With little fanfare, the State Department recently posted on its website the results of an empirical study of the acute violence in Myanmar against the Rohingya Muslims. The harrowing report is the result of an extensive investigation commissioned by the United States that surveyed over 1,000 randomly selected refugees in camps in Cox’s Bazar, Bangladesh in April. The State Department has confirmed that its conclusions are consistent with those of a United Nations-dispatched Fact Finding Mission (FFM), which recently released its own final report calling for criminal investigations into crimes against humanity and genocide.
Leaked documents suggest that Secretary of State Mike Pompeo is reportedly weighing whether to announce that this violence constitutes genocide as that crime is defined under international law. Indeed, press reporting suggests the release of the State Department’s study was delayed due to intense internal deliberations about whether and how to characterize the violence. Not surprisingly, headlines noted that the report “stopped short” of calling the violence genocide (or crimes against humanity for that matter), although Pompeo has already described the situation as one of “abhorrent ethnic cleansing.” State Department officials have insisted that the objective of the investigation was to document the facts in order to guide U.S. policy aimed at holding the perpetrators accountable, although it appears that a genocide determination may still emerge. The Myanmar investigation mirrors an earlier effort in Darfur, Sudan, that resulted in the U.S. government declaring that conflict to have resulted in genocide against Darfuri minorities.
I’ve conducted my own analysis (available here) of the violence in Myanmar based upon open-source reporting and interviews with individuals who have worked directly with this group of victims. I’ve concluded that a genocide determination is appropriate under the circumstances. In reaching this conclusion, I surveyed the major documentation efforts by human rights groups and the U.S. Holocaust Memorial Museum, academic literature, relevant jurisprudence emanating from the international criminal tribunals, statements of United Nations entities and other states, party and amicus curiae briefs filed before the International Criminal Court, 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.
In undertaking this analysis, I have operated primarily within an international criminal law framework, using as my guide the three core elements of genocide as interpreted and elaborated upon by international jurisprudence. Following this methodology offers perhaps the safest course for a non-judicial entity to make a genocide determination, because it is premised upon an elevated standard that could support a criminal indictment or the conviction of an identifiable individual. That said, this methodology is generally geared towards ascribing individual criminal responsibility on the part of discrete perpetrators, rather than undertaking a more collective or sociological determination that a genocide, writ large, is underway. Establishing whether an entire campaign of persecution is impelled by an intent to destroy a protected group, in whole or in part, might justify a different approach than that which would be taken by a penal tribunal. The disciplines of sociology and political science offer alternative frameworks for identifying the commission of genocide that might prove helpful in this regard and so are discussed briefly as well.