Rohingyas

Statelessness and Social Death

An analysis of genocidal potential in conflict prone Myanmar.

Julia Teebken
Master of Ethics, Peace and Global Affairs
Dr. Debra Bergoffen and Dr. Martyn A. Oliver
Qualifying Paper
November 2, 2014

Table of Content

Introduction
I. Burmas Multiple Faces: Development and Conflict
1. Recent Developments: A Country Opening Up
2. Historical Conflict Origins and Multiple Failures
II. Violence, War and Genocide
1. Shaw: Mass Violence and Degenerate War
2. Arendts Pre-Stages of Genocide
3. Genocide
3.1
Raphael Lemkin: The Cruelty of Consciousness
3.2. United Nations: The Intent to Destroy
3.3
Claudia Card: Intolerable Harm and Culpable Wrongdoing
4. Preliminary Conclusion
III. Identity, Human Rights and Mutual Recognition
Conclusion
Bibliography

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Introduction
The story of the Rohingya minority in Rakhine state of Northwestern Burma1 is a case study of
longstanding institutionalized, cultural and religious persecution. Overall Rohingyas have been deprived the
decency of human and cultural identity. This paper examines the kinds of violence and persecution that are
used to strip the Rohingya of their identity. It shows how denying the Rohingya of their national belonging
and cultural identity is part of the countrys political and social structures. The central question is whether
this violence and persecution is a form of genocide.
The following chapters explain why the Rohingya term is critical to the Rohingyan sense of identity and
humanity. Understanding Myanmar's challenges as a young but conflict torn nation, comprised of a
multitude of ethnic groups apart from diverse semi-political and religious actors is key when drawing the
full picture of Rohingyan struggles. The question becomes whether their humanity can effectively be denied
through the refusal of using the name. In more general terms: can state prohibition of names strip us from
our citizenship? Do the rights granted through citizenship determine our human self? Is ones identity
conferred by the state? Or, do I inherit rights as a member of a common human species? Or is it our
religious preferences, cultural and political differences that define my rights holder status? Might there be a
more secular, even cosmopolitan response to the question: what constitutes a human being? Identity,
recognition, religion and state sovereignty are the corner pillars and provide the thread throughout the
paper. The Rohingya case powerfully demonstrates the limitations of the international human rights
machinery, human rights idea and its claims that human rights are universal.
Overall, this paper finds that there are limitations to the concept and to the way we think and react to
genocide. International state and civil society actors have been linking genocide to the physical destruction
of a targeted group. The second part of this paper aims to go beyond this narrow minded focus through
expanding it by the idea of social death through statelessness. In our current usage of the genocide concept,
legal obligations for states to act persist after genocide has been officially proclaimed. It is only then, that
the international community is reminded of its historical consciousness and moral obligations. Another
conceptual problem is the exclusive attention that singles out certain events in alarmist scenarios after they
have already occurred. This paper claims that the neutral position of not taking sides, as stressed by Aung
San Suu Kyi, is unacceptable, as are no attention and over engagement in retrospect. Most of the time, we
are confronted with the problem of reaction to procedural events that already have taken place. In this
sense, genocide is thought as a backward looking phenomenon that will not prevent but explain what has
1

Within this paper, Myanmar and Burma will interchangeably be used to describe the country. Although Myanmar is the official name of
the country nowadays, the term Burma is largely prevalent until today, not least because of its historical origin and the literal translation that
refers to Bama/Bamar, or Burmans - the largest ethnic group in Burma. The historical name has been very popular in oppositional circles and
also been used widely by the general public in order to express dissent with the military government.

happened. The idea of innocence currently is the crucial criteria for our genocide concept. If this criterion of
being a clearly defined victim is not met, the international community may not be mandated to act. In case
they are, victim identity is imposed upon the specific group, making it their only identity, thereby further
marginalizing it. Myanmar has deprived the Rohingya of their identity and state belonging. In this context,
Myanmar encompasses state, extreme religious and societal actors. International state, NGO and media
actors have stigmatized Rohingya Muslims through inscribing the victim identity and have reduced it to a
charity question rather than enabling a debate about justice and mutual recognition. The idea of genocide
has ultimately become machinery.
The paper offers a philosophical analysis of genocide, identity, human rights and religion. Overall, the
paper is structured into three thematic blocks revolving around development and conflict (I), genocide and
human rights (II) leading over to the last part on identity, recognition and tolerance (III). The first section of
the first chapter will look at recent optimistic future forecasts in the context of Myanmars political process
of democratization. The second section will reflect the Rohingya issue in the countrys current conflict
landscape. Overall, long-term, international inadequacy in addressing the issue will be demonstrated. The
international human rights regime has been failing by maintaining a construct of sovereign self-interests. In
this context, Samantha Power and Costas Douzinas help to better formulate a sound critique.
The second chapter is the centerpiece of this paper and aims to answer the core question, whether or not
the prolonged identity denial and acts of violence committed against the Rohingya amount to genocide.
Therefore, it compares definitions of different thinkers starting with Martin Shaw and his ideas of mass
violence as a form of degenerate war. The chapter moves on to an analysis of Hannah Arendts pre-stages
of genocide regarding the Holocaust in order to compare it with the Rohingya issue. This section suggests
that certain parallels are to be found but essential elements in Arendts understanding of genocide
precursors are absent. Although Myanmar partially shows reverse developmental trends with regard to its
politically reforming structures, structural oppression of and violent outbreaks against the Rohingya
community remain present. In order to obtain a deeper understanding of genocidal elements and pre-stages,
the next section will offer distinctive historical insights on the different notions of genocide, starting with
Raphael Lemkin and his critique of sovereign impunity. Thereafter, Lemkins understanding of genocide
will be compared with the UN genocide convention to demonstrate institutional inadequacies.
Subsequently, Claudia Cards observations assist in comprehending the underlying evils of violent practices
and genocide as a form of social death. In line with Andrews and Sullivan and based on the comparison of
different genocide definitions, this paper claims that the committed acts against Rohingya Muslims can be
understood as genocidal precursors and in Shaws terms as a form of degenerate war but will not turn into a
full fledged genocide.

The third part aims to shed light into the identity jungle by examining the interplay of identity, religion,
rights and statelessness. The picture drawn is one of an ever-restless population deprived of basic
necessities, territorial origin and emotional belonging. The last section introduces alternative notions of
human identity to overcome the constant deprivation of Rohingya Muslims, re-humanize and thereby reintegrate them into Buddhist Burmese conceptions of the nation. The first identity approach will be based in
the context of our current human rights framework, whereas the second line of thought speaks in more
idealistic and abstract terms by promoting the idea of strangeness (Kristeva), a social being in essence and
Owen Flanagans understanding of human flourishing and friendship. Jrgen Habermass critique of
paternalistic tolerance and his idea of mutual recognition provide the link between the pragmatic and the
idealistic section.
The paper aims to emphasize the right to self-identification and promotes a concept of cultural tolerance
that rests on Habermass notion of equal dignity and Cards idea of the right not to suffer from any
deprivation. Successful and long-lasting conflict transformation relies on conjoint agreements and this very
aspect of mutually recognizing the other human as human first, every other identity prescription to be
followed thereafter.

I.

