This is the second installment of our four-part series about the current violence being committed against the Rohingya in Myanmar. To learn about the background of the violence, read our first piece entitled “The Rohingya: The World’s Most Persecuted Minority.” Photo: View of the sprawling Kutupalong refugee camp near Cox’s Bazar, Bangladesh by Russell Watkins/Department for International Development UK.
*Views expressed in this story reflect those of the author and not an organizational stance by PCRC.*
by Christina Hasenhüttl
The violence against Myanmar’s Rohingya population during past weeks and months has been recorded and reported by numerous news outlets, international organizations, and human rights advocacy groups worldwide. Despite a general call to the end the humanitarian crisis, there has been much ambiguity surrounding the character of the ongoing human rights violations. The definitions range from ethnic cleansing, to crimes against humanity, to some even calling it genocide, while Myanmar itself has expressed stark denial to any of these crimes. This leaves one to carefully consider how to accurately classify the ongoing violence and the implications this decision carries.
Language matters. Michael J. Kelly, Professor of Law at Indiana University argues that “the moral, political, and legal consequences that follow from withholding or applying (a certain) label vary with the circumstance, and the effects of applying the label can truncate options for dealing with the situation.” Categorizing violence and human rights violations in one way or another helps us understand its nature and thus shapes our perception of the severity of the crisis. Additionally, the classification of a certain crisis has implications not only on victims, their acknowledgment of suffering and retribution, but also on the response and action from the international community (or the lack thereof) and possible legal consequences for perpetrators. It is therefore important to understand the differences between crimes and the accompanying social, political, and legal implications, which go far beyond semantic nuances.
Ethnic cleansing describes the expulsion of a group of people from a certain area due to their ethnicity. The resettlement of people can range from being relatively nonviolent to extremely brutal and, so, the lines between ethnic cleansing and other crimes, notably, genocide, are rather blurred. According to the United Nations, there is no definition of ethnic cleansing and it is not recognized as an independent crime under international law. As a response to the violence in Myanmar, Zeid Ra’ad al-Hussein, United Nations High Commissioner for Human Rights, called the situation “a textbook example of ethnic cleansing.”
It seems that world leaders and those holding powerful positions, such as al-Hussein, are rather careful when defining the violence and mass exodus of Rohingya, refraining from using terms such as crimes against humanity or genocide. This might be due to the nature of the legally specific and politically charged terms but also because Myanmar has yet to grant access to any human rights investigation which could give more insight into the situation. This is, however, not to say that the High Commissioner for Human Rights was soft spoken when calling on the Myanmar “government to end its current cruel military operation, with accountability for all violations that have occurred, and to reverse the pattern of severe and widespread discrimination against the Rohingya population.”
Crimes Against Humanity
Since the prosecutions at the Nuremberg and Tokyo Trials, the concept of ‘crimes against humanity’ (CAH) has developed under international customary law as well as through the jurisdictions of international courts such as the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda or the International Criminal Court (ICC).  The latest consensus among the international community pertaining the definition of CAH can be found in the 1998 Rome Statute of the ICC. Murder, Extermination, Deportation or Forcible Transfer of populations, and Rape are some of the acts that when ‘committed as part of a widespread or systematic attack against any civilian population’ can constitute CAH.
Following Rohingya witness testimonies obtained through personal interviews and telephone conversations reporting the aforementioned acts, Amnesty International and Human Rights Watch, among others, have labeled the violence in Rakhine state as crimes against humanity. Extensive reports issued by both human rights organizations indicate in great detail that the Rohingya population is facing CAH, urging Myanmar and the international community to take action and ending the atrocities from further escalating. But what are the implications that follow the classification of CAH?
“A trend towards applying crimes against humanity as a sort of blanket crime, would have significant consequences for the adjudication of international crimes,” says Dov Jacobs, Assistant Professor of International Law at Leiden University. Jacobs argues that perpetrators of mass atrocities are more likely to be found guilty for CAH when compared to genocide for example. The reason is “they don’t need the intent to destroy, in total or in part, a particular group of people, as the crime of genocide requires, nor does it require a recognition that crimes were committed in the context of an armed conflict, as war crimes require.” The classification of violence against Rohingya as CAH thus hints at a greater severity than ‘merely’ ethnic cleansing aiming to draw urgently needed attention and humanitarian action to the situation.
The term genocide was first coined by Polish lawyer Raphael Lemkin in 1944 as a response to systematic killings of Jewish people and other minorities during the Holocaust. But it wasn’t until 1946 that genocide was recognized as an international crime by the United Nations General Assembly and by the introduction of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Convention, which has been ratified by 147 States, does not only provide a definition of genocide but also clarifies states’ responsibility to prevent and punish the crime accordingly. The convention outlines five acts that constitute genocide if they are committed with ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such, namely:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
The intent to commit the aforementioned crimes is the most difficult element to determine. Without the provable intent, individuals or groups can still be charged for other crimes such as crimes against humanity, or war crimes but not genocide. History has shown that tribunals have struggled to establish a legal standard for genocidal intent and thus genocide is often regarded as the ‘ultimate crime.’ However, it seems that popular understanding, and therefore also the use of the label of genocide, is broader in comparison to the rather narrow definition under international law.
Professor William Schabas, expert on genocide and international law, has therefore expressed his discomfort with the prevalent use and abuse of the terminology of genocide. “Its expanded use and conflation with crimes against humanity has resulted in a ‘careless and potentially misleading use of precise terminology.’” The understanding that the term genocide has the “ability to motivate public opinion and mobilize international action” due to its gravity has led to the widespread use of the term by many human rights groups. The overuse of the term is being viewed very skeptically as, “using the term genocide to describe events which are subsequently shown not to constitute genocide, hampers the very mobilization of the power that the term has.” It is therefore vital that that the term is not only well understood but also correctly used.
As violence continues to mount in Rahkine state, the testimonies of Rohingya refugees and survivors, as well as investigations by journalists, NGOs and various international organizations, will determine how to best classify the nature of the violence. No matter what this violence is classified, as in the end, however, the atrocities being committed against civilians, including children, are, by any definition, unspeakable.
 Michael J. Kelly, „Genocide – The Power of a Label“, Case Western Journal of International Law
 As of December 2016