The International Court of Justice's Recent Ruling on the Rohingya Genocide

The International Court of Justice's Recent Ruling on the Rohingya Genocide

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David J. Scheffer, visiting senior fellow at CFR, discusses the International Court of Justice’s recent ruling on the Rohingya genocide.

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David J. Scheffer

Visiting Senior Fellow, Council on Foreign Relations


Irina A. Faskianos

Director for National Program and Outreach, Council on Foreign Relations

FASKIANOS: Good afternoon from New York, and welcome to the Council on Foreign Relations Religion and Foreign Policy Conference Call Series. I am Irina Faskianos, vice president for the National Program and Outreach here at CFR.

As a reminder, today’s call is on the record and the audio and transcript will be made available on our website,, and on our iTunes podcast channel Religion and Foreign Policy.

We are delighted to have David Scheffer with us today. David Scheffer is a visiting senior fellow at CFR focusing on international law and international criminal justice. He is a genocide prevention fellow at the U.S. Memorial Holocaust Museum, as well as a professor of law at Northwestern University. Ambassador Scheffer was the U.N. secretary-general’s special expert on U.N. assistance to the Khmer Rouge trials and the first-ever U.S. ambassador at large for war criminal issues. He negotiated the creation of five war crimes tribunals, including the International Criminal Court. Ambassador Scheffer served as senior advisor and counsel to the U.S. permanent representative to the United Nations, Madeleine Albright, and served on the Deputies Committee of the National Security Council.

Ambassador Scheffer, thanks very much for being with us today. I thought we could begin with you giving us a little background on the Rohingya, as well as the significance of the International Court of Justice’s recent ruling on the Rohingya genocide. So let me turn it over to you to talk about all of this.

SCHEFFER: Well, thank you very much, Irina. It’s a tremendous pleasure to spend this hour speaking with you and listening to your questions after I make some opening remarks here.

I do not want to pretend to be an expert on the Rohingya themselves. I think many of the people on this call have probably far more expertise on this particular ethnic minority group than I am. I bring, frankly, my exposure to the Rohingya through the legal prism of both their situation before the International Criminal Court in The Hague and the International Court of Justice in The Hague, and so I will be speaking mostly from the perspective of a lawyer that has been exposed to this issue as opposed to a religious expert on the Rohingya themselves.

But what I do want to do is open this discussion about a few sort of basic facts about the Rohingya, and I would invite you after this call to, which is the Council on Foreign Relations website, and there is an excellent backgrounder on the Rohingya by Eleanor Albert and Lindsay Maizland dated January 23, 2020, which is the date just before my article on the same website of January 20 about the ICJ order. I think if you look at the Albert and Maizland backgrounder, it really is an excellent background.

So let me just point to a few aspects that I think should be understood to begin with. The Rohingya is an ethnic minority group that also has the identity of its religion, which is Sunni Islam. And this religious identity, which is among the Rohingya population in the Rakhine state, which is a western state within Myanmar—formerly known as Burma, of course—and Myanmar itself is predominantly a Buddhist state. So you do have this classic tension between two religions in one sovereign state, in this case the vast majority being Buddhist and the minority of about a million or more being Sunni Islam. It’s described as a Sufi-inflected variation of Sunni Islam.

This group is ethnically, linguistically, and religiously separate from the Buddhist population. It dates back to about the fifteenth century, when it migrated into that part of that region. And it migrated even more so in the nineteenth and twentieth centuries from the Bangladesh area.

Within Myanmar they currently have sort of culturally been regarded by the Buddhist majority as illegal immigrants from Bangladesh. They have no citizenship, thus they are stateless, which is a very interesting dilemma under international law for a population of this size. They had temporary resident cards before then and they were canceled in 2015, and that canceled also their right to vote. And they now have something called national verification cards, which regard them as foreigners, and the government claims that this is a step towards ultimately granting them citizenship.

But the discrimination against them is quite institutionalized in terms of marriage, family planning, employment, education, their religious choice, their freedom of movement. They even have to seek permission to marry. They have a very high poverty rate of about 78 percent. So that is the opening shot.

