In Gaza, the Genocide Convention Has Been ‘Bent to the Will of Powerful States’

TRANSCEND MEMBERS, 20 May 2024

Michelle Chen | The Progressive – TRANSCEND Media Service

An Interview with Human Rights Activist Maung Zarni

8 May 2024 Maung Zarni is a member of the TRANSCEND Network, an activist and human rights scholar, originally from Myanmar, who received a Ph.D. in Curriculum and Instruction from the University of Wisconsin-Madison. While a graduate student there, he also founded the Free Burma Coalition. He is now based in London. In April 2024, Zarni was nominated for a Nobel Peace Prize for his work on Rohingya displacement in Myanmar by Nobel laureate Mairead Corrigan Maguire. Much of his work focuses on the plight of Rohingya refugees from Rakhine State, and the global politics surrounding oppression and militarism in Myanmar. He recently attended a protest for Palestinian rights outside of the International Court of Justice (ICJ). He also previously attended the ICJ proceedings for the genocide case against Myanmar. We spoke after the ICJ issued an interim ruling at the end of March directing Israel to “take all necessary and effective measures to ensure, without delay . . . the unhindered provision . . . of urgently needed basic services and humanitarian assistance” in Gaza, and also shortly after the United Nations Security Council voted on a ceasefire resolution. The interim measures imposed on Israel echo the ICJ’s 2020 provisional ruling directing Myanmar to act to prevent genocide. This interview combines excerpts of a conversation with an email exchange, and has been edited for length and clarity.

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Q: What do you make of the recent developments at the International Court of Justice around Palestine? And what does it say more generally about the so-called international community and its position on questions of genocide? 

Maung Zarni: We don’t have to wait until a court of law or legal professionals come forward and decide that a genocide has been committed. An old American friend from the Genocide Watch, Gregory Stanton, once said, by the time the courts arrive . . . the victims are all dead. I take that to heart.

There are two things about the International Court of Justice involvement. The International Court of Justice is considered the principal organ of the United Nations [for adjudicating international disputes]. So it’s a court that doesn’t try individual leaders or military commanders or anyone who instigated genocide or has been involved in it. It’s really a court that attempts to adjudicate when legal disputes or conflicts arise between UN member states. And so . . . we need to understand that this is not about criminal trials, who’s guilty, who’s not. But this is about resolving conflicts between and among states, judicially.

[In late March] the ICJ in The Hague issued another set of additional provisional measures. These are legally binding measures that the court has the power to issue to perpetrating states [before it] has reached its final conclusion [on whether] genocide has been indeed commissioned by the accused state . . . In the case of South Africa versus Israel, it hasn’t reached the merit phase yet. But on the face of the strength of the evidence that South Africa presented in January to the court, fifteen out of the seventeen judges—that’s quite an extraordinary percentage of the judges—ruled in favor of South Africa’s request . . . that the ICJ issue provisional measures to prevent further acts of genocide being committed by Israel against the 2.3 or 2.4 million Palestinian people in Gaza under total siege since October.

[The judges additionally declared that] Israel must allow aid delivery, and it must essentially reverse this process of mass starvation by policy against the Palestinian people. And so it’s rather extraordinary that within a span of two months, the court has issued two sets of provisional or interim orders. They are legally binding. The problem is the court does not have enforcing power. It doesn’t have a police force. It doesn’t have the military organization to make the State of Israel comply with its legally binding order.

And also [in March], the Security Council, for the first time, voted in favor of calling for essentially a cease-fire  . . . But the only problem with the Security Council resolution is that it was what is known as a Chapter Six resolution. Chapter Seven, [not Six, is the resolution with which] the Security Council authorizes the rest of the United Nations member states to [potentially use] military intervention to stop any events or processes that will harm the stability and peace around the world. So the Security Council resolution does not come with the council’s mandate for the member states to intervene militarily and politically [or use] other forceful means to stop Israel’s use of mass starvation as a weapon of genocide.

Q: Can you explain why you think the language of the Genocide Convention is inadequate for trying to redress the fundamental problems here?

MZ: There are two issues with the Genocide Convention as far as many of us who are not legalists [are concerned]. Firstly, the Genocide Convention, as it was adopted, was extremely watered-down legal text. The Polish Jewish legal scholar and legal activist [who helped author the Convention], Rafael Lemkin, had a very rich, multi-layered, and multifaceted conception of genocide. Essentially, you don’t need to study genocide academically and formally; anyone on the street can understand what genocide is. If you break it down, genocide simply means a process designed to destroy a human group or population, usually ethnic minorities, religious minorities, vulnerable communities within nations. When those vulnerable . . . populations are singled out for destruction, intentionally, and as a matter of policy, by a political state, then that is essentially both an act and process of genocide. And genocide is also not a single act of simply killing two million people in gas chambers or carpet bombing half a nation.

