Determining the Commission of Genocide in Myanmar: Legal and Policy Considerations

Abstract

In August 2018, what appears to be a draft statement to be delivered by U.S. 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 is 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 first discusses 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. The article then 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 ICC, 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.