Now, a tremendous amount of violence occurred starting really in 2016 in terms of persecution of the Rohingya, but it accelerated in 2017 after a militia group of the Rohingya called the Arakan Rohingya Salvation Army decided to strike out, and that triggered the Myanmar army to respond very, very significantly. And it’s that response, particularly in August of 2017, that brings us to the basic core of the case before the International Court of Justice because it was in August and September and October of 2017 that there was first and foremost a massive ethnic-cleansing assault on the Rohingya people in Rakhine state. And that assault involved so many of the crimes against humanity. And of course, I could say “allegedly” throughout all of this presentation, but I’m just going to drop the word “allegedly” for now. But clearly, there were crimes against humanity committed in an ethnic-cleansing campaign. That includes mass rape, killing, deprivation of the means of life, routing of the Rohingya from their villages and towns—we have a lot of overhead satellite imagery that demonstrates this—and essentially routing the civilian population from their centuries-old places of habitat. What does that mean? Well, it meant routing them across the river into Bangladesh. And close to—well, the estimates are about seven hundred and fifty (thousand), eight hundred thousand to a million Rohingya were so routed into Bangladesh.

Now, they are currently in refugee camps in southern Bangladesh. And international agencies, of course, are focusing on them in terms of assistance. There have been negotiations between the Bangladesh government and Myanmar as to the return of these individuals to Myanmar. Those negotiations have had their ups and downs, but let’s just say that the bottom line is there are no returns of any significance whatsoever to Myanmar. The Myanmar government has not incentivized any such returns by granting the Rohingya any of their sort of fundamental demands for sustaining their livelihoods in Myanmar as full citizens. And as I understand from the discussions in the camps in Bangladesh, it’s not as if the Rohingya are rushing to get back into what is, obviously, an environment of violence, intimidation, discrimination, and true threats to their very lives.

Many thousand were killed during this campaign in 2017. Many were injured. The trauma and mental-health effects that are now known in the refugee camps are, of course, another consequence of such an assault on the Rohingya population.

So that brings us to: What do you do about all of this? And there was an effort for quite some time after these events to figure out how could one launch a legal remedy to this problem. It’s also a challenge for governments, of course, and of the United Nations to figure out how to solve the problem with respect to their actual return to their property in Rakhine state and resuming and developing a new life there with greater rights that they’re entitled to. But what I am here to focus on is what sort of legal remedy has been sought by the Rohingya. And this brings us to the genocide convention.

Now, so many of you who are on this call with religious callings and backgrounds are of course familiar with the Genocide Convention of 1948, which is a document that seeks to prevent and to punish the commission of the crime of genocide, which is a crime that pertains to trying to destroy all or part of an ethnic, national, racial, or religious group similar to what was experienced during the Holocaust, which of course was the inspiration for the Genocide Convention. That convention has rarely been enforced, although it is widely subscribed to by ratifying parties around the world. And two states that are—well, first of all I should just say that Myanmar is a state party to the Genocide Convention, so it is governed by the terms of that convention. And remember, the convention is very much geared towards preventing genocide—that’s very important—but if genocide is committed to ensuring that the perpetrators of the genocide are punished. So it has two sort of coequal branches of its—of its character: the prevention aspect and then the punishment aspect. And Myanmar is subject to the terms of that convention.

In this case the determination by so many outside parties, and of course by representatives of the Rohingya people themselves, was, wait a minute, what is just happening now in Myanmar is, in fact, genocide. It is the attempt by the Myanmar government and its military and militia groups to literally destroy all or part of the Rohingya people. That is the claim.

Others who look at this might say, well, that’s kind of jumping the gun because what we can identify is a crime against humanity, namely ethnic cleansing. We can describe perhaps some war crimes that might have been committed between the Myanmar military and the Rohingya militia. But mostly what we’re looking at is crimes against humanity.

Nonetheless, the facts that are presented in this case do point towards the very strong possibility of a genocide that has been committed against the Rohingya people. And that is what triggers, then, the interest of the International Court of Justice, because if you are party to the Genocide Convention any dispute under that conventional can automatically be taken to the International Court of Justice.

