Global Justice Center Blog

"That's Illegal" Episode 11: Justice and the Genocide of the Rohingya

Two years ago, hundreds of thousands of ethnic Rohingya were violently driven from their homes in Burma in a military campaign that the United Nations has characterized as genocide. To this day, the military dictatorship who carried out these crimes has evaded any meaningful accountability.

Simon Adams, an expert on mass atrocity crimes and director of the Global Center for the Responsibility to Protect, joins That's Illegal to discuss worldwide efforts to get justice for the Rohingya. Akila Radhakrishnan, director of the Global Justice Center, also joins the program.
 

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Transcript: Justice and the Genocide of the Rohingya

Thomas Dresslar: Welcome to That’s Illegal, a podcast produced by the Global Justice Center, or GJC. We’re a legal, human rights non-profit based in New York City that works to move international law from paper to practice. This week, we are looking at worldwide efforts to get justice for the Rohingya people, who were violently driven out of their home in Burma by the military led government two years ago. The horrific military campaign drew international condemnation and the United Nations later found the acts amounted to war crimes and even genocide, but to this day the Burmese government has evaded any meaningful accountability. To break down the current state of play and the international response to this atrocity, we have Dr. Simon Adams, executive director of the Global Center for the Responsibility to Protect. Simon is an expert on mass atrocity crimes who has long worked on and spoken about the persecution of the Rohingya. We also have on the President of the Global Justice Center, Akila Radhakrishnan.

Simon, Akila, thank you so much for joining us today.

Simon and Akila: Thank you for having us.

Thomas Dresslar: For all uninitiated audience, let’s start with the basics. Simon, who are the Rohingya and what happened to them in August, 2017?

Simon Adams: In terms of answering that question, there is a bigger question about the kind of country that Myanmar or Burma is. It’s a very ethnically diverse, religiously-diverse country, and the Rohingya minority group in the north of the country in Rakhine state are predominantly Muslim, and what happened to them in August 2017 is that the government of Myanmar does not recognize them as one of the national groups of the country. They’ve been over many years, in fact over decades, systematically stripped of their rights, denied citizenship, and in some cases put into internment camps, kept separate and segregated from the rest of the population, stripped of what most people would consider to be even basic civil rights. And in August 2017, following an attack by a non-state armed group called the Arakan Rohingya Salvation Army. There was a massive military operation, not just against that group but the entire Rohingya Population resulting in, what we would think, and I’m sure the colleague sitting next to me here would agree, a genocide that was perpetrated against the Rohingya.

Thomas Dresslar: Thank you for that background, Simon. Akila, could you possibly shed some light on the sexual and gender based crimes of Burma’s military forces and why they’re important to emphasize.

Akila Radhakrishnan: I think this picks up on where Simon started which is that Burma is an ethnically diverse region and that the Tatmadaw has engaged in conflict with ethnic groups for decades and sexual violence has formed a part of the pattern of violence on how they perpetuate crimes against ethnic populations since the 1960s, since they’ve been really engaged in this conflict and so there’s a really strong threat to be drawn to how the military itself conceptualizes the consequences of sexual violence and how they use it towards strategic means whether it’s in states like Kachin and Shan where there is still active conflict or whether against the Rohingya. And specifically in the context of the Rohingya and in the way they are perpetrated in the genocide, the manner that they utilize sexual violence, the manner that they committed other crimes that are all deeply gendered and has been lot of the subject of the work of the Global Justice Center’s work on this issue.

Thomas Dresslar: Two years later, Simon, where are the Rohingya now and why can’t they return to their home in Burma?

Simon Adams: To answer that question, the long period of persecution in Myanmar has led to the dispersal of many Rohingya people around the world from Australia, to London, to the United States of America. There are Rohingya everywhere who have fled persecution in Myanmar. But more specifically, I think, one of the greatest tragedies that has happened since August 2017 is that the vast majority of the world’s Rohingya population actually live in Bangladesh now. They live in refugee camps on the border with Myanmar with 900,000 people who have been systematically displaced. That’s unfortunately the tragedy of the current situation of the Rohingya.

Thomas Dresslar: Initially, what was the overall international response like? Did it give you any sense that swift action would be taken?

Simon Adams: No, I think in so many cases that I work on, that the Global Center for the Responsibility to Protect works on, we are constantly told by the UN member states that say "we need more early warning, we need more early warning, if only we had some early warning we could deal with that situation." You could not have got more early warning in the case of the Rohingya. We’re talking about decades of persecution, we’re talking about years and years of human rights organizations like my own and others saying “this is the problem; this is what’s happening; this is the risk we see; these are the threats that are emerging; the lights are all flashing red on the warning panels”. And yet, almost absolutely nothing was done to prevent to either prevent the genocide from happening; to stop it while it was happening; and now, unfortunately, very little to be done to help people in account in the aftermath.  

