Words by Adrienne Ringin
The desperate plight of the Rohingya in recent months has rightly evoked international outrage. On 1 May 2018, UNICEF reported that since August 2017, approximately 655, 000 Rohingya had fled Myanmar to neighbouring states. Vivid recounts of mass extrajudicial killings, arson, rape, torture and mutilation have prompted the international community to finally condemn Myanmar’s leaders for the systemic abuse of a people within their nation’s borders. While the spike of the crisis appears to have passed, the attempt to hold the perpetrators accountable has only just begun.
On 9 April 2018, International Criminal Court Prosecutor Fatou Bensouda requested a determination from the judges as to whether the ICC has the jurisdiction to open a probe into the crisis in Myanmar. The determination is necessary as Myanmar is not a signatory to the Rome Statute which would have automatically granted the ICC jurisdiction. An investigation could have been launched had Myanmar accepted the ICC’s jurisdiction (Rome Statute Article 12(3)) or if the United Nations Security Council referred the situation to the ICC (Rome Statute Article 13 (b)) but both of these avenues remain unemployed. Prosecutor Bensouda’s argument is unique as it attempts to utilise the Rome Statute membership of Bangladesh and the crime of deportation to justify the jurisdiction of the ICC. The success of this endeavour will be revealed eventually. In the interim, advocates have an opportunity to turn their minds to the legal requirements of the crimes with which the perpetrators could be charged with.
The ICC’s jurisdiction, found in Article 5 of the Rome Statute, is limited to the “most serious crimes of concern to the international community as a whole” – genocide, crimes against humanity, war crimes and the crime of aggression. The UN’s Special Rapporteur to Myanmar Yanghee Lee, told the Human Rights Council in March that she was ‘increasingly of the opinion that the events in the Rakhine State bear the hallmarks of genocide’. Indeed, accounts of the act perpetrated against the Rohingya are strikingly similar to those acts perpetrated against the Tutsi population of Rwanda in 1994 and the Muslim population of Srebrenica during the Yugoslavian conflict – both atrocities later branded as genocide.
But what does it entail to charge an individual with the crime of genocide? So far, the international community has demonstrated a great reluctance to use this term, preferring to use the watered down ‘ethnic cleansing’ which is encapsulated under ‘crimes against humanity’. This is because genocide holds an elevated place in the hierarchy of crimes; it is considered the most egregious resulting in great caution around its use. This distinction is evident in the complex legal definition which consists of three separate requirements, each featuring numerous elements and thresholds. A further complication is the fact that the ICC has never convicted an individual of genocide : limited resources, lack of state support and selectivity of the cases so far presented are some reasons why this is the case. It is therefore likely that the pursuit of a genocide charge will adhere to the case law stemming from the International Criminal Tribunals of Rwanda and the former Yugoslavia respectfully, with the judgements of Akayesu, Kayishema and Ruzindana, Krstic, and Blagovoc and Jokic the most informative.
Article 6 of the Rome Statute uses the definition of genocide from the Convention on the Prevention and Punishment of the Crime of Genocide. It states that:
‘For the purpose of this Statute, ‘genocide’ means any of the following act committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such:
Killing members of the group;
Causing serious bodily harm or mental harm to members of the group;
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
Imposing measure intended to prevent births within the group;
Forcibly transferring children of the group to another group’
The three separate requirements are the ‘acts’ requirement, the ‘group’ requirement and the ‘dolus specialis’ or ‘special intent’ requirement. The ‘acts’ requirement is set out in the subparagraphs of the definition featuring subtle nuances which prevent this requirement from being straightforward. For example, Akayesu ruled that intent and knowledge must be displayed to qualify as ‘killing’ while Kayishema and Ruzindana found that ‘conditions of life’ has been said to include instances of rape, lack of hygiene, medical care, excessive work and physical exertion. There is a real possibility that one or more of these acts could be found to apply to the Rohingyan crisis.
The protected groups are the ones enumerated explicitly in the list. These terms remain mostly undefined, allowing case-by-case determinations to be made using both subjective and objective criteria (as determined in Nahimana) but using the broad parameters established in Akayesu. ‘National’ groups people with a common legal bond based on a common citizenship, while ‘ethnical’ is considered to be more cultural. ‘Racial’ applies to those bound by common descent, with ‘religious’ binding people through common theistic beliefs. The list has been interpreted as exhaustive resulting in social and political groups being excluded. The Rohingya would likely qualify as a national, ethnical or religious group.
The ‘dolus specialis’ is the requirement which distinguishes the crime of genocide from the crime against humanity. It is also the requirement which is usually the downfall of the prosecution as it is incredibly hard to obtain evidence of an individual’s specific intent to destroy, in whole or in part, a group. Direct evidence, such as government documents ordering one of the above acts, is rare. Tyrannical governments learnt the lessons of the Holocaust in that respect. Prosecutors are therefore forced to rely on circumstantial evidence such as speeches, the presence and conduct of officials at killings and the nature and scope of control. Additionally, a determination of genocidal intent can only be made where it is the ‘only reasonable inference from the totality of the evidence’ . Where another inference is plausible, the special intent cannot be established, obliterating the chance of a conviction of genocide.
The choice to pursue genocide in this situation would be precarious but not impossible. Of course, there are additional challenges that would need to be overcome due to the imperfect system of the ICC, such as the reliance placed on states to transfer the accused to the Court. It is also important to continue to support the victims during these legal deliberations. Bangladesh, which hosts most of the refugees, is about to enter into its monsoon season. Agencies are anticipating flooding in the refugee camps, resulting in more chaos and uncertainty for those who have already suffered enough.
While it is imperative to work towards a legal solution, also consider making a pledge to count your voice among those who stand against violations of international law.