But you have to find another government who is also party to the convention to bring that case against Myanmar, which is a party. And at first we all thought, well Bangladesh would be the natural litigant here because it, too, is a state party to the convention, and it’s just been inflicted with a million refugees, the victims of this assault, and therefore it would have a good case to bring against Myanmar. But politics is politics. And as I have found so true throughout my career, governments—you might assume that governments would be willing to take on this responsibility, but so often they actually are not. Why? Because they have to have a political relationship with their neighbors. They’re trying to negotiate with Myanmar the return of the Rohingya. And therefore, if they are party to the case, that could complicate all sorts of political dynamics between Bangladesh and Myanmar.

So interested parties then looked elsewhere. A lot of NGOs were involved. And ultimately, the government of The Gambia in West Africa decided to take up the case. Now, it just turned out that their minister, their justice minister I believe, had been a prosecutor at the International Criminal Tribunal for Rwanda, which dealt with the Rwandan genocide of 1994, and he had a very personal interest in this. He visited the Rohingya camps and he was prepared to engage. And ultimately, that engagement and discussions led towards his own government taking up this case against Myanmar, and it is a case of genocide under the Genocide Convention.

Let me just add one little aspect to this because you might be asking yourself, well, wait a minute, is it—is it ethnic cleansing or is it genocide? Well, the argument can very interestingly be made that what the Myanmar government has done is it’s used the tool of genocide to ignite the consequence of ethnic cleansing, because what the government has done is assault these villages—mass rapes, lots of killings of thousands of individuals, tremendous physical injury, destruction of their livelihood, tremendous mental assault on them in terms of trauma, et cetera. Now, that’s a tool. And if you hit a group that way and it results in ethnic cleansing, it results in effectively the forcible deportation of this groups onto another state’s territory or even internally—but in this case definitely into Bangladesh—that’s a consequence. Ethnic cleansing is definitely a consequence, but it was stimulated by a genocidal assault. And the briefing for the merits of this case has not been made yet, of course, but we did have a lot of informative discussion about this during the oral proceedings before the International Court of Justice in early December in The Hague, when the two litigants—Myanmar and The Gambia—argued it out in front of themselves before the judges of the International Court of Justice.

So let me cut to the chase here. It is important to understand that in front of the ICJ what happened on January 22 or—let’s see, it was January 23, yeah, of 2020 is an order for provisional measures against the government of Myanmar and its military. It was not a judgment on genocide itself. That is a merits issue, and it’ll probably be several years before the court actually rules on the merits of this case. This order for provisional measures is to try to freeze the situation in the sense of not letting it deteriorate further against the interests of the Rohingya people in terms of an effort to prevent further genocide—if that is, in fact, what has happened—further assaults, and further measures by the Myanmar government that would further complicate this situation before the court can get to the merits of the case.

So what I want to do is just briefly tell you what is it that the court ordered. And what they ordered was they require Myanmar to prevent the full range of acts under the Genocide Convention that would lead to destroying all or part of a national, ethnic, racial, or religious groups, namely the Rohingya. And this would include not only not killing further Rohingya, but also not harming them physically or mentally, or deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part, or imposing measures intended to prevent births within the group. And it’s a rather sweeping prohibition; the court ordered Myanmar to ensure that its military and any irregular armed units under its control will not commit any of these acts, form any conspiracy to do so, incite genocide, attempt to commit genocide, or be complicit in genocide. Nor should Myanmar destroy—in other words, it should prevent the destruction of—any evidence of possible genocide. Furthermore, it needs to report on May 23 of this year its compliance with this order, and then every six months thereafter it has to file another report of compliance with this order.

It is not an order that forces any party, including Myanmar, to agree to the return of the Rohingya to Myanmar. That has to be politically negotiated between Bangladesh, with the U.N. involved, and with Myanmar. It doesn’t order Myanmar to provide any particular foreign assistance or food or anything else to the Rohingya. But it certainly is an order that says do not violate their rights any further, do not take any steps on the ground with the Rohingya who remain in Myanmar—don’t take any genocidal acts towards those individuals.

What it cannot do, because the International Court of Justice is only there to deal with the Genocide Convention, is that it cannot sort of order that no actions whatsoever must be taken against the Rohingya. It has to focus on genocidal acts against the Rohingya. But of course, so much of the tactics of assaulting the Rohingya can lead one to infer the intent to commit genocide against the Rohingya, that the Myanmar government has to be very, very careful about how it actually takes any particular actions henceforth if it is to avoid violating the order.

