By Erin Rosenberg, Senior Advisor for the Ferencz International Justice Initiative
On May 22, 2020, the Simon-Skjodt Center’s Ferencz International Justice Initiative launched the first in a series of reports that explore whether Myanmar (also known as Burma) is complying with its obligation to prevent genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Future reports will be published on a semi-annual basis.
Why do the reports focus on Myanmar?
Since 2015, the Simon-Skjodt Center has worked to document and shine a spotlight on Myanmar’s treatment of its Rohingya population, an ethnic and religious minority who has suffered decades of violence and discrimination at the hands of the government. In 2018, following the the government’s 2016 and 2017 attacks on the Rohingya, the United States Holocaust Memorial Museum determined there was compelling evidence that Myanmar had committed genocide against the Rohingya. The Rohingya remain at serious risk of genocide today.
A case currently before the International Court of Justice (ICJ), The Gambia v. Myanmar, will determine whether Myanmar has committed genocide against the Rohingya and whether it has failed to prevent and punish genocide. While the case is ongoing, the ICJ has ordered Myanmar, in what are called "provisional measures," to "take all measures within its power" to prevent genocide from (re)occuring.
The Simon-Skjodt Center’s report series aims to assist states and other interested parties in reviewing whether Myanmar is complying with the ICJ’s provisional measure and meeting its legal obligation under the Genocide Convention to prevent the commission of genocide.
What is the obligation to prevent genocide?
Article I of the Genocide Convention requires all contracting states to "undertake to prevent" the commission of genocide. This obligation is also recognized as a part of customary international law, meaning that it applies to all states, even if they have not ratified the Genocide Convention and would not normally be bound by its terms. Yet despite the very clear language about what the obligation is, what it means is not. The concrete terms and actions about how to carry out this process of prevention have not been well defined.
The ICJ has held that a state must act to prevent genocide when there is "the existence of a serious risk that genocide will be committed." Based on this holding, the Center’s report argues that the obligation to prevent genocide includes identifying and mitigating genocide risk factors.
What are genocide risk factors?
Like the question of what the obligation to prevent genocide entails, there is little case law regarding which risk factors are relevant to genocide. Important work in this regard has been done by the United Nations Office on the Prevention of Genocide and the Responsibility to Protect, which has identified eight risk factors relevant to "atrocity crimes" (meaning genocide, crimes against humanity, and war crimes), as well as two risk factors specific to genocide.
In cooperation with the United Nations, the Jacob Blaustein Institute for the Advancement of Human Rights published the Compilation of Risk Factors and Legal Norms for the Prevention of Genocide (JBI Compilation). The JBI Compilation identifies 22 risk factors specific to genocide and the corresponding legal norms of internatinal human rights and humanitarian law.
The Center’s report series applies the risk factors in these two important frameworks to the situation in Myanmar. The report series will look at the following genocide risk factors and examine the steps Myanmar has taken to mitigate these risks:
Systematic denial or revocation of the right to citizenship
Systematic denial of the right to participate in public affairs
Systematic denial or severe restrictions of the right to freedom of movement
Systematic denial or severe restrictions of access to health care
Systematic expropriation or destruction of property
Systematic killing of a protected group, enforced disappearances, and targeting of community leaders and intellectuals
Systematic use of rape and sexual violence
Use of members of a protected group in forced labor
What does the Center hope to achieve with this report series?
The Center hopes to highlight the importance of genocide risk factors and early warning signs as a part of the obligation to prevent genocide; strengthen understanding of the international human rights and humanitarian law relevant to the crime of genocide; and provide a guide to Myanmar for fulfilling its obligation to prevent genocide.
Most importantly, the Center hopes to provide an accountability tool to interested states and other parties to evaluate the measures that Myanmar takes to ensure that the Rohingya people do not remain at serious risk of genocide, but instead may live in dignity, without discrimination, and in full enjoyment of their human rights.