Julia Shufro Professor Leila Fawaz War and Society in the Middle East The Fletcher School of Law and Diplomacy

FAILURE TO PROTECT:

The Rohingya Crisis as the ‘Textbook Example’ of Genocide

It is indisputable that preventing mass atrocity is imperative in modern society, as catastrophes of human rights violations flood the international community. Ideally, humanitarians could come together to halt such crimes against humanity. In 2005 at the World

Summit in New York City, the Member States of the United Nations (UN) agreed, endorsing an international political commitment that provides the Security Council with the authority to employ ‘The Responsibility to Protect’ (R2P) to address the four main atrocity crimes of genocide, war crimes, ethnic cleansing, and crimes against humanity. However, the in Myanmar1 face a crisis of mass atrocity crimes inflicted upon them by the government and military of . Since 2016, the violence has escalated, but the genocidaires still run free. The Rohingya are a long way from receiving legal and social justice, as the contemporary violence in Myanmar is founded in a longer national history of conflict. An examination of colonial legacy historicizes the contemporary situation in Myanmar, which is exacerbated by inaction to prevent further violence. By embracing R2P, modifying the Security Council veto, and modernizing the Rome Statute, a new idea of collective defense against mass atrocity crimes will shift current response to humanitarian crises from intervention to prevention, endorsing a global commitment to human rights and peace. Only then will international actors normalize the superiority of human rights to state sovereignty, a positive precedent for human rights.

1 Formerly, ‘Burma,’ until 1989, when the State Law and Order Restoration Council changed the country’s official name from the Socialist Republic of the Union of Burma to the Union of Myanmar.

1 In the UN’s Convention on the Prevention and Punishment of the Crime of Genocide

(1948), Article II states, “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group.”2

States that ratified the Genocide Convention are required to “enact legislation to provide for punishment of persons guilty of genocide committed on their own territory” and to “cooperate in extradition of suspects committing genocide elsewhere finding refuge in their own territory.”3

Any dispute related to genocide is within the jurisdiction of the International Court of Justice

(ICJ). Genocide is inherently ambiguous in definition, and its invocation poses different legal ramifications than those of ‘mass atrocity crimes.’ Even when there is evidence of the crime of genocide, international actors are often too late to use this term, waiting until the ICJ notes evidence of prima facie genocide, as was the case with the Rohingya. In Myanmar, humanitarians attempted to use ‘mass atrocity crimes’ to effect policy in a way to stop the violence in a timely manner, but this has failed.4 Given the fact that it has taken many years for the Rohingya crisis to be labeled a genocide - and since it has yet to be halted - , it seems imperative for human rights advocacy to not be too constrained by the use of the term genocide; governments must be more willing to accept their ability to inference the specific intent of

2 UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277. 3 Bloxham, Donald, A. Dirk Moses, and William A. Schabas. “The Law and Genocide.” In The Oxford Handbook of Genocide Studies. : Oxford University Press, 2010. 4 Shufro, Julia, and David Scheffer. The Rohingya Crisis and International Law. Interview, October 20, 2020.

2 another government’s words, and they must maintain a determination to terminate all mass atrocity crimes.5

The Rohingya crisis is founded upon over sixty years of deep hatred and discrimination popularized by decades of civil war. Great Britain annexed Myanmar as a crown colony in 1852 and held it until 1948, when the nation became independent under the Burma Independence Act of 1947.6 Since then, Myanmar has been entangled in on-and-off ethnic conflict. Succeeding

Bamar-dominated governments have repeatedly rejected calls for federalism from minority ethnic groups, instead attempting to extend their centralist rule over the mountainous borderlands where most minority groups live. Despite the British attempts to unite the diverse nation before retreat, the of Burma sought territorial control and unquestioned power, resulting in the creation of many ethnic armies.

Since its independence, the central government of Myanmar has fought the world’s longest continuing civil war against its 135 minority ethnic groups, making it one of the most ethnically and religiously diverse countries in Asia. It is a multi-ethnic, multi-religious, and polyglot nation, but Bamar people are the predominant ethnic group, comprising two-thirds of the population (~68%).7 Bamar people also dominate Myanmar’s government and military. The

Tatmadaw, the Burmese junta, intentionally target five main minority groups: the Karen (8% of the country’s population), Shan (10%), Karenni (1%), Rohingya (4%), and Chin (3%).8 These ethnic groups previously armed themselves in preparation to fight for greater autonomy, but the

Burmese junta heavily suppressed them. Clashes between ethnic armies and the often result in atrocities, including death, forced displacement, and mass arrest. The fighting mainly

5 Shufro and Scheffer, Interview. 6 “Myanmar Profile - Timeline.” BBC News. BBC, September 3, 2018. 7 Ibid. 8 Ibid.

3 occurs between the Tatmadaw and armed separatist groups, such as the Kachin Independence

Army (KIA) and the Rohingya Salvation Army (ARSA); over one million lives have been lost during this civil war.

The Rohingya have faced extreme repression under the former Burmese government, and their legal status has long been in peril, as epitomized by the 1982 Citizenship Law, which resulted in the Rohingya becoming the largest stateless population in the world. However, since the mid-1960’s, the Tatmadaw has enabled institutionalized racism, adopting a policy to reshape the religious demographics of Burma, and, thus, purge the nation of ‘foreigners.’ The Rohingya have been systematically excluded by the government of Myanmar for many decades, evidencing warning signs of persecution that were ignored by the international community. The

1978 Operation Dragon King and Operation Clean and Beautiful Nation are both examples of

Tatmadaw-led military operations to remove so-called ‘foreigners’ from North Rakhine, the province in which most Rohingya reside.9 Today, this policy continues - in the 2014 Myanmar census, the Rohingya were not recognized as an ethnic group.

