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By Maung Zarni, Natalie Brinham | Published by Middle East Institute on November 20, 2018

“It is an ongoing genocide (in Myanmar),” said Mr. Marzuki Darusman, the head of the UN Human Rights Council-mandated Independent International Fact-Finding Mission at the official briefing at the full Security Council on October 24, 2018.[1] This official briefing was officially requested by 9 out of the 15 Council members over the objection of China, Russia, Equatorial Guinea and Bolivia). [2]

On the same day, before the Security Council briefing, Darusman, former Attorney General of Indonesia who headed his country’s National Human Rights Commission and served as UN Special Rapporteur on human rights in North Korea, had held a press conference in New York where he was joined by Professor Yanghee Lee of South Korea, UN Special Rapporteur on human rights situation in Myanmar.[3]Echoing the UN Fact-Finding Mission Chief’s concerns for Rohingyas’ safety arising out of the continuing existence of structures, institutions, practices and executioners of Myanmar’s genocidal policies, Professor Lee officially opposed the scheme of repatriation of one million Rohingyas who have taken refuge across the borders on Bangladeshi soil.[4] 

Amid calls for international accountability — international because Myanmar lacks an independent and competent judiciary, as well as the political will to bring to justice the main military perpetrators of the genocide[5] — the government of Bangladesh has prioritized the repatriation of Rohingyas.[6] To be sure, the massive influx of Rohingyas into Bangladesh has placed a heavy economic, social and political burden on the country. 

The flurry of activities by Bangladesh authorities — including organizing and attending international conferences and hosting countless visits by foreign heads of state and delegations, and celebrities that are focused on addressing the root cause of the recurring waves of refugee inflows from Myanmar — indicate that the continuing presence of Rohingya refugees in the country is an all-consuming concern for both its government and society at large.[7] 

Because third-country resettlement of one million Rohingyas is not a viable solution, Dhaka’s focus on repatriation — as opposed to holding Myanmar perpetrators of genocidal crimes accountable — is not only understandable but also warranted. However, the most crucial question is how to address the justifiable, widespread and profound fear of further waves of attacks and being sent back to live under genocidal conditions among the deeply traumatized Rohingyas in the camps in Cox’s Bazar district in Bangladesh.[8]

For two consecutive years, Prime Minister Sheik Hasina has gone to the UN General Assembly and presented her proposal to the international community in order to mobilize support for Bangladesh’s efforts to unload the burden placed on her country.[9] The large-scale impact of neighboring Myanmar’s genocide is all too visible for any visitor to the sprawling camp “city” in Cox’s Bazar. It is also a subject of criminal investigation by the pre-trial Chamber of the International Criminal Court after the ICC issued an unprecedented and fully justified ruling that the cross-border nature of Myanmar’s crimes — deportation and “other (international) crimes” — are within the Court’s jurisdiction and hence the preliminary investigations of allegations and facts must proceed,[10] despite non-signatory Myanmar’s official dismissal of the ruling as “meritless.”[11] 

To her credit, Prime Minister Sheik Hasina has highlighted the essential need of the Rohingya, most specifically the group’s safety, upon return to their places of origin inside Myanmar. In her proposals to the UN in 2017 and 2018, the PM even raised, officially, the issue of establishing “safe zone” for the Rohingyas inside Myanmar[12]— and rightly so.

Having had to deal with chronically large waves of Rohingya exodus into the Bangladeshi territories since 1978,[13] Dhaka is best positioned to comprehend and appear to fully appreciate, the absence of physical group safety, which is the direct outcome of Myanmar’s genocidal policies and practices, for this largely Muslim ethnic minority population as the prime “push factor.”[14] 

The predominantly Buddhist Myanmar has long singled out the Rohingya population — which qualifies, according to the UN Fact-Finding Mission report, as ‘protected group’ under international law[15] — for extermination on Myanmar’s soil. The military-controlled Myanmar state has perceived Rohingyas as a group with a distinct identity, language and culture, and as a demographic proxy which Bangladesh is using to ease its (Dhaka’s) population pressure[16]: although Bangladesh is 40% smaller in area than Myanmar, it is home to over three times as many people. 

Accordingly, the Myanmar military has instituted systematic measures, both violent and non-violent, designed to change the demographic character of the predominantly Rohingya region of Northern Rakhine, having reversed radically the official recognition[17] granted to Rohingyas in the 1950s and early 1960s as an ethnic nationality of the Union of Burma, who are full and equal citizens, like the country’s other minority populations (e.g., Shan, Kachin, Kayah, Chin, Mon, Rakhine, etc.) and that the 2.5 townships of Maungdaw, Buthidaung and Rathae Daung formed the main administration region of Rohingya people. 

When the Myanmar military realized that its peaceful scheme of changing the Muslim character of Northern Rakhine State of Rohingya homeland through the state-sponsored trans-migration of Buddhist and other non-Muslim internal migrants from other parts of the country was not having any appreciable impact on the region,[18] it decided to resort to waves of state-directed violence against the target-population of Rohingyas.

Since February 1978, Myanmar’s military leaders have attempted to reduce and eventually erase the Rohingyas’ presence from Bangladesh-Myanmar border region, which stretches 270 miles, framing the region next to the populous Muslim nation of Bangladesh as the “Western gate” of the Union of Myanmar. These systematic attempts at the erasure of Rohingya identity and presence are anchored in the military’s revisionist historical discourse — that Rakhine was a “purely Buddhist” land “contaminated” by the unwelcome intrusions and immigration of Muslims, as openly stated in The State’sWestern Gate (Yangon, 2016),[19] by retired General Khin Nyunt, former chief of the military intelligence services and one of the architects of what Amartya Sen calls “the slow genocide.”[20] 

This official and popular discourse of “Fortress Myanmar” is not applied in the equally porous borderlands with the country’s two giant neighbors, China and India.[21] Inside Myanmar, it is public knowledge that the country has received hundreds of thousands of Chinese migrants from the bordering Chinese state of Yunnan — with some estimates putting the number at roughly one million. The Burmese military and political class, including Aung San Suu Kyi and her NLD party leadership were acutely aware of this illegal Chinese immigration[22] into what is known as “Upper Myanmar,” but both have kept quiet since Myanmar’s relations with China solidified after the post-Cold War Western bloc took punitive measures against the formerly non-aligned State on grounds of the well-documented egregious and pervasive human rights abuses. As a matter of fact, under the previous military-backed government of ex-General Thein Sein (2010-15), Myanmar had even created a new ethnic name — Mong Yang Myanmar — exclusively for the almost 90,000 ethnic Han which assisted the military’s operations against restive Myanmar ethnic nationalities such as the Kokant.[23] 

The fact that Myanmar continues to deny its own official documentation supporting the Rohingyas’ claim of Western Myanmar as their homeland and to categorically dismiss their irrefutable historical and official group identity as Rohingyas[24] while imposing on the group a false identity of “Bengali,” that is, citizens of Bangladesh can only be understood within the framework of genocide.[25] It is not the lack of knowledge on the part of Myanmar leadership that ethnic identities are not simply innate or DNA-based, but are invented by political organizations and communities, states or sub-state level entities.