Burmas Multiple Faces: Development and Conflict

1. Recent Developments: A Country Opening Up

After the first general elections were held in 2010, the international community was skeptical but overall
optimistic with regard to a reintegration of the country into the political and economic landscape of
international decision-makers. The release of political prisoners including the political leader of the
National League for Democracy (NLD), Aung San Suu Kyi, fueled the initial optimism. The former
military government introduced the concept discipline-flourishing democracy and the concept of true
patriotism to unify and reconcile the ethnically and politically fragmented country. Since then, the country
has been recovering domestically in economic terms after decades of international isolation and regional
economic dependence. In 2014, Myanmar is back on the radar as political actor and current ASEAN chair.
Bilateral visits have increased and regional relations have flourished since the opening-up reforms of the
country. The majority of European and American non-military sanctions have been lifted. President Obama
launched a policy of reintegration and pragmatic engagement, which included visits to the region of the
president himself, Secretary of State Hillary Clinton, and later, her successor John Kerry. In November
2012, during a speech held at Rangoon University, Obama expressed the following:

When I took office as President, I sent a message to those governments who ruled by fear: We will extend a hand if you are
willing to unclench your fist [] So today Ive come to keep my promise and extend the hand of friendship.
(White House Press Release Nov. 19, 2012)2

One and a half years later in April 2014, the United Nations special rapporteur to Myanmar warns of
possible crimes against humanity in the context of conflict deterioration in Rakhine state in the light of
the Myanmar Census and the evacuation of aid workers.3 The first Myanmar Census in thirty years took
place between March 29 and April 10, 2014 and was predicted to act as a conflict trigger for intensified
violence.4 The Rohingya are neither an officially recognized nor registered ethnic identity and thereby
categorically not included in the census. Their ethnicity was excluded from the list of 135 minorities
mentioned in the 1982 citizenship law. As a result, they have been referred to as Bengalis and illegal
immigrants. On April 25, 2014, the independent Burmese News magazine, The Irrawaddy, reported that
the government affirmed 6,000 Muslims, who agreed to be registered as Bengali.5 However, it is unclear
whom the government refers to as Muslim, whether or not the Rohingyas are included in that broad
category. When faced with the threat of forced labor, organized violence and internal displacement due to
religious persecution, the question becomes how elastic the term agreement can be understood.
Since late May 2012, the tensions between Rohingyas, extreme Buddhist monks and the government has
severely worsened due to the alleged involvement of three Rohingya men in the rape and death of a
Rakhine woman. Since then, the conflict has often been referred to as being of inter-communal or interethnic nature by international as well as domestic scholars. What followed was a wave of displaced
Rohingyas and Rohingya refugees fleeing to Bangladesh. It took approximately one year for the term
genocide, as a descriptor for recent events in Rakhine, to attract great attention after Al Jazeera published a
documentary about The Hidden Genocide in December 2012. In recent months, a shocked international
community has used the term and correlated expressions widely. Along with the genocide frame comes an
emphasized misconception that constructs the Rohingya problem in the Northwestern part of the country as
recent and as a single conflict issue. On the one hand, the Rohingya issue is singled out and neglects
Myanmars protracted conflict landscape. On the other hand, this conflict proneness and fragile agreements
to settle existent clashes will not quite fit the success story that governments wanted to tell about a
democratizing, flowering country undergoing great reform.
2

Remarks by President Obama at the University of Yangon, full speech available online: http://www.whitehouse.gov/the-pressoffice/2012/11/19/remarks-president-obama-university-yangon, accessed April 21, 2014
3
April 7, 2014: Former Special Rapporteur on the human rights situation in Myanmar, Toms Ojea Quintana: Recent
developments in Rakhine state are the latest in a long history of discrimination and persecution against the Rohingya community
which could amount to crimes against humanity. Full news release available online:
http://www.un.org/apps/news/story.asp?NewsID=47517#.U1xTX8cXDBo, accessed April 21, 2014
4
The differentiation between proximate conflict drivers (conflict triggers) and structural drivers (long-term persecution) will be
made in the second section of this part.
5
Full article available online: http://www.irrawaddy.org/burma/burma-govt-claim-muslims-arakan-state-agree-listedbengali.html, accessed April 25, 2014

The discourses that surrounded the general elections in 2010 failed to address underlying issues of interethnic and inter-religious violence, by mainly concentrating on tensions between the military government
and the opposition while praising the popular leader of the NLD, Suu Kyi. In the hope of a promising,
democratic future, ongoing and age-old ethnic clashes were neglected. The incomplete picture provided
failed to mention the diversity of conflict actors, regions, the ethnically fragmented conflict landscape and
institutionalization of violence since British independence.
2. Historical Conflict Origins and Multiple Failures
The clashes between extreme Buddhist monks, the Rakhine state government, Rohingya militants and
civilians are not a recent phenomenon, but as most of the conflicts, go as far back as to pre-colonial rule.
Since 1948, Burma has undergone several processes of nation-state formation. In the patriotic name of
national reunification, nation building became a process of forced ethnic assimilation aiming a unitary
state leading to separation into ethnic armed rebel groups. This characteristic is much in line with Hannah
Arendts critique of the nation-state as mentioned in chapter II.2. Accordingly, cultural integration is not
intended as much as homogeneity and assimilation are taken forward.
Today, Ethnic Armed Groups (EAGs) are numerous, some of them still aiming for regional autonomy.
The Rohingya conflict has to be seen in this immediate environment of conflict actors that is characterized
by outstanding protractedness and fragmentation. Tensions have erupted over time, including Muslim
massacres by Buddhists in the 1930s, violent mass arrests in 1970, climaxing into the citizenship law of
1982. The citizenship law renders the Rohingya community stateless and can be seen as one form of
structural identity denial by making Rohingya existence illegal through banning the use of their name.
Because of that, several Rohingya organizations were founded in order to support the deprived Muslim
Rohingya minority to procure their rights and achieve legal citizenship status. Over time, parts of these
organizations have fragmented and expanded into more radical directions, eventually linking up with the
Taliban and Al Qaeda. The nowadays-prevalent victim-perpetrator ontology, constructing the Rohingyas as
victims, extreme Buddhists and the government as perpetrators, does not take into account the fact that after
British Independence, the Rohingya National Army (RNA) actively fought for regional independence and
extremist Islamic fronts began to flourish in Rakhine state. However, in the Rohingya case of today, there is
strong reason to presume that the violence committed against non-militant Rohingya civilians by the local
government and militant Buddhist monks is one-sided and determined by great power asymmetry. Aside
from a few reported recent incidents in which Rohingya Muslims were the primary actors of violence,
almost no data is available that suggest that the Rohingya civilians are dominant actors, or initiators of
violence.
Today, Northwestern Rakhine state is one of the poorest regions of Burma. According to Doctors
7

without Borders, the region has historically received less investment in health care than other parts of the
country.6Rohingyas are limited in birthright, have only limited access to health care, food, drinking water
and education. Not surprisingly, their freedom of movement is severely restricted since their resettlement to
Internally Displaced Person (IDP) camps. Aside from these protracted structural drivers, psychological
forms of proximate drivers such as anti-Muslim rallies, boycott of Muslim goods, widespread anti-Muslim
hatespeech and distorting statements further aggravate the circumstances of the Rohingya. In light of the
Myanmar Census and tense frontiers, international aid organizations and NGOs were evacuated and banned
from the state. Aside from the reported denial of basic necessities such as health care or clean drinking
water (Andrews and Sullivan 2014, The Sentinel Project 2013, HRW Report 2014), Rohingya Muslims
have faced systematic persecution and marginalization through very limited education opportunities and
birth control, whereby Rohingyas are restricted to give birth to only two children. Additionally, an
interfaith-marriage law was recently proposed to ban any marital relationship between Muslims and
Buddhists. Aside from government-sponsored discrimination, the Rohingya group is further segregated
through widespread anti-Muslim rallies and hatespeech. Although no direct link can be proven between
violent outbreaks after rallies and hatespeech events took place, there have been increased occasions after
which Rohingyas have been attacked in the context of such events. The nationalist 969 Movement is said to
be the centerpiece of spreading Muslimphobia7 calling for a targeted boycott of Muslims shops by handing
out Buddhist stickers and propaganda DVDs.8 The systematic removal of Rohingya flags and their
replacement by Buddhist flags is another means of reinforcing Buddhist superiority. The biggest problem
however, is the systematic displacement into IDP camps and forced eviction. Once displaced, Rohingyas
are not able to move freely, nor are their basic necessities covered. By now, repeated killings of the
Rohingya populations, arrests, destruction of residential property and extinction of complete Rohingya
villages through burning their houses causing further civilian casualties, have been reported (HRW 2013,
The Sentinel Project 2013). In their newest report of March 2014, Andrews and Sullivan claim that nowhere
in the world are more precursors of genocide to be found. Is the historically rooted Rohingya conflict
moving to the next stage of genocide? If so, Samantha Power would ask: how can something like this
happen today? Aside from the failure of the central government and army to protect the threatened
Rohingya population, immediate neighboring countries have failed to provide Rohingya refugees with
temporary protection appropriate to the amount of asylum seekers. International actors such as the United
6

The Ongoing Humanitarian Emergency in Myanmar's Rakhine State, full article available online:
http://www.doctorswithoutborders.org/article/ongoing-humanitarian-emergency-myanmars-rakhine-state, accessed April 24,
2014.
7
The term Muslimphobia is deliberately used to describe religious extremism that is directed against Muslims as a peoples
instead of the religious belief itself. The prevalent extremism in Myanmar is not directed against Islamic belief per se. Therefore,
the terms Muslimphobia and Islamophobia need to be differentiated clearly from each other.
8
As reported by Daniel Sullivan, Director of United Against Genocide during a Rohingya event on the campus of American
University on Thursday, April 24, 2014.