There can be no peace for Myanmar without justice for the Rohingya. The Rohingya are about 1.3 million people out of the 2.5 million Muslim total in Myanmar, and they mainly live within the , on the Indian Ocean bordering .10 The Rohingya have lived in Rakhine for many centuries. However, there are conflicting collective memory narratives about the origins of the Rohingya. The Rohingya have been systematically persecuted by the

Burmese - now Myanmar - government for decades, which identifies the Rohingya as illegal migrants from Bangladesh who have restricted rights. The Tatmadaw further portrays them as

9 Zarni, Maung. “Causes of the Mass Exodus and Potential for Justice and Reconciliation.” Tufts South Asian Regional Committee. Presented at the The Rohingya Crisis, November 13, 2020. 10 Ibid.

4 illegal immigrants who pose an existential threat to the Rakhine Buddhists with the aim of creating the country’s only Muslim-majority state. All international and regional treaties on human rights affirm that all people, whether they be stateless or not, have the right to live freely without persecution and discrimination. This prompts nations to protect their own citizens, but also to take measures to ensure that other states do the same. This collective memory manipulation of the Rohingya origin is an important early-warning sign of mass atrocity crimes that should have been detected by international protectors of human rights. Perpetrators of mass atrocity crimes often use collective memory, employing falsified and historical narratives to incite dehumanization, categorization of groups, and acts which are genocidal in foundation.

Within Myanmar, it is necessary to shift societal comprehension from that of a perpetrator- produced documentation to an emphasis on the voices of victims and their experiences. This altered collective memory can drive powerful political and social changes, since memory plays an imperative role in rationalizing anti-Muslim and anti-Rohingya violence. The Tatmadaw uses this collective narrative of history to enforce exercised violence as a means of self-protection against ‘illegal aliens’ who use violence against Burmese citizens. The Tatmadaw and

Myanmar’s governments seek to “alter demographics permanently through reconstruction of memory”11 between the Rohingya and the Burmese people, who are identified as the victim of ruthless quests for unjustified autonomy of and safety for the Rohingya in the Rakhine State.

Buddhist nationalism fuels anti-Muslim prejudice and contributes to the promulgation of anti-Rohingya collective memory. Theravada Buddhist monks, such as the leading propagandist,

Ashin Wirathu, incite fear and harmful preconceptions of Muslims: he claims to only be

11 Conley, Bridget. “Genocide and Memory,” A Cultural History of Genocide in the Modern World.

5 “warning people to beware”12 of the dangerous Rohingya. Furthermore, the Committee to Protect

Race and Religion, or Ma Ba Tha, is an ultra-nationalist Buddhist organization that promotes anti-Muslim sentiment across Myanmar. Ma Ba Tha members have “sown insidious new tensions” as Myanmar’s “[s]elf-anointed protectors of Myanmar’s dominant Buddhist religion.”13 Ma Ba Tha views Muslims as the biggest threat to the safety and integrity of

Buddhists. These religious nationalists gain support and following from and influence over the

Tatmadaw and Myanmar’s government.

Daw Aung San Suu Kyi, a longtime pro-democracy activist and Nobel Prize winner, is the de facto ruler of Myanmar. Suu Kyi guides Myanmar against a backdrop of raging

Islamophobia and Buddhist nationalism. She won a revolutionary free and fair election in 2015 by a landslide, but she was barred from the presidency by a provision in the country’s military- drafted constitution of 2008. She governs alongside the president, U Htin Kyaw, an National

League for Democracy (NLD) leader. Despite the country being run by her democratically- elected government and the NLD, Myanmar remains under the constraints of the 2008 military constitution, which was written while the country was still under an oppressive military-rule. The referendum in which this constitution was approved is viewed as fraudulent by the international community, and the constitution allows for several contentious points, including the reservation of 25% of seats in the national legislature for the Tatmadaw.14 In 2015, the military vetoed a number of proposed amendments to the constitution, failing to oust the anti-Rohingya Tatmadaw from power; this national and ‘democratic’ party seems to not be democratic in foundation.

12 McPherson, Poppy. “‘We Must Protect Our Country’: Extremist Buddhists Target Mandalay's Muslims.” The Guardian. Guardian News and Media, May 8, 2017. 13 McPherson, “‘We Must Protect Our Country.’” The Guardian. 14 Zarni, “Causes of the Mass Exodus and Potential for Justice and Reconciliation.”

6 Since its 2011 transition from military rule to a democratic government under President

Thein Sein, Myanmar has attracted foreign investments and reintegrated into the global market.

Recently, Myanmar has worked closely with Japan and China to reinvigorate its economy. China and Japan hold major interest in Myanmar, due to geographical location, border wars, and economic investment. Myanmar’s borders are rich in extensive natural resources: jade, copper, gold, tin, teak, and rubber. Around 2000, the military began extracting natural resources and exporting them to Thailand and then to China. Ethnic minorities smuggle resources to China,

Thailand, and India in exchange for weapons to arm rebel groups. Jade’s “arbitrary pricing and the fact that much of the trade takes place in a remote, largely ungoverned area make the stone an excellent vehicle for illicit trade and money laundering.”15 The Tatmadaw controls most of the jade market, while the “majority of financing comes from Chinese investors and their affiliates inside Myanmar.”16 This poses issues of political will to prevent genocide.

