The incoming Biden administration is reportedly planning to launch an interagency review to determine whether Myanmar’s fierce persecution of its Muslim Rohingya minority amounts to genocide. The plan was revealed by incoming Secretary of State Antony Blinken during his confirmation hearing before the Senate Foreign Relations Committee earlier this week, during which he said that if confirmed, he would oversee the review process.
The review would examine events that have taken place since August 2017, when the Myanmar army, or Tatmadaw, launched a brutal “clearance operation” in Rakhine State in the west of the country. Justified as a response to scattered attacks by Rohingya militants, the offensive saw soldiers and vigilantes torch villages, shoot civilians, and drive an estimated 750,000 desperate people over the border into Bangladesh.
There is compelling case to be made that the actions of the Myanmar military amount to genocide, as defined in the 1948 Genocide Convention, which defines the crime as an “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.” The United Nations’ human rights chief has previously described the military’s actions as possible “acts of genocide,” while formal charges of genocide were later brought against Myanmar by The Gambia in the International Court of Justice (ICJ) in The Hague. In January 2020, the ICJ declared that there was prima facie evidence of breaches of the Genocide Convention, warning that the estimated 600,000 Rohingya remaining in Myanmar were “extremely vulnerable” to attacks by the military.
In addition to aligning it with a considerable body of international legal opinion, a U.S. genocide determination would also bring it into line with past statements by senior representatives of the Biden administration. For instance, Samantha Power, the incoming head of the U.S. Agency for International Development, has on several occasions referred to the actions against the Rohingya as “genocide.”
In December 2018, the U.S. House of Representatives overwhelmingly passed a resolution declaring that Myanmar’s actions against the Rohingya constituted genocide. “The United States has a moral obligation to call these crimes genocide,” House Foreign Affairs Committee Chairman Ed Royce (R-CA) said in floor remarks in support of the resolution. “Failing to do so gives the perpetrators cover and hinders efforts to bring those accountable to justice.”
After Blinken’s announcement, Matthew Smith, the chief executive officer of Fortify Rights, an organization whose research has done much to strengthen the case for genocide, applauded the news on Twitter, writing that a genocide determination “would be an important step forward. And it’s the right thing to do.”
He is undoubtedly correct – on both counts. Yet as with the Trump administration’s similarly accurate declaration that China has committed genocide against the Uyghurs, the next steps are much less clear.
First, even in the best case scenario, the likelihood of an international criminal remedy is vanishingly slim. Just as China could be expected to use its veto power on the U.N. Security Council to block any international investigation of the situation in western China, so would it likely shield any similar initiative aimed at Myanmar, much as it has done for years. Moreover, given the number of countries that have supported (or at least remained neutral) on the question of China’s atrocities against the Uyghurs in Xinjiang, it is far from certain that a majority of the world’s nations would support an international criminal investigation of the Rohingya, were one to go ahead.
Second, the move would severely complicate U.S. relations with Myanmar. As in the past, this would almost certainly redound to China’s benefit. While there are many points of tension in Myanmar-China relations, especially in the upper echelons of the Tatmadaw, the need for Beijing’s international support – on top of the cooperation that Naypyidaw also requires on infrastructure development, trade, and nationwide peace negotiations – would make its embrace difficult to evade. A genocide review would thus present Biden State Department with a choice between conflicting moral and strategic ends: an outgrowth of the more fundamental tension between values and interests in a world in which the global balance of power is shifting inexorably eastward.
Both of these challenges highlights a central shortcoming of international criminal justice, which is that legal conventions and processes have outrun the political realities necessary to ensure their effective implementation. The greatest of these realities is the persistent international support for the norm of national sovereignty, which remains particularly strong among the postcolonial nations of the Global South. This explains why most successful international criminal prosecutions have proceeded in the case of nations (many of them in Sub-Saharan Africa) whose sovereignty has been compromised by civil war, state collapse, international intervention, or a combination of the three.
This “sovereignty problem” was encapsulated in the “provisional measures” unanimously adopted by the ICJ when it handed down its ruling against Myanmar in January 2020. These instructed the Myanmar government to take steps to prevent further genocidal acts, and to take steps to preserve evidence of crimes for which it was supposedly responsible. As news reports and human rights groups pointed out, these orders were legally binding on Myanmar. But who was there to enforce them? Unsurprisingly, the government rejected the ruling and has refused to comply.
To point out these problems is not to suggest that there is any obvious alternative way forward. Nor is it to say that the U.S. should refuse to declare a genocide when one is clearly evident. But it is worth acknowledging the difficulties of the actually existing international criminal justice system, and the fact that is at best one of a number of tools that should be used to resolve the horrific situation in western Myanmar.