I will just say that there’s also a situation under investigation now before the International Criminal Court, which of course only deals with personal liability, not state liability. The ICJ is a state-responsibility court. The ICC—the International Criminal Court—is a personal-responsibility court. But there is now an official investigation underway, and the reason is that even though Myanmar is not a state party to the statute of the International Criminal Court the crime of forcible deportation has to have two parties to it. One is the state in which the deportation started and the other is the state at which the deportation ended. And that’s Bangladesh, and Bangladesh is a state party to the International Criminal Court. So that court can look at the crime of forcible deportation, which is a crime against humanity, and start to look at, well, what individuals in the Myanmar government are responsible for the forcible deportation of the Rohingya into Bangladesh. But that would be looking at it as a crime against humanity.

The International Criminal Court has invited the prosecutor to consider other crimes that might fall within this category of forcing the Rohingya into Bangladesh. And of course, ethnic cleansing sort of comes into that. But that’s in its very early stages, whether the prosecutor can extend her investigation beyond forcible deportation. But she’s definitely not, at least at this time as far as I know, looking at the crime of genocide. Maybe that’s percolating somewhere within her office, but the real issue of genocide is before the International Court of Justice.

So, Irina, I think unless you want me to continue on the introductory comments that’s where I would stand at this point.

FASKIANOS: I think that’s a fantastic overview and we can get into more details—although you’ve been very thorough, David—with questions and comments from the group. So let’s go now to the questions that are queuing up.

OPERATOR: Thank you.

And our first question comes from Shaikh Obaid with the Muslim Peace Coalition.

OBAID: Hi. Thank you for such an exhaustive overview. I am with Muslim Peace Coalition, as well as the co-founder of Burma Task Force.

You know, when we started to use the word “genocide” after launching the Burma Task Force to educate people about impending genocide, many people objected. My question is that the ethnic cleansing of the Rohingyas have been happening in waves—in 1978, then ’91-’92, then in the ’80s. My first program on Long Island about educating about the Rohingya was in ’92 and ’93. So how do we learn from this so that, as you said, the main aim of the convention is to prevent genocide from happening, and disenfranchisement is the first step towards genocide, and we see that’s going on at the borders of Burma and India in Assam, and now all over India. So I mean, it takes such a long time to convince even the NGOs and the civil rights and human rights activists about genocide, so what have we learned and how do we prevent those lessons going forward?

SCHEFFER: Well, I would respond—thank you very much for the question—in two parts.

First, I think it’s extremely important—we don’t want to diminish the meaning of the word “genocide” or the use of it or bringing it into the discussion. It’s a very powerful word, it’s a very powerful crime, and it’s the reason for the Genocide Convention, and that’s an important convention that should be complied with.

But I do think it’s extremely important that the fact that what has been happening to the Rohingya not simply since 2016-2017, but before that as you say, has to be understood as a progression of criminal conduct against the Rohingya that can fall within the parameters of what we refer to as crimes against humanity. You know, there are crimes against humanity that can be far more severe and destructive of the Rohingya than genocide. It just depends on what the facts are, what the death count is under a crime against humanity versus a genocidal assault. The crime against humanity can result in a far, far more egregious assault on the Rohingya with consequences of far greater magnitude than, quite frankly, genocide. So we need to, I think, almost pay respect to the reality that we not get too caught up in thinking that the only way to deal with the severity of what has happened to the Rohingya is by trying to find not only the word “genocide” and its application, but then finally its enforcement.

That may happen. In courts of law, proving genocide takes a long, long time because you have to prove not only the genocidal acts—which could include killing, causing serious bodily or mental harm, inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, preventing births, forcibly transferring children from one group to another, those are all genocidal acts. But in a court of law, it’s not only proving that. You also have to prove specific genocidal intent on the part of some human being, which is usually a leader of a state or a collection of leaders. In other words, you have to marry the genocidal acts with specific genocidal intent, and that’s difficult to prove. We look often to inferring genocidal intent, and the International Court of Justice refers to that possibility with respect to Myanmar. But you only get there on the merits, not in an order of provisional measures. So that’s a long journey, and in the meantime there is the plight of the Rohingya.

