Author: Thomas Jupe
Jupe, Thomas, 2023 State Responsibility for Genocide and the Lens of State Crime: An Interdisciplinary Case Study of the Rohingya of Myanmar, Flinders University, College of Business, Government and Law
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The ethnic Rohingya civilian population of Myanmar have been murdered, raped and tortured by the state’s official military. This human rights crisis is being addressed by the law through two differing avenues of responsibility: action concerning individual criminal responsibility has arisen in the International Criminal Court (ICC) and action concerning state responsibility in the International Court of Justice (ICJ). If the ICJ action against Myanmar is successful, this would mark the first time a state has been found to breach its obligation to not commit genocide—as opposed to failing to prevent and punish genocide.
This thesis questions whether state responsibility for committing genocide should be attributed to Myanmar. To answer this question, it engages with the theory of state crime from critical criminology. This was carried out through an interdisciplinary approach, which does not aim to alter the law, or solve its problems, but to understand the development of the law in a different light. From this perspective, the use of individual criminal responsibility is applauded for its ability to address the role of the military’s high-ranking officials. This addresses the authorisation of the attacks and routinisation of violent conduct in the military, by placing the onus on the high-ranking officials to ensure that criminal acts of this nature are not carried out within their ranks. However, dealing with the situation solely through individual criminal responsibility is not the most appropriate way forward.
In this situation, the concept of deviance can be applied to the state’s longstanding organisational goal of removing the Rohingya from its territory. Similarly, the discriminatory rhetoric embedded in Myanmar’s culture has left the Rohingya dehumanised, enabling the direct perpetrators to carry out the attacks with no moral objection. A successful action in the ICC would fail to recognise the state as a deviant actor, or to impact the underlying organisational goals and discriminatory rhetoric.
Alternatively, acknowledging the state’s involvement through a judgment of state responsibility in the ICJ would allow the institutional dimension of the crimes to finally be recognised. The symbolic value of the decision would provide the foundation for deep reflection, re-consideration of the state’s deviant goals, and an impact on the narrative concerning the dehumanised victim population. Attributing state responsibility to Myanmar for committing genocide is not only appropriate, but a necessary step forward in the longstanding fight against international crimes with state involvement.
To best address state crimes, these two avenues of responsibility must operate in tandem, with individual criminal responsibility addressing the tangible aspects of the crimes, and state responsibility addressing the symbolic, narrative-driven aspects of the crimes.
Keywords: International Court of Justice, International Criminal Court, The Gambia v Myanmar, state responsibility, individual criminal responsibility, state crime, Rohingya
Subject: Law thesis
Thesis type: Doctor of Philosophy
Completed: 2023
School: College of Business, Government and Law
Supervisor: Sanzhuan Guo