Furthermore, India and China join Japan in its quest for greater influence in and economic benefit from Myanmar. On November 14th, 2020, ASEAN17 and other nations, notably Myanmar, China, New Zealand, and Australia, signed the world’s largest trade pact, evidencing the economic value of Myanmar.18 Additionally, other ASEAN nations, including

Thailand, support Myanmar in certain endeavors. Despite “growing Western criticism,”19 Suu

Kyi places great importance on her “relations with the region and its top powers,” as she is

“anxious to secure greater support”20 from Myanmar’s regional neighbors. Myanmar has

15 Combs, Daniel. “Myanmar's Jade-Fueled War.” The Diplomat, June 1, 2018. 16 Ibid. 17 The Association of Southeast Asian Nations. 18 Kurtenbach, Elaine. “ASEAN, China, Other Partners Sign World's Biggest Trade Pact.” The Washington Post. WP Company, November 15, 2020. 19 Jagan, Larry. “Giants Vie for Influence in Myanmar.” The Bangkok Post, November 4, 2019. 20 Ibid.

7 problematically sought to “ensure China’s protection at various international forums,”21 evidencing a systemic issue with the Security Council veto in the face of human rights abuses.

The Japanese government has received backlash for not holding Myanmar accountable for its actions and human rights abuses. On October 21, 2019, Suu Kyi spoke in Tokyo at a

“conference sponsored by the Japan External Trade Organization (JETRO) to promote investment and business opportunities in Myanmar. When she has spoken at previous investment forums in Japan… Suu Kyi has downplayed or ignored the military’s serious abuses against the

Rohingya.”22 Instead of inviting her to speak, the Japanese government should have discouraged investment in Myanmar that would benefit its government or the Tatmadaw.

China also plays a major role in Myanmar's internal peace - or lack thereof. Armed violence occurs along the Myanmar-China border, and it “occasionally spill[s] into China.”23 The

Chinese government has defended Myanmar’s actions in Rakhine State, protecting the nation from UN sanctions, mainly due to China’s economic interests in Myanmar.24

Rakhine State has been the site of ethnic cleansing and military violence, but, now, it is the site of destruction as the government destroys its Rohingya villages, burning them to the ground and leaving thousands of Rohingya homeless and forced to flee to Bangladesh. Myanmar has demanded some of the most “powerful business executives, many of them previously under

U.S. sanctions, to pump millions of dollars into infrastructure projects, and tapped others to start

Rakhine-focused businesses, all while soliciting international donors.”25 These plans will not

21 Jagan, “Giants Vie for Influence in Myanmar.” 22 “Japan: Hold Myanmar to Account for Atrocities.” Human Rights Watch, October 28, 2020. 23 The United States Institute of Peace, “China's Role in Myanmar's Internal Conflicts.” USIP Senior Study Group Final Report, September 2018. 24 Ibid. 25 McLaughlin, Timothy. “Burma Is Pumping Millions into Rebuilding Rakhine. But Is It for the Rohingya?” The Washington Post. WP Company, March 16, 2018.

8 benefit the Rohingya, who have sought asylum in Bangladesh; instead, the demolished villages serve as part of a development plan to catalyze economic investment in Rakhine, led by the

Union Enterprise for Humanitarian Assistance, Resettlement, and Development in Rakhine

(UEHRD). However, the UEHRD’s investment has led the UN and humanitarians to claim that

Myanmar is “trying to cover up atrocities.”26

The international community encouraged and supported Myanmar’s transition to democracy, but has failed to articulate a clear disapproval and message regarding the Rohingya crisis. Financially, Myanmar’s systematic persecution of the Rohingya will only improve with the lifting of sanctions, the cancelation of debt, and the surge of foreign investments within

Myanmar. After widespread violence in 2012, the Myanmar government received criticism from

NGOs such as “Human Rights Watch, International Crisis Group, and Amnesty International,” in response to forcing “over 120,000 Rohingya to live in cramped spaces, without sufficient food, water, or medical attention.”27 In 2014, Nicholas Kristof described these as “concentration camps,” and he “noted that physicians, including Doctors without Borders, were removed from the camps and not permitted to re-enter.”28 Suu Kyi has been condemned by the international community for her refusal to intervene in support of the Rohingya. Within the Rakhine State, there are violent attacks against the Rohingya, which include reports of mass rape, the deliberate destruction of villages, beheading, child slaughter, and other acts of intimidation - perhaps means to ensure that fleeing Rohingya do not return. This “vicious violence”29 is perpetrated by the military while the “Nobel Peace Prize-winning human rights icon,” Suu Kyi, publicly

26 McLaughlin, “Burma Is Pumping Millions into Rebuilding Rakhine. But Is It for the Rohingya?” 27 Jerryson, Michael. “Buddhist Inspired Genocide.” Berkley Center for Religion, Peace and World Affairs, October 13, 2017. 28 Ibid. 29 Wiles, Ellen. “Eyewitness: the Rohingya Horrors and Aung San Suu Kyi's Whitewash.” The Conversation. University of Sterling, October 23, 2020.

9 “whitewash[es] the situation.”30 She has failed to recognize her nation’s atrocity crimes, nor has she ever denounced the legal status of the Rohingya or attempted to reverse the 1982 policy. Suu

Kyi and her government must be held accountable for their actions once the violence has ended and reconciliation begins.