The overwhelming majority of the UN member states — save India, Japan, Russia and China — have been vocal in condemning Myanmar’s “gravest crimes in international criminal and humanitarian law,” as the UN Fact Finding Mission on Myanmar put it. But the public condemnations have not been matched by an equal amount of tangible support for the one million Rohingya genocide survivors in Bangladesh in terms of humanitarian funds, human resources (e.g., trauma counsellors, social workers, etc.), or livelihoods opportunities. Less than half of the need for humanitarian aid has been met.[26] Consequently, Dhaka feels enormous pressure to feed and house, however unsatisfactorily, such a large pool of refugees.

Against this background, the idea and schemes of repatriation, as well as Bangladesh’s anxiety over the need to begin the repatriation, need to be understood. Beyond the calls for justice and accountability in the form of ICC or ad hoc International Criminal Tribunal on Myanmar (i.e., International Criminal Tribunal on Yugoslavia or International Criminal Tribunal on Rwanda), Rohingya repatriation is correctly seen as the only viable, peaceful solution to one of the contemporary world’s greatest humanitarian challenges.[27] 

Importantly, repatriation is interpreted and pursued by different key players for different strategic and policy ends. 

Bangladesh advocates repatriation of Rohingyas, as they put enormous strain on Bangladesh government resources, on society and on the Environment.[28] 

The guilty party of Myanmar agree, largely in principle, to receive the returning Rohingyas back as Aung San Suu Kyi and her foreign ministry strategists regard repatriation as a tactic to placate the outraged UN and other state players calling for the establishment of the international tribunal on Myanmar and supporting the ICC’s criminal investigation of Myanmar’s crimes of deportation and other high crimes. This is an open secret among the politically conscious Burmese. In fact, in a recent interview with the Radio Free Asia Burmese Service, Tun Tin, a well-known member of the Myanmar Chamber of Commerce and a Burmese crony, explicitly stated that repatriation is a way of alleviating the pressure of the international campaign for criminal accountability around Myanmar genocide. 

China is pressuring both Bangladesh and Myanmar to start large-scale repatriation because the Communist leadership do not welcome the deepening of Western involvement in the resource-rich country which Beijing considers an integral component of its long-term strategic scheme of power projection into the Indian Ocean. 

India is following suit out of a different logic: New Delhi has recently begun de-nationalizing the several million Muslims in the country’s restive northeast region of Assam, a first step towards Myanmar-style expulsion and deportation. Additionally, India is vying with China for influence over the ruling Burmese military since the early 1990s, which necessitates Delhi’s unconditional support for Myanmar’s policies towards Rohingyas.

Japan is pushing repatriation out of its own strategic calculations, lending Aung San Suu Kyi’s government media and money support,[29] in an effort to counteract China’s growing influence over Myanmar.

ASEAN is split between reformist Malaysia[30] which is openly pushing for strong measures to end the genocide and the rest of the Southeast Asian bloc, made up of largely authoritarian regimes. 

Meanwhile, inside Myanmar, all the key pillars of Myanmar society and politics remain deeply genocidal in their outlooks. Nationally organized Buddhist monks continue to promote venomous anti-Rohingya view while rallying behind the main perpetrator, namely Myanmar Armed Forces. Anti-Rohingya public opinion has largely crystalized, as the direct result of the Myanmar military’s psychological warfare or mass propaganda campaign, using traditional media and, since 2012, Facebook, depicting Rohingyas, falsely as “Islamicists” and “Illegal Bengali invaders” hell-bent on taking over “Buddhist Myanmar.” 

Aung San Suu Kyi herself and her ruling NLD party share the public view that Rohingya identity is “fake” — a political invention dating from the 1950s — and that Rohingyas really belong in Bangladesh. Even if Suu Kyi and her civilian government have the political will — and there is no indication they do — they have no control over the most powerful organ of the State, the Security Sector, and the most culturally influential pillar of Myanmar, the Buddhist Order. Locally in Rakhine, the shared homeland between Rakhine Buddhists and Rohingyas, Rakhine nationalists continue to mobilize openly against any large-scale repatriation.

Against this overwhelmingly hostile background — not to mention Myanmar’s state’s policies of persecution, including laws and regulations, which remain completely unchanged — no repatriation without guaranteed safety for Rohingyas is conceivable. The majority of Rohingyas may be illiterate, poorly educated or disorganized. This is in spite of Suu Kyi’s disingenuous public statement that her government has implemented 81 of 88 recommendations by the Rakhine Commission chaired by the late Kofi Annan.[31] 

The 40 years of life under genocidal conditions have taught a bitter lesson: the Rohingyas’ physical safety in Myanmar — whether they be future returnees (1.2 millions) from Bangladesh, the estimated 400,000 trapped in Rohingya villages and Rakhine’s southern regional town of Buthidaung, or those in IDP camps — cannot be assured without international protection. It is inconceivable that without this requisite safety any repatriation will be voluntary or sustainable.

Just one week before the planned bilateral repatriation, Myanmar continues with its official — and non-credible — framing of the human rights and humanitarian catastrophe as a direct result of (Muslim) “terrorism.” UN Ambassador Hau Do Suan told Fox News that “the root cause of this humanitarian issue is because of the Arakan Rohingya Salvation Army (ARSA) — the Muslim terrorist group. They attacked against the government in Rakhine State in October 2016 and again in August 2017. This humanitarian problem was ignited by those terrorist attacks.”[32]

It is therefore urgently necessary for the issue of the guaranteed safety for Rohingyas in Myanmar to be placed at the center of all international policy discussions on Myanmar’s ongoing genocide. 

However, no meaningful discussion which rightly prioritizes Rohingyas’ need for protection and guaranteed basic human and citizenship rights can take place in the face of the repeated refusals by the powerful Asian governments (such as Japan, China and India) and the Association of South East Asian Nations (ASEAN) to accept the UN Fact-Finding Mission’s dire warning that Myanmar genocide is “ongoing.”

To overcome this obstacle, the Rohingya people urgently need an international coalition of UN member states prepared to pool their respective diplomatic, commercial, political and even military influences in order to bring an effective end to Myanmar’s slow genocide. In his October 4, 2018 talk at the Council on Foreign Relations,Prime Minister of Malaysia Dr. Mahathir Mohammad stated openly that military intervention (in Myanmar) may be needed.[33] 

Such interventions may not be in the cards, but certainly some form of coordinated and collective protection and guaranteed human rights for the Rohingya is fully warranted. In the attempts to set up protection mechanisms, churches and other non-Christian religious and civil society institutions can play more proactive and strategic roles, particularly given the fact that the religious and group identity of the Rohingya minority is a major driver behind Myanmar’s genocide.

[1] “Marzuki Darusman (Chairperson of the Independent International Fact-Finding Mission on Myanmar) on the situation in Myanmar - Security Council, 8381st meeting,”, October 24, 2018,…; See also “Rohingya genocide is still going on, says top UN investigator,” The Guardian, October 24, 2018,….

[2] “China fails to stop U.N. Security Council Myanmar briefing,” Reuters, October 24, 2018,…. See also “8381st Security Council Meeting: Situation in Myanmar,”, October 24, 2018,

[3] “Ms. Yanghee Lee, Special Rapporteur on the situation of human rights in Myanmar and Mr. Marzuki Darusman, Chair of the UN Fact-finding Mission in Myanmar,”, October 24, 2018,….

[4] Ibid.

[5] International Commission of Jurists, “Myanmar: Government’s Commission of Inquiry cannot deliver justice or accountability,” September 7, 2018,….

