Rohingya Symposium: The Rohingya Cases before International Courts and the Crime of Genocide

[Melanie O’Brien is Senior Lecturer in International Law at the University of Western Australia, and Second Vice-President of the International Association of Genocide Scholars.]

As part of the Opinio Juris symposium, “The impact and implications of International law: Myanmar and the Rohingya”, this post looks at the potential impact and implications of the International Court of Justice (ICJ) and International Criminal Court (ICC) cases on the crime of genocide. Is there anything specific about the Rohingya cases in these two courts that may in some way develop the definition of the crime of genocide? Genocide is such a complex crime, that there is the potential for each different genocide that is adjudicated on to contribute to the development of the parameters of the crime. This is because genocide is not an event, it is a process, and while that process will bear the hallmarks of genocide, the details may vary.

I write this post from the starting point that the crimes against the Rohingya are genocide. While it is the essence of the arguments before the ICJ, it is an argument that has been made elsewhere in many sources, including NGO reports, UN reports, journalism, scholarly writing, and academic research centres; thus, I will not here delve into the details of the facts on the ground. That said, it will undoubtedly be a significant legal event if the ICJ finds that the term genocide fits the crimes committed against the Rohingya by Myanmar. It will confirm that Myanmar’s obligations under the Genocide Convention (the Convention) are applicable, and that other states have a requirement to act under the Genocide Convention against Myanmar’s breach. It may, hopefully, trigger action through other bodies such as the UN Security Council.

Challenges of defining Genocide at the ICJ

The challenge to overcome is the ICJ’s past problematic and limiting findings on genocide, in the genocide cases (Bosnia v Serbia and Montenegro, and Croatia v Serbia).

For example, the ICJ held in 2007 that rape charged as a ‘measure intended to prevent births within the group’ must be specifically committed in order to prevent births (para. 400), and in 2015 that the sexual violence must actually affect the capacity of the members of the group to procreate (para. 166). Surely if this had been the intention of drafters, the provision would have been phrased ‘imposing measures resulting in prevention of births within the group’. The ICJ also applied the requirement that rape and sexual violence committed under Article II(d) of the Convention must be systematic; a requirement the ICJ did not impose on any of the other genocide crimes.

These problematic interpretations of Article II(d) of the Convention relating to rape may be relevant the Rohingya case, as rape has been a ubiquitous part of the campaign of violence against the Rohingya. Sexual violence has long been a part of mass atrocities, but for many years was excluded from accountability processes, and justice continues to be elusive for victims of atrocity sexual violence. If the ICJ pursues this limited definition, it will be yet another barrier to justice for victims of genocidal sexual violence. That said, rape and other sexual violence still falls within Article II(b), ‘causing serious bodily or mental harm’. Yet, the ICJ’s interpretation of this provision and its application to rape also remain unclear but with potentially significant limitations. Thus, assuming the merits argument of the ICJ case include rape (as they well should, given its pervasiveness), and the ICJ applies its previous restrictions around rape in genocide, then we will see a continuation of the restriction of justice to victims of sexual violence in genocide.

The ICJ has no criminal court or tribunal judgements to refer to in the Rohingya case, as it did in the Serbia genocide cases, relying heavily on ICTY findings. Thus, there is a freedom to the ICJ’s findings that did not exist for its judgements in the Serbia genocide cases. Yet, there is also a challenge, in that ‘the ICTY’s fact-finding mechanisms are by design far superior to those of the ICJ’- especially when it comes to the details of mass atrocities, which as we all know, include years of intensive investigation work to compile an extensive amount of evidence in many different formats. The ICJ will have to rely on the evidence submitted by the parties, and so this is a great burden on The Gambia to ensure the evidence presented is comprehensive enough for the ICJ to reach a finding of genocide. This will be particularly challenging, as always, for proving the dolus specialis. In this respect, while state-controlled media has played a significant role in the Rohingya genocide, this will be the first time a genocide case would use social media as proof of the special intent. Here is an opportunity for the ICJ to contribute significantly to the jurisprudence on intent evidence, in particular to consider the role of social media and its extraordinary reach in a country like Myanmar, where most people use Facebook as their main source of news, and Facebook and Twitter have been active sources of anti-Rohingya hate speech. This is turn may trigger developments in other legal fora around the culpability of social media companies in genocide, and movement over the use of social media as a platform for hate speech. We are already seeing legal proceedings in US domestic courts as The Gambia has requested a court order for data from Facebook about Facebook posts by individuals and organisations, including seventeen named military personnel.

Inclusion of the crime of Genocide at the ICC?

