Such a determination, a culmination of years of State Department investigation and legal analysis, would send a signal that the generals would not enjoy impunity for their persecution of the Muslim group since 2017, the officials hoped.
Pompeo never made that call. Less than two weeks after he left office on Jan. 20, Myanmar’s generals seized power in a coup.
The 11th-hour scramble inside the State Department underscores how the United States struggled to formulate consistent policy toward Myanmar after the military began opening the country a decade ago.
Officials say Washington’s ability to influence events in Myanmar is limited, and US policy was not the only factor that influenced the military’s decision to seize back power.
But the failure to condemn the slaughter of the Rohingya in the strongest terms available was a missed opportunity to have “a moderating” effect on the generals, said Morse Tan, who backed a genocide determination on Myanmar as head of the Office of Global Criminal Justice at the State Department.
Pompeo, as secretary of state, had the sole authority to make a genocide determination. Tan said Pompeo never explained why he declined to do so.
Spokespeople for Pompeo did not reply to repeated emails seeking comment for this story, and they did not make him available for an interview.
Reuters calls to a Myanmar military spokesman were not answered. The army has said it was conducting counter-terrorism operations. Civilian leader Aung San Suu Kyi, now detained by the military, previously denied that the acts constituted genocide.
Reuters spoke to 18 current and former US officials who worked on US-Myanmar policy. The interviews showed how officials across two administrations argued over how to balance accountability for Myanmar’s military - internationally condemned for its abuses against civilians - and the need for continued engagement with a country that had made nascent steps toward democracy.
US officials often disagreed on whether a tough response might backfire and end up weakening the hand of Myanmar’s civilian government without improving conditions for the Rohingya.
That debate came to a head during a State Department examination of the military’s bloody 2017 campaign that pushed at least 730,000 members of Myanmar’s Rohingya minority into neighboring Bangladesh.
The State Department in 2018 conducted a months-long examination process, officials said. It hired outside lawyers, the people said, to gather evidence of the army’s atrocities and to analyse whether those actions constituted “crimes against humanity” or “genocide” - offenses that ultimately could be charged in international courts.
At the time, the United States had referred to events in Myanmar as “ethnic cleansing,” a descriptive term that cannot be used to prosecute perpetrators. A US determination of genocide, in particular, carries a lot of weight, according to officials and rights advocates who hoped such a call would rally global support to hold the generals accountable. The United Nations defines genocide as acts such as pogroms and forced sterilisations intended to destroy a national, ethnical, racial or religious group.
Calling the events genocide would be a major boost for hundreds of thousands of survivors living in refugee camps, said Wai Wai Nu, a Rohingya former political prisoner and activist. “They will feel like their suffering, the crimes that happened against them, have been recognised,” she said.
Officials told Reuters that the process, after months of work, ended abruptly in August 2018 because Pompeo became enraged after details of the deliberations leaked.
These people said policy toward Myanmar was often overshadowed by the Trump administration’s top foreign policy priority: China. Some State Department officials argued that punishing Myanmar for the army’s atrocities would push the country into China’s orbit.
In a previously unreported effort, some State Department officials said they encouraged Pompeo to take a fresh look at Myanmar in a parallel process in mid-2020. They argued that atrocities there were well-documented and had been going on for years. If the State Department levelled a genocide determination against China, a geopolitical rival, but failed to do so with Myanmar, officials said the administration could face criticism about its determination being politically motivated.
Ultimately, Pompeo declared a genocide was taking place in China. But he made no atrocity determination for Myanmar, despite new evidence that State Department lawyers said justified the genocide label there, several former US officials familiar with the process, including Trump-era appointees, told Reuters.
Aides who worked with Pompeo at the State Department said he would have weighed a broad range of factors in making his decision.
Inside the State Department, officials were split on the genocide label for Myanmar, Reuters has learned. The regional bureau for Asia did not support a genocide determination, in part because some bureau officials felt Myanmar was on a trajectory toward democracy, in contrast to China, where repression was ramping up, former officials said. They believed a genocide call would not help Suu Kyi’s civilian government in its struggle with the military, the officials said.
The head of the East Asian and Pacific Affairs bureau at the time, David Stilwell, a Trump appointee, declined to confirm or deny the difference of opinion within the State Department. “These are complex issues that we wrestled with for months,” he said.