[6] Personal communications with Bangladeshi authorities including the Speaker of the National Parliament of Bangladesh and the Foreign Minister, between November 2017 and Fall 2018.

[7] Ibid.

[8] “Aid groups say Rohingya ‘terrified’ about Myanmar repatriation,” AFP, November 9, 2018,…. See also “Exclusive: ‘Can’t eat, can’t sleep’ - Rohingya on Myanmar repatriation list,” Reuters, November 9, 2018,…;

[9] Our 5-point proposal can solve Rohingya crisis: PM,” The Daily Star, October 17, 2017,…. See also “PM Hasina at UNGA: UN-Myanmar deal must end Rohingya crisis,” The Daily Star, September 28, 2018,….

[10] International Criminal Court, “Statement of ICC Prosecutor on opening a Preliminary Examination concerning the Rohingya,” September 18, 2018,

[11] “Myanmar Calls ICC Request For Jurisdiction Over Rohingya Expulsion ‘Meritless,’” Radio Free Asia, August 9, 2018,….

[12] “Bangladesh’s PM at UN urges ‘safe zones’ for Myanmar's Rohingya,” Agence France-Presse, September 22, 2017,….

[13] Dr. Jeff Crisp, former head of Policy Development and Evaluation at UNHCR, shares his first-hand knowledge of ‘the shameful history of Rohingya repatriation since 1978. See “We must not repeat the shameful history of returning Rohingya refugees,” Refugee Studies Centre, Oxford University, January 17, 2018,…" style="color:#0563c1; text-decoration:underline. 

[14] See Natalie Brinham, “Breaking the cycle of expulsion, forced repatriation, and exploitation for Rohingya,” Open Democracy, September 26, 2017,…; and Maung Zarni and Natalie Brihnam, “Waves of Genocidal Terror against Rohingyas by Myanmar and the Resultant Exodus Since 1978,” Middle East Institute,….

[15] Members of the Rohingya community are protected under the UN Declaration on the Right of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. See “Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar,” Human Rights Council, September 18, 2018, p. 15, #45.

[16]See Maung Zarni and Natalie Brinham, “An Evolution of Rohingya Persecution in Myanmar: From Strategic Embrace to Genocide,” Middle East Institute,….

[17] Official Encyclopedia of Burma (Burmese), Literary House, Union of Burma Government Press, V. 9, under “Mayu District” (of Rohingya), 1964. See also Gregory Poling, “Separating Fact from Fiction about Myanmar’s Rohingya,” Center for Strategic and International Studies, Washington, DC, February 13, 2014,…; and Brigadier General Aung Gyi, Vice-Chief of Staff - Army, Myanmar Armed Forces, “Rohingyas are equal and full citizens and an ethnic minority integral to the Union of Burma,” Khit Yay (Current Affairs), Ministry of Defence, Rangoon, July 4, 1961,….

[18] A former military intelligence divisional head of the inter-agency Na Sa Ka based in Rakhine State capital of Sittwe openly admitted in a Burmese language essay that the peaceful means designed to change the demographic character of Muslim region of N. Rakhine failed because the military was not devoting enough financial resources

[19] See ex-General Khin Nyunt, The State’s Western Gate Problem (in Burmese, hereafter cited as “The State’s Western Gate Problem”) (Yangon: One Hundred Flowers Press, 2016). This is the single most detailed account of Rohingya persecution from the perspective of a key perpetrator, openly explaining different schemes, strategies and rationales, adopted by Myanmar military in order to change the demographic and ethnic character of the predominantly Muslim and Rohingya N. Rakhine State of Myanmar. Khin Nyunt was a young major who had played different roles since the very first state-directed terror campaign against Rohingyas under the false disguise of “illegal immigration” checks in February 1978 until his ouster as chief of military intelligence in October 18, 2004. In 1992, he founded Na Sa Ka, the border affairs inter-agency instrument of persecution made up of the ministries of Immigration, Customs, Religious Affairs, Justice, Home Affairs, Defence, and Foreign Affairs, which was formally dismantled only in 2013: for the agency came under a close scrutiny by international researchers and media as it came to be known as the main instrument of Myanmar genocide. Despite its formal dissolution the same repressive mission and institutionalized practices of persecution continue.

[20] Amartya Sen, “The Slow Genocide of the Rohingya,” Harvard University, November 4, 2014,…; See also Maung Zarni and Alice Cowley (aka National Brinham), “The Slow-Burning Genocide of Myanmar’s Rohingya,” Pacific Rim Law & Policy Journal 23, 3 (June 2014): 683-754,

[21] Myanmar shares over 1,000 miles of borders with each of these neighbors in the West, Far North and the East. 

[22] Personal communications with a former member of the National League for Democracy party team which screened public letters sent to the party leader Aung San Suu Kyi who answered written questions in her well-publicised weekly “Democracy Forum” which she held at the entrance of her house in Rangoon. Myanmar military intelligence has been widely blamed for “selling citizenship” to thousands of Han Chinese immigrants, residents and traders from the Sino-Burmese border province of Yunnan.

[23] “The Mong Wong, Burma’s newest citizens, face backlash,” ReliefWeb, May 6, 2016,…" style="color:#0563c1; text-decoration:underline.

[24] At his invitation-only official talk at Chatham House in London in July 2013, the then Myanmar President and ex-General Thein Sein repeated the institutionalized denial: ”We do not have a group named Rohingya.” David Mepham, Dispatches Burma: “Excuse me, Mr. President…”, Human Rights Watch UK, July 19, 2013,… .

[25] As part of the systematic destruction of a targeted racial, ethnic, religious or national group, in whole or in part, Raphael Lemkin, who coined the term genocide, conceived genocide as a two-phase process with respect to the group’s identity or “national pattern”, as he called it: first, the destruction of the group’s identity/pattern and second, the imposition on those group members, who survive the destruction, of a new identity/pattern as chosen by the perpetrators. This crucial point is often overlooked. See Raphael Lemkin, Axis rule in Occupied Europe, (Clark, NJ: Lawbook Exchange, Ltd., 2008), specifically Chapter IX, “Genocide”: 79.

[26] “Int’l humanitarian appeal for Rohingya crisis underfunded: UN chief,” China Daily, August 29, 2018 ;

[27] For a thoughtful essay on putting the rights, safety and well-being of the Rohingyas at the center of policy discussions, see Bill Richardson, “Accountability Alone Will Not Solve Myanmar's Rohingya Crisis,” TIME, November 5, 2018,….

[28] Mehdi Chowdhury, “Rohingya refugees remain a heavy burden on Bangladesh,” The Conversation, August 20, 2018,…. >

[29] Writing in a Washington Post op-ed, Japan’s Foreign Minister Taro Kono exhorts the international “not to criticize, but to patiently support Myanmar’s own efforts for the early, safe, voluntary and dignified repatriation of refugees.” See Taro Kono, “The world must support Myanmar and Bangladesh,” Washington Post, September 25, 2018,

[30] PM Mahathir Mohammad, “The world needs to draw the line. Military actions may be necessary (to end Myanmar genocide)," Council on Foreign Relations, New York City, October 4, 2018, (Hereafter “The world needs to draw the line.”)

[31] Aung San Suu Kyi, “Democratic Transition in Myanmar: Challenges and the Way Forward,” The 43rd Singapore Lecture, Singapore, August 21, 2018,….