States and multilateral organizations were recently criticized for their inability to act and their incompetence
to deal with the conflict adequately. Accordingly:
The international community and particularly the United States is in a strong position to alter the course of the events. But, it
is failing to do so.
(Andrews and Sullivan 2014: 1)

In A Problem From Hell, Samantha Power addresses the issue of Americas impotence in dealing with
genocide. Power claims that the U.S. has been ineffective over time not because of a lack of knowledge but
because of actively made decisions to look away. We all have been bystanders to genocide. The crucial
question is why, (Power 2002: XVII). In the context of past genocides in Bosnia, Kosovo, Rwanda,
Cambodia and Armenia, Power asks why the U.S. has missed its countless opportunities to prevent the
slaughter from happening. Power poses the question whether there were any warning signs that mass
killings were set to commence and how seriously the warnings were taken. Following these rather
rhetorical questions, Power states that there have been prolific warnings of massive bloodsheds and that
American policymakers have been too slow to muster the imagination needed to reckon with evil (Power
2002: XVII). Throughout the book, Power draws out how Americas never again and can-do spirit is
left with a bad aftertaste in the light of lost genocide battles.
After a briefing by the former UN special advisor to Myanmar, Vijay Nambiar, Power, now in her role
as U.S. ambassador to the UN, urged Myanmar on April 17th, 2014 to resume humanitarian assistance in
Rakhine state.9 Violent action is said to pose a threat to the countrys economic and political reforms.
Nevertheless, in her book, Power plausibly criticizes the empty American commitment to actively prevent
slaughter and questions the self-constructed success story vis-a-vis actual action taken. In the past few
years, international re-engagement policies with Burma have proven to be largely symptomatic; short-term
responses that were characterized in its reactive rather than proactive lineaments. When the international
community of nation-states fails, once again, in preventing these barbarous atrocities, the question becomes
whether our notion of universal human dignity is deadlocked in its dependence on states as justice
enforcers. After being released from house arrest on November 13, 2012, Aung San Suu Kyi has repeatedly
faced criticism for not addressing the Muslim-Buddhist issue. In an interview with an Indian News Channel
Suu Kyi expressed:
But dont forget that violence has been committed by both sides. This is why I prefer not to take sides. And, also I want to work
toward reconciliation between these two communities. I am not going to be able to do that if I take sides."
(VOA Nov 15, 2012)10

U.S. envoy Power urges Myanmar action to stop Rakhine violence, full article Available online:
http://www.reuters.com/article/2014/04/17/us-myanmar-usa-un-idUSBREA3G2DN20140417, accessed April 24, 2014
10
Aung San Suu Kyi Explains Silence on Rohingyas. Full article available online: http://www.voanews.com/content/aung-sansuu-kyi-explains-silence-on-rohingyas/1546809.html, accessed April 24, 2014

Although there simply is no globally accurate mechanism that would define which situation would
require action, it is difficult to say what not taking sides means. Does Suu Kyis neutral position imply
a certain kind of superordinate and detached sovereignty, a wait-and-see tactic that allows exemption
from any moral obligation to intervene? Many actors have used this line of reasoning to legitimize inaction.
In Samantha Powers words: Bystanders who claim sovereignty undermine the basic foundation of human
rights. The question becomes at what point is there a moral obligation to act? The fact is we do not have an
algorithm that we could simply fill with all the different conflict variables to calculate a solution strategy of
action to be taken. An exemption to the rule is the concept of genocide. Once genocide has been declared,
neutrality is not an official option any longer. The following paragraphs will provide an overview of
systematic violence committed and offer different accounts of genocide concepts and genocidal pre-stages
in order to demonstrate why action should have been taken by now in Myanmar.

II.

Violence, War and Genocide

As the genocidal frame has been more frequently used recently to describe the violence committed

against the Rohingya minority, this chapter aims to compare different definitions of violence, war,
genocide and its pre-stages. The compared thinkers and frameworks offer multiple accounts of blind as
distinct from intended violence and physical as distinct from structural destruction. Moreover, the
discussion revolves around the question: when can structural oppression be considered genocidal and
harms intolerable, making life indecent? In this context, the phenomena of intent and culpability will be
examined thoroughly. These at times clear-cut, and at other times very fine but subtle distinctions of
violence and genocide help to formulate a considerate analysis of violence used against the Rohingya and
whether genocidal elements are to be found.
1.

Shaw: Mass Violence and Degenerate War

To end the trajectory of mass violence and prevent slaughter, we have to understand its roots in politics

and society (Shaw 2003). When searching for explanations for outbreaks of violence, we have to enter on
the journey in search of society and ourselves. In Shaws words, we need to know where we have come
from (Shaw 2003: 1). In his book War and Genocide, Shaw analyzes the relationship of these two
categories. Accordingly, war is the clash of two armed forces under the rule of law. In a more abstract
sense, war is a social practice that tends to surpass its established, legitimate legal limits, thereby leading to
mass deaths but still claims the legal killing of combatants. Genocide in turn is the intended destruction of a
particular group as a whole or in part, making use of senseless violence that is by definition illegitimate
since the destruction of a people never has had any legal grounds. Genocide however, resides in the logic of
war by imagining an enemy that is to be destroyed. Overall, Shaw understands genocide as a process rather
10

than a single event. Shaw defines the systematic war against a largely unarmed civilian group degenerate
war, of which genocide is an extension and thus a distinctive form of war (Shaw 2003:5). Shaw claims,
that slaughter still is in the forefront of our minds and a problem of modern society.
This paper argues that what had started as an armed civil war for independence between ethnic groups
in the 1950s has turned into a form of degenerate war aiming at the systematic persecution and destruction
of largely unarmed Rohingya civilians. Accordingly, Rohingyas are the enemy to be destroyed, expelled or
structurally suppressed. In his chapter on Thinking War, Shaw explains why human killing is a conscious
act and implies the mutual idea of one human killing another human. Accordingly, one has to think that the
act of killing will be acceptable before one is able to proceed. Thus, killing is never an isolated act but part
of a social construct of underlying belief systems. Shaw presents the following two belief systems at play
for preparing a killing:
(1) Ideologies of war and peace as imagined in the just war tradition.
(2) Cultures of slaughter that have embedded and accepted a legitimation of certain kinds of
violence and war.
Although national identities can be constructed in pacific ways, nationalism has certain genocidal
potential when identities are mobilized by nationalism (Shaw 2003: 115). In Burma, racial exclusion
through unitary calls for reconciling the Burmese, Buddhist society, established a culture of hatred against
the Rohingya Muslims and thereby accepted certain forms of physical, structural and psychological
violence (conscience of fear). The Rohingyas are perceived as the evil of Burmese society this conception
of the external intruder is anticipated by the Burmese military and extreme monks in order to make extreme
actions justifiable to defeat the common evil and defend the imagined pure self of the nation. According
to Shaw, socially prepared killings establish an immoral norm of war at the forefront of societal minds. In
Burma, it is either a structural or direct form of war that dehumanizes the person to be killed, or persecuted.
This construction that has identified the Rohingyas as an inferior enemy can be understood as a pregenocidal element of degenerate war. If genocide is a process, one of its pre-stages is the incorporated idea
of thinking war against this social group. The battlefield is abstract in terms of physical or structural
violence used and expands through thinking, as well as accepting the widespread exclusion of Rohingyas
from Myanmars modern society. The following paragraphs show some of the preparatory stages for the
Holocaust, as determined by Hannah Arendt. The section sets forth that certain parallels are to be found,
but generally claims that Myanmar as a country is at the opposite side of the timeline, not looking into its
downturn but into an optimistic future. The paper argues that this is the major reason, why the pregenocidal elements will not turn into a full-fledged genocide as we currently conceptualize it, but will
continue to be a threat to a peaceful and inclusive society in Myanmar .
11

