Burma's Rohingya Policy - a Slow Burning Genocide*

* Credit for this title goes to a 2014 report by the International Human Rights Clinic at Harvard University

This is the third part in a three-part series on Burma leading up to

the general election on November 8.

In this last post in my three-part series, I want to deal with the issue of the Rohingya minority in Burma. I mentioned the Rohingya in my first post, but events in Burma over the past three years have brought the issue of persecution of this minority group to the forefront. I therefore felt that it deserved more attention that I was able to give it in the other posts.

The Situation for Rohingya in Burma

The Rohingya are an ethnic Muslim minority and described by the UN as one of the most persecuted minorities in the world. It is estimated that roughly about 1-2 million Rohingya live in Burma's Arakan/Rakhine State, which is about 4% of Burma’s population, while about 400,000 live as, mostly unregistered, refugees in Bangladesh.

Burma's post-colonial government, elected in 1948, officially recognized the Rohingya as an indigenous community, as did its first military government that ruled from 1962 to 1974. However, the Rohingya were not recognized as citizens by the 1982 Citizenship Law, effectively making them stateless. Even the term ‘Rohingya’ is not recognized in Burma. They are instead often referred to as ‘Bengalis’. Official and popular narratives in Burma call them illegal immigrants, a threat to national security, “viruses” and “invaders,” a threat to Buddhist culture, and economic blood-suckers.

The Burmese government denies their very existence; according to Burma’s President Thein Sein, “There are no Rohingya" in Burma.

The Rohingya have since long suffered discrimination by the government. Rohingya children are deprived of the right to education and basic healthcare. Adults are unable to move, marry, or find jobs without obtaining government permits or paying bribes, and are systematically subjected to arbitrary arrests, forced labor, violence, forced displacement and eviction, among other human rights violations .

In July 2012 violence broke out between Buddhists and Rohingya in Rakhine State. The violence quickly turned deadly and swept over the entire Rakhine State, with attacks on the Rohingya by Rakhine Buddhists and counter-attacks by the Rohingya. Many international aid organizations were forced out of Rakhine State since they were seen as pro-Rohingya, making the situation of the Rohingya even more desperate. 

What started as anti-Rohingya violence quickly spread to other areas in Burma with Muslim minorities being targeted. In my second post I described how the rise of Buddhist nationalism has created an anti-Muslim movement across Burma.

The violence in 2012 caused around 140,000 Rohingya to be forced from their homes and live in squalid conditions in internment camps, for ‘their own protection’, where they lack both adequate food and basic healthcare. They are still there today. Since 2012 all the Rohingya villages and camps have been totally cut off from predominately Rakhine towns. Over 120,000 Rohingya have fled Burma, over half of them leaving by boat in 2014 and the first quarter of 2015. Most have tried to reach Indonesia and Malaysia, but boats are often turned away, leaving these people drifting for weeks at sea, often in inadequate boats and without food or water (sounds familiar…?).

The Burmese government has been neither willing nor able to deal with the situation of the Rohingya and continue to refuse them basic citizenship rights. As I explained in my second post, some 700,000 Rohingya who been allowed to vote in the 2010 general election have been removed from the voting lists for the upcoming election and a current Rohingya MP, who represents the ruling USDP party, has been barred from running again on the account of not being a citizen of Burma.

The government has also done little to stop the new Buddhist nationalist movement from inciting hatred and violence against the Rohingya, and has even passed a number of laws specifically targeting the Rohingya, and other Muslim minorities, at the urging of the extreme nationalists. Furthermore, the government has failed resolve the situation for the hundreds of thousands stuck in the camps, from which they are not allowed to leave.

In fact, the government is eager to put the responsibility of finding a solution on anyone but itself. The government has continuously deflected blame for the Rohingya migrant crisis, saying that it “will not accept the allegations by some that Myanmar is the source of the problem.” Some are now calling for their expulsion from the Burma. President Thein Sein famously said that he would hand over responsibility for the Rohingya to the UNHCR in Rakhine State, adding that the government is also “willing to send the Rohingyas to any third country that will accept them.” 