Akila Radhakrishnan: I think Burma has been a particular case where persistent failure of the international community. What you can see now over the past ten years, let’s say, is, you say what the context of council action looked like, or security council action looked like, which was nothing. In the wake of the junta in the aughts...You saw a little bit of action when it came to the Saffron revolution and putting down of the Buddhist monks, which was a nonviolent protest. But it’s been a slow burn there for a very long time and there’s been almost no action. And then what you saw that was remarkable was that instead of paying heed to a lot of organizations, including both of ours, in the wake of the transition, we’re saying “things aren’t actually better; things cannot actually get better. There is still systematic persecution; there is conflict”, the military remains in power through the constitution. And the international community between 2010 and 2014, wanted no part of understanding of Burma’s anything other than a success story. That’s what they wanted to see Burma as. They wanted to see it as a peaceful transition to power. They wanted to invest in Aung San Suu Kyi, who was a hero from her time being as a political prisoner. But as a result of that they fully ignored any of the continuing warnings that were occurring in parallel as the community invested financially, economically, and I would say in development efforts within the country. So I think that’s an important backdrop to the inaction we see now is that there were years and years where these kinds of acts against the Rohingya, there was a wave of violence against the Rohingya in 2012, for example, that nobody wanted to pay attention to because the narrative that they wanted at the time was that of Burma as a success story. And so I think that’s an important context on where we’ve seen it now. And even since what’s happened in the wake of the clearance operations in October 2016 and ’17, the Security Council has passed one presidential statement. One. They’ve taken no meaningful action whatsoever to whether the early warning indicators or clear documentation of atrocities that have happened.

Thomas Dresslar: Speaking of UN inaction, Simon you had an interesting TV interview last year where you said that facebook and shutting down the accounts of a few Burmese generals had done more than the United Nations Security Council to hold the perpetrators of these atrocities accountable. So what obligations do the international legal bodies like the UN have to act here? Can you sum up the accountability efforts, or lack thereof, the UN has undertaken thus far?

Simon Adams: I was probably pretty angry at the UN Security Council at the time and that was not so much a matter of praising Facebook as it was as it was criticizing them. And we should be really clear that the people that carried out the genocide, used and manipulated social media in a pretty overt way. Facebook, which is one, there are other platforms which they used as well. But it was a positive thing afterwards that some of these platforms, including Facebook, got the generals off social media, got some of the hate-speech, some of the insult off social media. And I guess the contrast I was trying to draw was an obvious one, as Akila just mentioned, we’re coming up on two year anniversary of the beginning of the genocide against the Rohingya and the only thing that the UN Security Council has done is to adopt the single presidential statement. Which was a good presidential statement, but is certainly not what we should’ve seen. There’s been no attempt by the international community in a coordinated way to actually hold the generals accountable for what they’ve done. In terms of accountability, I think on a bilateral level, I think some states have imposed sanctions on the generals, and some of the other senior military officers who were responsible for atrocities. That’s a positive thing. And the states that have done so, whether it is the United States, Canada, the EU, Australia, and others, should be congratulated for that. But we need to be absolutely clear that it just has not been enough; it’s been very late; and it has not done anything so far to save a single life. I think the bigger question now is: what is the international system going to do to actually come to terms with what happened in 2017? And I for one strongly believe, and I know Akila agrees with this, that our central part of this is going to be justice. That’s not just because we think that the people responsible should be punished, should be in handcuffs, and should be held accountable in the court of law, but because I think that is also the antidote for recurrence of these atrocities in the future.

Thomas Dresslar: You’ve expressed your frustration with the UN Security Council, but there has been United Nations activity on this front. The UN fact-finding mission has been active for a couple of years now. They’ve released a lot of reports on the human rights abuses by the government and other facts about the persecution of the Rohingya. And they’ve even mentioned the acts that wen mentioned earlier about the clearance operation amounted to genocide. They’ve determined that. So I’m wondering how significant that is and if you could possibly shed more light on the fact-finding mission.

Simon Adams: I think that’s very significant, but let’s be clear that’s not the Security Council that did that. They actually outsourced that job; it was actually their failure to do their job which caused the people in Geneva to look for other avenues to try and pursue international justice or even just to pursue, in this case, accountability in the sense in determining who was responsible, collecting evidence, and making sure that that’s available. So I think the work of the fact-finding mission has been fantastic, but it was kind of like a substitute for the inaction and failure of the Security Council. And in terms of their determination, I think that they’ve done extremely good work. I think the fact that they found the crimes that occurred between August and December of 2017 in Rakhine state against the Rohingya constituted genocide are correct. And I think the challenge now for us is to make sure that we take the next steps and not just stand around wringing our hands, gnashing our teeth, and crying tears over what happened, but that we actually see perpetrators held accountable in the court of justice.