2. Arendts Pre-Stages of Genocide

In her magnum opus The Origins of Totalitarianism, Arendt carefully describes the pre-stages that
foreshadowed the Holocaust. Accordingly, Arendt marks the birth of the Pan-movements and period of
imperialism, the decline of Europe and flourishing in Asia and Africa in the twentieth century as a
preparatory stage for future catastrophes to come (Arendt 1962: 123). In this context, anti-Semitism
becomes the final stage of disintegration. Arendt explains how anti-Semitism must be seen in the context of
nation-state development. As the nation-state was not yet ready for capitalism and unlimited growth,
Darwinism as ideological weapon gained ground in the context of declining European nation-states along
with the sovereign desire to rule the conquered people while struggling with competing empires. Arendt
criticizes homogeneity and assimilation rather than integration as major weaknesses of the nation-state. In
Myanmar, an interesting parallel is to be found: while the state, after decades of ongoing domestic
struggles, does not seem to have imperialist desire to expand internationally (at least not territorially), a
young nation faces overwhelming political, cultural and economic foreign influences in the context of their
opening up reforms. For half a century, Myanmar was ruled by an inward-looking, totalitarian military
government; was internationally isolated and regionally dependent on China and Southeast Asia in
economic terms. Along with the opening up of the country, the question becomes whether extreme
Buddhist Monks and regional authorities are imagining their own decline due to foreign influx? Is the
Burmese nation too young to cope with all of the inner-ethnic and foreign struggles? Can Muslim isolation
be explained in terms of this combination of historically rooted ethnic conflicts and the struggles of a
young, democratizing nation, paired with a wide range of quests for identity acknowledgement? The
Burmese nation of today is determined by its distinctive characteristic of being Buddhist. In Germany, antiSemitism was the major conflict driver and can be compared with widespread Muslimphobia, in part
Rohingyaphobia11, or anti-Muslim extremism in Myanmar. Overall, racist fear seems to be the recurring
element:
If we are weak, our land will become Muslim.
(Ashin Wirathu)12

The Buddhist monk Ashin Wirathu has compared Rohingya Muslims with fast breeding animals and
fearful poison that is severe enough to eradicate all civilization13. Is the feeling of vanishing roots and

11

Although most of the extremist violence and persecution is directed against Muslims in general, phobia against Rohingyas has
taken a particularly strong form. Overall, different Muslim communities with different origins and identities (among them
Chinese, Indian and Arab Muslims) are to be found in Burma. Unfortunately, this paper will not make further mention of the
differences but tries to distinguish between Muslim communities in general and the Rohingya minority in particular.
12
The New York Times article June 20, 2013: Extremism Rises Among Myanmar Buddhists
http://www.nytimes.com/2013/06/21/world/asia/extremism-rises-among-myanmar-buddhists-wary-of-muslimminority.html?pagewanted=all&_r=0, accessed August 15, 2014

12

extremist nationalism an expression of ones own rootlessness? Arendt claims that the fear of identity
decline along with totalitarian methods of domination to apply the national principle of everything is
permitted were among the historical stages that finally lead to genocide (Arendt 1962: 440).
The first essential step on the road to total domination is to kill the juridical person in man. This was done, on the one hand, by
putting certain categories of people outside the protection of the law and forcing at the same time, through the instrument of
denationalization, the nontotalitarian world into recognition of lawlessness...
(Arendt 1962: 447)

Outlawing human beings is an act of persecution and political disintegration. Rendering people stateless
delivers the ground for perceiving the other, the external of society thereby legalizing criminal
persecution of the same group. Although the Rohingya were disintegrated, they had a legal status prior to
the 1982 citizenship law. Is what is left from dignity and rights the demand for legalization of the same,
thereby reducing humans to being merely legal subjects of the state? The United Nations made a clear
statement in its 1948 by claiming the inherent dignity and inalienable rights of all members of the human
family.14 Human rights were supposed to trump national sovereignty. However, in our arranged system of
powerful state actors, rights became institutionalized and human dignity a matter of legalization. Costas
Douzinas justifiably criticizes the modern concept of the human subject being protected by law and legal
institutions only. Much in line with Hannah Arendt, the constellation of belonging to a state is what makes
me a rights bearer and prevents me from becoming a stateless, thus rightless person. Douzinass critique
centers on these paradoxes of how the former rebellious and abstract nature of rights could turn into a
discourse of state legitimacy focusing on concrete legal subjects, rather than the self-governing man as
the ontological bearer of rights in general (Douzinas 2000: 95).15 Douzinass and Powers (initially)
skeptical insights help to demonstrate the biased nature of state legitimacy and legal reasoning of political
power in the light of rights privileges, rights violating states and legalized principles of dignity. This
arbitrariness of sovereign rule and our paternalist concept of tolerance, the ability of crossing the threshold
of tolerance, will be set forth by Habermas at the end of this paper.
Arendt describes class arrogance and how the bourgeoisie turned to politics out of economic necessity.
In the Burmese case, the majority of the ruling class is undoubtedly comprised of Buddhist monks and a
public that is partially guided by Buddhist principles of wealth distribution. What is interesting, is that the
Buddhist choice to live an ascetic life is augmented by desires for political influence. However, the targeted
Rohingya population is one of the most deprived in economic terms living in one of the poorest Burmese
states. How can this be reconciled with Buddhist spirituality?
13

NYT article June 20, 2013: Extremism Rises Among Myanmar Buddhists
http://www.nytimes.com/2013/06/21/world/asia/extremism-rises-among-myanmar-buddhists-wary-of-muslimminority.html?pagewanted=all&_r=0, accessed August 15, 2014
14
United Declaration for Human Rights Draft from 1948.
15
As already mentioned in my second issue paper on The psychoanalytic subjective in the context of legal and human rights.

13

The bottom line is, we dont want any more Mus [Muslims] in our country. But we cant possibly kill them all.
(Burmese government official)16

In the context of ethnic cleansing, the question becomes whether the everything is permitted principle
is already in place and whether the majority of the Burmese, non-Rohingya public are convinced of the
legitimacy of evil practices (structural or physical) against Muslims? Or is there a disinclination to speak
out? On June 10, 2012, the state of emergency was declared in Rakhine state, suspending executive,
judiciary and legislative powers. The state of emergency was followed by humanitarian emergency eight
months later. Since conflict re-eruption in June 2012, arbitrary violence and mass arrests were the order of
the day. The oppression machinery and everything is permitted principle was in that regard successful
that big parts of the Muslim population fled or still want to leave the country some of them not being
allowed to do so. Recent reports compared the IDP camps with Warsaw ghettos. In the meantime, the
terminology to describe the Rohingya population deteriorated from stateless to displaced persons, depriving
the people of their state belonging existence. Accordingly, no repatriation is possible. On the one hand,
Rohingya are treated as stateless people, to whom possibly anything can be done without being punished
from the respective government while still claiming that they are Bangladesh residents. When did this
arbitrary radicalization begin? Arendt describes how the elite was appealed to by radicalism as such and
later on joined a disturbing alliance with the mob, the mobilizing underworld of the bourgeoisie class
(Arendt 1962). However, the lines are blurry in the Burmese case extreme monks are mobilizing but
would still see themselves as the elite. The regime in Myanmar is no longer as clear-cut, if at all existing.
Arendt determined military hierarchy to be a pre-power stage of totalitarianism on which the conduct of war
depended. In Myanmar, military hierarchy is in part still present, but was drastically reduced and reformed
in order to open up politically and to regain missing trust of the Burmese public. This seems to be the
opposite trend. Overall, this brief comparison suggests that some genocidal pre-stage and totalitarian
elements are to be found, but that major elements lack in order to fulfill Arendts catalog of genocide
precursors. All embracing, it can be said that the Rohingya case is a very distinctive conflict with even
reverse, however still alarmingly violent trends. The treatment of Rohingyas and their total domination
partially appears to be totalitarian, whereas the Burmese political system has to be clearly differentiated
from totalitarianism. The opposite process of light liberalization was initiated through loosening control
over public and private spheres, in order to transition into an economically emerging country to increase the
standard of living. Irrespective of recent progress, statelessness and geographic expulsion through
relocation are the outstanding characteristics of Rohingyan identity denial. These social struggles along

16

Statement found in an article published on the website of the Democratic Voice of Burma, a non-profit Burmese media
channel: Did the govt incite the racial violence targeting the Rohingya? http://www.dvb.no/analysis/did-the-govt-incite-theracial-violence-targeting-the-rohingya/24116, accessed August 10, 2014