First of all, the UNHCR resettles refugees, who are people that have fled their own country across an international border. This would therefore not apply to the Rohingya in Burma, as was quickly pointed out by the UNHCR. However, it also shows a blatant abdication of responsibility to protect and ensure the security and human rights of people on Burma’s territory and shows how entrenched the government’s anti-Rohingya sentiments actually run.

Crimes Again Humanity or Even Genocide?

The crimes committed against the Rohingya are well documented by international human rights groups. In fact, it is not difficult to access information about the violence and persecution faced by these people on a daily basis, even in real time through social media like Twitter.

In 2013 Human Rights Watch, released a report entitled ‘”All You Can Do is Pray”: Crimes Against Humanity and Ethnic Cleansing of Rohingya Muslims in Burma’s Arakan State’.

According to the report, the 2012 attacks against the Rohingya and were organized, incited, and committed by local Rakhine political party operatives, Buddhist monks, and ordinary Rakhine, at times directly supported by state security forces, with the intent to drive them from the state or at least relocate them from areas in which they had been residing – particularly from areas shared with the majority Buddhist population.

Rohingya men, women, and children were killed, some were buried in mass graves, and their villages and neighborhoods were razed. While the state security forces in some instances intervened to prevent violence and protect fleeing Muslims, more frequently they stood aside during attacks or directly supported the assailants, committing killings and other abuses. All of this brings back memories from the 1992-1995 war in Bosnia and Herzegovina, where infamously the Bosnian Serb forces conducted a campaign of ethnic cleansing to create an ethnically pure state.  

'Ethnic cleansing', though not a formal legal term, has been defined as a purposeful policy by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.

Furthermore, the Burmese government of President Thein Sein has taken no serious steps to hold accountable those responsible or to prevent future outbreaks of violence.

The acts of the Burmese government probably amount to at least crimes against humanity. According to Article 7 of the Rome Statute of the International Criminal Court, crimes against humanity means acts such as murder, forcible transfer of population, persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, or gender-based grounds, when committed as part of a widespread or systematic attack directed against any civilian population.

Others are warning that what is happening right now are early warnings of genocide. The organization United to End Genocide is one of the groups that considers the Rohingya at risk of genocide, as do the United States Holocaust Memorial Museum and its Simon-Skjodt Center for the Prevention of Genocide. In a report released by the museum in May this year, researchers outlined dozens of human rights violations and discriminatory policies that they said, “put [the Rohingya] population at the grave risk of additional mass atrocities and even genocide.”

  

Furthermore, according to a statistical analysis by the Early Warning Project, which assesses the risk of genocide, Burma has the highest probability of seeing a genocide of any country in the world.

Genocide occurs when any of the following acts are committed against a national, ethnical, racial or religious group, with the intent to destroy, in whole or in part, the particular group: (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.

Given the acts committed against the Rohingya, such as killings, the infliction of horrible living conditions in internment camps, recent laws on the spacing of births, etc. it might be that genocide is being committed against the Rohingya IF it’s possible to prove the special intent to destroy the group. If so, the international community has an obligation to act. For those interested Al Jazeera recently released a documentary on this issue (just please note that at 2:56 what appears to be a professor at Yale law school clinic says the ICC should investigate - this is highly for reasons of jurisdiction explained below).  

The Complicity of Silence

Although the primary responsibility of course lies with the Burmese government, one would have expected the current situation to evoke at least some sort of response from the international community. However, so far the international community has remained largely silent on the Rohingya issue, probably to not rock the boat loaded with investment opportunities… Some countries, like the US, have recently urged the government to grant the Rohingya citizenship. But mostly the Rohingya are forgotten and no government has in strong words condemned the actions of the Burmese government or ever talked about any sort of consequences for the persecution and possible crimes against humanity committed against this minority group.  So much for the doctrine of responsibility to protect…

Also worrying is the near silence of the NLD and its revered leader and Nobel Peace Prize winner, Daw Aung San Suu Kyi.

I had the honor of meeting Daw Suu in June 2012, in my capacity as Co-Founder and Co-President of the Oxford Burma Alliance, during a luncheon after she received her honorary degree from Oxford (she was awarded the degree in 1993 but was unable to collect it then, due to being under house arrest in Burma). Daw Suu gave an impressive 15 minute speech during the ceremony, without any notes at all(!), and which received a 2 minute standing ovation (for those of you not familiar with Oxford ceremonies, one is not supposed to stand unless given a signal by the Chancellor, so this was quite the coup).

