“Subhuman:” An Intersection Between Nationalism and Genocide

At the end of 2019, there were approximately 80 million forcibly displaced persons. This incredibly high number is the culmination of a decade marked by political and social unrest. While cases of forcible displacement can be found in virtually every region of the world, Myanmar produced one of the highest volumes of refugees. This is due to the ongoing genocide of the Rohingya people, a Muslim minority group who have historically resided in the northwest state of Rakhine.  In August 2017, security forces launched a campaign of extreme violence specifically targeting the Rohingya; close to a million people were forced to flee to Bangladesh which is currently home to Kutupalong, the world’s largest refugee camp. While a cursory examination of the crisis may pinpoint the 2017 attacks as a catalyst, the persecution of the Rohingya, and subsequent displacement, spans decades. The Rohingya’s vulnerable status within Myanmar is deeply intertwined with a story of citizenship, identity, and nationalism. In order to fully understand the root causes of the genocide, it is necessary to understand how the rise of Buddhist nationalism has shaped Myanmar’s perception of citizenship and their relationship to the Rohingya. 

An Introduction: Who Are the Rohingya?

The Rohingya have often been treated as a stateless people with no country willing to claim them. In Violent Borders: Refugees and the Right to Move, Reece Jones asserts that Myanmar’s government has long perpetuated the notion that they are immigrants who illegally crossed over from Bangladesh thus denying them citizenship and the rights associated with it; Bangladesh, of course, denies being an origin point. While Myanmar’s government has labeled the Rohinyga as undocumented immigrants, the ethnic group, which practices a Sufi variation of Sunni Islam, can trace their origins to the 15th century kingdom of Arakan. Other Rohingya arrived in the region throughout the 19th and 20th century during British colonial rule. Since independence, Myanmar has refuted the Rohingya’s historical claims and has severely diminished their legal status to virtually nothing. Furthermore, the Rohingya are no strangers to large-scale attacks against them. In 1978, the military displaced 200,000 people in a campaign of killings and rape that mirrors the 2017 attacks. Another campaign in 1991 to 1992 drove an even larger number to Bangladesh.

In 1982, the military government passed the Citizenship Law which is seen as a violation of fundamental principles under international law as it discriminates on the basis of a hierarchical, “ethnic-based” concept of citizenship. Under this controversial law, there are three categories of citizens: full citizens, associate, and naturalized. Full citizens are recognized as one of the main ethnic groups of Myanmar; naturalized citizens, on the other hand, can only achieve citizenship if they can prove they entered and resided in Myanmar prior to 1948, the year of independence.  This effectively shut out the Rohingya whose historical claims in the region were denied and there was no feasible way for most of them to prove their presence prior to 1948- they were stateless. 

The Citizenship Law was just one example of Myanmar reinforcing and exacerbating the Rohingya’s ambiguous legal existence. In 1995, the government began to issue temporary registration cards that afforded the Rohingya the right to vote as “temporary citizens”- these were later nullified in 2015. Current identification cards label them as foreigners. Additionally, Rohingya could only register in the 2014 census if they identified as Bengali; any attempt to label themselves as Rohingya was rejected. The government has used any legal means necessary to ensure that the Rohingya are left with no power. This serves multiple purposes. For the government it is practical to deny Rohingya citizenship due to the fact that under the 1982 Citizenship Law, if the Muslims in Rakhine are formally recognized as Rohingya then they would be technically allowed an autonomous area; this would not only force the government to give up land, but the military also fears that an autonomous area could be grounds for a possible breeding ground for terrorist groups. However, while the government and military may perceive the dehumanization of the Rohingya to be a strategic matter, it also undeniably serves to further reinforce a particularly potent phenomenon: Buddhist nationalism. 

The Rise of Buddhist Nationalism 

Following the passage of the Citizenship Law in 1982, a book titled Fear of Extinction was anonymously published; it cautioned the Buddhist majority of Myanmar to keep their distance from Muslims. This anti-Muslim sentiment would lay the groundwork for years to come, including the attacks that would take place in the 2010s. By October 2012, mobs, that consisted of Buddhist villagers, police, and soldiers, targeted the Rohingya, attacking them with machetes, spears, and petroleum bombs. Property was destroyed and looted. These attacks not only displaced 140,000 people, they would also lay the foundation for the 2017 campaign that would formally kickstart what we know to be a genocide. 

