This essay is part of a series that explores the human costs and policy challenges associated with forced displacement crises in the Middle East and Asia. The essays explore the myths or misconceptions that have pervaded discussions about these crises, as well as the constraints or capacity deficiencies that have hampered the responses to them. See more ...
In far too many conflicts around the world, rape and sexual violence — primarily targeted against women and girls — have been, and continue to be used as a strategic and tactical instrument of war. The past 20 years have shown that accountability for wartime rape and sexual violence victims has been the exception, not the rule. Despite the passage in April 2019 of UN Security Council Resolution 2467, which aims to strengthen justice and accountability in cases of wartime rape, governments are still failing to act.
Rape has been a central component of the genocidal campaign waged by Myanmar’s military and security forces against the Rohingya ethnic minority, in which Rohingya Muslim women and girls have suffered unspeakable sexual violence at the hand of powerful men, many wearing military or police uniforms. Yet, there has been little accountability, as those responsible for what the UN, U.S. elected officials, the government of Canada and other governments have called genocide, have gone largely unpunished. Even those acting under explicit state authority, as is the case of Myanmar’s military and security forces, have been reassured and are confident that their government and their borders will shelter them.
The mass rapes of Rohingya women and girls “were not just the sum of individual sexual assaults by disparate, coincidental decisions of individual soldiers.” They were used by Myanmar with the specific intent to destroy the Rohingya as a group, at least in part. Those acts fit squarely within the definition of the crime of genocide under the 1948 Genocide Convention for the Prevention and the Punishment of the Crime of Genocide (Genocide Convention). And, while a state such as Myanmar cannot incur criminal responsibility for the commission of genocide, it can and must be held accountable for its failure to comply with its obligations under the Genocide Convention.
It has been two years since the unfathomable violence unleashed for decades by Myanmar’s authorities against the Rohingya Muslims of Rakhine State in northwest Myanmar took a brutal turn. This latest explosion of violence has consisted of a campaign of systematic and widespread extermination through mass killings; extensive and continuing destruction and burning of Rohingya homes and villages; and rampant and endemic sexual violence. The deliberate campaign of violence has caused an estimated 10,000 deaths and led to more than 700,000 Rohingya Muslims to flee from Myanmar across international borders into Bangladesh, joining in their tumultuous rush 300,000 Rohingya who were forced out during previous waves of state-sponsored violence, making the influx one of the largest and fastest-growing refugee crises since the Rwanda genocide.
Over a million Rohingya Muslim, half of whom are women and children, have been forcibly displaced from Myanmar under circumstances in which it is clear that the perpetrators’ intent was to evict them permanently from their homeland. Dependent completely on the kindness, compassion and empathy of the world while they wait for a place to call home, Rohingya refugees have been left to drift in abjectly inhuman conditions in the largest refugee encampments in the world. Indeed, by most assessments, conditions in the makeshift camps fall well short of international standards. Camp residents occupy unstable structures in low-lying areas susceptible to cyclones, monsoons and flooding; and generally have poor access to clean water, latrines, or healthcare. Each one of these encampments stands today as a symbol of humanity betrayed.
There is every indication that the official policy of Myanmar’s government was primarily to rely upon massive displacements and forcible population transfers that have taken place as a result of serious violations by Myanmar’s military and security forces of international human rights law and international humanitarian law, including and specifically the use of rape and other form of sexual violence. Rape and mass rape of Rohingya Muslim women and girls was more than a casualty or a by-product of the conflict, or the madness of a war; it was part of the Myanmar’s military policy, planned at the highest echelon of the state and used as a strategic instrument intended on destroying a targeted group.
In the United States in 2017, Americans were transfixed by the accounts of multiple women who bravely came forward to denounce sexual harassment and assaults, including rape by powerful men. Half away across the globe, other women — not the white, educated, outspoken, relatively affluent women who were able to retain lawyers to claim their rights but mostly illiterate, voiceless, stateless and poor women, some of them girls as young as seven — were tied by their hair and hands to trees and gang raped, for no other reason than being Rohingya Muslims. Their horrific accounts are reminiscent of those of the Tutsi women of Rwanda and the Bosnian Muslim and Croatian women of the Former Yugoslavia.
Rohingya men and older boys were disproportionately targeted for mass killing, while Rohingya women and girls were subjected to many other violations, including and specifically mass rape, which has been for long a prominent feature of the extreme brutality and scale of atrocities carried out by Myanmar’s military against the Rohingya Muslim ethnic minority. Rohingya Muslim women suffered excruciating physical and psychological pain. Many survived their horrific ordeals and have been left to bear the burden of telling the world the story of why, where, how and when of the war perpetrated against them.
Any war is ugly, but the level of injustice, massive criminality and impunity in the Rohingya conflict is breathtaking. Perhaps the darkest side of the Rohingya carnage is the innumerable women and girls who have been violated, tortured, mutilated, degraded, and traumatized. The taboo and social stigma associated with rape is so potent in the Muslim culture and tradition, that these victim-survivors are ostracized — cast out and cut off from their families and communities. Their tormentors knew too well that rape would be worse than death for its victims and would come at a very low cost for its perpetrators. Their tormentors also knew that the rape of Rohingya women would humiliate and subordinate their men.