However, as much as I admire Daw Suu as a person, I am disappointed in her inaction regarding, and therefore complicity in, the persecution of the Rohingya, as are most of my fellow Burma human rights activists. My organization once invited Tun Khin, a member of the Rohingya community and the president of the Burmese Rohingya Organisation UK, to speak at one of our events in Oxford. He couldn’t hold back his deep disappointment and said the Rohingya felt betrayed by the woman they had voted for in the 1990 election and who they had seen as their protector.

Indeed, Aung San Suu Kyi has seemed like a broken record, repeating the mantra of ‘rule of law’, but has rarely directly addressed the Rohingya issue. When she has, Suu Kyi has simply said that the situation is complicated and that Burma’s citizenship law needs to meet international standards.

In a BBC interview in 2013 she blamed the violence on ‘both sides’, saying that ‘Muslims have been targeted but Buddhists have also been subjected to violence’. She has tried to explain that she has not spoken on behalf of the Rohingya because she wants to promote reconciliation between Buddhist and Muslim communities. However, this explanation rings hollow in the light of the persecution of the Rohingya and the crimes committed against them.

As pointed out by one commentator, ‘it isn't Buddhists who have been confined to fetid camps, where they are "slowly succumbing to starvation, despair and disease”. It isn't Buddhists who have been the victims of what Human Rights Watch calls ethnic cleansing and what the UN's special rapporteur on the human rights situation in Myanmar has said could amount to crimes against humanity. It isn't Buddhists who are crowding onto boats, to try and flee the country, and being assaulted with hammers and knives as they do so. It isn't Buddhists, to put it bluntly, who are facing genocide.’

Possible Ways to Accountability

When the violence broke out in 2012 many of my Rohingya friends and other Burma activists were calling for a UN Security Council (UNSC) referral of the situation to the International Criminal Court (ICC). While the persecution of the Rohingya and the recent violence would probably constitute at least crimes against humanity, and therefore technically fall under the jurisdiction of the ICC, there are several reasons why and ICC is not necessarily the best solution to this situation.

First of all, as a criminal court the ICC provides post-facto justice, not necessarily deterrence, and there is little to suggest that a referral would act as a catalyst for sudden government interest in the protection of the Rohingya.

Second, clearly time is of the essence for the Rohingya. Lobbying members of the UNSC would take considerable time. And, as the UNSC has previously shown no interest in referring Burma to the ICC, despite ample evidence crimes against humanity and war crimes being committed in other parts of the country, this would probably be a waste of time. Furthermore, a UNSC referral to the ICC would be virtually impossible because of China and Russia. Even if a referral is made, the ICC’s own process, investigation to prosecution and judgment, will take years.

Given these considerations, it may be better to put lobbying efforts towards convincing the international community to put pressure on the Burmese government in ways other than the drawn-out process of a UNSC referral to the ICC.

Legal action could be taken at some domestic levels. Possible prosecutions could happen under the Genocide Convention, which requires all signatories to prosecute and punish perpetrators of genocide, whether the crimes were committed on their territory or by one of their nationals or not. Given the difficulty in proving genocide, and the fact that the alleged perpetrators would have to come under the prosecuting country’s jurisdiction, this will be tricky.  

Civil law suits in domestic courts abroad might be possible in some circumstances. At the beginning of this month, a coalition of activist groups filed a lawsuit against President Thein Sein, Foreign Minister Wunna Maung Lwin, and other officials, under the US Alien Tort Statute for crimes committed against the Rohingya. The Alien Tort Statute has been used in the past by foreign citizens seeking damages from human rights violations committed outside the United States, including the famous Unocal case relating to Burma.

Of course, any successful legal action would provide accountability. However, the problem regarding what is to be done about the extremely urgent situation currently faced by the Rohingya remains. From this point of view what is needed is political pressure by the international community and human rights defenders in Burma, to make the government take its responsibilities seriously and end the persecution of this ethnic group. Given the wealth of information available about the crimes committed, the silence of the pro-democracy camp in Burma and the international community is particularly shameful and disappointing.