Introduction
– What date was Myanmar referred to the ICC
– The ICC must now decided if genocide is occurring in Myanmar
– Scholars and academics disagree on whether there is the mens rea to amount to genocide
– The major issue before the ICC is if there if sufficient evidence of genocidal intent
– The purpose of this essay is to examine the atrocities committed against the Rohingya, namely forced displacement and persecution should be considered genocide
– I will look at the historical background in Myanmar and compare the treatment of the Rohingya with other previous cases before the ICC such as the International Criminal Tribunals in Yugoslavia and Rwanda, Croatia and Serbia, the crimes of the Ottoman Regime and the Holocaust, and in using Stanton's model of the ten steps of genocide to determine if such atrocities should be considered genocide before the court
Background and the ICC
– The Rome statute was brought into force in September 1998 and governs the International Criminal Court
– The ICC is the court of last resort and holds criminal jurisdiction over the most serious international crimes, when a country will not or cannot hold criminals to account
– The ICC has authority over the crimes in article 5 and if certain preconditions are met the ICC will assume jurisdiction
– Once jurisdiction is held under article 54 the prosecutor has the obligation to investigate 'all facts and evidence relevant to an assessment of whether there is criminal responsibility
– The ICC is currently investigating whether it has jurisdiction over Myanmar and if so is the forced displacement and persecution of the Rohingya people should amount to genocide
– What country's will look to veto the investigation?
The International Law of Genocide Defined
– Raphael Lemkin coined the term genocide after the treatment of the Jewish people by Nazi Germany in 1944
– The legal definition of genocide was embodied in the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 which mirror the definition of genocide in article 6 of the Rome Statue
– GENOCIDE DEFINITION
– The definition is also found in the statutes for both the ICTY and the ICTR where we saw the first cases of genocide being brought before the international communities
– Genocide is broken down into the mens rea and the actus reus
– The mens rea element is the specific intent or dolus specialis to 'destroy in whole or part of a national, ethnically, racial or religious group"
– This is where in the past the issue with the decision on whether something amount to genocide or not, as it is difficult to say with certainty that the intention to wipe out a group exists
– The actus reus element is easier to prove as it will be through the performance of one or more of the prohibited acts laid out in the Genocide Convention
International Obligations and Consequences of Genocide
– The law regarding genocide is accepted as customary international law and is a jus cogens norm, or binding to all states – Prosecutor v Bagilishema, case no. ICTR 95-1-T, judgment (7 June 2001) (customary international law)
– Meaning even if a state is not party to the genocide convention or the Rome Statute it is still obligated under international law to obey their terms as to genocide
– Jus cogens laws are superior to treaty law and apply to all countries
– There is no qualification to genocide due to this
– Specially under article 8 of the genocide convention gives the ICC the option of calling 'calling upon the competent organs of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide
– There is also international humanitarian law which governs the treatment of persons both in and out of armed conflict
– Even though Myanmar is not a party to the statute the forced displacement of the Rohingya into Bangladesh allows the court to hold jurisdiction due to the fact that Bangladesh is a state party to the statute
The Situation in Myanmar
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Differing Opinions on the Conflict and the Atrocities
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The Actus Reus Element
– The actus reus element is difficult to dispute, there have been widespread reports of the killing of Rohingya civilians
– This would satisfy article 2a of the genocide convention which focuses on 'killing members of the group'
– Secondly article 2b of the convention prohibits 'causing serious bodily or mental harm to members of the group' the forced displacement of the Rohingya and the violence they suffered clearly falls under article 2b thus satisfying it.
– Thirdly article 2c prohibits 'deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part' could arguably be satisfied by the destruction of Rohingya villages through the forced displacement of over 800,000 Rohingya. There has been a lack of humanitarian aid granted to the Rohingya and PUT IN OTHER ATROCITIES THEY HAVE FACED – EDUCATION, HOUSING, KILLING, LOOTING ETC
– Further the horrific conditions that forced displacement and persecution has caused, may not immediately cause death of hundreds of thousands of the Rohingya people, but is certainly a method employed by the state in Burma that is smeared with intent. Further following precedent set in kayishema & Ruzindona, case No. ICTR 95-1T at 116, the 'methods of destruction which do not immediately lead to death are not necessary for such a finding'
Mens Rea Element
– The most difficult element to prove in cases of genocide is often the mens area element due to the 'very narrow' definition used by the courts
– The issue before the court as to whether forced displacement and persecution should be considered genocide comes down to two issues
1. Whether the Rohingya can be considered an ethnic group
2. If so is there sufficient evidence to prove there is genocidal intent by the state of Burma
Are the Rohingya Considered an Ethnic Group
– Definition of an ethnic group
– What are people saying about the Rohingya
– Critics that say no – however in report of the international commission of inquiry to Darfur to the United Nations Jan 25 2005 at 508
– Which correctly asserts that the group in Darfur constituted an ethnic group because they perceived themselves to be different than their attackers (at 511) and in international law perception is recognised as a mens of establishing one’s group as a direct ethnic group (at 498)
– Further supported by the ICTR Akayesu judgment which held that Hutu and Tutsi in Rwanda were distinct ethnic groups based on their own perception Prosecutor v Akayesu case no. ICTR 96-4-T judgment 511, 702
– What is the conflict are between the Rohingya and the Burma state
– The Rohingya are clearly an ethnic group thus will be protected by the international law of genocide
Evidence of Genocidal Intent
– 2018 UN Report on the Independent international fact finding mission on Myanmar A/HRC/39/64