14

with processes of deliberate group targeting will be the focus in the upcoming chapter to explain the (im)
moral proportion of genocide
3. Genocide
1.1 Raphael Lemkin: The Cruelty of Consciousness
genocide |jensd|
At first sight, Raphael Lemkins word creation looks, as intended, sharp and distinctive in meaning, at
the same time lonesome and isolated. Yet, it remains abstract in a sense that one tends to underestimate its
atrocious potential. Lemkins word creation genocide with the literal translation of killing a tribe joins a
word family that evolved around acts to describe massacres that implied the slaughtering of groups or entire
populations: populicide, genticide, democide, ethnocide. Overall, these word constructions are close in
meaning, however Lemkins creation carries a human component: that of the (human) family or
community, thereby going beyond the national meaning of population or race. More importantly, it bears a
moral aspect: the selection and destruction of a originally human group for who they are and not for what
they do. It is not just this selective act that is immoral but the toleration of the same elsewhere that shakes
up the moral and legal grounds of another state. When presenting his concept of genocide in his publication
in November 1944, roughly one year before the end of the Second World War, Lemkin had been studying
atrocity phenomena for longer than twenty years and had been marked by a shocked conscience for the
same amount of time, long before the United Nations would pronounce their own. What had been known as
crime without a name since Winston Churchills speech in 1941 finally becomes a crime with a name.
Beforehand, sovereignty was a recurring sorrow in Lemkins study of atrocities aside from the
problematic roles of responsibility, individual and collective guilt. Samantha Power carefully unveils
Lemkins origin of interest in mass atrocities and his dedication to find justice for ethnic minorities by
legalizing retribution in order to end the impunity of mass murderers. In light of the Armenian genocide and
the assassination of Taalat Pasha, ruler of the Ottoman Empire, Lemkin was appalled by the frequency of
evil done under the eyes of a state; under Taalats rule, and the insane impunity enabled under the banner of
state sovereignty. Why had Taalats assassinator Tehlirian been charged for murder but not the perpetrator
responsible for mass deaths himself? Shocked by this inconsistency, Lemkin started his search for a
universal, internationally valid law that would prohibit the destruction of nations, races, and religious
groups. [] The threat of punishment, Lemkin argued, would yield a change in practice. (Power 2002:
19). Before Lemkin would come up with the concept of genocide, his thoughts centered on the aspects of
retribution and punishment as core elements to counter destructive injustice, that had been already done.
Lemkin faced structural limitations because of political persons in charge, who were unable to foresee an
atrocity in times of peace. In this context, the question becomes: does something barbarous need to happen
15

first in order for us to reconsider our policies in place and degrees of (in-) active involvement? Is the human
mind too narrow-mindedly focused on its own well-being rather than on caring for the bigger picture? To
take it down to a more tangible example: Do I have to be confronted with a deadly accident until I stop
drinking while driving? Or will I continue my unsafe practice? Do I need established legal boundaries to be
told how to act in order to render drunk driving unethical due to the constant threat I am posing for my
fellow human beings (aside from risking my own life)? Or am I a moral self from the outset? Do I kill? Will
I intervene actively if I have heard of a killing but not seen it with my own eyes? Do I need to overcome
this protective distance, thus, be confronted with barbarity directly in order to alter a course of inhuman
events? Do I have a responsibility or even obligation to do so, even if my own life is endangered? Aside
from the sovereignty dilemma, not daring to interfere with another states policies or ones own comfort
zone, this set of questions reveals several other core issues at hand: the nature of human self-interest, the
inability or naivety to think the rationally impossible and the human (dis-) belief in their own
invulnerability:
Many generations spoke through this man. He could not believe the reality of [Hitlers intent], because it was so much against
nature, against logic, against life itself, and against the warm smell of bread in his house, against his poor but comfortable
bed
(Lemkin in Power 2002: 23)

Going back to the drunk driving example: the question becomes whether or not it is an active choice to
ignore the risk. Or is the choice inactive due to the faith in reason, blind naivety and maybe even trust in
an incorporated human nothing-will-happen mechanism? How much do I act out of a self-conscious state
of agency? The act of knowing and not knowing, the twilight between consciousness, sub- and
unconsciousness, whether purposeful or unintended, are important questions that haunted Lemkin a
lifetime. The initial idea, to find a name for the humanly impossible, to replace the atrocity by a drunk
driving example in order to create a more comprehensive proximity towards the matter of discussion
reflects the notion of genocidal crimes as something against logical human nature. The prospect of atrocity
too remote and inhuman in Lemkins words a crime against the whole of humanity in Arendts words.
Power, partially speaking through Lemkins eyes, gives different reasons for the consistent faith in
invulnerability, blind trust and passivity. Aside from anti-Semitism and indifference, causes for inactivity
may be explained in disbelief (the unimaginable) along with mistrust in the provided information
(propaganda for the purpose of war legitimacy) and a feeling of impotence to act due to unpreparedness.
Aside from all negative moral judgments of human inactivity, Power partially fails to see what haunted
Lemkin: his understanding, at the same time reproachful doubts in this protective human mechanism
characterized by its incapability to see cruelty.

16

From a less moral but structural standpoint, the aspect of being vulnerable implies the liability to higher
penalties17 something Lemkins first draft of an international law aimed to address. Accordingly, targeted
destruction should be punished by focusing on banning the two practices of barbarity and vandalism:
Barbarity he defined as the premeditated destruction of national, racial, religious and social collectivities. Vandalism he
classified as the destruction of works of art and culture, being the expression of the particular genius of these collectives.
(Power 2002: 20)

Ultimately, Lemkin may have wanted to remind the people that their own invulnerability might be
illusionary due to the biological regularity of barbarous crimes (Lemkin in Power 2002: 22), aside from
aiming to remove the structural invulnerability of the state actors involved. The rather empty response to
Lemkins initial draft made him reconsider how to combine the legal and moral issues at stake. In the end,
Lemkins concept of genocide addressed the moral dilemma of impartial justice embodied in his desire for
outlawing the targeted destruction of any group in an international treaty. A shocked consciousness had
finally reached the international community on a bright scale and will be looked at in the following section.
1.2 United Nations: The Intent to Destroy
Lemkin rightly asked what the difference was when running to help for someone dying in close or
remote distance. Why wouldnt you run to help? (Lemkin Power 2002: 25). The approximate distance
between Washington DC and Rakhine state is 8,300 miles. The reactions to the Rohingya case were prompt
once the genocide word had been out. However, those international responses again were of reactive rather
than preventive nature. By the time a set of selected Western actors reacted, the majority of Rohingya
people had already fled the country, entire Muslim villages had been burned down, while another large part
of the group had been placed in IDP camps, nowadays being compared with ghettos during the Third
Reich. Before being able to change the course of events this time, the faade of an international community
determined in its ideal conception of being an impartial and trustworthy actor had already crumbled due to
the historical sense of consciousness and responsibility. In the present Convention on the Prevention and
Punishment of the Crime Genocide (CPPCG), the UN acknowledges the great losses brought by historical
genocides. In the introductory paragraphs, the Convention condemns genocide as a crime under
international law and demands that the civilized world (or mankind) must liberate itself from this historical
burden through international co-operation. In the following, genocide is defined as acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;

17

Oxford American Dictionaries online: http://www.oxforddictionaries.com/, accessed August 12, 2014

17

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in
whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.18
It is not stated clearly what is meant by an act of intended destruction and how this intent is likely to be
proven. The sovereignty issue is not alone Lemkins pressing problem but a recurring contemporary issue:
although it is clearly stated that the Contracting Parties, must enact necessary legislation to ensure that the
aforementioned genocidal acts are made illegal and persons guilty of genocide can be charged, the UN
reservation procedure allows signatures to bypass the legal principle of persecution. Before signing and/or
ratifying a treaty, the respective state is able to modify or specify exclusions regarding treaty acceptance.
Thereby a mechanism of impunity is reestablished. In their reservations to the Genocide Convention,
Myanmar, a signature to the treaty since 1956, rules out articles VI and VIII, implying that punishment of
genocide lies in the sole responsibility of its own jurisdiction and that no other Contracting Party to the UN
may interfere with its matters. Thereby, non-humanitarian instruments, principles of impartial justice
carrying moral importance and chances for international intervention are in big part eliminated. In other
words, the international community has no opportunities based on their legal instruments to interfere or
punish acts of genocide committed on Myanmar territory. Opposing voices would argue that reservations
enable a state to participate in a treaty in which it would otherwise not have been part of. Thus, the purpose
of the reservation is to fulfill the obligation of readjusting the states obligations later on. The argument has
only weak validity, as we can postpone global justice to tomorrow and commit the crimes today. Where
does the human rights apparatus head, if it starts with the biggest moral compromise of all times by
admitting that state parties with reservations are better than no states at all? The UN human rights
mechanisms are in that regard fundamentally flawed, as this idea of a human rights mechanism appears to
be means to an end that is defined by power maintenance of state actors, rather than a serious means to
prevent atrocities. The sovereignty issue once again presents the most outstanding human rights dilemma
we are facing: our current notion of the autonomous nation-state rather than the sovereign people.
Sovereign people is meant to be the human group: a precious entity to be recognized as such, honored,
respected and protected rather than infringed. Our current idea of sovereignty when it comes to human
rights however rests on the opposite, in essence totalitarian notion, that is one of people serving the state.
The obligation of the human being is not to contravene with state rules.

