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Understanding the Persecution of the Rohingya Minority in Myanmar

Displaced Rohingya Children (Source: ARNO)

An interview with international criminal law attorney Regina Paulose.

More than 626,000 Rohingya were driven from Myanmar (formerly Burma) by security forces of the country that “deliberately and massively targeted civilians” in a series of brutal operations that began in August 2017, according to the United Nations High Commissioner for Human Rights, Zeid Ra’ad al-Hussein in December 2017.

The recent massive exodus of Rohingya, a Muslim ethnic minority in Myanmar, was sparked by a escalation of government violence since August after Rohingya insurgents reportedly attacked state security posts. According to Amnesty International, Myanmar’s security forces responded with “a systematic, organized and ruthless campaign of violence against the Rohingya population as a whole in northern Rakhine State,” where most Rohingya live in Myanmar.

The Muslim Rohingya have lived in Myanmar for hundreds of years and have suffered cycles of persecution, repression, and displacement. For example, the military forcibly drove 200,000 Rohingya from the country in the 1970’s and, in another government crackdown, drove out about 250,000 Rohingya in the early 1990’s.

But the toll of the recent campaign is unprecedented. Since August, government forces and civilian vigilantes have burned to the ground dozens of Rohingya villages and massacred thousands of Rohingya men, women and children. Rape and other atrocities against women and girls have been widespread. And the hundreds of thousands of Rohingya who have been forced to flee to Bangladesh and beyond struggle for survival in squalid refugee camps that lack adequate food, water, shelter, and other necessities, as well as medical care for illness and for treatment of the aftermath of shootings, stabbings, arson, rape and other trauma.

The status of the Muslim Rohingya in Burmese society is complicated. They are stateless people, described by some as “the Palestinians of Asia.” The Myanmar government does not recognize the Rohingya and denies basic rights of citizenship in a country where.the religious preference is Buddhist for 88 percent of the people and 4 percent for Muslim. In 2016, the population of Myanmar was 55 million with about 1.1 to 1.3 million Rohingya. More than half of the Muslim Rohingya have been forced from Myanmar since then.

In October 2017, New York Times’ reporter Jeffrey Gettleman offered a sense of the brutal state-sponsored campaign against the Rohingya. He interviewed Rohingya refugees who vividly described the cruel and often deeply personal atrocities they witnessed: “Survivors said they saw government soldiers stabbing babies, cutting off boys’ heads, gang-raping girls, shooting 40-millimeter grenades into houses, burning entire families to death, and rounding up dozens of unarmed male villagers and summarily executing them.”

One witness, a woman named Rajuma, described a massacre that she survived. She recounted to Mr. Gettleman that she was beaten by a soldier who then “hurled” her baby into a fire. Mr. Gettleman continued: “She was then dragged into a house and gang-raped. By the time the day was over, she was running through a field naked and covered in blood. Alone, she had lost her son, her mother, her two sisters and her younger brother, all wiped out in front of her eyes, she says.”

Humanitarian groups such as Amnesty International, Physicians for Human Rights, and Human Rights Watch, have confirmed countless atrocities. Mr. al-Hussein of the UN referred to “acts of appalling barbarity” committed by Myanmar’s security forces and suggested referral of the case against the Myanmar government to the International Criminal Court (ICC).

United Nations officials condemned the actions of the government in December 2017 and called for an investigation of possible genocide against the Rohingya Muslims. Previously, the UN considered the crimes against the Rohingya “ethnic cleansing.” Genocide, the most serious crime against humanity, pertains to acts aimed at destroying in whole or in part a national, ethnic, racial or religious group. To date, the government of Myanmar has refused to permit UN investigators into the country while blaming violence on Rohingya militants and denying crimes against humanity.

For insight on this complex, heartrending, and urgent humanitarian crisis, human rights and international criminal law attorney Regina Paulose generously responded to questions about the crimes against the Rohingya people in Myanmar, the historical context, and the legal situation, as well as her work to end the violence against the Rohingya and to bring them justice.

Ms. Paulose earned her JD from Seattle University School of Law and her LLM in International Crime and Justice from the University of Torino/UNICRI.  She is also a former prosecutor in Washington and in Arizona, and interned for a UN mission and an active NGO in Geneva, Switzerland.

She is the creator and co-founder of A CONTRARIO ICL, a virtual international community dedicated to raising awareness and discourse on global justice issues. She has served as the chair of the Steering Committee for the United Kingdom Child Sex Abuse People’s Tribunal, a body that worked to stop impunity of perpetrators of child sex abuse and encourage legal reforms in the UK for victims and survivors. She spearheaded efforts to create a holistic medical program in South Florida aimed at responding to the primary care needs of human trafficking victims and survivors. She is also the Chair-elect of the World Peace through Law Section of the Washington State Bar Association.