So I think for policymakers it’s very important for them to understand, frankly that genocide is a possibility here, but it’s going to take a lot of years to nail that down. In the meantime, do something. Don’t wait for a determination on genocide; do something.

And I think that’s extremely important, and that’s one of the reasons why there has been an effort at the International Criminal Court to do something on forcible deportation because, once again, that takes time to prove. But you don’t need to prove specific genocidal intent to establish the criminal conduct of forcible deportation. So I guess I’ll leave my answer at that for now, but we can always come back to it.

FASKIANOS: Terrific. Next question, please.

OPERATOR: Next question comes from Thomas Reese with Religion News Service.

REESE: Hi. Prior to Pope Francis’ visit to Myanmar, there was a lot of discussion about whether he would use the term Rohingya or not. And he decided not to because church leaders advised that doing so would just make the situation worse and put the tiny Catholic population at risk. He had referred to the treatment of the Armenians as genocide, but of course that’s a hundred years ago. And he had used the term Rohingya, you know, in Rome prior to his visit.

Afterwards he used the term Rohingya when he met with refugees in Bangladesh. I mean, critics have said this is a rerun of Pius XII and his silence over genocide. I’m wondering what you think of it. What should the pope have done when he visited Myanmar? How, you know—what’s the role of religious leaders and spokespeople in terms of responding to these kinds of things?

SCHEFFER: Thanks for the question.

First I want to say that the government of Myanmar, in the oral proceedings before the International Court of Justice in December, with respect to whether or not there would be an order for provisional measures, did not refer to the group as Rohingya; rather, it’s Bengalis and other terminology. So that was noted, of course. Even Aung San Suu Kyi did not say the word Rohingya when she rose representing the government of Myanmar in the International Court of Justice and did not use the term.

So it’s indicative of how important this issue is to the government of Myanmar. They are not prepared to identify the group as with its self-described identity; namely, the Rohingya. And why? Because they may want to argue on the merits of case that there is no protected group here. Remember, you have to have a protected group that has been assaulted with the intent to destroy it, in whole or in part, and that protected group is ethnic, national, racial, or religious. And so if they avoid using that term, they can probably argue on the merit—you know, what’s going on here? There is no protected group. What are we talking about? And so that’s a dangerous possibility, and it flies in the face of what I think one can credibly argue is just the fact of the Rohingya.

As for the pope, yes, I thought it was sort of a moment of a failure of courage on his part and he is a unique individual, obviously. He has a unique capability to actually change the situation that is in front of him. And there are times when he chooses to do so and times when he chooses not to do so. And I thought his trip to Myanmar was an opportunity to kind of state the obvious and say that we understand the obvious, and that would have been just one single reference to the Rohingya while he was on the territory of Myanmar.

I would say that if he wants to justify not using the use of the term, then show me the result of your being on Myanmar territory, not using the term, and benefiting the Rohingya people and their fight. In other words, by not using the word, what did you get out of that? What was the outcome? Did you get a benefit from that? And as far as I know, he did not. Now maybe someone can prove me wrong, but I don’t think he did.

FASKIANOS: Thank you. Next question.

OPERATOR: Our next question comes from Thomas Walsh with Universal Peace Federation.

WALSH: Thank you for this presentation, very much.

First, I wanted to ask just what you thought of the testimony from Aung San Suu Kyi, if you care to say more about that. I know you’ve already referred to it in the last question.

And secondly, I have some part of my heart that has, whether they call it sympathy or empathy, for Buddhist countries like Thailand, and Bhutan, and Sri Lanka. Sri Lanka went through a horrible kind of civil war itself, and now you have  on one hand, Myanmar is a military state, and on another hand can it be construed as this Buddhist nation-state amidst many other—a large Hindu state nearby, and quite a few Muslim states. Does it appeal to its Buddhist heritage in a strong way to say we need some kind of cultural glue to bind us together—all these ethnicities and different linguistic groups—otherwise we’re going to fall apart?

SCHEFFER: OK, thank you very much, Mr. Walsh, for that question.