The 2008 Myanmar Constitution grants the Tatmadaw the autonomy to oversee the ministries of defense, home affairs, and border affairs, which provide the grounds for justification of these events: the Tatmadaw claims to be protecting its citizens of Myanmar from the dangerous and illegal immigrants, the Muslim Rohingya. Extreme anti-Rohingya violence occurred in 2012, causing a large number of Rohingya to flee Myanmar. Then, in October 2016, the Myanmar border guard force was attacked by assumed ‘Muslim insurgents from

Bangladesh,’ otherwise known as the Rohingya. In response, Myanmar’s military began a counterinsurgency that displaced another 90,000 Rohingya.31 Myanmar claims to be targeting armed insurgents, including ARSA, which has been accused of attacking Buddhist and Hindu civilians.

The Rohingya crisis has led to a refugee crisis throughout South and Southeast Asia, particularly in Myanmar’s neighboring Bangladesh. The plight of the Rohingya, as catalyzed in

2017, has evidenced one of the largest refugee movements in the contemporary world. Over half a million stateless people were attacked by the military and forced to flee their homes. In its

Cox’s Bazar refugee camps, Bangladesh has generously provided a modicum of safety to the

Rohingya refugee survivors of the Myanmar military campaign of widespread and systematic violence of late 2017. However, the UN and Bangladesh’s government announced that in

November 2019 it would begin to relocate up to 100,000 of those more than 740,000 Rohingya

30 Wiles, “Eyewitness: the Rohingya Horrors and Aung San Suu Kyi's Whitewash.” 31 Zarni, “Causes of the Mass Exodus and Potential for Justice and Reconciliation.”

10 refugees to Bhasan Char, a small and remote island in the Bay of Bengal.32 The government of

Bangladesh’s motive for the planned relocation is to relieve desperate overcrowding in the Cox’s

Bazar camps. The choice of Bhasan Char has raised serious concerns about the health and safety of the Rohingya who relocate there, as Bhasan Char is prone to serious flooding and cyclones.

The decision was met with mixed reactions, and scorn from human rights activists as a solution that would only further imperil the refugees who move there. The relocation has been suspended until further notice by the UN, but Bangladesh still intends to move forward with this plan if the

Rohingya are not repatriated to Myanmar, as this solution could ease desperate overcrowding in

Bangladesh’s refugee camps.

The estimated 600,000 Rohingya who still live within Myanmar “live in dire conditions, subjected to government persecution, violence, extreme restrictions on movement, and deprivation of food and health care.”33 Suu Kyi and the NLD government “promised to overturn repressive laws enacted during military rule,” but are instead “using those laws to attack their critics and have even introduced new repressive legislation.”34

Recently, Amnesty International gathered new evidence of “indiscriminate attacks on civilians” in Rakhine State, amid “serious escalations in the ongoing armed conflict between the

Myanmar military and the .”35 This evidence is based upon witness testimony, satellite and photograph images, and media reports. Amnesty International is concerned about the increases in Myanmar military troops at the border with Bangladesh, as well as by local reports of the “Myanmar military using Rohingya children for forced portering.”36 On September

32 Zarni, “Causes of the Mass Exodus and Potential for Justice and Reconciliation.” 33 “Myanmar: Seeking International Justice for Rohingya.” Human Rights Watch, October 28, 2020. 34 Ibid. 35 “Villages Burned and Civilians Killed in Myanmar as Rakhine State Conflict Escalates.” Amnesty International. Amnesty International. Accessed October 26, 2020. 36 Ibid.

11 14th, 2020, the UN High Commissioner for Human Rights, Michelle Bachelet, said to the

Human Rights Council that civilians “appear to have been targeted or attacked indiscriminately, which may constitute further war crimes or even crimes against humanity.”37 Despite discrimination and displacement, it is unknown how many Rohingya and Rakhine people have died in attempts to flee the violence.

In a 2017 statement, the then UN High Commissioner for Human Rights, Zeid Ra'ad Al

Hussein, even denounced Myanmar’s actions, calling them a “textbook example of ethnic cleansing.”38 The government of Myanmar, however, argues that they are fighting Rohingya militants and neither targeting civilians nor aiming to drive them out of the country. The

Rohingya are subjected to various different human rights violations and abuses, including mass displacement, killing, rape, violence, and more by the Tatmadaw and the government of

Myanmar.

Risk factors that the genocide prevention field considers are the country level, regime, ethnic makeup, national income, regional environment, size of military, war, and economic conditions.39As seen in Myanmar, in which the international community failed to rebuild a devastated society, confrontation must occur in real time, or else risk later and more costly restoration post atrocity. Imperative for atrocity crimes to occur is the existence of atrocity dynamics: 1) a key actor with motivation and means to mobilize people or resources for or against atrocities; 2) grievances, interests, or resiliencies that the key actor uses to mobilize followers; and, 3) a trigger that increases the atrocity risk or prevention opportunity, if

37 “Villages Burned and Civilians Killed in Myanmar as Rakhine State Conflict Escalates.” 38 Ra'ad Al Hussein, Zeid. “Darker and More Dangerous: High Commissioner Updates the Human Rights Council on Human Rights Issues in 40 Countries.” OHCHR. United Nations Human Rights - Office of the High Commissioner, September 11, 2017. 39 Straus, Scott. Fundamentals of Genocide and Mass Atrocity Prevention. Washington, D.C.: United States Holocaust Memorial Museum, 2016: 53.

