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The persecutions of the Rohingyas were being committed by the Myanmar army and other security forces under the guise of maintaining “national security” for years. Recently, one United Nations Special Rapporteur visited Myanmar and published a report on the findings of the interviews of some of the victims who left Myanmar and are living at Cox’s Bazar, Bangladesh as refugees (henceforth, UNOHCHR).

UNOHCHR portrayed the narratives of the victims regarding their dreadful experiences of the crimes committed by the Myanmar army. This report also gives indication of the violations of human rights as the “Crimes against Humanity” occurring in Myanmar against the Rohingyas. As a whole, the UN reemphasised the recognition of the Rohingyas as one of the most persecuted minority groups in the present world.

On the other hand, like many other countries, the United States formally viewed the persecutions against the Rohingyas in Myanmar as “ethnic cleansing”. Even the term “ethnic cleansing” has been used to qualify the current persecution of the Rohingyas by the UN, nation states and international civil society organisations.

In this regard, the judgment of the Permanent Peoples’ Tribunal on the ‘State Crimes Allegedly Committed in Myanmar against the Rohingyas, Kachins and Other Groups’ very lucidly mentioned that ‘the expression “ethnic cleansing” has no formal status in international law.’ The Tribunal further added that the term “ethnic cleansing” has been and still is invoked by the perpetrators of the crime of genocide.

It has been exemplified in the said judgment that President Milosevic in the former Yugoslavia conspicuously used the term “ethnic cleansing” to ‘rationalise and justify’ the acts of genocide in order to avoid potential sanctions.

This leads us to wonder as to whether the Myanmar authorities are committing currently committing “genocide” or merely “ethnic cleansing” against the Rohingyas? Of course, the answer to this query has serious legal consequences.

2017 Rohingya crisis

Since August 2017, about 700,000 Rohingya have fled into Bangladesh from from the northern Rakhine State of Myanmar to escape a military crackdown. The Human Rights Watch reported that minimum 288 villages were totally or partially ruined by fire in northern Rakhine State after the said period of time. The UN indicated the persecutions of the Myanmar army against the Rohingyas as an undeniable “textbook example of ethnic cleansing” that amounts to the crime of genocide.

The Rohingyas including men, women and children reached southern Bangladesh risking death by sea or on foot. About 58 percent of all the Rohingyas who have fled from Myanmar since August 2017 are children whereas 60 percent of the adults are women. The Kutupalong refugee camp, situated beside Teknaf Highway in Ukhia, Cox’s Bazar, is the largest camp.

Rohingya persecution: Genocide?

According to the Judgment of the Permanent Peoples’ Tribunal on ‘State Crimes Allegedly Committed in Myanmar against the Rohingyas, Kachins and Other Groups’ at the University of Malaya, Faculty of Law (18-22 September 2017), the term “ethnic cleansing” is an ‘oblique expression’ which is generally used to avoid the liability of committing the “crime of genocide” or any other mass “violations of human rights”. This expression has not gained any formal status in the contemporary international law.

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On the other hand, the Genocide Convention defined the “genocide” for the first time denoting the same as a punishable offence. Under the purview of Article II of this Convention, the definition of genocide can be characterised by two constitutive elements namely: (i) the actus reus of the concerned crime; and (ii) the mens rea of the crime that is specifically “intent to destroy” wholly or partly an indelible group i.e. national, ethnical, racial or religious group.

Both Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 and Article 6 of the Rome Statute of the International Criminal Court, 1998, define ‘genocide’ as: ‘any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group:

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

Do the Rohingyas belong to an indelible group?

The Rohingyas who used to live in Myanmar, the Buddhist-majority nation of 50 million people, are known as the indigenous people to Rakhine. They purportedly trace their origin to Arabs, Bangalees, Moors, Moghuls, Persians, Patthans and Turks. Most of the Rohingya people practise Islam as their religion albeit there are a few Rohingya-language speaking Baruas and Hindus. They speak Rohingya, an Indo-European language nearly linked with the Chittagonian language, and have common cultural trials.