Sri Lanka and Myanmar, both of whom have majority Buddhist populations, have both experienced a rising movement that has fused together Buddhism and nationalism. While the religion is not typically associated with violence, there are those within the Theravada strain who perceive an existential threat posed by the presence of Islam. In Myanmar, extremist monks paint a picture of a potential Islamic invasion- despite the fact that if anything there has been an exodus, not an invasion. Furthermore, at the forefront of the many campaigns of violence against the Rohingya, Buddhist mobs have been leading the way. A monk known as Ashin Wirathu is the perfect embodiment of this extremism. Once jailed for hate speech, Wirathu has rejected the peaceful teachings of Buddhism to embrace militarism in the face of a nonexistent threat. Wirathu, along with many other clergy members, have referred to Muslims as “subhuman.” 

After Myanmar's military junta dissolved in 2011 and the country began a process of political liberalization, extremists established the group known as MaBaTha which consists of monks, nuns, and lay people dedicated to protecting Buddhism at all costs. The Crisis Group characterizes it as a “broad-based social and religious movement dedicated above all else to the protection and promotion of Buddhism at a time of unparalleled change and uncertainty in a country where historically Buddhism and the state have been inseparable.” While the government has attempted to curtail the group, it has been largely unsuccessful

It all begets the question: why does the Buddhist majority feel threatened by a severely persecuted minority? Like most things it can be traced to colonialism where the British forcibly removed Buddhism from the system of state governance and brought in Hindu and Muslim moneylenders and landholders. This not only angered local elites, it also sowed the seeds for later resentment. However, while colonization plays a foundational role, there are contemporary drivers behind the resurgence of Buddhist nationalism. For starters, the liberalization of the country has led to people being able to express their fears and hatred in a way not previously seen. There are also demographic and economic anxieties that groups like MaBaTha play into. The economic model that was instituted by the British has led to the development of a “business class of traders with strong cross-border ties;” these networks are seen as exclusionary to the Buddhist majority thus reinforcing a deep-seated resentment. 

It is believed that “to be Burmese is to be Buddhist.” The questions of national identity and citizenship are inextricably linked with Buddhist nationalism which is fundamentally anti-Muslim. From the very beginning of Myanmar’s independence, the Rohingya were never given a chance to be citizens as their very existence defied what was considered to be ‘Burmese.’ Furthermore, the persecution and violence that the Rohingya have been subjected to throughout the decades has been a mechanism to fortify the central tenets of Buddhist nationalism. 

Refugees In Their Own Country 

While attention is paid to the Rohingya refugees who currently reside in Cox’s Bazar, Bangladesh, it is important to also consider the conditions in which the Rohingya who are still in Myanmar are living. If anything, these conditions are another product of Buddhist nationalism as they serve to bolster the exclusion of the Rohingya from mainstream society and further dehumanize them. After the violence of 2012, the Rakhine state government segregated displaced Muslims and ethnic Rakhine in a supposed attempt to resolve the situation; Muslims have been forced to stay within these camps which are now viewed as open-air detention facilities. Living conditions are “squalid” and severe limitations on access to various resources have led to dire social and economic consequences. Lack of healthcare has led to an increase in morbidity and mortality. Additionally, lack of economic resources has produced an atmosphere of dire frustration that has forced occupants to seek out dangerous modes of escape. 

The conditions in which Internally Displaced Persons (IDPs), who are virtually all Muslim, are forced to reside are just another example of the way Buddhist nationalism operates. As Muslims are deemed “subhuman” so too are the conditions in which the government forces them to live. These camps not only serve the military’s purpose in curbing potential “threats” by keeping the remaining Rohingya physically segregated, it also serves to legitimize the rhetoric of Buddhist nationalists. The conditions of these camps are an embodiment of the idea that the Rohingya are interlopers who are not deserving of basic human rights as a consequence. These camps, alongside the campaigns of terror, are useful tools of nationalists to protect a society they believe is being encroached upon by Islam; it maintains that so-called threat and keeps Muslims in their “rightful” place. 