12 identifiable.40 Key developments to monitor include rising discrimination, an increase in dangerous speech, increasing withdrawal from international community, rising discussion of expulsion or extermination of an identity group as a solution, concentration or limitations on movement of potential victim groups, widespread organization of hate groups, localized atrocities, and the formation or expansion of paramilitary organizations associated with potential perpetrators.41 These early warning signs were all evident in the case of the Rohingya: the

Tatmadaw and Suu Kyi’s government harnessed collective narratives of hatred from ongoing civil war to motivate radical anti-Rohingya nationalism; economic interests mobilized destruction and halted regional actors from condemning the violence, thus furthering its spread; and, finally, junta rebel groups apparent attacks in defense against the Tatmadaw served as justification for ethnic cleansing as a means to protect Myanmar from ‘illegal and violent immigrants’ in the Rakhine State. The early warning signs and risk factors for genocide were evident in Myanmar, but the international community failed to prevent the ultimate crime of genocide.

On January 23rd, 2020, the International Court of Justice (ICJ) in The Hague unanimously ruled on the case brought by The Gambia alleging that Myanmar has been committing genocide against the Rohingya, and thus has breached the 1948 Genocide

Convention. Within this momentous decision, the ICJ ruled that there was prima facie evidence that Myanmar breached the Convention, rejecting Suu Kyi’s defense of her country’s actions.

The ICJ peacefully handles disputes between states, and its rulings describe states violating international law. Within the Genocide Convention, Article IX explicitly states that disputes

40 Savitt, Jill. “Countries at Risk for Mass Killings 2018–19: Early Warning Project Statistical Risk Assessment Results.” United States Holocaust Memorial Museum. United States Holocaust Memorial Museum, October 2018. 41 Ibid.

13 between ratified parties regarding the “interpretation, application, or fulfilment”42 of the

Convention falls within the jurisdiction of the ICJ. The International Criminal Court (ICC), as established by the 1998 Rome Statute, prosecutes and adjudicates individuals accused of genocide, war crimes, and crimes against humanity. The ICC confirmed its jurisdiction over the crime of deportation, which it ruled was completed in Bangladesh, an ICC state party. The

Gambia accused Myanmar of trying 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,”43 as well as forcing more than

700,000 to flee into Bangladesh in a military crackdown in 2017.

The Gambia claimed that the government of Myanmar inflicted onto the Rohingya acts of violence, persecution, and suffering that rose to the extreme level of genocide. The Gambia seeks that the ICJ declare Myanmar’s violations of the provisions of the Genocide Convention and that the court order Myanmar to cease all violation of the Convention while preventing further genocide, holding key actors responsible, and paying reparations to the victims. On November

11th, 2019, The Gambia also asked the ICJ to implement provisional measures - meaning injunctions and restraining orders against Myanmar - , including the requirement of Myanmar to crush non-state actors, such as paramilitary and militia groups, to preserve all evidence of genocide, and to cooperate with the UN and other organizations that wish to investigate the violence.44 Oral hearings began on December 10th, 2019. Regardless of whether or not the ICJ ultimately finds Myanmar guilty of genocide, the goal of the international community must be to further learn from its mistakes in lack of action against crimes against humanity. The Myanmar

42 Convention on the Prevention and Punishment of the Crime of Genocide. 43 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) (The International Court of Justice January 23, 2020). 44 Shufro and Scheffer, Interview.

14 military has yet to implement procedures which comply with the ICJ’s ruling and orders, and there is no way to ensure this occurs.

The ICJ confirmed like acts have occurred, but it will take years for the ICJ to determine whether or not the crime of genocide has occurred; this will be proven if the ICJ identifies inference of intent by the leadership of the government and the military in Myanmar.45 In

November 2019, the ICC authorized the ICC prosecutor to investigate alleged crimes against humanity, primarily deportation, and persecution against the Rohingya in Myanmar commencing in October 2016. The ICJ ordered Myanmar to “take all measures within its power”46 to protect the Rohingya from further genocide, while regularly reporting its progress to the ICJ. Further, the ICJ ruled that the remaining 600,000 Rohingya in Myanmar were “extremely vulnerable”47 to violence, so Myanmar must implement emergency measures to protect the Rohingya against violence and to preserve evidence of possible genocide.48 UN investigators have declared that, beginning with the 2017 military crackdown, which caused hundreds of thousands of Rohingya to flee Rakhine State to Bangladesh, actions against the Rohingya have been executed with genocidal intent.

The ICC, in examination of crimes committed by Tatmadaw leaders, listened to the testimony of two former Tatmadaw, who described large-scale atrocities which “echo evidence of serious human rights abuses gathered from among the more than one million Rohingya refugees.”49 The defining distinction in their accounts is that they were the perpetrators who partook in mass atrocity crimes against the Rohingya. Matthew Smith, the chief executive officer

45 Shufro and Scheffer, Interview. 46 Ibid. 47 Ibid. 48 Ibid. 49 Beech, Hannah, Saw Nang, and Marlise Simons. “'Kill All You See': In a First, Myanmar Soldiers Tell of Rohingya Slaughter.” The New York Times. The New York Times, September 8, 2020.

