Under international law, a tribunal must make three findings to conclude that genocide is taking place: Those being attacked must be part of a distinct group, defined by nationality, race or religion; there must be widespread killing of that group; and those carrying out the violence intend to destroy the group.
In a 78-page legal analysis, a Yale Law School clinic considered three questions that define genocide according to the Genocide Convention, which was adopted by the United Nations General Assembly in 1948 and entered into force in 1951, and declared genocide a crime under international law.
The findings of the legal analysis are laid out in “Is Genocide Occurring in Myanmar's Rakhine State?” published by the Yale Law School Allard K Lowenstein International Human Rights Clinic on October 29 last year.
Do Rohingya constitute a protected group under the definition of genocide?
The report documented Myanmar’s former military junta-led government's effort to root out Rakhine state's Rohingya Muslim minority group and called on the United Nations Human Rights Council to launch a commission of inquiry into genocide against the Rohingya people.
Do acts perpetrated against Rohingya fall into the categories enumerated in the Genocide Convention?
The report showed that Myanmar state security forces involvement in massacres of Rohingya satisfied the requirements for the act of killing members of a defined group.
Rohingya refugees, UN agencies, independent experts and human rights organisations, reported that the Myanmar Army, former border force NaSaKa and Myanmar Police Force were involved in the use of lethal violence against Rohingya in Rakhine State.
Witnesses reported state forces joining in local killings and massacres of Rohingya. This includes the shooting and killing of Rohingya instead of intervening to protect them.
The report found evidence that the Myanmar Army has tortured Rohingya men and women. Rohingya experienced waves of large-scale violence in the late 1970s, the early 1990s, 2001 and 2012.
This has included acts of sexual assault and rape by NaSaKa, the Myanmar Army and Myanmar Police Force against Rohingya women.
Violence and arson in Rakhine State have destroyed Rohingya homes and entire neighbourhoods. Local Rakhine citizens perpetrated some of the destruction, but many Rohingya reported military personnel and police officers either watching or actively participating in setting Rohingya homes on fire or physically stopping Rohingya from extinguishing the fires.
Does the requisite “intent to destroy” Rohingya exist?
The report detailed evidence that officials in the Myanmar government, in league with Buddhist extremist groups, worked to terrorise and kill Rohingya with the intent to destroy the ethnic group “in whole or in part.”
The expulsion of Rohingya from their homes into internally displaced persons (IDP) camps or out of the country and the subsequent denial of medical care, sanitation, food and paid labour opportunities constitute inflicting conditions of life calculated to bring about Rohingyas’ destruction as a group.
“These actors have perpetrated violence against Rohingya, claiming thousands of lives,” the report said. “Hundreds more Rohingya have been the victims of torture, arbitrary detention, rape and other forms of serious physical and mental harm.”
Although the analysis does not support a definitive answer to the third question, the information the Lowenstein Clinic has considered, assuming it is credible and comprehensive and accurately reflects the situation of the Rohingya in Myanmar, provides a strong foundation from which to infer genocidal intent by security forces, government officials, local Rakhine and others.
The Yale Law School report was commissioned by Fortify Rights, a group that has spent the last three years documenting Myanmar’s treatment of the Rohingya. It hired the Allard K. Lowenstein International Human Rights Clinic at Yale Law School to examine the treatment of the Rohingya situation under international law aimed at preventing genocide.
Fortify Rights Executive Director Matthew Smith said to Dhaka Tribune: “The UN High Commissioner for Human Rights will soon issue a report focused in part on abuses against Rohingya.
“We are advocating for a UN-mandated international investigation into the entire human rights situation in Rakhine State.”
Spokesman for Human Rights High Commissioner Zeid Ra’ad Al Hussein, Rupert Colville, confirmed this to the Dhaka Tribune, saying: “The OHCHR has a major report coming out shortly on the situation of the Rohingya Muslim and other minorities in Myanmar.”
Sources said the report is expected to be launched today.
But Colville explained that “the decision to set up an international commission of inquiry is one that is made by the 47 states that make up the Human Rights Council.”
The Dhaka Tribune attempted several times to contact Zaw Htay, the Deputy Director General at Myanmar's Office of the President, but was not able to get his comments.