Questioning the legitimacy of Myanmar’s coup regime acting as human representatives of “a state party”

FORSEA Dialogue Series on Democratic Struggles Across Asia hosted the 1st of the two international law roundtables, with three distinguished guests from the University of Cincinnati College of Law, the University of Ottawa and the Genocide Watch.

The focus of the roundtable was on the highly contested issue of the legitimacy of Myanmar’s coup regime as acting as human representatives of “a state party” in the case of The Gambia vs Myanmar – or Rohingya genocide case – where the regime has lost effective control of Myanmar, as a member state of the United Nations, and populations across different regions.

The experts agreed that the ICJ as the principal judicial body of the United Nations cannot behave as if it were a stand-alone entity that can act independent of other important organs of the UN such as the General Assembly and its Credential Committee, which have since the coup a year ago have rejected the attempts by Myanmar’s mass-murderous military regime to seat itself at the UN as the true representation of Myanmar as a member state.

Watch the YouTube Dialogue here:

Subsequently, one of the guests Erin Farrell Rosenberg, who previously worked at the International Criminal Court and the International Criminal Tribunal on former Yugoslavia, further developed her thought on the central issue of who should, legally, represent Myanmar as a state party of the Genocide Convention.

More experts warn that Myanmar junta will use genocide case hearing at top UN court ‘opportunistically’ to seek legitimacy after coup:

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Backgrounder to the ICJ’s misguided embrace of the empirically utterly false “single intent” legal theory, see the following counter-reasoning by the renowned genocide and legal scholar, Gregory Stanton:

“The problem with requiring only one intent for an act or policy of a state is that it does not correspond to the reality of human intentionality in the acts of any individual or state. A sole intent requirement is not a requirement in any criminal law system or civil case. A requirement that an act be proven to have only one intent would make criminal convictions impossible.

If someone shoots a gun and kills another person, he/she could not be convicted of murder if he or she also had another intent, such as robbery or revenge.

To hold that the intent to destroy a group must be the only intent that can reasonably be drawn from the acts of a state ignores the fact that destruction of part of a group is often inflicted to terrorize members of a group into forced displacement, what the ICJ lamentably calls “ethnic cleansing.” [“Ethnic cleansing” is not outlawed by any international treaty.] Acts by individuals or states always contain a multiplicity of intents. The ICJ was simply wrong that genocide and “ethnic cleansing” are mutually exclusive, and that genocidal destruction must be proven to be the only intent of a state’s policies.

Under the Genocide Convention, destruction of a group does not only occur through direct killing of members of the group (Article 2(a) of the Convention), but also by deliberately inflicting on the group conditions of life calculated to bring about its physical destruction (Article 2(c)).

During the Provisional Measures hearing in the case of Gambia v. Myanmar, the interpretation of genocidal intent in the ICJ judgments in Bosnia v. Serbia and Croatia v. Serbia were brought to the attention of the ICJ. However, the case of The Gambia v. Myanmar, differs from these prior cases in five important ways.