15 at Fortify Rights, stated that their testimony is a “monumental moment for Rohingya and the people of Myanmar in their ongoing struggle for justice. These men could be the first perpetrators from Myanmar tried at the ICC, and the first insider witnesses in the custody of the court.”50 Their narratives are similar to those of refugees, observers, and soldiers, who have confirmed locations of mass graves and have also evidenced the systematic and planned operations of extermination.51

Suu Kyi is a Nobel Prize laureate who spent a decade fighting against the military in

Burma. However, she now defends the military against the ICJ, having asked the court to even drop the charges of genocide against her country. She leads the legal team fighting the ICJ’s accusation of genocide perpetration. Myanmar defiantly rejected the ICJ ruling and its order to prevent the genocide of the Rohingya. In fact, the government claims that the international community has presented a distorted reality of the situation in Rakhine State. And while measures imposed by the ICJ are binding - and not even subject to appeal - , there is no definite means of enforcement of these measures. Phil Robertson, the deputy Asia director of Human

Rights Watch, said that “Myanmar’s failure to hold its military accountable for atrocities against the Rohingya is finally turning the wheels of international justice.”52 Contrary to this, Suu Kyi’s popularity has only risen in Myanmar since her rejection of genocide allegations; Myanmar’s citizens view her on a moral pedestal and as the defender of Myanmar’s dignity.53 Perhaps her actions are in-line with her determination to change the 2008 military constitution; going to The

Hague makes her more appealing to Myanmar’s generals. Nevertheless, Myanmar cannot maintain peace among ethnic groups with various histories, political experiences, and cultures if

50 Beech, “'Kill All You See': In a First, Myanmar Soldiers Tell of Rohingya Slaughter.”. 51 Ibid. 52 “Myanmar: Seeking International Justice for Rohingya.” Human Rights Watch. 53 Zarni, “Causes of the Mass Exodus and Potential for Justice and Reconciliation.”

16 the nation’s leader promotes state sanctioned violence and genocide, but receives unguided reverence and affection in return.

Since the August 2017 ethnic cleansing campaign, almost one million Rohingya live within Bangladesh refugee camps.54 The Independent International Fact-Finding Mission in

Myanmar report, conducted by the Human Rights Council in 2019, indicates that the violations were committed by Myanmar security forces, and that their funding was to perform ‘clearance operations’ to wipe out the Rohingya population in North Rakhine. At least forty-five companies and organizations provided the Tatmadaw with $6.16 million to support its goal to eradicate the

Rohingya.55 Fourteen foreign companies have joint ventures with the Tatmadaw, and, at least, forty-four foreign companies have other forms of commercial ties with the Tatmadaw, further contributing to the ability to violate Rohingya rights and human rights law.56 The economy in

Myanmar mainly relies upon agriculture, but the backbone of the nation’s economy is small- scale farmers, who are not benefited by the economic expansions resulting from these foreign investments.

Armed conflicts between the Myanmar military and ethnic armed groups intensified over the course of 2018 in Kachin, Shan, and Karen states, catalyzed by disagreements over large- scale development projects and by disputes over natural resources. In these states, the military endangers citizens, indiscriminately attacking them, forcing displacement, and using them as human shields. The UN fact-finding mission determined that the military’s actions in the Shan

54 Shufro and Scheffer, Interview. 55 Darusman, Marzuki. “The Independent International Fact-Finding Mission in Myanmar.” United Nations Office of the High Commissioner. Human Rights Council, October 23, 2019. 56 Ibid.

17 and Kachin states amounted to war crimes,57 a legal term that can face prosecution at both the

ICC and the ICJ.

In an address to the UN human rights council in Geneva, Zeid Ra’ad Al Hussein denounced the “brutal security operation” against the Rohingya in Rakhine state, which he said was “clearly disproportionate” to insurgent attacks: “I call on the government to end its current cruel military operation, with accountability for all violations that have occurred, and to reverse the pattern of severe and widespread discrimination against the Rohingya population.”58

Bangladesh’s foreign minister also accused the Myanmar government of committing genocide against the Rohingya.59 The Dalai Lama even spoke about the crisis, telling the Burmese forces involved in attacks on the ethnic Muslim minority to “remember Buddha.”60

Since 2005, the non-binding R2P doctrine has guided international response to violations of human rights via assaults on civilian populations. R2P’s legal definition incorporates the

Security Council’s collective action to prevent and to react while also rebuilding peace, laudable goals in the realm of human rights activism.61 R2P pertains only to the “most egregious criminal assaults on populations in the form of genocide, crimes against humanity (which includes ethnic cleansing), and war crimes,” so there is a lack of incentive and political will to “activate R2P under UN Chapter VII authority.”62 The legal rationale of R2P fails to protect civilians from

57 Darusman, Marzuki. “Myanmar: UN Fact-Finding Mission Releases Its Full Account of Massive Violations by Military in Rakhine, Kachin and .” United Nations Office of the High Commissioner, September 18, 2018. 58 Ra'ad Al Hussein, “Darker and More Dangerous.” 59 Albert, Eleanor, and Lindsay Maizland. “What Forces Are Fueling Myanmar's Rohingya Crisis?” Council on Foreign Relations. Council on Foreign Relations, January 23, 2020. 60 Worley, Will. “Dalai Lama Says Buddha Would Have Helped Burma's Rohingya Muslims.” The Independent. Independent Digital News and Media, September 11, 2017. 61 UN General Assembly, The Responsibility to Protect: Resolution/Adopted by the General Assembly, 7 October 2009, A/RES/63/308. 62 Scheffer, David J, and Angela Walker. “Twenty-First Century Paradigms on Military Force for Humane Purposes.” Essay. In Seeking Accountability for the Unlawful Use of Force, edited by Leila Nadya Sadat. Cambridge: Cambridge University Press, 2018: 496.