[32]“Burma doubles down on claims to justify treatment of Rohingya minority,“ Fox News, November 10, 2018,….

[33] “The world needs to draw the line.”

By TRT Newsmaker
May 28, 2018

Despite its big name, Amnesty under fire for its latest report on Rohingyas: shoddy research, flimsy evidence on which questionable findings are presented as 'facts".

(Photo: Kevin Frayer/Getty)

By Geoff Curfman
January 9, 2018

Over the past four months, Myanmar’s armed forces, officially known as the Tatmadaw, have driven over 600,000 Rohingya Muslims into Bangladesh, killing thousands of civilians in the process and prompting the United Nations High Commissioner for Human Rights to label the army’s actions “a textbook example of ethnic cleansing” and possibly genocide. One might expect this situation to fall squarely within the ambit of the International Criminal Court (ICC), but the case remains conspicuously absent from the Court’s docket.

The reason the ICC Prosecutor has not opened an investigation is simple: Myanmar is not a party to the Rome Statute, significantly limiting the Court’s jurisdiction over crimes within Myanmar’s territory. The UN Security Council can refer situations to the ICC concerning non-states parties, but China would undoubtedly veto any such resolution. Nor is it likely that Myanmar will accept jurisdiction unilaterally. The only remaining jurisdictional basis requires identifying conduct either on the territory, or perpetrated by a national, of a state party.

But the conflict does involve actions by a non-state party – Myanmar – that have carried over onto the territory of a state party to the Rome Statute: Bangladesh. This cross-border activity could provide the basis for territorial jurisdiction, which the ICC lacks over conflicts that take place entirely within countries that are not members of the Court. Asserting this form of territorial jurisdiction would be consistent with the meaning of the Rome Statute and would advance the Court’s purpose of preventing impunity for grave international crimes.

Factual Background

Within three weeks after the Arakan Rohingya Salvation Army’s (ARSA) Aug. 25 attack on Myanmar army and police outposts, satellite imagery indicated at least 200 Rohingya villages in Rakhine State had been burned. Around the same time, reports emerged of Myanmar armed forces raiding Rohingya villages and “murder[ing] scores of people.” Before the ARSA attacks, approximately 300,000 Rohingya lived in refugee camps just over the border from Rakhine State in Bangladesh. Since then, over 600,000 more Rohingya have fled to Bangladesh, totaling over half the Rohingya population believed to have been living in Myanmar.

A UN investigation into these events produced “[c]redible information . . . that the Myanmar security forces purposely destroyed the property of the Rohingyas, scorched their dwellings and entire villages in northern Rakhine State, not only to drive the population out in droves but also to prevent . . . [them] from returning to their homes.” The same report found that the Tatmadaw used megaphones during some attacks “to announce: ‘go to Bangladesh. If you do not leave, we will torch your houses and kill you.’”

Substantive Grounds for Prosecution

These reports provide evidence that the Tatmadaw violated Article 7(1)(d) of the Rome Statute, which prohibits “[d]eportation or forcible transfer of the population” as a crime against humanity. Under the ICC Elements of Crimes (“Elements”), to violate Article 7(1)(d) the perpetrator must (1) unlawfully deport to “another State” by expulsion or coercion (2) persons lawfully present in the area from which they were driven (3) as part of a systematic attack against the civilian population (4) the nature of which the perpetrator was aware. Burning villages, shooting and raping civilians, and explicitly demanding that the population leave Myanmar, followed by the prompt exodus of half the Rohingya population, provides substantial evidence of forceful expulsion “as part of a widespread or systematic attack” orchestrated by Myanmar’s armed forces. Although Myanmar claims the Rohingya’s presence is unlawful, the “reality,” as Human Rights Watch explains, “is that the Rohingya have had a well established presence in the country since the twelfth century.”

Deportation need not involve physically transporting individuals across a border. The Article 7(1)(d) Elements make clear that “[t]he term ‘forcibly’ . . . may include threat of force or coercion, such as that caused by fear of violence.” Likewise, the ICC Trial Chamber in Prosecutor v. Ruto held that, in order to establish deportation or forcible transfer, “the Prosecutor has to prove that one or more acts that the perpetrator performed . . . produced the effect to deport or forcibly transfer.” The Tatmadaw’s actions thus provide a textbook example of the indirect form of deportation that Article 7(1)(d) criminalizes.

Furthermore, although it is not necessary for a state party’s domestic law to abolish activities prohibited under the Rome Statute in order for the ICC to prosecute those crimes, it is worth noting that Bangladesh explicitly criminalizes deportation as a crime against humanity under the International Crimes (Tribunals) Act (ICTA). Bangladesh enacted the ICTA in response to the 1971 War of Independence, when Pakistani forces drove millions of Bangladeshis into India, reinforcing the ICC’s authority to prosecute such crimes taking place in Bangladesh today.


Unless the UN Security Council refers a situation to the Prosecutor, Article 12(2) of the Rome Statute provides that the Court may exercise jurisdiction in two situations: 1) “the State on the territory of which the conduct in question occurred” is party to the Statute, or, “if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;” or 2) “the state of which the person accused of the crime is a national.” Since the UN Security Council has not referred the Myanmar situation to the ICC and no state party national appears to be complicit, territoriality is the Court’s only viable source of jurisdiction. However, the Statute leaves unanswered whether the “territory” on which “the conduct in question occurred” covers the territory of multiple states in which the crimes occur, some of which may not be state parties. No ICC case has addressed this issue either. Thus, there is an open question of whether the Court could assert territorial jurisdiction over unlawful deportation from Myanmar into Bangladesh.

One approach would be to treat an element of deportation as crossing a state border. Deportation is an inherently cross-border action that is dependent on – and is not complete until the deportees enter – another state. Thus, in the parlance of the Rome Statute, one could argue that deportation is “conduct” that necessarily occurs on the territory of both the deporting and receiving states. From this perspective, when Myanmar deports Rohingya civilians to Bangladesh, the conduct occurs in both of those states.

A possible challenge to this interpretation is that “conduct in question” should be defined more narrowly to include only the underlying actions taken to effectuate a crime, not necessarily the results of those actions. Since the Myanmar armed forces did not cross into Bangladesh themselves in effectuating the deportation, arguably the crime did not occur on Bangladeshi territory.

This raises a second possible source of territorial jurisdiction: the state where the direct effects of the crime take place, even if no elements of the crime occur in that state. Traditional principles of international criminal law divide territoriality into two concepts: subjective territoriality refers to the location where the underlying actions of a crime occur, whereas objective territoriality refers to the location where a crime has effects. Based on these principles, even if an element of deportation does not cross a state border, the ICC could assert objective territorial jurisdiction over the situation in Myanmar given that the main effects of the crime have occurred in a state party.

Asserting objective territorial jurisdiction would undoubtedly be controversial given that the ICC has not done so before and the Rome Statute does not specify whether “conduct in question” includes the effects of a crime. To be credible, such an assertion would need to be firmly grounded in the sources of law Article 21 instructs consulting in cases of statutory ambiguity: the text of the Statute; the ICC Elements; “applicable treaties and the principles and rules of international law;” and, “failing that, general principles of law” derived from national legal systems, including the laws of “States that would normally exercise jurisdiction over the crime.”