18

UDHR 1948, Art. 2

18

1.3 Claudia Card: Intolerable Harm and Culpable Wrongdoing

According to Card, the international interest in evil that evolved around the UDHR in 1948 was
motivated by concerns that translated the unimaginable into a more comprehensive human rights catalog in
order to prevent future atrocities. In this context, Card renders basic universal human rights necessary to
escaping evils. These rights include the right to a tolerable and decent life, adequate standard of living and
health and finally the right to change nationality or religion. On May 27, 2014, the Myanmar government
released a new draft law on religious conversions in the state run media. Under this draft law, local
authorities have to grant permission to Burmese, who want to change their religion.19 The interrogation may
take up to 90 days, with a possibility of the application being denied based on whether the person wanting
to convert has grasped the essence and cultural practices of the desired religion.20 This draft law not just
severely limits but denies religious freedom through interrogation on a case-by-case basis. According to
Card, the absence of one of these rights is not necessarily an evil but becomes one if the lack thereof is
caused by intentional wrongdoing:
Sometimes, we identify evils by the deed, as with the term genocide, and other times by the harm, as in mass death. The
nomenclature easily creates the impression that the evil is simply the deed in the first case, or the suffering in the second. But
neither wrongdoing nor suffering along is sufficient for an evil.
(Card 2002: 4)

Accordingly, Card understands evil as an ethical concept, which presupposes culpability that causes
harm and suffering but would have been preventable by moral agency. Thus, victims are intended and could
not have been accidental. Subsequently, there is no atrocity that does not do harm to someone, however not
every atrocity is an evil:
Many evils lack the scale of an atrocity. Not every murder is an atrocity, although murder is also a paradigm of evil. Atrocities
shock, at least when we first learn of them. They seem monstrous.
(Card 2002: 9)

Two basic conditions have to exist in order to constitute an evil: it has to be an intolerable harm caused
by culpable wrongdoing. In line with Raphael Lemkin and the UN, Cards Atrocity Paradigm revolves
around the moment of shock after monstrous deeds have been discovered. Whereas Lemkin initially aimed
to punish those that were to be held accountable, Card focuses on the evil character of the harm done, the
evil deed, rather than claiming that the evil was to be found in the perpetrator. In the greater context, Card
discovers genocide as a kind of atrocity. Thus, there are visible and hidden (difficult to detect) atrocities
such as bombings vis--vis environmental poisoning. Depending on the degree of avoidability and intended

19

Human Rights Watch: Burma: Drop Draft Religion Law. Full article available online:
http://www.hrw.org/news/2014/05/29/burma-drop-draft-religion-law, accessed August 12, 2014
20
A more detailed account of the draft law can also be found on the website oft he Asian Human Rights Commission:
http://www.humanrights.asia/news/ahrc-news/AHRC-STM-106-2014, accessed August 12, 2014

19

harm, this visible or hidden atrocity may amount to an evil. Hence evil can be seen as a concept within the
atrocity paradigm. This understanding and Cards basic condition of culpability coincides with the intentto-destroy aspect as mentioned in the UN CPPCG but remains as blurry with regard to its traceability.
Moreover, Card explicitly mentions that her conception of evil is not defined by motive, although it
implies culpability, (Card 2002: 9). However who is to determine culpability? When can we speak of
intent? Who is to determine the intolerable? Card thinks tolerable in a normative sense, from the
standpoint of the person whose life it is. Although not entirely subjective, the pain felt by the respective
person can make life intolerable. In her later work, Card states the following:
It is social death that enables us to distinguish the peculiar evil of genocide from the evils of other mass murder [...] The
holocaust was not only a program of mass murder but an assault on Jewish social vitality.
(Card 2003: 63ff.)

Here, Cards understanding is in line with Lemkins moral component of genocide. What makes
genocide atrocious is not the destruction itself but the loss of meaning of a certain group. It is the human
identity that is supposed to give meanings to our life. Cards concept of social death centers around this
form of social vitality, aiming to exceed the idea of body counts and homicide. The destruction of a selected
social identity is what defines genocide for Card. In other words, it is the denial of this social vitality for a
targeted group. Following Card, genocide can be regarded as a kind of one-sided war against a targeted
group on grounds of who they are. Card explains why the meaning genocide captures something more than
a war crime and a human rights violation. Card claims that by making people stateless, they are being
socially treated as nonpersons, a characteristic that constitutes evil core of genocidal harm. If we expand the
concept of genocide by Cards remarks on social death, the argument that the genocidal precursors will not
become a full-fledged genocide could be revoked. The genocidal precursors of social death, persistent in
statelessness and societal exclusion, would constitute the main characteristics of a new and far reaching
social definition of genocide.
When going back to Cards atrocity paradigm, Card successfully refrains from proposing one
metaphysical idea of evil in a singular sense of the meaning concept but suggests a considerate
conception of different types of evils with different motives. Accordingly, the following sets make Cards
paradigms of evils: crime and punishment, past and present misogyny and anti-Semitism, some forms of
racism and of slavery, hatred of homosexuals, violence in the home, cruelty to animals, environmental
assault and neglect, war rape (and other torture and terrorism) and genocide, (Card 2002: viii). Card
carefully distinguishes evils from ordinary wrongs by the degree of harm severity and differentiates harms
done from the psychological states of perpetrators. In other words, the evil is not the perpetrator itself but
the severity of harm done. Card explains how evils tend to ruin lives. In her 2010 publication, Card
describes how evils, in their major characteristics of causing intolerable harm, are to be distinguished from
20

the lesser wrongs. Intolerable harm not just implies a subjective sense of suffering but the deprivation of
the basics that make a life decent such as access to air, water and freedom from severe pain, humiliation,
or debilitating fear (Card 2010: 8). However, if we look at the literal translation of indecent, the word
implies a strong societal aspect: not conforming with generally accepted standards of behavior or
propriety.21 Can a behavior be considered decent if it complies with the prevalent behavior patterns of
public majority? In other words, are deeds legitimate because they are done by big parts of society? How
strong is the aspect of propriety and how much is it tied up with critical crowds, presupposing a majority
collective? Am I moral because everyone else is moral? Does societal majority define my moral standard?
The construct generally accepted is crucial concerning widespread Muslim hatred through Burmese
society and the presupposed legitimacy for structural and/or physical violence. According to Arendt, radical
evil dehumanizes victims along with perpetrators.22 In this context, Card refers to Kant, who discusses evil
as the maximization of individual intentions. According to Card however, many evils are produced by
collective activity (Card 2010: 4) which does not imply that persons complicit in that collective behavior
are necessarily evildoers individually (much in line with Lemkins struggles regarding the question of
individual and collective guilt). In Confronting Evils and in line with the Atrocity Paradigm, Card aims to
expand on her secular understanding of evils that argues for evil practices rather than evil people and
intends to refrain from demonizing perpetrators. She analyzes the collective nature of structural evils and in
this context understands genocide as social death. The perpetrated evils evolve around forms of internal
cohesiveness that make distinct social groups, result in group membership and exclusion.
In Burma, institutional practices of evils are one form of internal cohesion that defines certain rights and
immunities from which the Rohingyas are excluded. However not all Buddhist Burmans, while being part
of the internal community do contribute to the evil when being part of the collective. Card refers to Joel
Feinbergs distinction between collective but not distributive group faults, that contributes to a harm,
(Card 2010: 64). The members of the group are indirectly involved in evil by having no contingency plan.
The liability problem is, that we as members of the group do not think of ourselves as participants in
practice (Card 2010: 65). We have not internalized the norms to prevent the harms. On top of that, we are
facing the problem of common evils:
When an evil is common, it is easy for many not to perceive it as an evil.
(Card 2010: 17)

The misconception of the Rohingya evil has been prevalent ever since British independence in 1948
and thereby is an established acceptability for societal discrimination at large resulting not just in

21
22

Oxford American Dictionaries online: http://www.oxforddictionaries.com/, accessed August 5, 2014

Card carefully explains Arendts fascination of Eichmann superficiality and thoughtlessness.