Tan, the head of the Office of Global Criminal Justice, defended the Trump administration’s overall handling of Myanmar despite its failure to call out genocide there. He said State Department officials under Pompeo worked hard to respond to the atrocities against the Rohingya, including providing financial aid to refugees and supporting a case against Myanmar at the International Court of Justice, brought by The Gambia.
Washington in December 2019 slapped Myanmar’s Commander in Chief Min Aung Hlaing with sanctions freezing any US assets he may have and forbidding Americans to do any business with him. Human-rights groups say his family businesses remain largely unscathed. On Feb. 1, Min Aung Hlaing led the junta that overthrew Myanmar’s civilian government and detained State Counsellor Suu Kyi, the Nobel Peace Prize winner who leads the National League for Democracy (NLD) party that won elections in November.
Reuters calls to a military spokesman seeking comment from Min Aung Hlaing were not answered. Reuters was unable to reach Suu Kyi for comment.
Dr. Sasa, a special envoy for lawmakers mainly from the NLD who oppose the coup, promised the group will seek "justice" for the Rohingya. It is unclear if his views represent Suu Kyi or her party's leadership, who are being held incommunicado by the ruling junta.
Sasa told Reuters a genocide determination by the United States would "have a huge impact" on the military.
"What we desperately need is the strong, unifying message from Washington and (the) international community that these military generals will no longer get away free" with crimes including "genocide," Sasa said in an email.
The coup presented newly inaugurated US President Joe Biden with his first international crisis and a test of his pledge to stand up for human rights and democracy. His foreign policy team quickly imposed stronger sanctions against the generals and some of their children and companies they control, and tried to organise an international response to pressure them into reversing course.
This has not deterred the junta, which has now killed at least 275 people and arrested or charged more than 2,900 political leaders and others who have taken to the streets in massive numbers to oppose the coup.
Secretary of State Antony Blinken, Pompeo’s successor, said in January he would review whether Myanmar committed genocide against the Rohingya.
In an emailed statement, the State Department said it is urging Myanmar’s military to restore the country’s democratically elected government, end the violence and release people who have been unjustly detained. “We will ensure achieving accountability for the atrocities against Rohingya is pivotal to our human rights-centered policy,” the State Department said.
WHAT MAKES A GENOCIDE?
Genocide, considered the most serious international offense, was first used to describe the Nazi Holocaust. It was established as a crime under international law in a 1948 United Nations convention.
Since the end of the Cold War, the State Department has formally used the term six times to describe massacres in Bosnia, Rwanda, Iraq and Darfur, the Islamic State’s attacks on Yazidis and other minorities, and most recently this year, over China’s treatment of Uighurs and other Muslims. China denies the genocide claims.
Individual US officials and other branches of government have also used the term. In 2019, for example, Congress recognised as genocide the mass killings and deportations of Armenian subjects of the Ottoman Empire during World War I. Turkey denies it was a genocide.
At the State Department, such a determination normally follows a meticulous internal process. Still, the final decision is up to the secretary of state, who weighs whether the move would advance American interests, officials said.
A determination of genocide does not automatically unleash punitive US action. But human-rights advocates say it can help mobilise an international response to prevent further atrocities. For instance, former US Secretary of State Colin Powell’s recognition of genocide in Darfur in 2004 helped isolate and stigmatise then-Sudanese President Omar al-Bashir and bring about his 2009 indictment in the International Criminal Court, the United States Holocaust Memorial Museum said in a report.
February’s coup was the latest chapter in deteriorating US-Myanmar relations, and a major turnaround from the high hopes that prevailed a decade ago.
In 2010, after a half-century of military rule, many of Myanmar’s roughly 54 million people saw life improve after the military initiated a transition towards democracy. The generals released Suu Kyi from house arrest and allowed her to run for office. The military opened energy and telecoms tenders to foreign companies.
The United States responded by lifting a trade embargo and easing some sanctions, including those on Burmese banks. In 2016, US President Barack Obama welcomed Suu Kyi to Washington and lifted most remaining sanctions on Myanmar.