First, on Aung San Suu Kyi’s testimony before the International Court of Justice in early December, she focused a lot of her commentary on, essentially, national security. I found her sort of to be in the mode of speaking on behalf of the military, and their concern for national security, and the threat that militia of the Rohingya pose to the national security of the country. So she put it in that context, and in the context of the conflict, and the need to achieve peace. And she did talk about trying to make sure rights are preserved, but in a very, very shallow way.

So the court actually responded to that argument, and did so, I thought, quite helpfully by saying it doesn’t matter. It doesn’t matter if you are arguing about armed conflict. It doesn’t matter if you are talking about internal war, and hostilities, and militia groups, and threats. Under the genocide convention the response to any of those threats must not be genocide. That is not how you respond; that the fact that it’s an armed conflict is irrelevant to the issue of genocide. So you cannot use it as an excuse to then commit genocide. And so that was quite powerful, and it’s one of the reasons why in the order for provisional measures the court is saying to Myanmar, you instruct your military and militia not to undertake any genocidal act against the Rohingya, and basically the subtext is regardless of your national security crisis as you so describe it. And I think that was a direct response to Aung San Suu Kyi’s testimony.


SCHEFFER: As far as the Buddhist countries and your point about Buddhism, it is remarkable because Buddhism is a faith that I very much respect the principles of. I think they are remarkably peaceful in character, and loving, and sharing, and reflective. And sometimes I’ve even said to myself—I don’t want to get personal here—I’ve sort of tried to contrast Christian principles with Buddhist principles, and I say, gosh, it would be useful to just kind of marry these two  and bring them together because Buddhism is not supposed to be an oppressive faith at all.

And so therefore it’s remarkable that in Myanmar the Buddhist majority are very supportive of the government’s actions against the Rohingya. It’s not as if there is some uprising in Myanmar objecting to the government’s conduct. And in fact, Aung San Suu Kyi, I thought, was sort of speaking to her electorate back home—because elections are coming up in Myanmar—to have this strong position stated against the Rohingya in a national security context. That plays beautifully with the people back home.

I do want to point to a scholar on this issue, Azeem Ibrahim, who spoke on the Rohingya at my law school, Northwestern Law in Chicago a couple of years ago at our invitation, and I remember him speaking at some length about his own journey of trying to understand how the Buddhist population could have this attitude towards the Muslim population in Myanmar and because of the nature of the Buddhist religion. So I do cite you to his book. His book is in paperback, and I strongly recommend it.

WALSH: Thank you for your response.

FASKIANOS: Thank you. Next question.

OPERATOR: Our next question comes from Yuri Mantilla with Liberty University.

MANTILLA: Professor Scheffer, my question is about the implementation of the decision of the International Court of Justice, these provisional measures. Do you think the government of Myanmar will implement this decision of the International Court of Justice, or do you think they would rather use arguments such as that these are not self-executing decisions, which happen in our own Supreme Court here in the United States? And if they decide not to implement the provisional measures, do you see the United Nations Security Council as the body with the authority to even use force in cases of violations of decisions of the International Court of Justice being able to do something about this? And so are we thinking about the possibility of the use of force with the authorization of the United Nations Security Council as a way to finally implement these provisional measures decided by the International Court of Justice?

SCHEFFER: Thank you for the question.

I hate to put it this way but I guess I will. It’s not really that difficult for the government of Myanmar to, in a very sort of shallow way, comply with the order for provisional measures and thus avoid the kind of actions that you think might ultimately be required such as use of force, et cetera. And I say that because—what the government has to do is, on May 23, deliver a report. And then it has to do so for every six months afterwards, basically saying we are not hurting the Rohingya people. Subtext is we are not hurting the Rohingya people anymore, but all the order requires is that. In other words, the order doesn’t require any rectification of the past. It doesn’t require the government of Myanmar to do anything to acknowledge the actions of the past or to rectify those actions, like arrange for the return of the Rohingya to Myanmar territory and actually look to the well-being of the Rohingya people. There is nothing required of that character.

And furthermore, remember that the government of Myanmar still does not identify them as the Rohingya and has not really acknowledged that they are a protected group under the genocide convention because my guess is they’re going to argue on the merits that it is not a protected group. I could be proven wrong, but that’s my guess.