Akila Radhakrishnan: And I think, just to add on to that from a legal side. You don’t even need a determination of genocide if at the moment the states know of serious risk of genocide, they actually have an obligation to do something about it. And in this context what we’ve seen is that, you have thorough documentation of what is clearly genocidal intent, genocidal acts, and yet in the years since the fact finding mission produced the report, other than some of the measures that Simon outlined around sanctions we’ve still seen the failure, both of individual states and the international community to take any meaningful action to actually, both deploy their own obligations under the Genocide Convention and hold Burma to account for its obligations under the Genocide Convention.

Thomas Dresslar: So Simon said he wanted to see the perpetrators of these atrocities held accountable. Akila, where can justice be found in the international system? Can you explain what courts are out there? What their jurisdiction is and what sorts of cases do they normally take? 

Akila Radhakrishnan: So, as a starting point I think it should be noted that Myanmar’s domestic courts and domestic system is not a plausible place for justice. That was clearly found by the fact-finding mission. Its information that has been widely understood and know for by advocated for a very long time. And this is because the 2008 constitution puts the military entirely out of the civilian justice system. They have provisions within their constitution that actually provides for their immunity for international crimes including crimes against humanity and genocide. And so I think that this is where we have to look to the international system for what avenues for justice may look like because without massive structural reform within the country, you’re not going to see justice be served within Burma. So in that context, there are couple of different avenues and types of accountability that could be looked at in the international level. So on the one hand is the criminal accountability of individuals who have participated, condoned the genocide. So that could be senior officials of the military all the way down to those who perpetrated individual acts. It could also plausibly be those within senior ranks in the government who may or may not have anything to do with the actual perpetration of acts, but who through, in their roles, actually helped with the planning and the commission of these crimes or failed to act when they knew about these crimes. So there is a broad range of accountability. But right now for that there are two venues that are seemingly plausible. On one hand, the International Criminal Court has opened up a limited prosecution because Burma is not a party to the International Criminal Court. They’ve opened up a limited investigation into certain crimes that carried over into Bangladesh. And so, depending on where those investigations go, it is possible that a few individuals could be indicted and, as always with the ICC, it’s a matter before the trial can start someone actually has to get their hands on these people. You need to actually have them in your custody and at this point, that doesn’t seem as a very likely opportunity because the Burmese government isn’t going to cooperate with the International Criminal Court. They’ve made that clear and so they’re not going to hand anyone over. There is also limited opportunities in third party states around the theory of universal jurisdiction, but at the moment in the Asia-Pacific region, universal jurisdiction isn’t widely utilized and the systems aren’t there to use it and a lot of the European courts are absorbed by the cases related to Syria and Iraq where there is a more direct connection. And then on the other side there is the piece around state accountability, instruments like the genocide convention laid out not only are individuals criminally responsible, but the states owes obligations when it comes to acts like genocide. And in that context a state itself can be held accountable here in the International Court of Justice. At present, no action has been taken at the International Court of Justice but it is possible that any state that belongs to the convention, could actually take Burma to the court to hold them to account for the variety of obligations that they breached under the convention, including commission, but also in their failures to prevent to punish.

Thomas Dresslar: Akila, you’ve said that any state that is a party to the convention against genocide could take Burma to court. Could you or Simon briefly explain the convention against genocide, its history and what obligations states have under it?

Simon Adams: Maybe I’ll leave the legal stuff to Akila but, for me, the genocide convention is one of the single most important outcomes of the aftermath of the second world war and the Holocaust, and its hugely influenced by it and its largely the product of one man, Raphael Lemkin. And the reason why I like to mention him, not just because I think he is a very important legal scholar who gave us this document, but it kind of speaks of personal activism as well and the difference that an individual can make. He was a guy—a lawyer, a refugee—who lived and died here in New York, but made it his life’s work to honor his relatives who died in the Holocaust to, first of all, create the term “genocide”, to describe a crime that until then had no name, and then to outlaw it under international law. So I think we should all try to be a little like Raphael Lemkin in what we do.

