Straining to Prevent the Rohingya Genocide: A Sociology of Law Perspective

Abstract

This paper analyzes the generally muted international response to the protracted plight of the Rohingya, a persecuted Muslim minority in Myanmar, from the perspective of sociology of law. The first part provides background on the Rohingya crisis and discusses relevant international legal frameworks relating to crimes against humanity and genocide. The second part adapts analytical frameworks developed by Felstiner, Abel, and Sarat on the emergence and transformation of disputes, in order to examine some of the factors that frustrate the processes of naming crimes, blaming perpetrators, and claiming rights and protection for the Rohingya minority in the international context. Work by Bumiller and Edelman concerning models of legal protection, legal ambiguity, and the mediating effects of symbolic structures of compliance augment the analysis. Ambiguity as to when to apply the terms crimes against humanity or genocide, and the legal and political implications that flow from naming such crimes, feed reluctance to act on the part of states. Related factors constraining effective responses include a lack of a clear, streamlined process for naming crimes, along with weak preventive norms mandating action in the absence of legal certainty. As a result of these conditions, authority diffuses as to which institutions or actors have the power and obligation to name crimes and determine appropriate responses. Competing political and economic considerations obfuscate states’ willingness to engage the issue, and certain organizations and bodies have limited capacity to enforce their prevention and protection mandates or to submit them to external scrutiny. Together, these factors combine to portray a weak institutionalization of remedies, which Miller and Sarat have recognized serves to minimize disputing and limit the probability of success. This sociological approach thus helps to clarify fundamental constraints on and distinguishing characteristics of the international legal system in responding to atrocities.