Secretary Pompeo: Make a Determination that Myanmar Committed Genocide
The Honorable Michael Pompeo
Secretary of State
Department of State
2201 C Street NW
Washington, D.C. 20520
Dear Secretary Pompeo:
We are a group of independent legal and human rights experts who seek your assistance in addressing the continuing plight of the Rohingya population of Myanmar, of whom nearly 900,000 are refugees in Bangladesh. Some 600,000 others remain in Myanmar under oppressive and life-threatening conditions. They and other Rohingya murdered by Myanmar forces are the victims of atrocity crimes that have ravaged Rakhine State in Myanmar and extended onto the territory of Bangladesh since 2016. We fully recognize that the administration has condemned the massive assaults, particularly ethnic cleansing, against the Rohingya population and imposed economic sanctions on a number of Myanmar military leaders. We now ask that you take a critical step to demonstrate American resolve in the face of such egregious crimes and thus help the Rohingya recover their rightful place in Myanmar society, including respect for their safety and political and religious rights.
In particular, we urge that the Department of State make a public determination that genocide has been committed against the Rohingya population of Myanmar. The evidence for such a determination has been accumulating for several years and demands recognition by the United States as a party to the Convention on the Prevention and Punishment of the Crime of Genocide and as a staunch defender of religious liberty for any protected group victimized by such a genocidal assault.
Numerous reports have established that several acts of genocide recognized in the Genocide Convention have been committed by the Myanmar military against the Rohingya people. These acts include killing members of a targeted group, causing serious bodily and mental harm, and deliberate creation of the conditions of life calculated to bring about the destruction of such a protected group in whole or in part (as defined in the Genocide Convention). Thousands of Rohingya have been killed. As noted, the majority of the population has been forced from the country and is now living under trying conditions across the border in Bangladesh.
The State Department’s survey of 1,024 Rohingya refugees found that “the vast majority of Rohingya refugees experienced or directly witnessed extreme violence and the destruction of their homes.” The Myanmar military was identified as perpetrators in most cases and nearly 40 percent of those surveyed witnessed a rape committed by Myanmar security services. The survey concluded that the violence was “extreme, large-scale, widespread, and seemingly geared toward both terrorizing the population and driving out the Rohingya residents.” The scope and scale indicated the military operations were “well-planned and coordinated.”
Refugees International testified to the U.S. Congress following an emergency mission in September 2017 that interviews with Rohingya refugees revealed:
a litany of abuses along a common strain: soldiers surrounding villages, using various incendiary devices to set fire to homes, at times locking or throwing people inside the burning structures; young women singled out to be taken away and raped; days long flight by foot and/or boat across the border to Bangladesh, arriving with just the clothes on their backs.
These accounts have been corroborated by numerous further reports and eyewitness testimonies. Doctors Without Borders in December 2017 conservatively estimated at least 6,700 Rohingya were killed during the attacks. A broad survey of Rohingya refugees by Physicians for Human Rights estimated a similar number of deaths and documented burning of homes and mosques, sexual violence, and violence against civilians in flight. The U.S. Holocaust Memorial Museum and the law group engaged by the State Department to investigate atrocities against the Rohingya—in its own independent legal analysis—have respectively found “compelling evidence” and “reasonable grounds” to believe that genocide has been committed.
Following its comprehensive report on 12 September 2018 pointing to crimes against humanity and genocide against the Rohingya, the Independent International Fact-Finding Mission on Myanmar delivered a further report on 16 September 2019, which provided extensive evidence and analysis of acts of genocide and genocidal intent against the Rohingya. The 2019 report stated:
220. The Mission’s 2018 report called for investigations and prosecutions of certain individuals for the crime of genocide under the rules of international criminal law. In this report, the Mission has examined the question of whether Myanmar as a State bears responsibility too. The Mission concludes on reasonable grounds that the evidence supports an inference of genocidal intent and, on that basis, that the State of Myanmar breached its obligation not to commit genocide under the Genocide Convention under the rules of State responsibility. The Mission draws this conclusion based on four main findings that build upon its prior assessment of the crime of genocide under international criminal law. First, the Rohingya constitute a protected people under the Genocide Convention. Second, the Rohingya were the victims of numerous underlying acts of genocide, including killing, serious bodily and mental harm, and conditions of life calculated to bring about their physical destruction, and may also have been victims of measure intended to prevent births. Third, those acts were attributable to the State and committed intentionally. Finally, the Mission concludes on reasonable grounds that the State engaged in a pattern of conduct with, through inference, the genocidal intent to destroy the Rohingya in whole or in part as a people. (Footnotes omitted)
On 23 January 2020, the International Court of Justice stipulated in its Order of Provisional Measures in The Gambia v. Myanmar that some of the worst atrocities allegedly committed against the Rohingya “are capable of falling within the provisions of the [Genocide] Convention.” As a provisional measure, the court directed Myanmar authorities to ensure that genocide against the Rohingya is prevented in the future and to preserve and prohibit the destruction of any evidence relevant to the commission of genocide. That measure reflects the court’s grave concern about what already transpired as it deliberates the merits of the case. There is ample precedent in the case law of prior international tribunals to establish a reasonable inference of specific genocidal intent in the actions taken against the Rohingya since August 2017.