The true test for the international community’s commitment to ending impunity for international crimes perpetrated against the Rohingya ethnic minority and bringing to book their tormentors, would be to ensure first and foremost accountability for wartime rape committed against the Rohingya Muslim women. Full accountability for these crimes requires that they be investigated, charged and prosecuted as genocidal acts. Acknowledging that mass rape perpetrated against Rohingya women and girls fits squarely within the requirements of Lemkinian genocide will draw attention to the vicious nature of the crime, will afford to women the protection of international human rights law and international humanitarian law in armed conflicts, and will provide symbolic vindication for the Muslim women of Rakhine.
 See Dara Kay Cohen et al., “Wartime Sexual Violence: Misconceptions, Implications and Ways Forward,” US Institute of Peace, Special Report 323 (2013), https://www.usip.org/sites/default/files/resources/SR323.pdf; Elisabeth Jean Wood, “Rape as a Practice of War: Toward a Typology of Political Violence,” Politics & Society 46, 4 (2018): 513-537, https://www.un.org/sexualviolenceinconflict/wp-content/uploads/2019/05/report/rape-as-a-practice-of-war-toward-a-typology-of-political-violence/wood-PS-2018-rape-as-a-practice-of-war.pdf; Elvan Isikozlu and Ananda S. Millard, “Towards a Typology of Wartime Rape,” BICC Brief 23 (2010), https://www.bicc.de/uploads/tx_bicctools/brief43.pdf; Dara Kay Cohen, “Explaining Rape During Civil War,” American Political Science Review 107, 3 (August 2013): 461-477, https://wappp.hks.harvard.edu/files/wappp/files/explaining_rape_during_civil_war.pdf; and Jeanne Ward and Mendy Marsh, “Sexual Violence Against Women and Girls in War and Its Aftermath: Realities, Responses, and Required Resources,” Briefing Paper Prepared for Symposium on Sexual Violence in Conflict and Beyond, June 21-23, 2006, Brussels, Belgium, http://www.operationspaix.net/DATA/DOCUMENT/1045~v~Sexual_Violence_Against_Women_and_Girls_in_War_and_Its_Aftermath___Realities_Responses_and_Required_Resources.pdf; and Jean Franco, “Rape: a Weapon of War,” Social Text 2, 91 (June 2007): 1662-1664.
 Lisa Boswell Sharlach, “What Will It Take to Punish Perpetrators of Mass War-Time Rapes,” Scholars Strategy Network, May 25, 2018, https://scholars.org/contribution/what-will-it-take-punish-perpetrators-mass-war-time-rapes.
 See UN Security Council, S/RES/2467 (2019), https://undocs.org/S/RES/2467(2019).
 “Sexual and gender-based violence in Myanmar and the gendered impact of its ethnic conflict,” The Independent International Fact-Finding Mission on Myanmar, August 22, 2019, A/HRC/42/CRP.4, https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/sexualviolence/A_HRC_CRP_4.pdf; “‘All my Body was in Pain:’ Sexual Violence against Rohingya Women and Girls in Burma,” Human Rights Watch, November 16, 2017, https://www.hrw.org/news/2017/02/06/burma-security-forces-raped-rohingyawomen-girls; “Burma: Security Forced Raped Rohingya Women, Girls,” Human Rights Watch, February 6, 2017, https://www.hrw.org/news/2017/02/06/burma-securiy-forcesraped-rohingya-women-girls; Fiona MacGregor, “Rohingya Girls under 10 Raped While Fleeing Myanmar, Charity Says,” The Guardian, October 25, 2017, https://www.theguardian.com/world/2017/oct/25/rohingya-children-fledmyanmar-violence-charity; and Razia Sultana, “Rape By Command. Sexual Violence as a Weapon Against the Rohingya,” Kaladan Press Network, February 2018, http://www.kaladanpress.org/images/document/2018/RapebyCommandWeb3.pdf.
 See BURMA Act of 2019 (H.R. 3190.); https://www.congress.gov/bill/116th-congress/house-bill/3190?q=%7B%22search%22%3A%5B%22burma%22%5D%7D&s=1&r=2.
Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, September 17, 2018, A/HRC/39/CRP.2, https://undocs.org/A/HRC/39/CRP.2.
 John Packer, “Genocide is an act of state, and demands a response by other states”; May 10, 2019, OpenGlobalRights, https://www.rohingyatoday.com/en/genocide-act-state-and-demands-response-other-states.
 “Myanmar: Two years since Rohingya exodus, impunity reigns supreme for military,” Amnesty International, August 21, 2019, https://www.amnesty.org/en/latest/news/2019/08/myanmar-two-years-since-rohingya-crisis/.