The initial phases of the ICC Prosecutor’s investigation into the ‘Bangladesh/Myanmar’ situation have focused on crimes against humanity. While the Prosecutor initially limited her request to the crime against humanity of deportation, the ICC has left it open for the Prosecutor to proffer charges beyond this crime. In 2018, the Court opened up the possibility of prosecutions for other crimes against humanity, and in 2019, Pre-Trial Chamber (PTC) III authorised an even wider scope to the investigation, granting the OTP permission to investigate “any crime within the jurisdiction of the Court committed at least in part on the territory of Bangladesh, or on the territory of any other State Party… if the alleged crime is sufficiently linked to the situation as described” (p.54). An obvious deduction from this is that there is now the possibility of charges of genocide.

The fact that genocide is a process means that it does not necessarily end as soon as survivors leave the scene of killings. For example, it has been argued that the genocide process continues through to include denial. My research on genocide and human rights (From Discrimination to Death, forthcoming with Routledge, 2021) posits that the process of genocide also includes the experience as refugees. That is, it is foreseeable to a genocidaire that those fleeing genocide will flee en masse across borders and end up in huge numbers (thousands, even millions) in over-crowded refugee camps. Despite the best efforts of the receiving country and organisations such as UNHCR, it is inevitable, particularly in the first months of the mass movement of the refugees, that conditions for the refugees will be terrible. Survivors will already be in poor states of health (one Rohingya survivor told me how her feet were ripped to shreds and her legs were swollen after she walked from her village in Rakhine state to the Cox’s Bazar area in Bangladesh), arriving in need of healthcare that simply is not available. As campsites become over-crowded with thousands of refugees, health issues increase, with chronic illnesses and diseases such as diphtheria, tuberculosis, diarrhoea and respiratory diseases spreading, fuelled in part due to a lack of sanitation and healthcare. Access to food and water is also near impossible, with hunger rampant, starvation and infant malnutrition becoming serious issues. Many girls and women had been raped in Myanmar, with inadequate post-rape healthcare facilities to treat their physical and mental health issues. Many girls and women whose rape had resulted in pregnancy sought abortions in Bangladesh, an unsafe process when conducted in unsanitary conditions without proper healthcare. Maternal healthcare is significantly lacking, creating high risk for pregnant women, including malnutrition and birth complications. In addition, other security issues arise, such as sexual violence against girls and women; and trafficking of children and women (also often including sexual violence and forced marriage).

All of these aspects compound to continue to produce a risk to health and life, particularly for girls and women. Thus, once arriving in refugee camps, safety and survival is not guaranteed; the destruction of the group continues, caused by the fact that thousands, millions, of people have been forced to flee genocidal violence. This proposal does not accuse the host states of any crime, but rather allocates responsibility for the conditions experienced by genocide refugees to the Burmese perpetrators. The refugees would not be in those camps but for the actions of the genocidaires, and this opens up an avenue for the Court to structure genocide as more than just single-location killing, but a crime that specifically forces people across borders into over-crowded, unsafe camps, as they flee immediate violence. The experience in the camps could easily fit within the scope of the genocidal crimes of serious bodily or mental harm, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, and even imposing measures intended to prevent births, based on foreseeability.

Thus, a causal connection could be made between the perpetrators’ conduct and the consequences experienced by genocide refugees in refugee camps, with the former amounting to ‘a substantial cause’ of the harm experienced by the victims. A perpetrator may be held responsible for acting with ‘indirect intent’, under which the perpetrator only needs a ‘knowledge of higher degree of risk’ of the consequences occurring. Using Article 30 of the ICC Statute, it could be argued that the Tatmadaw’s intent included forcing Rohingya across the border into a situation which would entail a high degree of risk that the Rohingya would end up in unsafe and unhealthy conditions in an over-crowded camp, experiencing at least bodily and mental harm. The perpetrator’s intent does not have to be linked to the specific circumstances of the crime, only to the criminal conduct. Given the experience of genocide refugees throughout history, it would be clear to the perpetrators that the harm caused by life in refugee camps is a consequence that ‘will occur in the ordinary course of events’ of the crimes of genocide (Art.30(2)(b)), more than a mere possibility or probability. Therefore, there is a strong argument here that the Prosecutor could make for charging genocide through the territorial jurisdiction of Bangladesh.

Notably, PTC III also broadened the geographical scope of the investigation, allowing investigation into crimes related to the Bangladesh/Myanmar situation committed in the territory of any state party to the ICC Rome Statute. This is relevant because, while a large number of Rohingya refugees have fled to Bangladesh, there are also thousands of Rohingya refugees in other states. I have argued elsewhere that the cultural destruction component of genocide continues beyond the borders of the perpetrator state, with our study showing that Rohingya refugees in Malaysia completely lose their identity as Rohingya. In other words, they have been destroyed, at least partially, as a group. This aspect of group destruction deserves to be acknowledged as part of the genocide process. That said, the difficulty is that the majority of Rohingya refugees not in Bangladesh are in non-state parties, such as Pakistan, Saudi Arabia and Malaysia, and so it is unlikely that this broad investigatory geographical scope will actually be of much relevance or assistance to the Prosecutor or the Rohingya case in general.