In terms of the Statute’s text, one could argue that “conduct” ought to be limited to the physical actions underlying a broader crime. Article 30, for example, distinguishes between conduct and consequences in addressing mens rea requirements. Likewise, Article 20(1) prohibits trying a person based on “conduct which formed the basis of crimes” for which he was previously convicted, indicating that “crimes” may have a broader meaning than “conduct.” But there are other reasons why each of these articles would distinguish between conduct, on the one hand, and consequences or crimes, on the other: in Article 30, to clarify that the perpetrator must intend the consequences as well as the underlying actions; and in Article 20(1) because the same actions and consequences can form the basis of different crimes.

Evidently, as Michail Vagias argues in his book, the word “conduct” can mean different things in different contexts within the Rome Statute. In the jurisdictional clause, Article 12(2)(a), the “conduct in question” over which the Court has jurisdiction refers to a crime, which includes both underlying actions and effects. Article 12(2)(a) gives the ICC jurisdiction over the relevant crimes if they are committed in “the State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft.” The wording of this clause suggests that “conduct in question” and “crime” are synonymous. Affording different meanings to these terms would create the strange result of permitting objective territorial jurisdiction over sea-and air-based crimes, but not over those carried out on land.

If the Statute does not fully resolve whether “conduct” encompasses the effects of a crime, the principles and rules of international law are clearer. In the Lotus case, the International Court of Justice (ICJ) found that Turkey could assert jurisdiction over the criminal actions that led a French ship to collide with a Turkish ship because the effects of the crime occurred on Turkish territory, even though the underlying actions occurred on French territory. Furthermore, states view territorial jurisdiction as encompassing both subjective and objective territoriality as a matter of customary international law (CIL). For example, Restatement (Third) of U.S. Foreign Relations Law Section 402, which the United States views as reflecting CIL, provides that a state has jurisdiction over external conduct that has effects within the state’s territory.

The general principles of law derived from national legal systems, including the “laws of states that would normally exercise jurisdiction over the crime,” support this view as well. China (Art. 6), Britain, France (Art. 113-2) (France requires that one of the “constituent elements” is committed on French territory), Germany, and the United States – to name just a few countries – all assert jurisdiction over both the underlying conduct and effects of crimes that occur on their territory. While Myanmar (Art. 179) leaves open to judicial interpretation whether courts can assert jurisdiction over crimes that originate abroad, its internal districts may assert jurisdiction if the crime produces effects in their territory. And although the Bangladeshi Penal Code (Art. 2) covers crimes committed “within Bangladesh” without specifically including or excluding objective territorial jurisdiction, other Bangladeshi laws do incorporate this form of jurisdiction. The Bangladesh Competition Act (Art. 3(m), 19), for example, extends jurisdiction over anti-competitive practices originating abroad that have effects in Bangladesh. Thus, there is no reason to doubt that Bangladesh accepts the general principle of objective territorial jurisdiction.

To be sure, there are grounds for caution in applying objective territoriality under Article 12(2)(a). The ICC operates based on the consent of sovereign states, and treating the Court’s territorial jurisdiction as encompassing non-state parties in certain situations pushes the boundaries of that principle. However, the object and purpose of the Statute is “to put an end to impunity for the perpetrators of [grave international] crimes,” which counsels in favor of asserting jurisdiction where non-state parties take advantage of their status to commit international crimes the effects of which occur in state parties.

Furthermore, the potential abuse of objective territoriality can be contained. Restatement (Third) Section 403 requires that the exercise of objective territorial jurisdiction be reasonable, which means the activity has a “substantial, direct, and foreseeable effect on the territory.” Such a standard would limit the extent to which the Court could assert territorial jurisdiction based on second-order effects of crimes originating on the territory of a non-state party.


These principles of territoriality provide a basis for asserting jurisdiction over the Myanmar armed forces’ violations of Article 7(1)(d). The recent UN report provides evidence that the country’s armed forces are systematically attempting to permanently displace the Rohingya into a state party to the Rome Statute. These actions comfortably satisfy the Restatement’s reasonableness test: nearly 650,000 displaced civilians is surely substantial; the Rohingya’s proximity to the Bangladeshi border when they lived in Myanmar makes their flight to Bangladesh a “direct” result of Tatmadaw clearance operations in that area; and Myanmar’s past experience with Rohingya fleeing to Bangladesh due to the regime’s repression makes the result “foreseeable.”

The crisis in Myanmar also satisfies the Statute’s other jurisdictional requirements. Article 17(1)(d)’s gravity requirement is likely satisfied given that over half of the Rohingya population in Myanmar – nearly 650,000 civilians – were displaced. Although the Court would not have jurisdiction over the violent acts both the Tatmadaw and ARSA committed in Myanmar, the sheer scale of the Rohingya’s deportation in proportion to Myanmar’s broader conflict is arguably sufficient to constitute a “situation,” as required under Article 13. And with respect to complementarity under Article 17(1)(a), there is no indication any other state is investigating these crimes – Bangladesh’s “Citizens’ Commission” would not qualify since it is not led by the state.

Prosecuting crimes against humanity presents immense challenges far beyond meeting jurisdictional requirements, including evidence collection, identifying the correct perpetrators, and summoning the suspects for a hearing. These challenges are only amplified in states not party to the Rome Statute. Nonetheless, as a legal matter, lack of jurisdiction remains a central reason behind the ICC’s failure to formally investigate international crimes in Myanmar. Asserting objective territorial jurisdiction offers a way around that challenge and could help deprive human rights violators of a safe-haven, which they have used to injure nearly a million innocent civilians.

Rohingya women cry while watching a graphic video of the Tula Toli massacre in their home in Thaingkhali Rohingya refugee camp in Bangladesh in December. (Allison Joyce for The Washington Post)

By Jamille Bigio and Rachel Vogelstein
January 4, 2018

Burma’s ethnic cleansing campaign against Rohingya Muslims has been rife with sexual violence, according to recent news accounts. Among the more than 600,000 people who have fled to neighboring Bangladesh, many are survivors of rape, gang rape and sexual slavery.

How many? Pramila Patten, the United Nations special representative on sexual violence in conflict, reports that every woman she encountered during her November visit to Bangladesh had either witnessed or endured brutal sexual assault. Their stories are harrowing. One 15-year-old girl was ruthlessly dragged on the ground for over 50 feet, tied to a tree and then raped by 10 Burmese soldiers. Patten has urged the U.N. Security Council to take action.

To be sure, the rape of Rohingya women is a gross violation of human rights. But why should the Security Council — charged with maintaining international peace and security — address sexual violence?

Because sexual violence in conflict is not simply a human rights issue — it’s also a security challenge, according to a significant body of social science research, which we highlight in our recent Council on Foreign Relations report. What’s more, widespread rape in wartime can be prevented. Here are five key insights into how this works.

1. Sexual violence is often a symptom of military weakness.

Sexual violence committed by troops can signal weak command and troop discipline, which makes military units less effective in their mission. For example, in the Democratic Republic of Congo, a mass rape of more than 150 civilians in 2011 was attributed to local armed forces’ lax command and control structures. When state forces regularly commit sexual violence, the command hierarchy may simply be too weak to enforce a policy forbidding this crime — and therefore may be ineffective in maintaining peace once a conflict is resolved.