One of Many Policy Recommendations

There are many policy initiatives that must be implemented by Myanmar’s government to end the genocide and create a safe environment for the Rohingya’s return. However, one of the most crucial initiatives will be to end the 1982 Citizenship Law which is fundamentally exclusionary and cannot exist in its current form. Not only does it serve to legitimize the rhetoric that degrades the Rohingya population, it also creates the necessary conditions to exclude the Rohingya and subject them to abuse. The fact that it does not recognize the Rohingya as an ethnic group deserving of citizenship, and does not provide any feasible means for them to prove their existence prior to 1948, marginalizes them as a community and strips them of any political and social power they may utilize to protect themselves. Not only would the repealing of such an inherently discriminatory law help restore rights associated with citizenship to the Rohingya, it would also counter Buddhist nationalism’s claim that the Rohingya are an encroachment. By stripping nationalistic elements away from laws having to do with citizenship, Myanmar can begin to create a genuinely pluralistic society that protects minority rights. 

Myanmar and the International Criminal Courts: Finding Loopholes in International Law in the Search for Justice

For decades now, the international community has searched for a way to provide justice and accountability when addressing mass crimes against humanity, yet obstacles such as politics, legal red tape, and jurisdictional laws manage to consistently obfuscate this search. The international community struggles to make use of limited resources and abilities to provide relief and aid. In the form of legal action, they are held back by technicalities and jurisdictional issues. As the anniversary of the start of the Rohingya genocide in Myanmar passed in August, an answer to provide justice and an end to violence remains necessary, despite the difficulty entailed in finding such an answer. A solution through the legal system and the International Criminal Court was found. This solution makes use of a technicality within the jurisdictional laws for the court. If successful, working through this ‘loophole’ could finally bring about change for both the Rohingya people and the global community as a whole, creating justice for the victims and accountability towards the perpetrators.

Over a year has passed since the most recent outburst of mainly state-sponsored anti-Rohingya rhetoric and violence has broken out in the nation of Myanmar. The bloodshed led and organized by the country’s Buddhist majority, is targeting the Rohingya people: a majority-stateless Muslim minority who live in the Rakhine state along the coast of the Indian Ocean, near the Bangladesh-Myanmar border. Although a majority of the 1 million Rohingya who live in Myanmar are able to trace their roots back hundreds of years in the country’s history, they are denied citizenship, political representation, and are considered to be illegal migrants from the neighboring nation of Bangladesh. As a result of this, the Rohingya have managed to form a unified political, ethnic, and religious identity that is strikingly different from the rest of Myanmar’s 135 ethnic groups. Their distinct and solitary culture has led them to face severe discrimination since the 1970s, experiencing everything from the stripping of legal rights to alleged abuses by police and other officials.

In August of 2017, that persecution evolved into the latest wave of extreme violence, manifesting itself in the form of rape, murder, and arson. The violence and attacks have brought about one of the fastest growing and most pressing refugee crises of the 21st Century. The events in Myanmar have led to a mass human migration whose growth rate has reached the levels of and, in some cases, even surpassed other current refugees crises - such as Syria, Somalia, Afghanistan, and South Sudan - that have been going on for much longer.  In the mere year since the genocide began, over 700,000 Rohingya have fled from Myanmar to Bangladesh, where they now live in overcrowded and under-resourced refugee camps along the border. The intensity of the crisis and lack of response from the Myanmar government has led the international community into a frantic search for a remedy to the violence, and more importantly, justice for the Rohingya.

The question of how to bring aid and justice to the Rohingya people has plighted the international community since the start of the crisis in 2017. On the side of humanitarian aid, Bangladesh itself has devoted large amounts of its already limited and strained resources to take care of the refugees fleeing into its lands. The United Kingdom halted its training courses for the Myanmar military and pledged to provide 59 million pounds in aid resources for those in flight. On the other side of the coin, ASEAN (the  Association of Southeast Asian Nations) has avoided interference. This is due to the fact that ASEAN operates on consensus, and as Myanmar is a member, a full agreement will never be reached; Myanmar will always respond to measures brought to the table with dissent and disagreement. Nonetheless, a majority of the world’s countries have agreed that something must be done to end the violence in Myanmar, something outside of providing food and vaccines. What was needed is legal action in the form of international law.