Ms. Paulose has presented at international conferences and has published law review articles concerning the Rome Statute (establishing the ICC), genocide, and transnational crimes and organized crime. In November 2017, she presented a Continuing Legal Education program on Recent Developments at the International Criminal Court, an event sponsored by the Washington State Bar Association in partnership with WSBA’s World Peace Through Law Section. This summer she is the Program Chair for Seattle University Law School Summer Practice Program on Mass Atrocities and Human Rights.

So-called 'ethnic cleansing'... signifies mass killing, mass relocation, and that does constitute genocide. –  Robert Jay Lifton, MD,

Robin Lindley: Thank you for discussing Myanmar and your work Ms. Paulose. You’re an expert in human rights law and international criminal law. How did you come to practice in these areas?

Regina Paulose: I always had a passion for international criminal law, transnational crimes, and human rights. I was fortunate enough to be exposed to these subjects during my schooling at Seattle University Law and to be around law professors who truly cared and had experience with the subject matter. I have to particularly thank Professor Paula Lustbader and Professor David Boerner who encouraged us to pursue our passions and let everything else follow.

In terms of helping me to focus on human rights, I have to thank Professor Ron Slye who was a great role model. I decided after I got some "real world" experience in the U.S. legal system that I could take my career on this path and I have been committed to this area since I made this decision.

Robin Lindley: How did you become involved with issues arising from the ongoing the persecution of Rohingya Muslims in Myanmar?

Regina Paulose: The Arakan Rohingya National Organization (ARNO) and the Rohingya Intellectual Society of Sydney Australia contacted me and asked me to help them raise awareness and get involved in pursuing legal avenues for the Rohingya. We began working together in 2013.

Robin Lindley: The issues in Myanmar may be new to many readers. What are some things people should know about the Rohingya and the history of Myanmar to explain the government’s violent campaign against the Rohingya?

Regina Paulose: It is important to underscore that the campaign against the Rohingya has been documented by the United Nations beginning as early as 1948 and then escalated in the 1970's with the army in Burma brutally forcing 200,000 Rohingya into Bangladesh. By the 1980’s the Rohingya were legally rendered stateless by the government of Myanmar. The same brutality of rapes, forced labor, and religious persecution occurred again in the 1990’s. The events of 2017 are just another part of the continued intentional and systematic campaign to eliminate the Rohingya.

The Rohingya are stateless people in Myanmar. The term “stateless” means they are not given citizenship and have no rights. This includes infants and children. So they are not citizens and, although they have lived in Burma for generations, they are not considered to be Burmese.

Statelessness is a tool that is used by governments to purge or eliminate specific groups. We have seen this during the Ottoman Empire where the Armenians were stripped of their rights prior to the Armenian genocide and the same happened during the Holocaust towards various ethnic and minority groups.

Robin Lindley: How would you briefly describe the situation for Rohingya in Myanmar today?

Regina Paulose: Two legal terms sum up the situation for the Rohingya today. They are victims of genocide and crimes against humanity.

Because the Rohingya are stateless and have no access to basic rights, they are even limited in terms of medical care, and their ability to marry and to bear children, and they are confined to certain places.  Myanmar has even gone as far as to ban the use of the term "Rohingya" and has directed United Nation diplomats not to use the term when they come to Myanmar. Essentially, racism is legal and institutionalized within Myanmar, particularly towards the Rohingya.

In 2014 the Rohingya were excluded from the national census. Recently religious groups in Burma pled with Pope Francis during his Papal visit not to use the term as it may have caused discord.

In December 2017, the UN Special Rapporteur for Human Rights in Myanmar was denied access into the country after she gave an honest assessment of the situation in July in a UN report, which included an assessment of the ongoing violence toward the Rohingya. These are just two examples of the lengths Myanmar has taken towards erasing the Rohingya from Burmese history and memory.

Robin Lindley: Why are the Rohingya persecuted in Burma?

Regina Paulose: A lot of the propaganda that comes out of the military, political leadership, and fundamentalist groups in Burma/Myanmar is that they are concerned that a small group of Muslims will take over the entire country.

Another storyline in the propaganda is that the Rohingya are an ethnic group that is "illegal" and does not belong in Myanmar because they come from Bangladesh. This is not true. It is clear that propaganda is used to fuel hate and intentionally destroy this group.