18 natural disasters and epidemics; Covid-19 is catastrophic in the overcrowded refugee camps in

Cox’s Bazar. Inaction exceeds action by far in case study examples of R2P’s invocation, and its mandate can “increase the suffering of civilian populations by acting as a ‘brake’ on timely humanitarian intervention.”63

Moralistically, R2P creates a normative precedent that human rights are superior to sovereignty. R2P doctrinally differs from humanitarian intervention, as it stresses prevention instead of intervention. Its role spans beyond providing the intellectual leadership and global agenda for protecting human rights, since it preserves international peace while reaffirming rights. As evidenced by its unanimous passing, R2P desirously reaffirms UN endorsement of universal human rights. However, there is a dilemma of desirability, since human rights preservation impacts national sovereignty. Intervention objectifies interference in nations’ domestic affairs. Theoretically, infringement upon individual rights undermines national sovereignty, which implies rule of law. Sovereignty is not an absolute right when diplomatic measures cannot ensure that domestic authorities protect their citizens: “states that massively violate human rights should forfeit their right to be treated as legitimate sovereigns, thereby morally entitling other states to use force to stop oppression.”64 This is problematic in Myanmar, since the Rohingya are not citizens. Nevertheless, conditional sovereignty is one explanation of the lack of R2P political will, as enforcement is thwarted when states assert intervention threatens national sovereignty.

Within the doctrine of R2P, there is an articulated responsibility of the Security Council to make the ultimate determination as to whether or not atrocity crimes have been and are being committed, rendering R2P a biased diplomatic hurdle dependent upon the national interest of the

63 Scheffer and Walker, “Twenty-First Century Paradigms on Military Force for Humane Purposes”: 498. 64 Gallagher, Adrian. Genocide and Its Threat to Contemporary International Order. Palgrave Macmillan, 2013.

19 Five Permanent Members of the Security Council.65 There lacks a coherent determination of when defensive intervention is required or should be utilized. Conventional international law and legal justification must be strengthened for intervention, the use of military force, and R2P in order to “confront a complex world of threats from state and non-state actors and the plight of civilians suffering in the midst of armed conflicts, international terrorism, and atrocity crimes.”66

The veto is a structural detriment to the UN, as R2P is undermined by the Security Council’s ability to uphold the Westphalian norm of non-intervention and state sovereignty; humanitarians fear a Chinese veto for intervention in Rakhine due to China’s economic interest in Myanmar.

The Security Council must be representative of a globalized and modern society with differing national interests. The international community cannot let crises and other challenges of human rights overtake the necessary and normative status of the protection of human rights as superior to national sovereignty and economic or political interests. Mass atrocity crimes are of utmost importance to protect, and, despite the decades of early warning signs and persecution of the

Rohingya in Myanmar, the UN and international actors have failed to protect against the horrors of genocide, war crimes, crimes of aggression, other crimes against humanity, and suffering.

Humanitarian crises such as that of the Rohingya have long linkages to histories of colonialism and national conflict. The predicament that has arisen in Myanmar is founded in centuries of warring ethnic identities and violence, factors that should have triggered international action to intervene and to prevent the ultimate crime of genocide. When similar humanitarian crises arise, there should be political agreement to overcome the veto power of the five Permanent Members of the Security Council. The idea of collective self-defense, which is the use of military force in the face of humanitarian debacles, must be rejuvenated to support

65 Scheffer and Walker. “Twenty-First Century Paradigms on Military Force for Humane Purposes”: 493. 66 Ibid, 493.

20 modern society, as the foundations of the UN and the Security Council are intrinsically flawed for contemporary international relations if they are not updated to fit a more globalized community. The goal would be to recognize and to utilize military intervention on foreign territory when the UN Charter fails to cover a crisis response; thus, it is mandatory to find supporting international law in which human rights can influence the legality and morality of action, instead of Westphalian sovereignty. This invites a reinterpretation or a modern interpretation of the UN Charter and its constraints and permissions on the use of force to address the obstacles that thwart action. David Scheffer proposes “stepping beyond the UN

Charter and looking at customary international law to have a pragmatic response.”67 The UN

Charter is very state centric, a protector of sovereignty, which is a precarious principle in regards to the plight of civilian populations. In the case of the Rohingya, in 2015, their identity cards were nullified, cementing their stateless status in Myanmar.68 As such, Bangladesh has obligations under the Refugee Convention that they need to comply with.69 Bangladesh does not need to offer citizenship to the Rohingya, but the nation is obligated to protect them and to process their asylum claims appropriately.70 The Rohingya statelessness is “an outrage”71 given their long history of residency in Rakhine State. It is imperative that the international community seek to provide stronger legal foundations which catalyze response to humanitarian crises. In a need to address the inherent problem with the use of veto power in the Security Council, David

Scheffer and Angela Walker propose to “influence the political behavior of Permanent Members

67 Cribb, Robert. “Political Genocide in Postcolonial Asia.” The Oxford Handbook of Genocide Studies. Oxford: Oxford University Press, 2010. 68 Ibid. 69 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189. 70 Ibid. 71 Shufro and Scheffer, Interview.

21 of the Security Council by withholding the veto power under certain compelling circumstances.”72 This would essentially alter the dynamic of R2P and other humanitarian intervention initiatives.

Furthermore, a pragmatic application and expansion on the idea of the right to self- defense and collective self-defense would allow for an initial solution to prompt intervention and assistance on behalf of the Rohingya in Rakhine State. There is a challenge of obtaining a veto- free resolution of the Security Council. Thus, there needs to be a solution that is within the parameters and jurisdiction of international law, yet is modernized enough to sufficiently address the realities of the contemporary world and the constraints of international organizations, built into their charters.

Article 31(1)(c) of the Rome Statute identifies proportionate self-defense, collective self- defense, and the defense of property against unlawful uses of force. The Rome Statute establishes within this article that the use of force in defense is an expression of sovereignty, and that attacks on autonomy allow for the use of force to reinstate that sovereignty. The Rome

Statute also provides for the protection of those who defend other nations against turmoil.73 If the legal theory of collective self-defense - as grounded in the UN Charter - is expanded, acts in exercise of self-defense from the Rome Statute or of R2P grounds allow for better intervention.