In other cases, armed groups that recruit through abduction command those troops to rape in order to build solidarity among them. These groups have lower levels of unit cohesion and effectiveness than groups that rely on volunteers. A review of 91 civil wars, for example, found that groups that recruit by force committed significantly higher levels of rape against civilians, in an attempt to build social bonds through rape.

While groups or individuals commit sexual violence in conflict for any number of reasons, when it happens there are strategic implications. Research shows that military units and law enforcement bodies that respect human rights and prevent sexual violence are more effective at promoting security.

2. Sexual violence can increase the flow of refugees.

When armed groups commit sexual violence, more people flee — making the region less stable. As we can see from the staggering number of Rohingya refugees, wartime rape forces people from their homes, depriving them and their families of their livelihoods, property and access to health services and education, destabilizing communities. Sexual violence has increased displacement around the world, from Guatemala to Iraq to Syria, where reports suggest that the danger of rape is a primary reason people flee cities under siege.

3. Unchecked sexual violence can undermine trust in the state.

Conflict-related sexual violence signals a government’s inability or unwillingness to protect its citizens. That’s particularly true when, as in South Sudan, the military commits this crime widely and with impunity. The lower citizens’ level of trust in the state, the more difficult it becomes for a government to undertake economic, social or political reforms, which undermines stability.

4. Countries with widespread sexual violence incur high financial costs.

Wartime rape is costly in ways that undermine national stability. Victims of sexual violence may suffer long-term physical and psychological aftereffects, which impose high costs of care, reduced economic productivity and lost income. In the DRC, for instance, agricultural output decreased partly because women were afraid to return to working in the fields.

Further, some evidence suggests that sexual violence during wartime continues as gender-based violence in peacetime, leaving behind still more costs long after the conflict has ceased. In Burma, neighboring governments are bearing the burden of these costs, with the support of humanitarian agencies that provide services to Rohingya refugees.

5. Sexual violence can undermine reconciliation efforts after ethnic conflicts.

Particularly when it’s ethnically driven, sexual violence used as a tactic of war can make reconciliation much harder — including any efforts the Burmese government may pledge to pursue if the Rohingya return. Women raped by opposing parties are often stigmatized, treated as guilty by association with their perpetrators. Children born of rape frequently suffer discrimination, fostering tension in a community long after the conflict.

Rape in wartime corrodes future stability — but it is not inevitable. It’s true that throughout history, many armies considered rape to be one of the legitimate spoils of war; this crime was tacitly accepted as unavoidable through the early 20th century.

But more recently, legal rulings have outlawed sexual violence and recognized it as a war crime. And research shows that while some conflicts include widespread sexual violence, not all do: One analysis of 177 armed groups in 21 African countries found that 59 percent were not reported to have committed sexual violence. Another analysis of 91 civil wars between 1980 and 2012 revealed that 17 percent did not include widespread sexual violence.

In other words, armed groups don’t always rape with impunity; levels of sexual violence vary from one conflict to another. That’s because while some leaders of armed organizations may order or tolerate rape by their soldiers, others prohibit it. That suggests that sexual violence in conflict can be prevented. Research has revealed best practices around the world, from community-based police reformsinitiated in Nicaragua in the 1990s to innovative prosecutorial approaches recently instituted in the DRC.

It’s possible, therefore, to drive down sexual violence in conflict — and evidence suggests that doing so matters to security and stability.

Jamille Bigio is a senior fellow for Women and Foreign Policy at the Council on Foreign Relations. Find her on Twitter @jamillebigio.

Rachel Vogelstein is the Douglas Dillon Senior Fellow and director of the Women and Foreign Policy program at the Council on Foreign Relations, and a visiting fellow at the Center for Global Legal Challenges at Yale Law School.

In this Sept. 14, 2017, file photo, Rohingya Muslim man Naseer Ud Din holds his infant son Abdul Masood, who drowned when the boat they were traveling in capsized just before reaching the shore, as his wife Hanida Begum cries upon reaching the Bay of Bengal shore in Shah Porir Dwip, Bangladesh. Myanmar, a predominantly Buddhist nation of 60 million, was basking in international praise just a few years ago as it transitioned to democracy after a half-century of dictatorship. Since then, a campaign of killings, rape and arson attacks by security forces and Buddhist-aligned mobs have sent more than 850,000 of the country’s 1.3 million Rohingya fleeing. (AP Photo/Dar Yasin)

By Esther Htusan and Robin McDowell 
December 24, 2017

BANGKOK — After facing international outrage and charges of ethnic cleansing, Myanmar made a pledge: Rohingya Muslims who fled the country by the hundreds of thousands would start their journey home within weeks.

With so many obstacles, however, and no real sign of good will, few believe that will happen.

The returns are supposed to be voluntary. But many members of the religious minority, now living in sprawling refugee camps in neighboring Bangladesh, are afraid to go back.

They don’t trust the nationalist-led government and feel widely hated by the general population. Meanwhile, the military — which violently ousted them — says the refugees shouldn’t expect to return in large numbers.

Myanmar, a predominantly Buddhist nation of 60 million, was basking in international praise just a few years ago as it transitioned to democracy after a half-century of dictatorship. Since then, a campaign of killings, rape and arson attacks by security forces and Buddhist-aligned mobs have sent more than 850,000 of the country’s 1.3 million Rohingya fleeing.

Their home for generations, the northern tip of Rakhine state, is now virtually empty, prompting the United Nations, the United States and others to label it ethnic cleansing.

In an apparent effort to quiet criticism, Myanmar reached an agreement with Bangladesh last month saying refugees would start returning home before Jan. 23.

There is “no way” that will happen, says Chris Lewa, a leading expert on the Rohingya and the policies that have made them one of the world’s most persecuted minorities. The government, she notes, has done almost nothing to prepare.

While Myanmar said the Rohingya would be allowed to settle in their original homes, few of which remain standing, some officials have talked about putting them in “camps” in northern Rakhine.

Already, two barracks have been constructed next to a police post in the Rakhine state village of Taungpyo Letwe to receive returnees, the Ministry of Information says. The government has stockpiled material and started breaking ground for 41 modular houses.

The idea, the ministry said, is that returnees can stay there temporarily.

That scares Arif Ullah, a 34-year-old Rohingya living at the Balukali camp in Bangladesh. He worries it could lead to something more permanent like apartheid-style camps erected after violence broke out in Sittwe, the state capital, in 2012.

Five years later, those camps remain home to 120,000 people. International aid agencies are effectively banned and the Rohingya have little access to food, education or basic medical care. Mothers regularly die in childbirth. Babies and children have clear signs of malnutrition.

“We miss our home,” said Arif Ullah, married and a father of two. “But we are human beings.”

“If the Myanmar government is really willing to take us back and give us our rights, they could have built houses on the land where our houses were burned down,” he says. “But clearly they don’t want to do that. And we are not going back to just live in the camps.”

Anagha Neelakantan, Asia Director of the International Crisis Group, meanwhile, warned of potential security risks. She also does not believe large numbers of Rohingya will be returning from Bangladesh any time soon.

And the presence of so many traumatized, hopeless refugees in Bangladesh, she said, could be a recipe for further instability and possible cross-border attacks by Rohingya militants, known as ARSA.

Attacks by ARSA inside Rakhine state — first in October 2016 and then again in August — triggered the army’s heavy-handed, indiscriminate response.