1. 1. In Myanmar crimes were committed directly by the Army, the Tatmadaw, which is an organ of the State, whereas in both Bosniaand Croatia, the crimes were committed by militias and not by the Serbian Army.
   2. In Croatia v. Serbia, the ICJ stated: “the number of victims alleged by Croatia is small in relation to the size of the targeted part of the group.”¹ The attacks against Rohingya were not small at all, affecting at least half of the Rohingya population. Over seven hundred thousand Rohingya were deported, while over 30,000 Rohingya were murdered. Thousands of girls and women were mass raped on the opening day of the Army attack, in accordance with Tatmadaw policy.
   3. First-hand accounts and satellite imagery illustrate the widespread, systematic, deliberate, and targeted destruction by fire of Rohingya villages. At least 392 villages (40 percent of all Rohingya settlements in northern Rakhine state) were partially or totally destroyed, including 38 thousand individual structures. Approximately 80 percent were burned in the first three weeks of the operations. More than 70 percent of the villages destroyed were in Maungdaw, where the majority of Rohingya lived. Although homes were primary targets for destruction, schools, marketplaces, and mosques were also destroyed. Rohingya-populated areas were specifically targeted, with adjacent or nearby Rakhine settlements left unscathed.² Rohingya food sources were also destroyed.
   4. Genetic alteration through rape has been recognized as a method for committing genocide.Thousands of Rohingya women and girls were raped on August 25, 2017. As evidence, children were born to those very same women and girls in Cox’s Bazar, Bangladesh exactly nine months later. The sheer volume of rapes and matching subsequent births, demonstrates a high likelihood that an order was given to commit mass rapes. The Myanmar Army’s policy of mass rape is an act of genocide because it includes specific intent to destroy a substantial part of an ethnic and religious group. That is, the perpetrators were aware not only that the rape would lead to a genetic alteration of the composition of the group, but also that the estrangement from husbands could lead to prevention of births within the group, a violation of Article 2(d) of the Genocide Convention.³
   5. Hate speech and incitement to genocide on Facebook created a culture of genocide in Myanmar. In the UN Independent Fact-Finding Mission’s report, we read: “The relative unfamiliarity of the population with the Internet and with digital platforms and the easier and cheaper access to Facebook have led to a situation in Myanmar where Facebook is the Internet. It has become the main mode of communication among the public and a regularly used tool for the Myanmar authorities to reach the public.”⁴ The military junta organized a team to fill Facebook with discriminatory and hateful rhetoric targeting the Rohingya Muslim minority. In a Reuters special report titled “Hatebook,”⁵ Reuters reported more than 1000 examples of posts and comments written on Facebook against the Rohingya people. The Rohingya are compared to dogs or maggots. Some of the posts said: “We must fight them the way Hitler did the Jews” or “We need to destroy their race.”⁶

In line with the UN Independent Fact-Finding Mission on Myanmar, four of the five prohibited acts contained in Article 2 of the Genocide Convention are present in the Rohingya case: (a) killing; (b) causing serious bodily or mental harm; (c) inflicting conditions of life calculated to bring about the physical destruction of the group in whole or in part; and (d) imposing measures intended to prevent births.

The critical element of the crime of genocide is intent. The manner in which Myanmar’s crimes against the Rohingya were perpetrated is chillingly similar in severity, nature, and scope to the genocides perpetrated against Jews, Armenians, Tutsis, Bengalis, Bosnians, and Darfuris. Some of the factors that indicate intent include state-supported hate rhetoric, a long history of persecution, statements by Army commanders, extreme brutality, discriminatory and exclusionary policies, and mass rape.

The Fact-Finding Mission on Myanmar stated that “Having given careful consideration to other possible inferences regarding intent, the mission considers that these can be discounted as unreasonable. In this regard, it recalls the statement made by the Tatmadaw Commander-in-Chief that the ‘clearance operations’ were not a response to a concrete threat from ARSA, but to the ‘unfinished job’ of solving the ‘long-standing’ ‘Bengali problem.’”⁷

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FORSEA
Banner: Aerial view of a burned Rohingya village in Rakhine state, Myanmar – September 2017. Wikipedia Commons

1. ICJ, Croatia v. Serbia, para. 437, 2015.
2. FFM on Myanmar, para. 42, 12th September 2018. Available here: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/274/54/PDF/G1827454.pdf?OpenElement
3. Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, 17th September 2018, para. 1410. Available here: https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/A_HRC_39_CRP.2.pdf . And article 2 of the Genocide Convention: (b) serious […] mental harm to members of the group; (c) conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group
4. Ibidem, para. 1345.
5. Reuters, Why Facebook is losing the war on hate speech in Myanmar, 15th August 2018. Available here: https://www.reuters.com/investigates/special-report/myanmar-facebook-hate/
6. Ibidem.
7. Fact-Finding Mission on Myanmar, para. 86, 12^th September 2018. Available here: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/274/54/PDF/G1827454.pdf?OpenElement