What is sad is that other ethnic and religious minority groups are also targeted as the government’s policy of Burmanization with promotion of the Buddhist religion, and requiring that the Burmese language and culture are fully adopted by all. Those who do not adapt will be removed, as the government has shown, by whatever means necessary.  

It should be noted that there are Rohingya Hindus who have been victims of the genocide. In addition, although there is a different dynamic occurring in other parts of Myanmar between the military (Tatmadaw) and rebel groups, recent reports from December 2017 indicate that Christians have had their religious places of worship desecrated by the Tatmadaw.

Robin Lindley: What have you learned about the use of internment camps in Myanmar to isolate the Rohingya from the general population?

Regina Paulose: These camps are essentially prisons. The Rohingya cannot move. While this has been occurring over time, one of the major flare ups was in 2012 and displaced close to 140,000 people who lost their homes that were burned to the ground. Those who fled did and the rest live in--to put it mildly—prison camps. Their movement is restricted.

It is continually reported from aid workers and activists that medical agencies have little to zero access to give lifesaving medical treatment to the Rohingya in Myanmar. Different medical NGO’s have gone to Bangladesh to work with the Rohingya who have fled. Their reports indicate severe trauma and malnourishment among other problems (such as the ride of infectious diseases).

The Rohingya generally, as a result of the lack of access to even basic necessities like food, are malnourished. Sometimes famine or diversion of food is also used in genocide campaigns. It is important to understand that these are not isolated events, but different tools used to eliminate a group – such as happened in Ukraine or Holodomor in the 1930s.

Recent statements by UNICEF indicate that little children are living in isolated shelters built on top of trash and human feces and they have no shoes so they walk around in a toxic waste dump. Some of these children are separated from their families because of the violence. These children do not receive vaccines to prevent them from diseases that could easily be spread by mosquitoes.

Robin Lindley: Hundreds of thousands of Rohingya have fled Myanmar in recent months, mostly to Bangladesh. What sparked the recent exodus and how are the refugees from the violence in Myanmar faring?

Regina Paulose: The claims are that a group named the "Arakan Rohingya Salvation Army (ARSA)" attacked military outposts and this then caused civilians in Burma and the military to respond by killing close to 6,500 Rohingya.

Clearly the military's response was neither proportional nor appropriate to these attacks. The government has labeled this group a terrorist organization. As recent decades have shown, once a group is labeled a terrorist organization, most human rights protocols are off the table, and governments seem justified in doing whatever they want to "stop terrorism," which in this case has included rape, arson, and mass murder towards all civilians.

Rohingya refugee camp, Bangladesh, September 2017 (Source: Human Rights Watch)

Robin Lindley: For context, how would you compare the crimes against humanity in Myanmar with other episodes of genocide or ethnic cleansing in recent memory, such as the mass atrocities in Rwanda and brutal violence during the Balkan Wars?

Regina Paulose: It is hard to compare mass atrocities to each other. After Rwanda and the conflict in the Balkans the international community said “never again”— again. Yet, here we are. What is notable about the Rohingya situation is that Burma, in my opinion, has made it clear that they do not want the Rohingya there and they have gone to great lengths to basically tell the international community it does not care what it thinks and could care less about its standards.

Robin Lindley: Do you see the crimes suffered by the Rohingya as “ethnic cleansing” or the more severe crime of “genocide.”
Regina Paulose
: The United Nations leadership has called it ethnic cleansing. In recent weeks the page seems to be slowly turning towards the use of the term genocide.

I do not see ethnic cleansing as an appropriate term to describe these events and the term is still the subject of scholarly debate among legal scholars. Ethnic cleansing is not an independent crime under international law. The UN Commission of Experts defines ethnic cleansing as "a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas." In line with the analysis of the Commission of Experts, the International Criminal Court incorporates elements of ethnic cleansing in genocide, crimes against humanity, and war crimes.

Dr. Gregory Stanton, Founder of Genocide Watch, and others have published on why "ethnic cleansing" is not appropriate in this circumstance. I highly recommend reading the Yale Human Rights Report that was published in 2015 that spoke of genocide and crimes against humanity in Myanmar. I used this report as the basis for the International Criminal Court communication we filed with the Prosecutor’s office that same year.

Also, in 2017 there was a People's Tribunal held on the atrocities committed in Myanmar towards the Rohingya. This report was utilized in a session by the Canadian Parliament a couple of months ago.  It is important to emphasize that this is genocide and there are crimes against humanity occurring.