 Ewelina U. Ochab, “Are Rohingya Muslims On the Path to Extinction?” World Affairs/International Affairs, Forbes, Aug 31, 2017, https://www.forbes.com/sites/ewelinaochab/2017/08/31/are-rohingya-muslims-on-the-path-to-extinction/#771e1806a88a.
 Victoria Miko, “‘Conditions here are inhumane’: Rohingya in Bangladeshi camps,” Al Jazeera, August 21, 2019, https://www.aljazeera.com/news/2019/08/rohingya-refugees-bangladesh-face-hope-repatriation-190821062348499.html; Lisa Schlein, “Major Effort Launched to Aid Rohingyas Hit by Monsoon Rains,” VOA News, September 14, 2019, https://www.voanews.com/south-central-asia/major-effort-launched-aid-rohingyas-hit-monsoon-rains; and Simon Ming, “One year on, Rohingya refugees live in dire camps, facing an uncertain future and legal limbo,” Medecins sans Frontieres, August 28, 2018, https://www.msf.org/one-year-rohingya-refugees-live-dire-camps-facing-uncertain-future-and-legal-limbo.
 The 2018 report by the UN Secretary-General on conflict-related sexual violence included Myanmar’s armed forces on an annual list of groups that are “credibly suspected of committing or being responsible for rape or other forms of sexual violence.” See Report of the Secretary-General on Conflict-related Sexual Violence, March 23, 2018, UN Security Council, S/2018/25, https://undocs.org/S/2018/250.
 Audrey Carlsen et al., “#MeToo Brought Down 201 Powerful Men.
Nearly Half of Their Replacements Are Women,” The New York Times, October 29, 2018, https://www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html.
 See for example, Nicole Itano, “How Rwanda’s Genocide Lingers on for Women,” The Christian Science Monitor, November 27, 2002, https://www.csmonitor.com/2002/1127/p08s01-woaf.html; and Peter Landesman, “A Woman’s Work,” The New York Times, September 15, 2002, https://www.nytimes.com/2002/09/15/magazine/a-woman-s-work.html.
 Inger Skjelsbaek, “Victim and Survivor: Narrated Social Identities of Women Who Experienced Rape During the War in Bosnia-Herzegovina,” Feminism & Psychology 16, 4 (2006): 373-403, https://www.usip.org/sites/default/files/missing-peace/Inger-Skjelsbaek.pdf.
 A 2018 report also documents sexual violence against Rohingya men and boys. See “‘It’s Happening to Our Men as Well’: Sexual Violence Against Rohingya Men and Boys,” Women’s Refugee Commission (November 2018), https://wrc.ms/2JOExqi.
 “‘All of My Body Was Pain’: Sexual Violence Against Rohingya Women and Girls,” Human Rights Watch, November 16, 2017, https://www.hrw.org/report/2017/11/16/all-my-body-was-pain/sexual-violence-against-rohingya-women-and-girls-burma.
 Report of the independent international fact-finding mission on Myanmar, August 9, 2019, A/HRC/42/50, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/236/74/PDF/G1923674.pdf?OpenElement; and “DISCRIMINATION TO DESTRUCTION: A Legal Analysis of Gender Crimes Against the Rohingya,” September 2018, Global Justice Center, http://globaljusticecenter.net/files/Discrimination-to-Destruction.pdf; Sareta Ashraph, “BEYOND KILLING: Gender, Genocide, & Obligations Under International Law,” December 2018, Global Justice Center, http://www.globaljusticecenter.net/files/Gender-and-Genocide-Whitepaper…; Beth Van Schaack, “Determining the Commission of Genocide in Myanmar: Legal and Policy Considerations,” September 28, 2018, Stanford Public Law Working Paper, https://ssrn.com/abstract=3256591 or http://dx.doi.org/10.2139/ssrn.3256591; Larissa Peltola, “Rape and Sexual Violence Used as a Weapon of War and Genocide” (2018). CMC Senior Theses. 1965, https://scholarship.claremont.edu/cmc_theses/1965; Sherrie L. Russell-Brown, “Rape as an Act of Genocide,” Berkeley J. Int'l Law. 350 (2003), http://scholarship.law.berkeley.edu/bjil/vol21/iss2/5; Courtney McCausland, “From Tolerance to Tactic: Understanding Rape in Armed Conflict as Genocide,” Michigan State University College of Law International Law Review 25 (2017): 149, https://ssrn.com/abstract=2921186; Shayna Rogers, “Sexual Violence or Rape as a Constituent Act of genocide: Lessons from the Ad Hoc Tribunals and a Prescription for the International Criminal Court”; George. Washington Int'l L. Rev. 48, 2 (2016): 265-314, https://www.law.upenn.edu/live/files/5926-articlepdf; Jonathan M. Short, “Sexual Violence as Genocide: The Developing Law of the International Criminal Tribunals and the International Criminal Court,” Mich.J. Race & L. 503 (2003), https://repository.law.umich.edu/mjrl/vol8/iss2/5; and Laura Smith - Spark “How did Rape Become a Weapon of War,” Global Policy Forum, December 8, 2004, https://www.globalpolicy.org/component/content/article/163-general/28294.html.
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