Akila Radhakrishnan: what I would like to highlight about the genocide convention is that its unique in that it imposes obligations not only on those who are directly responsible for genocide. For example, in states where genocide happens, they have obligations to criminalize genocide, they have obligations to punish people. It actually says that genocide is of such concern to the international community that everyone has an obligation to do everything in their power to prevent it. And I think that’s really important because that’s the rallying cry of what never again is supposed to be like when deployed correctly is that when you see signs of genocide, you should do whatever it is within your power. If you’re a state in the security council that means you have certain powers; if you’re a bordering state, if you’re engaged in one-on-one, you should do whatever you can to stop the genocide from happening because what genocide protects is that something that cannot be brought back. And that’s why the duty is not only to address it in the aftermath, but to prevent it in the first place.

Simon Adams: Can I just add one more thing to that? The longevity of it as well. We still use that word; it’s probably one of the most powerful words in the English language and in any language in the world and I think the convention still stands as well. We’ve been doing this other work, my organization with the Getty Foundation and others, which is cultural heritage protection, looking at, for example, what ISIS has done in Northern Iraq. And again, you back to debates around the genocide convention and how it evolved. Lemkin wrote about all this stuff; talked about all this stuff, and was actually cut out of the genocide convention because of politics, because there are a number of states, particularly white settler states, including the one that gave me this accent which is Australia. They were very, very nervous about the implications of cultural genocide in the countries where they had come and they had come and displaced people. But, still, 70 years later, we go back, we look at those debates, we look at those writings, we look at the way he tried to understand the crime, and we can still get a lot out of it. Sorry, that’s a digression from the Rohingya.

Thomas Dresslar: No it’s interesting. It’s such a powerful word as you said. It’s good to explain its origins and its continued relevance today especially if the international system attempts justice in Burma using the Genocide Convention.

Akila Radhakrishnan: And I think this highlights the point that there is this legal construction of genocide to this convention. Convention is an important tool, but it was a political decision ultimately. So what’s contained in the convention represents a series of compromises that were made to make it palatable to states to sign on. And I think what Simon was talking about Lemkin’s work around cultural genocide that was included, was some of the broader constructs of what the term tries to encompass in what it means to destroy a targeted group in a population. So even if it’s not within the strictly legal definition of it, I still think that there are important components to it that we need to look at as a part of a sociological and anthropological understanding of what genocide is and how it impacts communities and societies.

Thomas Dresslar: So I think that brings us to what is happening today. You said that states can bring Burma to the International Court of Justice for breaching the convention against genocide, but have any states done that? What is the current state of play when it comes to state accountability at the International Court of Justice? And what would an eventual just outcome look like in the court?

Simon Adams: What I would say about that is, is that I think there has been a growing movement since August of 2017. People have been asking questions about what an accountability process might look like. Akila has already explained why the domestic option is not there. There is a possibility of something potentially happening at the International Criminal Court, but that’s about individuals. But there is this whole argument about state responsibility under the genocide convention and my own organization, and of course the Global Justice Center have been working together to try and raise this issue and say that any state, and we would like to see all states who are signatories to the genocide convention, should take Myanmar to the International Court of Justice for the genocide that they perpetrated against the Rohingya population. I think we are seeing now a possibility where the OIC has made a decision and that Gambia may take the case forward and certainly we think that this would be the beginning of the step towards holding Myanmar accountable in front of the eyes of the world and certainly we hope many more states would join this case.

Akila Radhakrishnan: and I think this action can help maybe break some of the logjam that we’ve seen. One of the major consequences of the failure of the international community to act is that Burma has done nothing to change their behavior. We have a million people displaced in Bangladesh. They do not have the safe ability to go back home. And in fact, they are taking actions like raising the actual villages the Rohingya lived in which happened as part of the clearance operations; rebuilding over the resettling people into that population.  And what they’re doing, and this is a part of the pattern of repressive behavior against other ethnic groups as well, but nothing has been done to change the behavior of the state. And holding the state responsible, and not just hold some of the individual generals accountable, but rather to say “you as a state need to do something and we take that seriously and we’re going to take you to court about it”. It is really an opportunity to try to force the hands of Burma’s government to try to change their behavior which is much needed at this point if the Rohingya were ever to have, not only justice, but to be able to safely return home and live the existence that the way their community needs to be able to live.

Thomas Dresslar: So I wonder if we can get in the weeds for just a second here. Akila you said that the International Court of Justice could potentially force Burma to change its behavior. I’m wondering if either of you could get into the specifics of what that would look like? What measures would they take?