Robin Lindley: What are the elements of “genocide” as defined under international law?

Regina Paulose: Genocide is defined in the Convention on the Prevention and Punishment of the Crime of Genocide:

‘Genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Robin Lindley: Why is it important to describe the crimes against the Rohingya in Myanmar as genocide rather than ethnic cleansing?

Regina Paulose: Genocide is an internationally recognized crime. Genocide is the appropriate and precise term to describe the crimes and the motives behind the crimes being committed.  Crimes against humanity are also appropriate for the same reason.

Robin Lindley: Is there evidence of crimes against the Rohingya that satisfy the definition of genocide under law? What specific crimes have you learned about?

Regina Paulose: There are numerous accounts of rape against women. Rape is a widespread tool used against women in Myanmar. There are many conflicts in which rape is used as a weapon of war, as crimes against humanity, and as genocide. 

I do want to emphasize that rape, no matter if it happens to one person or one thousand, is a grotesque violation of human dignity and a person's security. After the Rwandan genocide, the International Criminal Tribunal for Rwanda in a seminal case called Akeysu determined that rape can be carried out to further genocide. Those who commit rape do so to “to destroy a woman from a physical, mental or social perspective and [to destroy] her capacity to participate in the reproduction and production of the community." (This argument was advanced by a NGO in Akeysu).  

Children have been targeted by the army and killed. Recently there was an admission that the Tatmadaw killed people and buried them in mass graves. Of course, they say they killed about ten people. I am willing to bet there are more mass graves.

It should also be noted that the Reuters journalists investigating the Inn Din massacre [ten Rohingya men were executed at Inn Din on September 2, 2017] were arrested by Myanmar not too long ago.

As I stated earlier, the policies and practices of the Burmese government indicate that its intent is to destroy the Rohingya as a group.  They are not included in the census (so in years to come the group will not have existed in Myanmar), they have no rights, the term Rohingya cannot be used, they are confined and isolated, and they have restrictions on birth.

There are also reports of Rohingya villages being burnt to the ground. These reports come at a time when Myanmar and Bangladesh supposedly came to an agreement on repatriating the Rohingya back to Myanmar. Where are you going to send the Rohingya back when you have taken the land and burned their homes?

Of course, some of these acts are considered crimes against humanity as well. I would emphasize the crime of apartheid (which is a crime against humanity under the Rome Statute under the ICC) has been alive and well in Burma for decades. We will continue to learn more as victims and survivors speak up and more evidence is uncovered within Myanmar.

Rohingya mother and child land in Bangladesh after fleeing Myanmar by boat (Source: International Rescue Committee)

Robin Lindley: What could happen if the United Nations found that genocide is occurring in Myanmar? Could sanctions be imposed?

Regina Paulose: Right now, the move is towards sanctions by individual countries. The United States placed targeted sanctions on certain people within the Burmese military (not on Aung San Suu Kyi).  The U.S. government passed legislation, called the “Burma Act of 2017,” also calls upon the government of Myanmar to allow an independent international fact-finding mission to “investigate allegations of ethnic cleansing, crimes against humanity, and genocide.”  

If the United Nations found that genocide and crimes against humanity are occurring then, under the “Responsibility to Protect,” it would have to act to stop the genocide and crimes against humanity. Actually, the responsibility to protect would also apply in cases where there is ethnic cleansing, so it is clear that this [obligation] has been ignored completely in this situation.

One way the UN could act now is with a referral by the United Nations Security Council to the International Criminal Court to open a case on the events in Myanmar. Honestly, this seems unlikely at this moment because of Russia’s and China’s silence on the issue. Another approach would be for the UN to call for sanctions on Myanmar, as the United Nations Security Council did on North Korea recently, but again, not likely because of Russia’s and China’s positions. India also supports Myanmar.

You cannot have an effective sanctions regime if you do not have the cooperation of powerful actors in the region. Could this become an issue where military intervention is required like in past mass atrocities that occurred in the 1990’s? I would hope it could be resolved in favor of the dignity and rights of the Rohingya peoples before it came to that.  

Robin Lindley: How would you describe the Myanmar government now? What is the role of Nobel Peace Prize laureate Aung Sang Suu Kyi? Is she the head of state in Myanmar or is she merely a figurehead?

Regina Paulose: There are some components of "democracy" that are appearing and perhaps some people in different regions in Myanmar that are experiencing that transition.

Aung Sang Suu Kyi does not seem like she has the power to control too many things. She has not at any point spoken out against the violence nor has she done anything to prosecute and investigate crimes committed by the military or other fundamentalist groups or to stop the genocide.  

