The Importance of Evidence in Myanmar
May 3, 2018
Myanmar: Violence against the Rohingya Population. The Importance of the Evidence.
September 3, 2018The Importance of the Evidence in Myanmar
Fordham International Law Journal – May 2018
The violence committed against the Rohingya people in Myanmar raises one of the most difficult questions in international criminal law “how should such conduct be legally defined?”.
Public debate often turns immediately to the word “genocide,” but the legal classification of mass atrocities cannot rest on moral outrage alone. It depends on evidence, and in particular on the ability to prove the mental element required by each crime.
This article examines the distinction between genocide, crimes against humanity and ethnic cleansing in the context of Myanmar’s treatment of the Rohingya. It focuses especially on the role of mens rea and on the demanding standard required to establish genocidal intent.
While crimes against humanity may be proven through widespread or systematic attacks against a civilian population, genocide requires a specific element: the intent to destroy, in whole or in part, a protected group as such. That intent is rarely stated openly, and for this reason courts must often rely on indirect evidence, patterns of conduct, official policies, propaganda, or other circumstances capable of revealing the perpetrators’ purpose.By comparing Myanmar with other historical and judicial examples, including the Holocaust, Rwanda and Srebrenica, the article underlines the gap that may exist between historical truth, political language and legal truth. The suffering of the Rohingya is undeniable, but international criminal responsibility requires proof that can survive judicial scrutiny. In this sense, the article argues that evidence is not a technical detail; it is the foundation on which accountability depends.