As regards the protected group(s), there is no generally or internationally accepted definition of the term “group”. Earlier the term “group” would refer to mean only a stable and permanent group. However, the International Crimes Tribunal for the Former Yugoslavia (ICTY) in the cases of Blagojovic & Jokic, Brdjanin, Jelisic and Stakic and the International Crimes Tribunal for Rwanda (ICTR) in the cases of Muvunyi, Gacumbitsi, Semanza, Rutaganda, Musema, Kamuhanda, Seromba, Ndindabahizi and Kajelijeli established that the determination of a group is to be made on a case-by-case basis, consulting both objective and subjective criteria. As far as ethnic group is in concern, the ICTR defined ethnic in the cases of Akayesu, Kayishema and Ruzinadana, and Nahimana as a group whose member shares a common bond, common language and culture. In other words, an ethnic group is generally understood as one whose members share a “common language and culture” and a group identified by others including the perpetrators of the alleged crimes.

Hence, in view of the use of common language and share of common culture, it is categorically contemplated that the Rohingya population primarily belong to the “ethnic group” for their distinctive culture and language, and substantially to the “religious group” which is Islam.

Are the actus reus elements of genocide committed against the Rohingyas present in Myanmar?

Based on the incidents of the crimes committed against the Rohingyas, apparently the first three methods of committing genocide discussed in the following are relevant to explore the issue of presence of actus reus of genocide in Myanmar:

[i] Killings of the Muslim Rohingyas

The legal perspective of committing genocide by “killing” requires proving that the perpetrator intentionally killed one or more members of a particular group. In the cases of Bagosora, Ntagerura, Simba, Muvunyi, Seromba, Gacumbitsi, Kamuhanda and Semanza the ICTR held that in cases of genocide the prosecution bears the burden of proof to show that the perpetrator participated in the killing of one or more members of the protected group. In the case of Blagojevic & Jokic the ICTY held that the term “killing” can be equated with murder.

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From the UNOHCHR report, it has been brought into being that the Myanmar military forces have been committing ‘mass gang-rape, killings including of babies and young children, brutal beatings, disappearances and other serious human rights violations’ against the Rohingyas in the northern Rakhine State to a greater magnitude. Most of the respondents reported witnessing killings of their family members. Many reported that some of their family members were still missing. They also expressed that many children ‘including an eight-month old, a five-year-old and a six-year-old’ were ‘slaughtered with knives’. Hence, it can certainly be established that the “killing” element is present in the first place to cause genocide against the Rohingyas by the Myanmar army.

[ii] Causing serious bodily or mental harm to the Muslim Rohingyas

As per the incidents of rape of Rohingya women, another method of committing genocide which entails an intentional act or omission causing serious bodily or mental suffering can be taken into account. The “harm” inflicted needs to be serious only; however, it does not require being permanent and irremediable in nature that would necessarily cause death of the victim. Concerning “bodily harm”, it is well-established that causing serious injury to the health or disfigurement or any other serious injury to the external, internal organs or senses would amount to bodily harm.

In contrast, the terms “mental harm” means causing hurt on the mental aptitudes which leads to create strong fear or terror, intimidation or threat among the population of a particular group. For illustration, it has been settled that the serious bodily or mental harm may include: the ‘acts of torture, inhuman or degrading treatment, sexual violence comprising rape,’ ‘interrogations combined with beatings, threats of death,’ ‘forcible transfer’ and ‘deportation.’

Taking into account the UNOHCHR Report, it is noted that ‘of the 101 women interviewed, more than half reported having suffered rape or other forms of sexual violence.’ Specifically, a respondent testified that her five-year-old daughter was trying to protect her from rape when a man killed her by slitting her throat using a long knife. Likewise, another respondent reported that when she was gang-raped by five security officers, her eight-month-old baby was killed.

Thus, the happenings of rape of Rohingya women indeed cause both “physical and mental harm” to the members of the Rohingyas which would ultimately lead to the destruction of the group.

[iii] Deliberately inflicting on the conditions of life of the Rohingyas to destroy the group

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From the legal point of view, concerning the above-mentioned circumstances, it can be argued that the Myanmar army deliberately inflicted the conditions of life to destroy the group. In the case of Stakic the ICTY held that the expression i.e. “calculated to bring about its physical destruction” does not necessarily mean that the perpetrators would directly kill the members of a group. Rather, the ICTY in the Brdjanin case and the ICTR in the Kayishema and Ruzindana cases held that the creation of a situation that would lead to slow death due to ‘lack of proper housing, clothing and hygiene, or excessive work or physical exertion’ suffices to establish this method.

