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 Rohingya people in Myanmar1 face a crisis of mass atrocity crimes inflicted upon them by the government and military of Myanmar. 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 Communist Party 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 Tatmadaw 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 Arakan 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 Rakhine State, on the Indian Ocean bordering Bangladesh.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.