Revisiting the Interpretation of the Protected Groups of The Genocide Convention in Light of the Rohingya Case

AuthorAdrià Ferrer-Monfort
PositionLL.B. (University of València), BA (University of València), MA (Miguel Hernández University of Elche), LLM (International Law), University of Bristol
© 2019 Adrià Ferrer-Monfort and Dublin University Law Society
As the Convention on the Prevention and Punishment of the Crime of
Genocide (‘Genocide Convention’) marks its 70th anniversary,
there is
ongoing debate as to whether the acts instigated against the Rohingya in
Myanmar (formerly known as Burma) constitute genocide. The Genocide
Convention defines genocide as the deliberate destruction of a group of
people because of their ethnicity, nationality, religion, or race.
the elements of this crime are rarely satisfied in practice and most atrocities
do not qualify as what has been called the ‘crime of crimes’.
The reluctance to use the term genocide is particularly evident in the
response to the Rohingya crisis. What is being inflicted on the Rohingya
people has been labelled as ‘crimes against humanity’ rather than as
genocide. While the scale of atrocities may be identical in both crimes, the
perpetrator’s intent to annihilate a protected group is a special feature of
genocide. In 2017, the former UN High Commissioner for Human Rights,
Zeid Ra’ad Al Hussein, defined Myanmar’s campaign against the Rohingya
as ‘a textbook example of ethnic cleansing’ but implied that there was not
enough information to call the situation genocide.
Conversely, the UN Fact-
LL.B. (University of València), BA (University of València), MA (Miguel Hernández
University of Elche), LLM (International Law), University of Bristol. The author would like to
dedicate this paper to his parents, Maria José and Francesc. Of course, the author is also
immensely grateful to Stavroula for her unconditional support, patience and insightful
comments. Finally, the author would like to give a special thanks to Dr Jane Rooney for her
inspiring lectures and advice on an earlier version of this paper, although any errors are my
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December
1948, entered into force 1951) 78 UNTS 277 (Genocide Convention).
ibid art 2.
The Prosecutor v Kambanda (Judgment) ICTR-97-23-S (4 September 1998) para 16. See also
William Schabas, ‘Genocide’ in William Schabas (ed), The UN International Criminal
Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (CUP 2006) 161, 162.
OHCHR, ‘Darker and more dangerous: High Commissioner updates the Human Rights
Council on Human Rights Issues in 40 Countries’
Trinity College Law Review [Vol 22
Finding Mission on Myanmar, established by the UN Human Rights Council
to investigate allegations of human rights violations committed by the
Myanmar forces, has characterised the abuses committed in Rakhine State
as genocide, as well as crimes against humanity and war crimes with regard
to Rakhine, Kachin and Shan States.
The main reason given for characterising the atrocities against the
Rohingya as crimes against humanity rather than genocide is that the
Rohingya do not fall into any of the categories of protected groups listed in
the Genocide Convention. The Convention refers only to four types of
victim groups national, ethnical, racial, and religious without explicitly
providing a definition for each group. As a result of the unclear definitions
of each group, the international tribunals for the former Yugoslavia and
Rwanda (ICTY and ICTR respectively) have introduced new concepts, such
as stability and permanence, to interpret these definitions. However, the
ICTR and the ICTY have employed various interpretations of the protected
groups, producing different and conflicting tests for establishing whether a
targeted group in a given situation constitutes a protected group under the
Genocide Convention.
This paper argues that the Rohingya people should fall within the
definition of a protected group under the Genocide Convention. Objective
evidence regarding their national, ethnic, racial, and religious
characteristics, as well as subjective perceptions of this group, demonstrates
that at a minimum they have a unique ethnic identity. Although the
reluctance to use the term genocide is connected to politics such a discussion
is beyond the scope of this essay. The first section of this paper discusses
the definition of genocide under the Genocide Convention, including its
drafting history and the critique surrounding its narrow scope. This is
followed by a review of the case law of the international tribunals that deal
with the definition of the four groups enumerated in the Genocide
Convention. In particular, the various approaches introduced by the ad hoc
international tribunals and the International Criminal Court (ICC) to
interpret the undefined concepts of national, ethnic, racial, and religious
groups are analysed. This paper then presents the findings of the UN Fact-
Finding Mission on Myanmar, as well as other human rights reports that
shed light on the human rights violations committed mostly by Myanmar
security forces against the Rohingya, to explore whether this group should
accessed 7 December 2018.
HRC, ‘Report of the Detailed Findings of the Independent International Fact-Finding Mission
on Myanmar’ UN Doc A/HRC/39/CRP.2 (2018) para 1557 (FFM).

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