Further, the intent of the Myanmar military to destroy the Rohingya, a distinct ethnic group, in whole or in part is apparent in its statements and actions. Authorities in Myanmar have long targeted the Rohingya for persecution, and current military leaders have fueled racist and dehumanizing perceptions of the group. They have furthered dangerous rhetoric that identifies Rohingya as an existential threat to Myanmar’s racial and religious purity. Survivors of the attacks have cited soldiers expressing a desire to kill and rape Rohingya,[1] using phrases like “you don’t belong here” and “we will kill you all.” And, significantly, the physical destruction of many thousands of Rohingya is combined with a public and self-conscious effort by the military leadership to deny that the Rohingya even exist. Senior General Min Aung Hlaing, in a Facebook post on September 2, 2018, described the “Bengali problem” as a “long-standing one” and an “unfinished job,” stating that “the government in office is taking great care in solving the problem.”
For these reasons we believe the information and assessments produced so far compels the United States, in its capacity as a government and not as a court, to publicly express its view that genocide has been committed and may be continuing against the Rohingya of Myanmar.
We appreciate your attention to this important matter. (The individuals below have endorsed this letter in their personal capacities.)
Should you have any questions about this letter, please feel free to be in touch with Daniel Sullivan (daniel@refugeesinternational.org).
Respectfully signed,
Sareta Ashraph
Senior Legal Consultant, Garden Court Chambers
Todd F. Buchwald
Former Ambassador, Office of Global Criminal Justice, U.S. Department of State Inaugural Tom A. Bernstein Genocide Prevention Fellow, U.S. Holocaust Memorial Museum
Professorial Lecturer in Law, George Washington University Law School
Sarah H. Cleveland
Louis Henkin Professor of Human and Constitutional Rights Faculty Co-Director, Human Rights Institute, Columbia Law School
Michael Doyle
University Professor, Columbia University
Oona Hathaway
Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School Director, Center for Global Legal Challenges, Yale Law School
Alexandra Huneeus
Professor of Law and Legal Studies, University of Wisconsin
Azeem Ibrahim
Research Professor at the Strategic Studies Institute, U.S. Army War College Director, Center for Global Policy
Zachary D. Kaufman
Associate Professor of Law and Political Science, University of Houston Law Center
David Kaye
UC Irvine School of Law Former
UN Special Rapporteur on Freedom of Opinion and Expression
Adam Keith
Former Director for War Crimes and Atrocity Prevention, National Security Council
Michael J. Kelly
Professor, School of Law, Creighton University
Senator Allen A. Sekt Endowed Chair in Law
Harold Hongju Koh
Sterling Professor of International Law, Yale Law School
Legal Adviser (2009-13) and Assistant Secretary for Democracy, Human Rights & Labor (1998-2001), U.S. Department of State
Tod Lindberg
Senior Fellow, Hudson Institute
Elisa Massimino
Robert F. Drinan, S.J., Chair in Human Rights, Georgetown University Law Center
Juan E. Mendez
Professor of Human Rights Law in Residence, Washington College of Law
Former Special Advisor to the UN Secretary General on the Prevention of Genocide
Stacey M. Mitchell
Assistant Professor of Political Science, Department of History & Political Science, Perimeter College – Dunwoody Campus, Georgia State University
Michaela Moura-Kocoglu
Assistant Teaching Professor, Ph.D., Florida International University
Melanie O’Brien
UWA Law School, University of Western Australia
Diane Orentlicher
Professor of International Law, Washington College of Law
Former Deputy, Office of War Crimes Issues, Department of State
Max Pensky
Co-Director, Institute for Genocide and Mass Atrocity Prevention
Professor of Philosophy, Binghamton University
Samantha Power
Former United States Ambassador to the United Nations
Stephen J. Rapp
Senior Fellow, US Holocaust Memorial Museum Center for Prevention of Genocide Former US Ambassador-at-Large for War Crimes Issues
Nadia Rubaii
Co-Director, Institute for Genocide and Mass Atrocity Prevention, Binghamton University
David Scheffer
Mayer Brown/Robert A. Helman Professor of Law, Northwestern Pritzker School of Law
Former United States Ambassador-at-Large for War Crimes Issues
Eric Schwartz
President, Refugees International
Former Assistant Secretary of State for Population, Refugees, and Migration
Gregory H. Stanton
Founding President, Genocide Watch
Jane Stromseth
Francis Cabell Brown Professor of International Law
Georgetown University Law Center
Ruti Teitel
Ernst C. Stiefel Professor of Comparative Law, New York Law School
Samuel Totten
Professor Emeritus, University of Arkansas, Fayetteville USA
Co-author of The UN Genocide Convention: An Introduction (University of Toronto Press, 2020)
Jennifer Trahan
Clinical Professor, Center for Global Affairs, New York University
Director of the Concentration in International Law & Human Rights
Beth Van Schaack
Leah Kaplan Visiting Professor of Human Rights, Stanford Law School Faculty Affiliate, Stanford Center for Human Rights & International Justice
Kerry Whigham
Assistant Professor of Genocide and Mass Atrocity Prevention, Institute for Genocide and Mass Atrocity Prevention, Binghamton University
David Wippman
President, Hamilton College
ENDNOTES
[1] Order, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, The Gambia v. Myanmar, International Court of Justice, 23 January 2020, at https://www.icj-cij.org/files/case-related/178/178-20200123-ORD-01-00-EN.pdf. Id., fn. 4.