21

persecution but severe extinction. Genocide remains a contested concept due to its ethical difficulty to
distinguishing between mass murder and the intended social and/or physical destruction of a chosen group.
4. Preliminary Conclusion
If we want to understand the roots of violence within society and politics as recommended by Shaw, we
have to ask why do Buddhists feel intimidated by Muslims? Shaw claims, killings (and structural
oppression) need to be made acceptable in order to enable the use of illegitimate violence. In the Rohingya
case, this was done by dehumanizing and constructing the other, either by referring to the Rohingya as
illegal, stateless beings, animals, or poison destroying human civilization. We have to ruin our relationships
with men (Arendt 1962) to make the unimaginable possible. Genocide as the unimaginable is the recurring
thread through all aforementioned genocide definitions barbarous deeds that simply lie out of the humanly
possible; the crime without a name, or a crime against all of humanity. In addition, all genocide definitions
have in common that they go beyond the idea of physical destruction. Arendts genocide definition and its
pre-stages exceed the state of physical suffering by implying the abolition of civil rights and social
ostracism. Lemkin, shocked by the frequency of evil under principles of state sovereignty aimed to find a
punishment mechanism to end this inconsistency of justice and state impunity. In the end, Lemkins idea of
genocide was to imply physical extermination along with the destruction of cultural foundations. In
Myanmar, the cultural origin along with their physical existence has been denied to the Rohingya. Claudia
Card highlighted this human element: the deed being the evil harm and not the perpetrator, while adhering
to the right to a good and decent life, the right not to suffer from any deprivation. Cards remarks on
intolerable harms that lead to identity loss and thereby are forms of social destruction constitute her core
idea, that is a considerate and at the same time more abstract theory of genocide. Cards thoughts exceed the
UNs human rights approach to genocide that focuses on the intent to destroy, atrocious acts as legal crimes
and a human rights violation. In addition to that, social death as core idea for genocide goes beyond our
current conceptualization of genocide that completely neglects identity recognition. When going back to the
legal realm of genocide, mechanisms of lawful and impartial international punishment to overcome state
impunity, as imagined by Lemkin remain limited. State sovereignty and the demand for not infringing
domestic territory are important factors in Myanmars foreign policy narrative. State invulnerability is
prevalent in the modern nation-states of today. Nonetheless, most of the genocide definitions make
reference to a moral human being:
Atrocities reveal evil to be a higher order moral concept. Evil presupposes culpable wrongdoing in a moral agent as the sources
of the harm that it does or risks.
(Card 2002: 12).

22

In order to overcome the moral self, we have to cross a line, in a sense get out of our human body so that
the distinction between true and false no longer exists, hatred and blind anger become possible. Immoral
acts of structural oppression, physical violence and identity denial purposefully directed against the
Rohingya have caused intolerable harm and social death to the community. In addition to that, culpable
wrongdoing by Burmese authorities is to be found with regard to laws in place and drafted laws proposed,
limiting the birthright, not allowing freedom of movement or the change of religion. These kinds of evils
committed in the name of a state and a national community can account as genocidal precursors. Atrocious
acts were committed that inherit genocidal elements in terms of social death and destruction.

III.

Identity, Human Rights and Mutual Recognition

All that you are, you are through me; and all that I am, I am through you alone.
(Adolf Hitler)

If translated literally, Rohing-ya means people (-ya), who live in Rakhine state, the new name for the
former Arakan kingdom (Rohing). Today, the majority of Burmese civilians and a large number of foreign
and domestic organizations working on the issue refrain from using the term Rohingya. According to
them, this would imply their affiliation or official acknowledgement of the group and further complicate the
matter due to the sensitive nature of the issue. In a press conference at Yangon airport on July 26th, the new
UN Special Rapporteur, Yanghee Lee, reported that she was repeatedly told not to use the term Rohingya.
Myanmars President Thein Sein officially states three days later:
Ms. Lee needs to pay serious consideration to [use of] the term Rohingya if a long-term solution to the problems in Rakhine
State is to be achieved While the people of Myanmar have been ready to accept as citizens those individuals who meet the
1982 Citizenship Law criteria, we do not accept the term Rohingya, which has never existed in the countrys history.
(Myanmars President Thein Sein in a statement on July 29, 2014)23

After having presented the new two-year Rakhine development plan at the beginning of June 2014,
UNICEF staff members had to promise not to use the illegal term Rohingya again, as this was a breach
of diplomacy and inflicting on Myanmars sovereignty.24 Aside from denying the minority the right to
self-identification and existence, the government seems to increase its pressure on foreign representatives
not to align with the group. However, is the very act of identity acknowledgement an act of human respect
and tolerance, or a breach of national sovereignty, thereby an offense and in that sense totalitarian? The
23

As reported by Burma News International, full article available online:

http://www.bnionline.net/index.php/news/kaladan/17287-un-special-rapporteur-repeatedly-told-not-to-use-the-termrohingya.html, accessed August 15, 2014
24
Unicef apologises for use of term Rohingya, full article available online:
http://elevenmyanmar.com/index.php?option=com_content&view=article&id=6367:unicef-apologises-for-use-of-termrohingya&catid=32&Itemid=354, accessed August 15, 2014
UNICEF rejects apology reports, full article available online: http://www.mmtimes.com/index.php/national-news/10654-unicefrejects-reports-of-apology-over-rohingya-use.html, accessed August 15, 2014

23

problem of what it means to be neutral was mentioned at the beginning of this paper. This dilemma regards
the old question what the truly powerful rights are universal human rights or national civil rights? Or none
of all these? Do civil rights outweigh the right to self-determination? Who is to determine the illegality of a
name? Aside from being stateless already, what does it make a group if it is denied the age-old name it
carried? Is this intolerant act the total misjudgment of humanity? Habermas criticizes this arbitrary concept
of paternalistic tolerance; the sovereign ruler determining which minority practices to tolerate. Accordingly,
it is this authoritarian conception of allowance, the merciful act of doing a favor that carries a kernel of
intolerance (Borradori 2003: 40). The acceptable, in Habermass words the threshold of tolerance, is
one-sidedly established by an authority. Following, tolerance in that regard has failed. In order to tolerate,
Habermas claims, we mutually have to build a common value base (rather than relying on a stipulated one).
In the context of democratic communities, this limited value base is determined by our constitutions.
However, what is more important is the very act of mutual recognition and reciprocal respect:
Membership in this inclusive moral community, which is therefore open to all, promises not only solidarity and a
nondiscriminating inclusion, but at the same time equal rights for the protection of everybodys individuality and otherness.
(Habermas in Borradori 2003: 42)

According to Habermass understanding, our rights are not determined by individual possession but in
our relations with others. The current Burmese idea of tolerance is in part genocidal due to its base on
nationalist homogeneity. Based on societal conditions and norms, we judge whom to recognize as a subject.
Accordingly, we establish some lives as recognizable and others as unworthy, in different words unlivable
lives Shaws grounds for acceptable killing. In the end, I am alive because someone recognizes me. Even
if the 1982 citizenship law was to be reformed legally, still it would not provide a guarantee for sociopolitical recognition by the general public. Anti-Muslim stereotypes have historical tradition in Burma. For
years, they have not been questioned but their correctness through proximate conflict triggers and structural
oppression further solidified. In her dialogue with Habermas and Derrida, Borradori asks whether terrorism
is a defect in communication. Habermas designs a path to become a rational human being. Thus, we have to
learn to know ourselves, reflect ourselves through autonomy of judgment and freedom of manipulation.
This stage can be reached through self-autonomy that relies on our relation with others and mutual
understanding through successful communication. The more autonomous the individual becomes, the more
mature and ultimately rational. If we convert Borradoris question to the Rohingya issue, the question
becomes whether hatred against Muslims exists on the ground of failed communication? In very concrete
terms, there are almost no unprejudiced grounds for communication. Rohingya Muslims, nowadays more
than ever, live in sealed off, remote camps. If we were to promote autonomy and self-reflectivity of actions
within Rakhine state, we would have to work on enabling grounds for communication between the different