The other misconception, coming from the Zionist quarters, is ‘how dare you accuse us of genocide? We were Jews, and we cannot be accused of committing genocide. And nobody knows, genocide better than us’—that kind of exceptionalist rhetoric in defense of the indefensible behavior of Israel. Lemkin was really concerned about destruction of populations on the basis of their identity . . . going back to antiquity, [such as] the persecution of Christian converts in places like Nagasaki . . . And that was his thinking: population destruction throughout history, not simply the Holocaust. But, of course, the Holocaust gave Lemkin a new impetus. And his parents themselves were from Poland, and they were ‘liquidated’ in the Holocaust . . . . And then later, he devoted the rest of his life trying to make genocide a legal crime.

Lemkin’s original conception included the destruction of spiritual and cultural institutions [and] those who lead and produce cultural, spiritual and intellectual work. But the British and others didn’t even want to table the bare minimum [sociological] conception of genocide . . . . So we ended up with this rather limited conception of genocide. That’s one issue. And the other is that the convention put the onus [of providing evidence] on those entities that accused x, y, z of commissioning a genocide . . . . That’s something called a mental element, which is like intention: Did the perpetrator intentionally commit these acts of population destruction or are these acts a byproduct of their mission that is [something] other than genocide?

You need to prove that the destruction and killings are done with the sole intention of destroying. So, I think it is anti-intellectual and anti-empirical, in the sense that no human action is motivated by a single factor . . . . So for the Genocide Convention to demand in the most conservative and narrow reading of the convention, something called singular motive, singular intent—if you can prove that there are other motives and other intents present, then the obvious act of intentional destruction can be dismissed as less than genocidal.

The Palestinians perfectly fit Lemkin’s conception of genocide. Whether ICJ and lawyers and the United States recognize it as such is irrelevant when you are victims looking up and seeing drones and bombs coming down, when you are victim running to the aid delivery trucks trying to get a kilogram of flour and get mowed down by the Israeli occupying force. You don’t ask your killers, “Do you have a single intention to destroy us, or are you killing us for something else?”

Q: Given that there’s no real enforcement mechanism when it comes to these kinds of international measures, how should civil society efforts, grassroots movements, and human rights campaigns be informed by these legal and political developments?

MZ: The single most powerful leverage is in the hands of essentially President Biden, because the United States finances, arms, and protects Israel . . . . And so in the absence of the United States using the real leverage that it has to stop the genocidal operations by Israel . . . there are also other states that can and should step into this vacuum of state inaction.

For instance, let’s stick with the state actors because they are the ones with the real organized power, financial and military. China, Russia, the United Kingdom, and France voted in favor of this resolution, and these emerging powerful states, Brazil and others, should look at putting massive diplomatic pressure, downgrading Israel’s diplomatic relationship with their states, or simply saying, ‘We’re going to cut off the diplomatic ties with Israel and we will stop trading with Israel and Israeli companies or we will not allow any ships that fly Israeli flags into our ports.’

And the other [leverage] is cultural. The Boycott, Divestment, and Sanctions movement (BDS), led by Palestinian activists and supported by so many of us, Americans, British, and Europeans, as well as some Asians, in places like Malaysia—targeting sports, cultural, academic, economic and retail businesses and associations—that has proven to be rather effective . . . essentially a global civil society movement to pressurize Israel into behaving or complying with international law and also norms of decent societies.

Q: Given that you have been involved in the struggles of the Rohingya as well as of the Palestinians, can you make a comparison between how the politics surrounding each of these issues has played out on the global stage, and are there lessons that campaigners for the Rohingya can draw from the movement for Palestinian Rights, or vice versa?

MZ: These cases are geopolitically very, very different . . . . The United States, going back all the way to the Obama years, has been very vocal against the persecution of Rohingya in Burma. And the U.S. Holocaust Museum and the Jewish American and Jewish Canadian communities and organizations have been very supportive of the Rohingya victims, and conversely, very much condemnatory against the Burmese military and later Aung Sang Suu Kyi, when she came out and defended the indefensible [on behalf of] the Burmese military.