At this instant, according to the UNOHCHR Report, the Myanmar army, police and the civilian mobs burned hundreds of Rohingya houses, schools, markets, shops, madrasas and mosques in different times. They also confiscated the livestock and ruined the foods as well as the sources of foods containing paddy fields.

Therefore, the destruction of the properties of the Rohingyas which are necessary to meet their basic requirements leads to conclude that the said element of genocide committed against the Rohingyas in Myanmar is present.

Are the elements of mens rea of genocide committed against the Rohingyas present in Myanmar?

As regards the “mens rea” of genocide, two elements have to be satisfied as discussed below i.e. whether the perpetrator intended to destroy any of the protected group(s) wholly or partly; and whether the conducts are being committed in the context of a manifest pattern of similar conduct directed against that group:

[i] Intention to destroy the Rohingyas

In relation to the goal of genocide to destroy the target group, wholly or partially, in the ICTR cases of Seromba, Simba, Gacumbitsi, Bagosora, Ndindabahizi, Nahimana, Nchamihigo, Rutaganda, Muvunyi, Kamuhanda, Kajelijeli, Kayishema & Ruzindana, Mpambara and Muhimana and in the ICTY cases of Krstic, Brdjanin and Jelisic it was decided that the intent of the perpetrators to destroy such group(s), wholly or partially, can be inferred from the facts and circumstances of the case. As per Brdjanin case of the ICTY, the existence of “destructive intent” gives the crime of genocide particular character.

Now, in so far as the intention of the Myanmar military is concerned, it is stipulated in the UNOHCHR Report that the UN Human Rights officers visited Bangladeshi border with Myanmar where about 66,000 Rohingyas have fled since October 2016 after the intense military operations. The military indicated the operations as “area clearance operations” with the purpose of substantially destroying the Muslim “religious group” as well as Rohingya “ethnic group” of Myanmar in the name of upholding “national security”.

[ii] Manifest pattern of similar conducts

Regarding the requirement of “manifest pattern of similar conduct”, in Al Bashir case, the ICC held that the ‘the crime of genocide is completed when the relevant conduct represents a concrete threat to the existence of the targeted group, or a part of thereof.’ The ICTR in Rutaganda case held that the evidence of genocide can be demonstrated from the consistent pattern of similar conduct by the accused. Alternatively, the ICTY in Krstic case and the ICTR in Muvunyi and Seromba cases held that there is no numeric threshold of victims necessary to establish genocide. The ICTR cases Ndindabahizi and Gacumbitsi further held that killing of only one person may amount to genocide in appropriate cases.

Now, it has been quoted in the UNOHCHR report that:

‘[m]any witnesses and victims also described being taunted while they were being beaten, raped or rounded up, such as being told “you are Bangladeshis and you should go back” or “What can your Allah do for you? See what we can do?”’

In view of this, such respondents’ testimonies can be pointed out that the operations of October 2016 follow a continuing “pattern of violations and abuses”, “systematic and systemic discrimination”; and various policies of “exclusion and marginalisation” executed against the Rohingyas for decades in the northern Rakhine State. Hence, it is also irrefutable that the Myanmar military have been committing the concerned crimes against the Rohingyas following a manifest pattern of similar conducts.

Therefore, in conclusion, the presence of both mens rea (intention to destroy the Rohingya “ethnic group” and/or “religious group”), and actus reus (killings, causing serious bodily and mental harm, and inflicting the conditions of life of the Rohingyas) makes it clear that the Myanmar military and other security forces have surely committed genocide, and not ethnic cleansing, against the Rohingyas. It is stressed here that there is no international treaty that specifies a specific crime of ‘ethnic cleansing’ under the international law. Therefore, legally speaking, what has been happening in Myanmar is simply genocide and the state of Myanmar must bear the full extent of state responsibility for such heinous crime under the international law. So, let us call a spade a spade—it is genocide, and not ethnic cleansing!

Tureen Afroz
Prosecutor, International Crimes Tribunal, and
Professor at the Department of Law, East West University