How to Win a Genocide Case: Analyzing the Triple Strategy of the Advocates of the Rohingya in Myanmar

Abstract

The Rohingya Muslim minority in Myanmar was subjected to discrimination and gross violations of human rights for many decades. During the last two waves of military crackdowns in Rakhine State (October 2016 to January 2017; August to September 2017), the Tatmadaw army and civilians committed atrocities against the Rohingya that amounted to crimes against humanity and genocide. Advocates for the Rohingya's suffering took action to leverage the findings of the investigations of international mechanisms. They endeavored for an international condemnation of Myanmar at the ICJ, and they filed a complaint in an Argentinian court for the application of universal jurisdiction to prosecute the military and the political leadership responsible for ordering and committing the atrocities. They also encouraged an investigation of the atrocities in the ICC. The litigators’ main focus was set on genocide. However, while genocide carries the stigma of being the most heinous of crimes, it is also the hardest to prove, particularly the special intent to commit it. This article assesses the chances of the triple strategy applied by the Rohingya advocates. It argues that litigating the case in three different fora, assures that the forums back each other up, so that the flaws of one are compensated by the others. Thus, the chances for accountability for the crime of genocide are increased. The fora work interoperably to achieve the goal of proving the occurrence of genocide in Myanmar so as to impose state responsibility and individual criminal responsibility.