Well-trained and funded in part by the Middle East, the militants’ agenda appears to be to localized. They want the Rohingya to enjoy the same rights as others in Myanmar. But if the situation does not improve, there are fears the militants could be exploited by transnational jihadists with their own aims.

Min Aung Hlaing, commander-in-chief of the armed forces, says the decision as to who returns and when should not be left to governments. It should be for residents inside Myanmar to decide.

“It is impossible to accept the number of persons proposed by Bangladesh,” he said last month in a statement. “Emphasis must be placed on wish of local Rakhine ethnic people who are real Myanmar citizens. Only when local Rakhine ethnic people accept it, will all the people satisfy it.”

Though many Rohingya have been living in Myanmar for generations, they are seen by most people in the country as “foreign invaders” from Bangladesh. They have been denied citizenship, effectively rendering them stateless.

In addition to saying the Muslim minority should be allowed to return freely, safely and in dignity, Myanmar’s agreement with Bangladesh says Rohingya will need to provide evidence of their residency — something many say they do not have.

While the agreement says that the U.N. High Commission for Refugees will play a role in the repatriations, Adrian Edwards, a spokesman in Geneva, said they have so far been excluded from initial discussions between Myanmar and Bangladesh.

Bangladesh wants them to be involved, sources say. Myanmar does not.

“After the widespread atrocities, safe and voluntary return of Rohingya will require international monitors on the ground in Burma (Myanmar),” says Bill Frelick, refugee rights director at Human Rights Watch. This, he says, means a central role for the UNHCR.

But how that can happen and when is just one of the many obstacles to a Rohingya return to Myanmar that many fear, many simply don’t want — and that, in the context of the months of violence that 2017 brought to so many people, is for the moment a political talking point and very little else.


Esther Htusan, Yangon correspondent for The Associated Press since 2016, has reported from Myanmar since 2013. Robin McDowell reported from Yangon for the AP from 2011 to 2016.

Pope Francis interacts with a Rohingya Muslim refugee at an interfaith peace meeting in Dhaka, Bangladesh, Friday, Dec. 1, 2017. Pope Francis ordained 16 priests during a Mass in Bangladesh on Friday, the start of a busy day that will bring him face-to-face with Rohingya Muslim refugees from Myanmar at an interreligious prayer for peace. (AP Photo/Aijaz Rahi)

December 3, 2017

Dhaka, Bangladesh -- Pope Francis has gotten into trouble before for ditching diplomatic protocol and calling a spade a spade, most famously when he labeled the Ottoman-era slaughter of Armenians a "genocide" from the altar of St. Peter's Basilica.

Francis took the hit — Turkey recalled its ambassador to the Vatican in protest — for the sake of standing up for an oppressed people who were nearly wiped off the map a century ago.

Given the opportunity to do the same in Myanmar, where the military has launched what the U.N. says is a campaign of ethnic cleansing against the Rohingya Muslim minority, Francis opted instead for diplomatic expediency. He not only avoided the contested term "Rohingya" in his public remarks, he ignored Asia's worst refugee crisis in decades entirely and didn't call out his hosts for launching it.

Human rights groups complained. Rohingya complained. Journalists and pundits asked if Francis' legacy as a fearless crusader for the world's most marginal — the poor, homeless, refugees and prisoners — wasn't now in question.

By Friday, Francis' heart won out.

In an emotional encounter with 16 Rohingya refugees, Francis said what he probably wanted to say from the start. His voice trembling after he greeted the men, women and children who had been forced to flee their homes in Myanmar for wretched camps in Bangladesh, Francis begged them for forgiveness for what they had endured and the "indifference of the world" to their plight.

"The presence of God today also is called 'Rohingya,'" he told them.

And with that one word, Francis erased days of speculation that the tell-it-like-it-is, protocol-be-damned pope had sold out to the professional diplomats at the Vatican who were willing to deny a persecuted minority their very identity for the sake of global and local church politics.

Francis on Saturday explained his strategy: He said he would have never gotten his message across if he had launched into a public critique of the Rohingya offensive while on Burmese soil, saying doing so would have "slammed the door in their face" to any real dialogue.

"It's true I didn't have the pleasure of slamming the door in their face publicly with a denunciation," Francis told reporters en route home to Rome. "But I had the satisfaction of dialogue, and letting the other side dialogue, and in this way the message arrived."

The Vatican had defended Francis' initial silence as necessary for the sake of "building bridges" with Myanmar, which only established diplomatic relations with the Holy See in May.

"Vatican diplomacy is not infallible," spokesman Greg Burke told reporters in Yangon. "You can criticize what's said, what's not said. But the pope is not going to lose moral authority on this question here."

Burke added that the Catholic Church is a minority in Myanmar. The implication was clear: Catholics are already discriminated against in predominantly Buddhist Myanmar, and certainly didn't need any blowback from the vast majority of Burmese who recoil at the term "Rohingya" because it implies an official recognition of them as an ethnic group. The local church had urged Francis to refrain from using the term, and Francis obliged.

A pope is first and foremost a shepherd to his flock.

The Vatican also wanted to back its local church in supporting Aung San Suu Kyi, who many Burmese see as their only hope for forging a more democratic, inclusive society where basic rights are guaranteed for all minorities — Christians included.

And so when he arrived in Yangon and joined Suu Kyi at an official welcome ceremony, Francis behaved like a true diplomat.

He called for all ethnic groups in Myanmar to have their basic rights guaranteed — an important message to be sure but one that was clearly written by committee.

Francis upped the ante when he arrived in Bangladesh, where he acknowledged the "immense toll of human suffering" under way in the squalid, overcrowded refugee camps that are now home to more than 620,000 Rohingya who have poured across the border from Myanmar's Rakhine state.

In his official arrival speech, Francis demanded the international community take "decisive measures" to not only help Bangladesh provide for the refugees, but to resolve the underlying political causes in Myanmar that set off the exodus.

But he didn't say "Rohingya." Until he met them.

And when he did, when he clasped their hands in his and listened to their tragedies, he not only acknowledged their identity, he assumed responsibility for all the suffering they had endured.

"In the name of all those who persecute you, who have persecuted you, and those who have hurt you, above all in the indifference of the world, I ask you for forgiveness," he said. He repeated the word: "Forgiveness."

Francis was back.

Rohingya refugees walking to a camp in Cox’s Bazar, Bangladesh, October 2, 2017 (Cathal McNaughton/Reuters)

By Joseph Allchin
October 8, 2017

It is not hard to get guns on the Chittagong littoral. Or at least, that’s what my interviewee was telling me underneath a canopy of trees outside his house in the fishing village of Shamlapur, in southern Bangladesh. His men stood round carrying his cigarettes and laughing obediently at his quips. Connections with both the police and underworld were what my acquaintance had, and what makes the world turn in this Wild West corner of Bangladesh, where smuggling is the primary source of income and power. He was reflecting on a new phenomenon in this region: the prospect that a tragically displaced people, the Rohingya, would produce an armed resistance movement to challenge their persecution by the military in their homeland, across the border in Myanmar.

