Practical Prevention: How the Genocide Convention’s Obligation to Prevent Applies to Myanmar

Introduction

In May 2020, the Ferencz International Justice Initiative at the U.S. Holocaust Memorial Museum’s Simon-Skjodt Center for the Prevention of Genocide (SCPG) issued the first in a series of reports that examine whether the  government of Myanmar is complying with the International Court of Justice’s (ICJ or Court) provisional measures order of January 23, 2020. The order relates to Myanmar’s obligation to “take all measures within its power” to prevent the commission of genocide4 under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).

The report series is a part of the Museum’s longstanding commitment to call attention to the decades-long persecution of the Rohingya people, which culminated in the government’s 2016 and 2017 attacks—events that the Museum found constituted compelling evidence that Myanmar had committed genocide against the Rohingya. This report series does not focus on the genocidal acts already committed, which is the subject of the case, The Gambia v. Myanmar, currently before the ICJ. Rather, it explores what measures the Myanmar government should take to prevent the reoccurrence of genocide against the Rohingya. This inquiry is not merely a theoretical one, but rather is driven by grave real-world urgency, recognized by the ICJ in its provisional measures order and reflected in the Rohingya’s daily lived experience, that “the Rohingya people remain at serious risk of genocide.”

The goals of the report series are to highlight the importance of genocide-related risk factors and early warning signs to the obligation to prevent, and to strengthen understanding of the legal norms of international human rights and humanitarian law that are relevant to preventing genocide. The Museum hopes to provide a useful guide to the government of Myanmar for fulfilling its obligations to prevent genocide and a tool for interested states and other parties to evaluate Myanmar’s compliance with the ICJ’s order.

The first report set out the framework used throughout the series, namely by examining whether risk factors for the crime of genocide, identified as such in the United Nations Office on the Prevention of Genocide and the Responsibility to Protect’s Framework of Analysis for Atrocity Crimes: A Tool for Prevention (UN Atrocity Framework)10 and in the Jacob Blaustein Institute for the Advancement of Human Rights’ Compilation of Risk Factors and Legal Norms for the Prevention of Genocide (JBI Compilation),11 remain present in Myanmar. If present, the report series examines whether the Myanmar government is taking adequate steps to mitigate these risks, as so ordered by the ICJ, and makes recommendations to Myanmar of concrete measures that it should take. The eight risk factors that are the focus of this report series relate to serious violations of international human rights and humanitarian law,12 namely:

  1. Systematic denial or revocation of the right to citizenship
  2. Systematic denial of the right to participate in public affairs
  3. Systematic denial or severe restrictions of the right to freedom of movement
  4. Systematic denial or severe restrictions of access to health care
  5. Systematic expropriation or destruction of property
  6. Systematic killing of a protected group, enforced disappearances, and targeting of community leaders and intellectuals
  7. Systematic use of rape and sexual violence
  8. Use of members of a protected group in forced labor

The present report examines two of these risk factors: the systematic denial of 1) the right to citizenship (nationality) and 2) the right to participate in public affairs. The report analyzes how these risk factors have impacted the Rohingya in Myanmar, how the continued presence of these risk factors increase the vulnerability of the Rohingya people and may represent a risk for the reoccurrence of genocide, and whether the Myanmar government is taking appropriate action to mitigate these risks. As is set out in the below analysis, the Museum concludes that Myanmar is not taking all measures within its power to mitigate these two risk factors and is therefore not in compliance with the ICJ’s provisional measures order to prevent genocide. Based on this non-compliance, the report concludes with recommendations of concrete measures to the Myanmar government that it should take and to other interested states and United Nations bodies regarding actions that they can take to encourage Myanmar to comply with its obligation to prevent genocide.


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