On February 1 2018, Yanghee Lee, UN Special Rapporteur to Myanmar, declared that the ongoing humanitarian crisis bore the “hallmarks of genocide.” She maintained, however, that no definitive conclusion can be made until after a tribunal was established. Two weeks later, Ms. Lee developed her claim further by announcing that Aung San Suu Yi may be guilty for committing crimes against humanity due to her complicit position that enabled the persecution of Rohingya Muslims. In late February, it was suggested by Nobel laureates that Aung San Suu Kyi have her own distinctions revoked given her assumed complicity in the genocide or, at least, the persecution of Rohingya Muslims.
This was not the first time that such observations have been made. A 2015 clinic study at Yale found that, according to the Genocide Convention, the systematic persecution of Rohingya on the part of the Myanmar government met the legal requirements of genocide. It follows, then, that new developments in the current crisis have necessitated a stronger reaction from the U.N.
The growing need for a response occurred after it became apparent that the military had played a more significant role in the crisis.
In January 2018, the military admitted to killing 10 Rohingya on September 2 2017, near Inn Din. On the morning of September 2, 10 Rohingya were taken captive under the pretence that they had provoked conflict with Buddhist villagers. They were considered terrorists. The captives watched as their graves were dug in front of them, where they were soon after hacked by some villagers and shot by military officers. While they were being buried, some were still alive, writhing and left to die. It was reported by Reuters that the ten slain Rohingya were merely Muslim captives and not terrorists conspiring against the government. They were normal people: fishermen, shopkeepers, and two teenagers, whose families, now residing in Bangladesh camps, confirmed their identities.
What made this account especially worrisome and unusual was the corroborations of Buddhist villagers and security officials who substantiated the observation that innocent people had been singled out and killed. According to villagers, the 10 were reportedly selected from a group of 200 civilians and not soldiers as originally argued.
Genocide is a goal-oriented crime. Achieving the result is irrelevant because what matters is the intent. As far as mens rea is concerned, dolus specialis is required to distinguish genocide from other international crimes like crimes against humanity. The consummation of this special intent, the execution of a single successive act, constitutes genocide.
Special intent is constructed on two principles. First, the accused must target a group “as such,” meaning that the group is attacked and not individual members who belong to it. The intent is to destroy that group, in whole or in part. Second, the act of persecution must be based on the fact that individual members belong to a national, ethnic, racial, or religious group. Political and social groups are excluded primarily because membership is based primarily on choice whereas the other forms of identity are inextricable from one’s personality. These personal characteristics are immutable like the cultures from which they trace their origin. Understood this way, it is apparent that even a single murder committed with the intent to destroy a culture is tantamount to destroying culture itself.
The term destruction, however, is broadly defined so as not to limit it strictly to intent to cause death, as it is also relevant to cases where acts fall short of their goals. Article II of the Genocide Convention describes different types of death. Paragraph (a) details immediate death, where members of a group are killed. Paragraph (c) describes slow death, where acts are committed to inflict physical destruction, such as systematic eviction and rape, as well as the denial of access to healthcare. These sorts of destructions proceed from special intent and so constitute its consummation. They are indicative of the goal.
The discovery that the 10 Rohingya were definitely civilians meant that the September 2 killings were descriptive of genocide and not war crimes. And in this vein other attacks around this time seem to demand reexamination. Even though Myanmar’s national security advisor maintained that the government had no official policy advocating ethnic cleansing, the point was irrelevant as the ICTY clarified that genocide may occur irrespective of policy.
While there had been some admission of complicity in the September 2 killings, there has been no acknowledgment of the August 27 massacre in Gu Dar Pyin. Rohingya who were able to flee the village reported countless bodies and at least 5 mass graves. The accounts described graves that were dug especially deep. Such planning indicated that the intended destruction was to be on a large and widespread scale.
Another troubling development was that similar kinds of destruction spread to other provinces. In her end of mission statement, Lee drew particular focus to other ethnic minorities who have begun to experience military persecution tantamount to crimes against humanity. After a 17 year ceasefire ended between state military and the Kachin Independence Army, fighting resumed in January 2018, endangering the lives of civilians who have been physically confined to the province. Reports of systemic rape and murder were reported not long after. The beginning of intrastate war demonstrated a shift in the military’s focus even though its methods remained the same.
After Myanmar presented a repatriation timeframe, Lee questioned the conditions to which stateless Rohingya were to return. Given the evidence of genocide and crimes against humanity, it is not difficult to imagine the circumstances to which the Rohingya will return. The process was postponed by Bangladesh as many Rohingya oppose the proposal given the lack of security. Concurrently, foreign international aid is declining, leaving many without access to basic necessities.
The pictures from Inn Din document the accounts of death, persecution, and loss; and this graphic provides approximate descriptions of physical destruction that has swept Rakhine state. It is overwhelmingly evident that the justice due to the victims will forever be disproportionate to the suffering they endured. This, it appears, is fundamental to genocide and is particular to its phenomena as the crime of crimes.