Simon Adams: I feel like one of those people in a crime show who says “I’m going to refer that question to my lawyer”. But I am going to refer that question to Akila, except to say this: as the politics guy, I have to say that the symbolism involved here is very powerful and very important as well. And we wanted judgement because there are actually provisional measures that can be put in place and there are legal penalties that can be imposed. But I think beyond that as well, we want a situated where any representative of this murderous government in Myanmar which has carried out this genocide has to walk around any international stage in the world knowing that they’ve been held accountable in one of the highest courts in the world of the crime of genocide, and that’s a stain that they cannot just simply wash away or wish away and that they have to actually do something about it. On the legal stuff, I’m sure Akila has something to say about that.

Akila Radhakrishnan: On the legal side, the ICJ is a weird institution. It’s not an institution or court like we think of it, and it’s not one that’s look at vindicating, for example, victim’s rights. That’s not what the ICJ does. The ICJ is a part of the rules based international order. It’s a mechanism that was set up as a part of the UN, as a way of settling disputes within states in a peaceful manner. And that’s really what the justice of the ICJ  looks like. Its about saying that we believe a state believes that you as another state have not done what you’re supposed to do in international law and we a court to adjudge what is it that you violated and what you need to do to redress that situation. It’s a little bit of a weird mechanism. Its not one where there is individual witness testimony in the way we think of criminal trial. There is no formal participation for victims because ultimately, and this is going to sound callous, the court doesn’t care about the rights of the individual Rohingya. That’s not what they’re trying to adjudicate. They’re actually looking at the right of a state against another state to have the genocide convention be complied with. It’s also why the ICJ is only one mechanism that’s part and parcel of a larger picture of accountability. Just because a case in the ICJ moves forward, doesn’t mean that we shouldn’t pursue individual criminal accountability—that states shouldn’t impose state to state sanctions and other types of behavior to encourage the state to change. It’s a really important part, and as Simon said, a really important symbolic part, but it’s not the silver bullet to change the situation for the scenario.

Thomas Dresslar: before we end today, I’d like to turn things back to the Rohingya. Simon, why is international accountability so important for the Rohingya community and their future prosperity? And separately, do you think jut results at bodies like the International Court of Justice help prevent further atrocities like this?

Simon Adams: I think they do. A million people are sitting in refugee camps in Bangladesh. They deserve justice; they have a right to justice; and certainly a case in the International Court of Justice or the International Criminal Court would make a difference to these people. It would do something to save some of the pain that people have endured. But I also think that there is a broader question of the impact that this could have in Myanmar as well. There is no doubt in my mind that the generals who carried out the atrocities in the Rakhine state want to take those lessons and apply them on other parts of the country. We’ve already seen that in Kachin, we’ve seen that in other parts as well. They feel that if they can get away with mass murder in one part of the country then they must be able to get away in other parts. On the other side of the equation, is that the people in Myanmar who believe in human rights, who believe in justice, are looking at this as well, and it could become an emboldening thing for them. I think there is a huge onus of responsibility in the international community as well. I’d go back to something Akila actually said earlier that there has been a whole kind of argument that “lets just be quiet about human rights in Myanmar because democracy is more important”. Like somehow you can build democracy in Myanmar on the bones of the Rohingya, and I think that’s something that we should not allow—morally, politically—and I think if we have some kind of a legal response we can start to tilt the balance away from there horrible violations in human rights and towards justice in Myanmar.

Akila Radhakrishnan: we’ve also focused a lot on talking about states, the responsibility of the international community, and I think that there is a large role to be played in thinking through the complicity of the various states are, especially those who’ve transferred arms, for example, to the Tatmadaw, but we’ve also talked about Facebook and private corporations, and just this morning the FFM released a massive new report that actually looks at financial interests. The roles of financial interests of corporations in Asia, in Europe, have played in supporting the commission of these crimes. And this goes back a little bit to the point of why people wanted to brand Burma as a success when it comes to democracy. It also opened up a financial market that was not open to the majority of the countries. It’s a mineral rich country. There are a lot mining and other types of income to be generated. And before the opening up in 2010, those were not financial markets that were available to the vast majority of countries. There were wide sanctions in place. And you actually see this as a part of the military’s strategy as to why it is that they opened up the country and allowed for this transfer of power—which wasn’t a transfer of power because they wrote the constitution that kept them in power. They also own the majority of the corporations that have military or their cronies; own the majority of the corporations that have profited from the foreign investment and the mining interests that have happened. So I think that, there is also a really serious need to think about the ethical practice by corporations when they invest in these countries and how corporations, perhaps, should also be held accountable for the rights violations that they also are complicit in and have helped perpetrate.

Thomas Dresslar: All Right. Thank you Simon and thank you Akila for joining us today. I know that this is an issue that both of our organizations are working on and tracking closely and we may have you back on for a future episode. 

Tags: State Responsibility, Genocide, Burma, Podcast, Mass Atrocity Crimes