In March of 2017, the United Nations Human Rights Council appointed a special panel to investigate and document the extent of the crimes that are occurring within Myanmar. A year and a half later, the panel returned with their final report, in which they established that Myanmar’s security forces are responsible for numerous “heinous crimes,” including hate rhetoric, exclusionary policies, imprisonment, arson, expulsion, torture, murder, rape, and sexual slavery. The UN Fact Finding Mission on Myanmar also concluded that the acts committed by security forces amounted to four out of the five acts prohibited by the Genocide Convention - “(a) killing, (b) causing serious bodily or mental harm, (c) inflicting condition of life calculated to bring about the physical destruction of the group or in part, and (d) imposing measures intending to prevent births.” With the evidence put forth and determination of guilt made, the panel ended their report by recommending that the international community continue to administer relief aid for the refugees, place greater pressure on the Myanmar government to end the violence and support legal action against the perpetrators. In the case of legal accountability, it was determined that any legal action should be referred to the International Criminal Court for prosecution.

In their twenty years, the International Criminal Court has prosecuted multiple nations and world leaders for crimes against humanity. Although they are more than qualified to perform the job of prosecuting Myanmar and its security forces, they are held back by a technicality in that they do not have complete jurisdiction over the case. Myanmar refused to join the ICC Rome Statute in 1998 and has yet to accept membership in the twenty years since, making them outside of the court’s general jurisdiction. However, on September 6, 2018, the ICC’s Pre-Trial Chamber I  found a loophole that allowed them to declare that the ICC does have the jurisdiction to prosecute Myanmar on the crime of the forced deportations of the Rohingya people, as well as any other crime against humanity that they deem applicable. This is due to the fact that although the International Criminal Court is unable to prosecute Myanmar for their actions inside of their borders, they are able to extend their power over the crimes that spilled over the border into Bangladesh, who is a signatory of the Statute. The nation of Myanmar responded negatively to the ‘loophole,’ stating that it goes against the 1969 United Nations Vienna Convention, as well as their general sovereignty as a nation. With the approval of the preliminary court, the case’s prosecutor, Fatou Bensouda, plans to continue with her preliminary investigation, which, one would hope, will lead to indictments, arrest warrants, and a trial.

A trial targeting any and all Burmese leaders who are designated through Bensouda’s investigation is a necessity. The idea of international accountability is a relatively new concept, only having come into existence within the last century. Nations often attempt to hold one another accountable through the use of methods, such as trade sanctions, embargoes, and holding of funding. All of these methods hold complex results. In the case of trade sanctions, if not specifically targeted towards a nation’s leaders or elite, the sanctions themselves could prove harmful to civilians and non-impactful to leaders. The ability to create accountability through economic legislation is limited and focuses on merely the beginning or middle of an event, not the end or aftermath. Legal accountability is able to address issues of human rights violations or genocide after they have taken place for long periods of time or even ended. However, due to international law and accountability being relatively new terms, justice and punishment have yet to be delivered in a way that is recognized by the global community, as well as in a way that deters further incidences of human rights violations, particularly ethnic cleansing and genocide. Although Fatou Bensouda and the rest of the International Criminal Court will doubtlessly face a multitude of challenges in their fight for justice and accountability for the Rohingya people, it is a necessity that they do all they can to succeed.  The loophole of going through Bangladesh in order to prosecute its neighbor is a controversial one yet may prove to just be enough to bring about justice for those who have been affected by the actions of the nation of Myanmar and its security forces. Without the loophole, the international community would be extremely limited in their response to the crisis, as they would be trapped with humanitarian aid and economic sanctions being their only options to provide assistance to the fleeing Rohingya. If the trial is successful, the Rohingya may be able to receive justice and a sense of closure and protection from the persecution and genocide that has taken place. However, success may also lead to a debate on the rights of states and whether Myanmar’s rights as a sovereign nation were disregarded or even violated. The case will also play a major role in defining the powers and standing of international law, as well as the International Criminal Court. Whether the trial behind what has become known as the Rohingya Genocide succeeds or fails, it could pave the way for a new era of globalized law and politics, as well as a change in the way that today’s plight of human rights abuses is addressed.