24

camps. Unfortunately, for now it seems, it will be highly unlikely that communication based on principles
of mutual recognition will develop any time soon.
In the context of our current human rights framework, what can be done to prevent further
marginalization of the Rohingya population? With regard to the concept of statelessness, the systemic and
institutionalized discrimination of Rohingya Muslims has to be stopped. The Rohingya right to nationality
has to be acknowledged by recognizing the Rohingya minority as citizens, thereby making violence illegal
through legalizing the Muslim in the Burmese context and through respecting them as equal Burmese
inhabitants of the territorial grounds of Rakhine state. As part of their citizenship, each Rohingya Muslim
born on Burmese grounds deserves a birth certificate as part of the legalization on paper. In the context of
past awareness about historical atrocities, the international community has to encourage the Burmese state
to protect each person of the population no matter what religion the person belongs to. The state of
Myanmar is a party to the Genocide Convention of 1948. Having ratified the Convention in 1956, the
protection of Burmese citizens, the prevention and punishment of genocides are part of the very
governmental duties and have to be reaffirmed in the current context of genocide precursors and ongoing
persecution.
In order to go beyond the human rights framework in place, we have to ask what a desirable notion of
the human beings and human rights could be? The current notion of Rohingyas, constructing them as
troublemakers and perceiving them as useless animals, has to be overcome. The human notion to be
introduced should rest on a social as well as tolerable, religiously liberal and heterogeneous idea.
Habermass idea of religious tolerance is based on tolerance as a pragmatic policy and form of behavior to
avoid destructive otherness by claiming the equal inclusion of citizens within the political community.
Habermass idea of religious toleration offers some parallels to Hannah Arendt in terms of introducing a
legal subject. However, Habermass notion of tolerance exceeds that of a legal order by implying
normative expectation of tolerant behavior (Habermas 2003: 3).25 It is a kind of political virtue that deals
with the different origin of belief. However, toleration is only possible if the parties base their rejection on
a cognitive conflict between beliefs and attitudes that persists for good reasons (Habermas 2003: 3). Thus,
a racist should not anticipate tolerance but overcome his racism and combat its ethnic prejudices. In Burma,
the line of tolerance and racism is blurry and the conflict unfolds differently with the different actors
involved. However, Habermas explains, why we have to work on the political inclusion and equal
recognition first before we can expect mutual tolerance. When President Obama gave his speech at the
University of Yangon he expressed the very core problem of our misguided notion of tolerance based on
sameness and the perpetual call for unified interests:

25

Although Derridas idea of hospitality might be of interest for this paper as presented in Philosophy in a Time of Terror, it will
not be discussed.

25

Above all, I came here because of Americas belief in human dignity. Over the last several decades, our two countries became
strangers. But today, I can tell you that we always remained hopeful about the people of this country, about you.
(Barack Obama Nov 2012)26

Does the hope refer to alignment with the U.S. idea of democratic progress? By not living in a
democracy beforehand, does it mean that Burmese people were not living a life of human dignity? Again,
is it the state that creates this dignity? The tolerance that I aim to promote aside from the very pragmatic
political component as introduced by Habermas, is one according to which we do not have to overcome our
differences but rather embrace them. Overall, we need to strengthen the concept of pluralism and ethnic
diversity understood in Kristevas terms of strangeness by establishing oneself within the self
(Kristeva/Petit 2002: 15) by welcoming the foreigner living inside me.27
The legal system clearly has its limitations in unifying ethnically different actors and should not try to
do so aside from providing a legal basis of equal recognition. In the Burmese context, the concept of true
patriotism aiming at a unitary nation seriously needs to be reconsidered. This top-down imposition of
public unity as outlaid by Ian Holliday, is in conflict with the idea of Burmese Buddhist harmony that
avoids extremes by following the middle way. Therefore, Holliday argues that Myanmar can be seen as a
form of degenerate governance for harmony in Asia (Holliday 2007: 376). Aside from an ethnically
fragmented culture, the underlying problem in Rakhine state seems to be one of Buddhist extremism. The
existential meaning of Theravada Buddhism teaches morality, charity and awareness to build a moral
character (Thanegi 2007). Accordingly, this implies the following:
To refrain from all evil,
To do what is good,
To purify the mind.
(Teaching of Buddha, Dhammapada Verse 183)

In this context, how could this extremism develop at all and help to inspire wide-spread violence? The
missing link will not be provided in this paper, however, aside from re-establishing a legal Rohingya to
create a political basis for tolerance, it is this racism that needs to be overcome in order to tolerate fully and
re-recognize the other as my fellow human being. Paradoxically, Buddhism offers excellent grounds for
this endeavor. During a talk at American University in April 2014, Owen Flanagan presented an interesting
notion

of

human

flourishing.

Accordingly,

the

necessary

conditions

for

Buddhist

human

flourishing/Eudaimonia are friendship and the responsibility for our after life, going back to the Buddhist
idea of dependent origination.28 If we succeed in re-humanizing the Rohingya minority in face of racist
Buddhist monks by institutionalized legalization and re-integration, we may succeed in reminding the
26

White House Press Release Nov. 19, 2012, full speech available online: http://www.whitehouse.gov/the-pressoffice/2012/11/19/remarks-president-obama-university-yangon, accessed April 21, 2014
27
As outlaid by Kristeva in Strangers to Ourselves in 1991. Although interesting, but due to structural limits, this paper will not
go into Kristevas considerate critique of nationalism and powerful insights on the psychoanalytic subjective.
28
Flanagans remarks were based on his most recent book publication of 2011: The Bodhisattvas Brain: Buddhism Naturalized.
Published with MIT Press.

26

extreme Buddhist that the violence done will come back to him/her in the next life. When we managed to
attain all this, we might finally arrive at a notion of a human being that rests on a commons sense feeling of
social dignity that can overcome the state induced concept of sovereignty.

Conclusion
Evil practices are urgent (Card 2010) and need to be avoided before they occur. This paper aimed to
show that the civilian mass deaths and systematic persecution in Burma are a form of degenerate war and
can be understood as genocidal precursors. Genocide in turn was defined as something that goes beyond
physical annihilation by implying the human notion of a decent life, that implies social acknowledgement
and the right not to suffer of any intolerable deprivation. Thus, the denial of civil and political rights as well
as the denial of cultural participation and practice is a culpable atrocity that has been committed against the
Rohingya. At the same time, the limitations of our current genocide conceptualization were partially
demonstrated and expanded by Claudia Cards idea of social death.
To combat genocidal incidents, we finally have to move beyond principles of sovereignty as demanded
by Lemkin. Yet, we keep on reinforcing a system that is based on moral compromises, legal reservations
and states as rights legislators. This totalitarian conception of allowance prevents the truly human value
base from being established, based on principles of mutual agreement and recognition la Habermas.
The very naked violence committed against the Rohingya is in big part based on inequality of a
nowadays largely unarmed civilian population on the one side, and armed military forces, or militant
Buddhists on the other. The state does not fulfill its prescribed role of a (minority) protector or negotiator,
but that of a violence enabler and justifier through institutionalized segregation. Aside from the physical
violence done, the Rohingya population is psychologically tortured through hatespeech, denunciation and
boycott, anticipated by extreme monks. Overall, however, the network of actors and responsibilities is
complicated. International states, regional countries, multilateral organizations, domestic non-state Burmese
and non-extreme Buddhists, domestic political reformers, domestic extremists (either governmental or
religious) are the prevalent involved parties and were only briefly dealt with. Besides actor maze, one of the
biggest, underlying problems is an identity dilemma. We expect the state to act; the state in turn does not
feel responsible, as Rohingyas in their perception are not part of the Burmese population. The selfperception of Rohingyas in turn rests on a Burmese sense of belonging in historical terms. The deadlocked
nature of our current human rights framework is successfully demonstrated: we expect rights to be universal
in nature and at the same time we think rights independent from the state. Yet, it is the state that has the
power to acknowledge and grant certain rights, while opting out on others. Human rights have become a
mechanical power problem.
27

The fascinating, yet frightening case about the Rohingya persecution is, that it is a persisting case that is
unfinished with historiography. We partially discuss it in retrospect but the problem has carried on. The
discrimination is not just happening right now but has been happening over decades. The sheer inability of
the international regime, based on a disillusioned, norms-guided self-perception once again adds to an
authenticity problem. Genocide is an evil that does intolerable harm. So is the precursor. For Rohingya
Muslims, a decent life is not any longer possible. States have to overcome their inappropriate state of
complacency in order to start serving humanity. Not the other way around.

28

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