Of course, this would occur after the exhaustion of all articulated measures to take, but would only be enacted if the plight is still happening. There is a moral argument in which the veto should not be used in cases of mass atrocity crimes; the Five Permanent Members of the Security

72 Scheffer and Walker. “Twenty-First Century Paradigms on Military Force for Humane Purposes”: 494. 73 UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6. Article 31(1)(c).

22 Council should not undermine human rights and international law by using their veto, and this obstacle must be overcome in the cases of aggression, which undermine international security.

This invites new inquiry into the doctrine of intervention and prevention, specifically a reexamination of self-defense. Scheffer prompts, “If a nation uses the right of self-defense only to protect its own people and territory by intervening on foreign territory to end the threat, but then fails to protect the very civilian population whose plight is threatened on the territory of the target country, then there may well be nothing humanitarian in such an act of self-defense and it will have to rest on other legal principles of self-defense to be considered a legally justifiable action.”74 However, if the victim nation seeks aid by a coalition of nations, this would be considered an act of collective self-defense under Article 51 of the UN Charter. As such, the UN

Charter must be revised to envision a bolder interpretation of Article 51 to apply to the concept of collective self-defense. In the case of the Rohingya, perhaps pleas for survival assistance and protection could also be imagined under this revision. A necessary normative framework would be to recognize R2P grounds and self-defense for intervention. The international community must reassess and rethink the concept of self-defense, since, in the case of the Rohingya,

Myanmar claims them stateless; thus, the Rohingya could theoretically still seek international aid for self-defense, as the Rohingya do not have a government to make that request on their behalf.

The four groups identified within the Genocide Convention could act in concert with nations as actors who may seek international assistance in self-defense. This expansion of the doctrine of self-defense of a group and collective self-defense could be a new way to approach the veto of the Five Permanent Members of the Security Council, and as a means to halt the genocide of the

Rohingya in Rakhine State, Myanmar.

74 Scheffer and Walker. “Twenty-First Century Paradigms on Military Force for Humane Purposes”: 518.

23 For the past two years, Myanmar’s government has denied its exhaustively documented culpability for these atrocities, and it attempted to forbid international organizations to access

Rakhine, within which the Rohingya mainly lived prior to their bloodshed and forced deportation. There needs to be international determination to curb the dire risks that await the

Rohingya if they are repatriated. Myanmar seems unlikely to allow for a dignified and secure return of the Rohingya, so this may not be feasible for the foreseeable future. In addition, the legal implications of the Rohingya’s status as stateless exacerbates this conundrum. From a human rights standpoint, statelessness clearly puts the Rohingya at greater risk than before.

International actors and regional organizations must intensify their pressures on Myanmar to terminate the violence; all civilians must be protected, despite legal status. ASEAN states must increase their denouncing rhetoric, apply economic sanctions, and help to naturalize the

Rohingya while ensuring peaceful reconciliation. The Myanmar government must be held accountable.

While a humanitarian approach to conflict-resolution is an idealist’s ending to the

Rohingya genocide, it is unlikely that this is attainable in the near future. A more likely ending to the crisis in Myanmar would be that the perpetrators pursue goals via methods other than mass atrocity crimes. This is “not an ethically pleasing ending, nor does it promise justice for victims - but it often offers life-saving respite from violence. The hard work of changing social practices and achieving some measure of justice for victims, however understood, often demands an entirely different set of tools.”75 It is necessary to recognize that “shifts in political contexts, more than ‘humanitarian’ military interventions, have ended atrocities more frequently and provide greater insight for understanding how to terminate assaults against civilians in the

75 Conley, Bridget. “Dinner in the Land of Black and White.” World Peace Foundation. The Fletcher School of Law and Diplomacy, April 22, 2013.

24 future.”76 International actors must accept this more common frequency and engage in an assessment of timely aims for reconciliation and transitional justice.

No matter what transpires in Myanmar, international actors have a responsibility to intervene, regardless of acts meeting the definitional requirements of genocide. While a tribunal like the ICJ will define the crime, the UN should have acted in real time to intervene. Genocide is a powerful term, and even defining the possibility of events in Myanmar as genocidal in nature should have been enough to galvanize action of the international community. Prior to August

2017, there were enough early warning signs to seek the prevention of genocide; however, the

Rohingya were failed. Ideally, the international community will seek altruistic motivations for intervention, thus taking national interest and incentives out of diplomatic policy. Ultimately, the foundations of the UN Security Council, its veto power, the Rome Statute, and the concept of self-defense must be re-evaluated and adjusted to create modern solutions to contemporary issues of human rights violations and mass atrocity crimes, such as the genocide of the Rohingya in

Myanmar. Suu Kyi must unify her nation and condemn violence and mass atrocity crimes to ensure reconciliation. As written in Archbishop Emeritus Desmond Tutu’s open letter to Suu Kyi in 2017, “A country that is not at peace with itself, that fails to acknowledge and protect the dignity and worth of all its people, is not a free country.”77 Her silence is a choice destructive to the Rohingya and to human rights protection worldwide.

76 Conley, “Dinner in the Land of Black and White.”. 77 Tutu, Archbishop Emeritus Desmond. “An Open Letter from Desmond Tutu to Aung San Suu Kyi.” IOL. IOL | News that Connects South Africans, September 7, 2017.

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