And so they can just say, well, yeah, I mean, we’re not doing anything to hurt the Rohingya anymore; don’t worry about it. And even those measures that we’ve taken on the territory of Myanmar are strictly national security against some little pocket of violent threats somewhere in the Rakhine State, but it’s not any measure against what you call the Rohingya people.

In other words, I can just see them—sort of in a PR way—write these reports so as to sort of satisfy the order but, in effect, nothing really changes too much on the ground as a consequence of it.

I will say, in terms of enforcement, under the genocide convention, the ultimate enforcement mechanism is the Security Council where the issue of non-compliance can be brought. Let’s say there’s some gross non-compliance with the order for provisional measures in some way; like there’s another huge assault on the Rohingya in Rakhine state. Let’s say, Makh (ph) II takes place.

Then the Security Council will say, well, that’s a clear violation of the order for provisional measures; we must go in and protect the Rohingya people under the Responsibility to Protect principle, under just basic principles of humanitarian intervention. We have to do this. We have to approve it. But the problem is you won’t get the Chinese to approve that. They will veto that resolution. And so the Security Council will be neutered in terms of its ability to actually enforce this.

So that’s why I say, at the end of my article on, essentially at the end of the day we’re going to have to rely on the force of the law itself, and the importance of the law, and the importance of the genocide convention to prevail here, as much as we may want to actually intervene to protect the Rohingya themselves unless of course it’s done outside of Security Council authorization.

MANTILLA: Thank you very much.

FASKIANOS: Thank you. Next question.


Our next question comes from Shaikh Obaid with the Muslim Peace Coalition.

UBAID: Thank you again.

You know, just for information, on March 20 at New York LaGuardia we are having a program from Justice for All to honor the justice minister who played such an important role from Gambia. That will be a good thing on March 20 from 7:00 to 10:00 p.m.

The other thing, again, however peaceful a religion is—and all religions are good—it is the people who practice it. So in Sri Lanka we’ll see the Buddhists committing crimes against humanity over Tamil Hindus and others, and we’ll see that happening in Burma also, so we cannot have this notion that any religion, just because of its teaching will be immune to this kind of extremism. I mean, Islam, which had the most tolerant history had ISIS coming out of the Muslims, and now we have RSS and two hundred million Muslims in India. It will be a huge, huge disaster because, while Trump was there and the whole American media was there in Delhi for the last three days investigating reports of killings and burning going on.

So we have to be very sensitive, and we should have a very low threshold for this kind of mass persecution, especially which are fed by organized movements of hatred, religious supremacism, and ultra-nationalism. We are seeing that in Burma, and we are seeing that in India. And we might see that in Sri Lanka again. We’ll see how the same thing that happened in Burma happening in Sri Lanka.

SCHEFFER: I think that those are very, very important points, and they point to what is quite often seen not as hypocrisy necessarily by the institutional elements of a religion, but hypocrisy that comes out through the force of certain individuals of that religion who then turn to violence and hatred.

I mean, what has just happened in India with the Hindu violence on Muslims, I cannot imagine that the leadership of—I mean, I could be ignorant on this, but I find it amazing if the leadership of the Hindu religion within India is somehow sitting around rationalizing and sanctioning that kind of violence against the Muslim population because if they are, then that’s rank hypocrisy at the leadership level.

But I do accept your point—even in Sri Lanka, you know, there are so many paradoxes taking place in Sri Lanka, even at the accountability level with respect to the refusal of the government to proceed with the war crimes tribunal after it had previously agreed to it; now it’s not agreeing to it. And to see that hypocrisy sort of just play itself out is extremely distressing.

And in Myanmar—you’re absolutely right—I think it’s a fascinating point of discussion. How can an entire people turn their backs on a fundamental principle of their own religion in order to go after another group, even though it violates the stated scriptures or the stated principles of that particular religion? So point very well taken.

FASKIANOS: Thank you. Next question.

OPERATOR: Thank you. Our next question comes from Fred Stella with the Hindu-American Foundation.

STELLA: Hello. I was wondering if—you hadn’t mentioned anything about Hindu Rohingyas, and I’m wondering if you could, please, talk about their particular plight.

SCHEFFER: Well, I don’t actually know much about their particular plight outside of if you are talking about Hindu Rohingya in India, I simply don’t know their story well at all, so I can’t speak to it.