However, she should not be excused from the ongoing atrocities, as she is the elected leader. Aung San Suu Kyi is complicit in the genocide and crimes against humanity which are occurring as her government continues to promote the hateful propaganda against the Rohingya. She has been stripped of some international honors that she has received because of the ongoing genocide. There have been petitions asking for her Nobel Peace Prize to be taken from her. The U.K. Foreign Secretary recently stated that he does not think that she even grasps the “full horror” of the situation the Rohingya are facing. I am not sure how this can be true given the international community’s specific focus and attention on this issue.

Robin Lindley: Recently, there has been a massive exodus of Rohingya to Bangladesh and beyond. For those who can finish this journey from their devastated homes, what are the conditions for them once they arrive in Bangladesh or other locales?

Regina Paulose: Refugee camps, while they are a necessary as a temporary shelter for refugees fleeing mass atrocities, are inadequate and are not safe. In refugee camps all over the world, some refugees will be at risk for human trafficking and exploitation because of how vulnerable they are. In all camps around the world, and particularly with the amount of Rohingya who have fled into Bangladesh, medical aid, mental health assistance, and food aid is going to be problematic given the numbers and the funding. Water in most of these camps is contaminated.

Sadly, that does not even account for problems with internal corruption, such as aid diversion that may occur within organizations. Some children, who have lost their parents to violence, will now have to regroup in these camps, and where will they go and who will help them through this experience? It is heartbreaking.

It is a terrible tragedy when we are not compassionate about the plight of refugees wherever they are in the world. What is really awful is that almost all refugee situations, there are political solutions that can help these people go back home, yet politicians opt for more war, or prolong solutions at the expense of people who want to go back home.

Robin Lindley: Human rights groups have spoken out on the atrocities in Myanmar. How has the international community responded? What do you want to see done now?

Regina Paulose: In 2015 we filed a communication with the International Criminal Court. It took two years, but in 2017 the ICC Prosecutor declined the matter. Myanmar is not a party to the ICC. However, the idea behind the communication was to ask the ICC prosecutor to open a case because there are no mechanisms for protections for stateless people. It was a novel argument worth trying.

I believe that this is a huge flaw of an international criminal court treaty and all the other treaties that claim to afford judicial rights and protections. People who are stateless are easy, vulnerable targets for genocide, crimes against humanity, and war crimes. They have no legal protections. So where are they to access justice?

Robin Lindley: How can ordinary citizens help?

Regina Paulose: Where you can, donate to groups that are in Bangladesh doing the work assisting refugees. They are always in need of life saving medicine, food, and other supplies. There are a lot of great organizations doing work.

I encourage everyone to write their Senators and their Representatives and ask for the US to intervene to stop genocide. The Burma Act of 2017 is a good starting point. However it falls short of holding Aung San Suu Kyi accountable for her actions as a leader. This is not the time for symbolic legislation. The court of public opinion can be powerful and it seems sometimes in our country we forget how powerful we are collectively.

Further, encourage companies and retailers to stop trade or business with Myanmar until it has changed its policies towards minority groups, particularly the Rohingya. Cartier, the jewelry company, recently boycotted “genocide gems” from Myanmar/Burma. These kinds of actions can make a tremendous impact and we should never underestimate each of our abilities to do so.   

I would highly recommend that people donate money to the International Organization for Migration (IOM), which works in several different places around the world. The Director, William Lacey Swing, is a constant advocate for refugees. I had the fortunate pleasure of meeting him and hearing him talk several times in Geneva. I believe that this organization is doing good work.

I should say there are a ton of organizations trying to help. I would caution people not to donate money unless you can verify the legitimacy of an organization and make sure you look into the work they are really doing. Sometimes, during their appeals, there are scams and people with good intentions get taken for a ride.

Robin Lindley: Is there anything you’d like to add about the legal situation now or about what your plans are with respect to the crisis in Myanmar?

Regina Paulose: We will keep looking for ways to address the issue and bring justice to the Rohingya and ethnic minorities of Myanmar.  

It is important that the public continues pressure the US government to step in and take appropriate steps to ensure that the genocide and crimes against humanity stop against any and all ethnic minorities in Myanmar. Myanmar, by its very actions and the response by the international community, has made the term "never again" meaningless and hollow.

Robin Lindley: Thank you Ms. Paulose for sharing your insights and special perspective on this complicated and heartbreaking story of the ongoing atrocities against a distinct group of human beings who face genocidal violence. I appreciate your work to create a more just and peaceful world.