On August 25, a rag-tag group of the Arakan Rohingya Salvation Army, or ARSA, appeared out of the darkness armed mainly with sticks and machetes and stormed some thirty police posts, killing about a dozen Myanmar security personnel in Rakhine State (also known as Arakan State) in western Myanmar. The Myanmar military responded with overwhelming force and brutality, reportedly killing and raping civilians indiscriminately and burning villages. Within a few weeks, under the pretext of “clearance operations” against a population it accuses of having immigrated illegally from Bangladesh and harboring extremists and terrorists, the military forced more than half a million Rohingya to flee across the border into Bangladesh, where they joined another half-million or so who have fled the apartheid-like conditions and periodic pogroms of recent years.

Myanmar’s government has faced numerous ethnic insurgent movements. For example, in the north of the country, the Kachin Independence Army is fighting a far better-equipped insurgency in the borderlands near China. Yet the Kachin people, who are often Christian, have faced no such comprehensive campaign of ethnic cleansing or accusations of being terrorists because of their faith. The difference is that the Rohingya people are mostly Sunni Muslim. Myanmar’s military rulers have long sought to portray the Rohingya as a fifth column of dangerous Islamist extremists with links to al-Qaeda.

The demonization of this Muslim minority as “extremists” or “terrorists” has proved effective for nationalist politicians with Myanmar’s Buddhist majority. But this othering of the Rohingya now risks dangerous secondary effects. Chiefly, that the government’s conjuring of the specter of a jihadist insurgency may prove self-fulfilling, with an embittered, radicalized Rohingya diaspora forced over the border at bayonet point into Bangladesh, where a coterie of Islamist groups like Hizb-ut-Tahrir are using the Rohingya cause to whip up popular sentiment for their own political purposes.

The portrayal of the Rohingyas as an Islamist terrorist menace has deep roots. A full decade before Myanmar’s transition to democracy, the Myanmar intelligence community saw an opportunity in the “global war on terror.” On October 10, 2002, the same day that the US Senate approved George W. Bush’s ill-fated war on Iraq on the bogus grounds of Saddam Hussein’s purported connections to al-Qaeda and possession of weapons of mass destruction, the State Department received a cable from its mission in Yangon that relayed a rare example of intelligence-sharing from their Myanmar counterparts. This was a very unusual instance of cooperation since, at the time, Myanmar was under strict sanctions and the country at large was cut off from the international community.

The intelligence Myanmar provided claimed that two now-defunct groups, the Rohingya Solidarity Organization and the Arakan Rohingya National Organization, had met and received training from al-Qaeda operatives; the diplomatic cable also reported that these Rohingya groups were trying to establish connections with other Burmese ethnic insurgent groups based on the country’s border with Thailand. The US embassy believed that the Myanmar generals wanted “to bolster relations with the United States by getting credit for cooperation on the [counter terror] front,” and also to tarnish the reputation of other ethnic insurgent groups because of an association with groups seeking support from al-Qaeda. Most ethnic insurgent groups had an affinity with pro-democracy activists because of their shared struggle against the military. Historically, Myanmar’s armed forces have used divide-and-rule tactics to weaken their opponents and disenfranchised minorities.

Protesters from Islamist groups burning Myanmar’s flag and pictures of Aung San Suu Kyi during a protest against the persecution of Rohingya Muslims, Dhaka, Bangladesh, September 15, 2017 (A.M. Ahad/AP Images)

But there was no evidence that any Rohingya group had successfully developed connections with al-Qaeda for operations in Myanmar. One of the purported Rohingya acquaintances of Osama Bin Laden, an activist named Salim Ullah, told me that when a Muslim picks up a gun in Myanmar, he is labeled a terrorist; when a Buddhist does so, he is making a cry for liberty. Prejudice against the Rohingya has become ingrained within a majority of the Buddhist population, including among many who have supported other ethnic armed groups. Even many former pro-democracy campaigners have adopted the military’s labeling of the entire Rohingya population as terrorists.

The tension between the majority population and the Muslim minority has been further whipped up by Myanmar’s ultra-nationalist monks. This hostility has elicited a growing online response from foreign Islamists. Groups affiliated with al-Qaeda and other jihadist movements are now using the plight of the Rohingya to promote their own narratives of Muslim persecution.

Until recently, most of this propaganda saw the “liberation” of Arakan State in Myanmar, where most Rohingya Muslims traditionally live, as a notional aim, something to be done once neighboring Bangladesh had been “conquered” and a caliphate installed there. But now, groups like al-Qaeda seem to have more directly taken up the cause of the Rohingya. In mid-September, an al-Qaeda communiqué called for “all mujahid brothers in Bangladesh, India, Pakistan, and the Philippines to set out for Burma [Myanmar] to help their Muslim brothers.” 

There is no sign yet that the Rohingya insurgent group has allied itself with outside jihadist groups. Indeed, ARSA’s decision in March to drop its Arabic name in favor of a more secular-sounding English one suggests that ARSA has not been subsumed by any transnational Islamist extremist organization. The group’s charismatic leader, Ata Ullah, does have connections in both Pakistan and Saudi Arabia, and was brought up in the Pakistani port city of Karachi, believed to be where the al-Qaeda leader Ayman al-Zawahiri is being sheltered. But as is evident from ARSA’s modest capabilities and lack of weaponry, efforts by Ullah to solicit support from groups like Lashkar-e-Taiba and the Taliban have so far not borne fruit.

However, with the huge swell of anger over the clearance operations and vast exodus of Rohingya civilians, this could change. Already, Egyptian militants have bombed Myanmar’s embassy in Cairo. In Bangladesh, the country’s counterterrorism chief, Monirul Islam, echoes what my contact in Shamlapur told me: “Guns are available and [are] smuggled into Bangladesh from Myanmar or from India.” Islam claims that an AK-47 clone can be bought for a little over $1,000 on the black market; a pistol might cost just a few hundred dollars. Efforts to source weapons can open up militant groups to surveillance by local intelligence agencies; in Bangladesh, such movements generally rely on patronage from powerful quarters to avoid such attention.

Bangladeshi Islamists have been working hard to exploit the Rohingya’s plight, portraying the crisis as a grand, prophesied conflict between the forces of belief and unbelief. ARSA itself has also sought to gain popular support in Bangladesh for its insurrection. Indeed, a broad consensus of support for the Rohingya has developed, where previously they were dismissed as exploitable interlopers. Bangladesh’s prime minister, Sheikh Hasina, has won plaudits for the compassion she has expressed—although her move appears a political necessity given the loud voice with which Islamists have jumped on the cause.

One purported ARSA commander recently argued that the Myanmar military had “been torturing us day by day so we had no alternative. That’s why we acted [on August 25] … We knew this would happen.” That message of inevitable conflict and existential struggle chimes with many Rohingya people. Even the women I interviewed in southern Bangladesh said, without prompting, that they would fight if they could; they had nothing left. A month-long ceasefire declared by ARSA will expire on October 10; it is likely that the group will resume its low-intensity attacks. When that happens, any Rohingya villagers still left in Myanmar can expect further vicious reprisals from the military.

Just as the Bush administration’s misguided war on terror helped to foster Islamist extremism all over the world, the Myanmar generals’ intentional exaggeration of largely imagined relations between Rohingya insurgents and international jihadist groups may result in similar unwanted consequences. While the Myanmar military originally sought to divide Rohingya insurgents from potential allies among other anti-government, pro-democracy ethnic groups by playing on historic resentments, its policy may well end up driving Rohingya militants, whether in form of ARSA or still more frightening expressions of rage, into the arms of the real extremists.

Rohingya Exodus