to inflict conditions on life calculated to destroy in whole or in part the Rohingya people, provided that the evidence points towards conditions encompassing conduct and intent within Bangladesh. As Professor Sands eloquently noted in the ICJ hearings: “[f]rom its very genesis,

has been recognised to be a continuum […] and it is comprised of different actions which individually and together, and over stages and time, amount to this most heinous crime” (ICJ Hearings 12 December 2019, p. 38).

As argued in GRC’s submissions of 30 May 2018, the genocidal intention of the Myanmar authorities did not stop at the border of Myanmar, but continued as the Rohingya were intentionally dumped into overcrowded and destructive conditions in the refugee camps in Cox’s Bazar, Bangladesh.

That is not to argue that either the ICJ or the ICC will make these important determinations any time soon or otherwise bring any immediate relief to the Rohingya struggling to survive in Cox’s Bazar. But, in different ways and for different reasons, both proceedings raise the welcome prospect of accurately adjudicating and labelling the Myanmar authorities’ ongoing inhumane treatment of the Rohingya.

Global Rights Compliance is a niche organisation that specialises in legal services associated with bringing accountability for atrocity crimes and other violations of international law. Drawing on de­cades of experience in conflict affected areas and transitional justice environments, our “root and branch” philosophy combines innovative full spectrum accountability strategies, building the capacity of states to implement international humanitarian and human rights standards, bespoke expertise in evidence gather­ing in conflict settings, and assisting communities to seek remedies for violations. Catriona Murdoch from 1 Crown Office Row has consulted with GRC since 2016 and leads their Starvation Portfolio.
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