Determining the Commission of Genocide in Myanmar

Details

Author(s):
Publish Date:
June 26, 2019
Publication Title:
Journal of International Criminal Justice
Format:
Journal Article Volume 17 Pages 285-323
Citation(s):
  • Beth van Schaack, Determining the Commission of Genocide in Myanmar, 17 Journal of International Criminal Justice 285 (2019)
Related Organization(s):

Abstract

In August 2018, what appears to be a draft statement to be delivered by United States Secretary of State Mike Pompeo on the persecution of the Rohingya minority in Myanmar was leaked to the press. The text suggests that the State Department was considering whether there are grounds to believe that genocide has been, or is being, committed in Myanmar and whether the State Department should issue a statement to this effect. This article surveys the major human rights documentation efforts, academic literature, relevant jurisprudence emanating from the international criminal tribunals, statements of United Nations entities and other states, the results of the State Department’s recent empirical investigation, party and amicus curiae briefs filed before the International Criminal Court, and journalistic accounts of events in Myanmar, Bangladesh, and elsewhere in the region with an eye towards understanding the dynamics of violence against the Rohingya — deemed by many to be ‘the most persecuted minority in the world’. The article layers the facts as we know them against established legal principles to conclude that a genocide is in fact underway in Myanmar through genocidal acts committed by discrete sets of actors (including various state organs, the Tatmadaw-Army, regional and local officials, and Rakhine civilians) and also by way of a genocide writ large against the Rohingya within Rakhine State involving the central authorities working in collusion with, and through, regional actors. This article closes with a discussion of the methodological question of the level of certainty that should be met before a non-judicial entity makes such a determination with reference to the various standards employed by commissions of inquiry and courts (both criminal and civil) that find themselves making analogous determinations.