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

• Author: Adrià Ferrer-Monfort
• Position: LL.B. (University of València), BA (University of València), MA (Miguel Hernández University of Elche), LLM (International Law), University of Bristol
• Pages: 77-99

© 2019 Adrià Ferrer-Monfort and Dublin University Law Society

REVISITING THE INTERPRETATION OF THE

PROTECTED GROUPS OF THE GENOCIDE

CONVENTION IN LIGHT OF THE ROHINGYA CASE

ADRIÀ FERRER-MONFORT

Introduction

As the Convention on the Prevention and Punishment of the Crime of

Genocide (‘Genocide Convention’) marks its 70th anniversary,

1

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.

2

However,

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’.

3

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.

4

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

own.

1

Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December

1948, entered into force 1951) 78 UNTS 277 (Genocide Convention).

2

ibid art 2.

3

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.

4

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

78

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.

5

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.

5

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).