The Burmese military has been allied with Russia. It also enjoys support, and even veto protection, at the Security Council from China. And as a matter of fact, both China and Russia were opposed to any type of U.S. or U.K.-sponsored Security Council resolution, even nonbinding ones with respect to the Burmese militaries and their genocidal operation against Rohingyas. And so these are almost diametrically opposing cases. Israel, on one hand, enjoys blanket protection from the United States and its European allies (or more like sidekicks, like the United Kingdom) at the Security Council. And then these are also the very states that are very active at the Security Council when it comes to attacking the Myanmar military that committed genocide against the Rohingya.

What we are seeing is rather unprincipled state behaviors, on the part of the veto power holders at the Security Council.

So what we are seeing is rather unprincipled state behaviors, on the part of the veto power holders at the Security Council. And so that is one of the reasons that the international governing institutions, particularly the Security Council, where the real power lies, not the General Assembly—remains impotent and permanently paralyzed when it comes to addressing these horrendous breaches of international humanitarian law, international criminal law, and interstate treaties. And incidentally, the Genocide Convention is not like the Universal Declaration of Human Rights, which is a declaration of values and norms. The Genocide Convention is a binding interstate treaty [with] ratification from about 150 member states out of almost 200. And so it is a serious legal instrument, but because of the geopolitical rivalries and conflicting interest, these norms and laws have been treated as if they were a rubber band. So that they can be bent to the will of powerful states such as the United States or China or Russia or the United Kingdom.

[When State Department-led investigations found evidence of genocide committed against the Rohnigya,] both Trump and Obama administrations attempted to shelve that finding. And then The Washington Post got wind of it and exposed the fact that there was a State Department official commissioned study that found Myanmar military had committed a genocide. Then, finally, the White House and the State Department were forced to release the findings. And then only when Anthony Blinken wanted to go after Russia . . . with this genocide accusation [related to the invasion of Ukraine], they decided to ceremonially launch the genocide determination [for Myanmar].

So, what I’m trying to say is, when it comes to these geopolitical interests, the United States has shown absolutely zero moral or intellectual consistency or integrity. That is one of the reasons that we do not have what the American politicians often claim, which is the ‘rule-based order,’ and if there are any sets of rules, those are rules that the American politicians and officials make up as they go along. And so [with] that behavior—given that the United States is, financially, militarily, the most powerful country in the world today, although it has come under or it feels threatened by, the rise of the second largest economy in the world, China . . . the Americans themselves undermine international law. The Americans themselves undermine what they present as the rule-based order. And as a result, the United States has emptied out any ounce of moral influence. There is no more soft power. No American politicians or State Department officials can utter the word ‘human rights’ to anyone in the world, including dodgy heads of states in Africa and other places, after their direct involvement in financing, arming and protecting and even giving military advice to the Israeli genocide planners.

Q: At the same time, despite the clear differences in the geopolitics surrounding the Palestinians versus the Rohingya, wouldn’t you say that the ICC and other international human rights bodies have failed both groups? After all, despite the West clearly imposing its bias with respect to the handling of the Israeli government, neither Myanmar nor Israel have really been held to account for atrocities and war crimes?

MZ: The international law and U.N. judicial organs have been a complete failure in all cases of genocide that appear before the ICJ (including the Bosnia case before the Rohingya, and now, Palestine). The main problem is ICJ lacks an enforcement mechanism and power as it deals with legal disputes between and among states. States do not empower the UN to do that kind of accountability. The UN and [international] law are only as effective as its UN member states want the former to be. The only place with real power—to authorize any type of military, or effective but non-military, intervention to enforce any UN Security Council resolution or ICJ ruling is the Security Council, under the UN Charter Article 7 . . . . Other than that, the Security Council is only valuable as a tool for the Permanent Members with the veto power [including the United States]. Neither the material conditions of the Palestinians in Gaza nor Rohingya have improved as the result of these two sets of binding Provisional Measures ordered against Myanmar and Israel by the ICJ. In both cases, both Rohingyas and Palestinians in Gaza are declared Protected Groups under the Genocide Convention, and the plausibility that their right to be protected is being violated by Myanmar and Israel is established by the court. But the ICJ just simply looks on—no other option for the court—as both states disregard the binding interim ruling.

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Michelle Chen is a postdoctoral fellow in history at Cornell University’s School of Industrial and Labor Relations. She is a contributing writer for The Nation, a contributing editor at Dissent magazine, and a co-producer of Dissent’s “Belabored” podcast and the Asia Pacific Forum podcast. Find her on X at @meeshellchen

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