STELLA: No, no, no. No, I’m speaking of Burmese Rohingyas who are also in the camps as well. They are a minority within a minority. It’s a challenging situation.

SCHEFFER: It’s very challenging because, as far as I understand, they too have been victimized by these assaults. But just because I’m not an expert on the Rohingya, I cannot determine or know whether or not the assaults on the Rohingya in Rakhine State—whether the Myanmar military and militias have tried to distinguish between the Hindu and the Muslims. My guess is probably not, but I would have to say I just don’t know whether that kind of distinguishing characteristic has even been attempted by the government.

STELLA: All right, thank you.

FASKIANOS: Thank you. Next question.

OPERATOR: Thank you. Our next question comes from Bruce Knotts with the Unitarian Universalist United Nations Office.

KNOTTS: Hello. Thank you for your presentation.

I was in the U.S. Foreign Service and served as the deputy chief of mission in The Gambia. The first time I heard about the Rohingya at the United Nations was several years ago from Adama Dieng, who is the special advisor on genocide at the U.N., and I’m sure you know him.


QKNOTTS: What is intriguing me is this West African connection in The Gambia and in Senegal, in the case of Adama, that have taken such a special interest in the Rohingya, which are pretty far away. And I know you said the justice minister had worked on the Rwanda genocide. But it still baffles me as to how they came to focus on the Rohingya, again, so far away. Do you have any insight into how that happened?

SCHEFFER: Well, I don’t really have any insight other than to say that I am very aware of the efforts by NGOs and by one or more law firms to try to identify governments that would take this case up at the International Court of Justice. And there were many governments under consideration, and they were able to focus on The Gambia.

Remember that it’s the organization of the—international Islamic organization that is very much behind this case and is, as I understand, financing it. So it’s not as if The Gambia was approached with the responsibility to actually financially support the bringing of this case. The Islamic conference is doing that and has been at the lead in trying to identify a government that would take this case. And so it may be that—and I don’t know this myself—it may be that there were special contacts and relationships between the Islamic conference and The Gambia that resulted ultimately in The Gambia taking up this case.

But you do have to give a great deal of credit—and I think for good reason—to the Islamic conference for actually driving this and finding a state party. In fact, during the oral proceedings in early December, the Gambian counsel  was criticized by the Myanmar counsel for simply being a proxy for the Islamic conference. And that was beaten down, and in fact the judges even spoke to that issue in their order saying The Gambia is not a proxy; it has every right under the genocide convention to bring this case as a government. And we accept its status as a government bringing this case and not as a proxy for some kind of international organization.

FASKIANOS: Thank you. I just want to, David, ask you one last question. We’re near the end of our time, so just to keep it short—you know there has been a recent push in the State Department to prioritize international religious freedom. Do you see the Trump administration supporting this preliminary ruling?

SCHEFFER: You know, I don’t see any reason why they should not. It is not an order for provisional measures that should impinge upon any of American national security or foreign policy interests other than there might be some sort of odd calculation that by supporting this order for provisional measures one would be creating distress within the Chinese government, which is the natural ally of Myanmar. And the Chinese may say something to U.S. authorities with respect to this. But my guess is that, at this stage, what one might anticipate from the Trump administration would certainly be, at a minimum, just silence and acquiescence on this issue because what is there to gain by being somehow in opposition to it. And maybe, in the best of cases, expressing its support to the Islamic world and to The Gambia that the rights of the Rohingya must be protected, and that the International Court of Justice is a forum in which that effort is now being attempted, and the United States will look forward to the deliberation and the judgment on this issue by the International Court of Justice. That would be a very helpful thing for the U.S. just to say.

FASKIANOS: Fantastic. So, David Scheffer, thanks very much for sharing your insights with us today, and to all of you for your questions. We really appreciate it.

We encourage you to follow Ambassador Scheffer’s work on the Rohingya genocide and the International Court of Justice on We also encourage you to follow CFR’s Religion and Foreign Policy Program on Twitter at @CFR_Religion for announcements about upcoming events and information about the latest CFR resources. Please do send us feedback, suggestions for speakers, and topics for future calls or events to [email protected].

Thank you all again, and look forward to your participation in future discussions.


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