Genocide is an act of state, and demands a response by other states

The Myanmar state can and must be held accountable for the genocide being perpetrated against the Rohingya, a point lost in largely illusory efforts to pursue international criminal trials of individuals.

By: John Packer
April 24, 2019

Photo: Tansim News Agency/Seyyed Mahmoud Hosseini

The plight of the Rohingya of Myanmar is an existential question.  Indeed, they are enduring an on-going genocide.  After decades of persecution and a deliberate campaign of terror, violence, killings and rape waged against them, today perhaps only 15% of the original population of Rohingya remain in Rakhine State.  Some 750,000 have fled the country since August 2017, most to squalid conditions in Bangladesh.  A third of those remaining in Myanmar (some 140,000 human beings) are confined to concentration camps while the fate of many others is precarious at best.  All credible and independent sources who have investigated the situation have concluded there exists ample evidence for the charge of genocide, including a UN fact-finding commission, UN rapporteurs, and many NGOs.

Such a charge inevitably demands individual criminal accountability, and indeed several reports have named the military commanders that ought to be brought to justice along with complicit civilian leaders.  Yet, the demand for international criminal trials far in the future is obscuring and detracting attention from other actions demanded of UN Member States in the face of a credible charge of genocide.  “Accountability” mustn’t be limited to trials of individuals.  The Myanmar state itself can and must be held to account.

To focus only on individual criminal accountability misunderstands the basic nature of genocide.  The Genocide Convention is above all a matter of state obligations, where breaches engage state responsibility. This is distinct from individual responsibility (which entails punishment of culpable, individual human beings). It is crucial to realise that the state is a uniquely powerful actor. Under international law, it is endowed with sovereign powers of policy- and law-making.  Genocide is, by its character, not just a composite of disparate individual acts—although individuals can commit certain genocidal acts. The point is that some acts cannot be committed by individuals.  For example, no individual confers or withdraws citizenship—which is a prerogative of the state alone. The continued denial of citizenship to the Rohingya, alongside the blatant discrimination and violence they suffer, is clearly evidence of the systematic persecution that sustains the charge of genocide, and it shows the state’s intent.

Further, the Tatmadaw are the Armed Forces of the Union of Myanmar, possessing specific state authority and equipped with enormous public means. The Tatmadaw is not a gang, nor a militia.  They are not distinct from the state, but are the effective instrument of control (the monopoly of lawful force) by and within the state. Thus, coordinated actions, by command, are the responsibility of the state and not just of the Generals named in various investigations. To be precise, in August 2017 the mass rapes across hundreds of villages and different districts, occurring at the exact same time, were not just the sum of individual sexual assaults by disparate, coincidental decisions of individual soldiers. Those thousands of acts were and remain under license of the Myanmar state—which grants both authority and impunity—and the aim of those rapes (simultaneously, brutally, also to forcibly impregnate) is intended by the state to destroy the Rohingya as a group, at least in part. That is the very definition of genocide.

The Myanmar state has commissioned these acts—which would not otherwise be possible in scale—and which continue today. A number of states have already expressed the view that genocide has occurred.  There are now 150 States Parties to the Genocide Convention—three-quarters of the world, including Burma/Myanmar. Article IX of the Genocide Convention prescribes the recourse in obligatory language: in case of a dispute the matter “shall be submitted to the International Court of Justice” [ICJ].  It would be reasonable and desirable for several states—a broadly representative group—to act together to bring a case against Myanmar at the ICJ.  Cases under the Genocide Convention have been brought to the ICJ and the obligation to prevent genocide has been adjudicated.

An action before the ICJ would be hugely impactful both politically and legally.

Politically, it would constitute an immediate forum for open and comprehensive consideration of the ongoing genocide.  Initiation of the action would alone generate reputational risk, thereby causing concern for foreign investors and affect ‘business as usual’ given the prospect of a binding judgment and orders including potentially huge reparations.  Prosecutions of some ‘bad apples’ can be easily ignored by investors, but laws and practices of the state possibly judged unlawful (and ordered remedied) have far-reaching consequences. Not surprisingly, therefore, ICJ judgments are generally respected.

The benefits of such an action would be immediate, notably the possibility to seek from the Court Provisional Measures. Myanmar would be obligated to respond, with its failure to respond constituting a further breach with further consequences. A case would also serve to expose before the world Myanmar’s formal position, to be scrutinized according to law. In terms of reparations, the Rohingya have rights to return home, to restitution of their property and to compensation for other injuries. These can follow an ICJ action. They do not follow from prosecutions of individuals (at the ICC or elsewhere) which, at best—many years hence, if ever—might result in the incarceration of some individuals, long out of power. Judging from recent, disappointing ICC decisions, even this thin possibility holds a fair chance of failing.

In sum, the ICJ is an immediately available, easily accessible, highly appropriate and powerful recourse.  We need to stop prevaricating, stop ignoring the overwhelming facts, and simply apply the existing law.  This is not only an existential matter for the Rohingya—which should be reason enough to act. It is also, perhaps, an existential matter for the international rule of law and for the core value of universal human rights. We cannot be unsure about this or hesitate to act in the face of this genocide.

John Packer is the Neuberger-Jesin Professor of International Conflict Resolution at the Faculty of Law, University of Ottawa.