Some US officials thought the move premature, including Tom Malinowski, a congressman who served as assistant secretary of state for democracy, human rights and labor at the time. “We needed to maintain pressure and leverage on the military and military-owned companies in Burma until more progress was made,” he told Reuters in an interview.
Warning signs proliferated throughout Obama’s tenure. Myanmar’s generals resisted calls to reform the country’s constitution, which locked in the military’s political power. Fighting between the army and armed groups seeking ethnic autonomy intensified in some parts of the country.
Most stark was the situation for the Rohingya, a long-suffering Muslim minority numbering more than 1 million in the western state of Rakhine. The Rohingya had faced earlier waves of violence from security forces and from their Buddhist neighbours. Rohingya are largely denied citizenship under a 1982 law that favours certain ethnic groups, and in 2015 were stripped of identity papers that had previously allowed them to vote.
By August 2018, reporters and human rights groups had documented killings, mass rape and the burning of Rohingya villages during a 2017 military operation. Medical nonprofit Doctors Without Borders said at least 9,400 people were killed. A UN fact-finding mission said that estimate was conservative.
The military has said it was fighting Rohingya terrorists and that its troops followed strict rules of engagement.
Suu Kyi travelled to the International Court of Justice at The Hague in 2019 to defend the country against The Gambia’s accusation of genocide, a move that tarnished her reputation overseas.
She told the court that Myanmar made efforts to investigate the violence, proof there was no genocidal intent. "The situation in Rakhine is complex and not easy to fathom,” she said.
US diplomats working for the Trump administration avoided criticising Suu Kyi, believing she still represented the best hope for Myanmar’s democracy, officials said.
In the summer of 2018, the United States was preparing to levy sanctions on some of Myanmar’s generals as the State Department was planning the rollout of a report it commissioned documenting eye-witness accounts from Rohingya survivors of the brutality, a half-dozen people involved in the process told Reuters.
Pompeo, meanwhile, was presented with options on an atrocity determination, the people said. But the State Department was split on the issue.
The Office of the Legal Advisor – the legal team which weighs in on such matters - concluded that crimes against humanity was a legally sound determination; it had not reached a conclusion regarding genocide, the people said. Officials in other parts of the State Department told Reuters they believed the genocide label was warranted by the Department’s own research, including interviews with hundreds of Rohingya refugees in Bangladesh who said they had witnessed killings by the military.
Officials said the process came to a halt on Aug. 13 in 2018 when the news outlet Politico published a story it said was based on leaked excerpts of a draft statement, shedding light on Pompeo’s deliberations.
Pompeo considered the leak an attempt to pressure him into deeming the Myanmar atrocities a genocide, former officials said. During Pompeo’s nearly three-year tenure at the State Department, critics said, he questioned the loyalty of career diplomats and their will to enforce Trump’s agenda.
"To say he was infuriated is an understatement," a former US official directly involved in the process said.
As a result, the process was derailed, officials said, and Pompeo walked away without making any determination. The State Department on Sept. 24, 2018 published its report on the Myanmar atrocities in a hard-to-find part of its website with no press release, announcement or other publicity, officials said.
“We were all in shock and disappointed,” said one lawyer who worked on the report.
Sam Brownback, Trump’s envoy on religious freedom at the State Department, said there was clear evidence that the Rohingya had been suffering genocide “for decades.”
“That part is not in question,” Brownback said. “It's getting the determination that was difficult."
OVERSHADOWED BY CHINA
By 2020, countering China had become the top US foreign policy priority as ties between the world’s top two economies frayed.
Washington grew vocal about China's repression of Uighurs and other Muslims. China has been accused of detaining more than 1 million Uighurs and other minorities and subjecting them to forced labour and coercive family planning, including sterilisation.
China denies abuses and says its camps provide vocational training and are needed to fight extremism.
As Pompeo aides in mid-2020 moved to prepare a determination on what was happening in Xinjiang, some department officials told him they should also revisit the Myanmar evidence.
“Failure to address the mass atrocities against the Rohingya and call them by their right name would cast a cloud over any subsequent determination on Xinjiang,” said Kelley Currie, then the State Department’s ambassador on global women’s issues who was deeply involved in the Myanmar effort.
Other State Department bureaus responsible for promoting human rights, religious freedoms and global criminal justice likewise lent their support to a genocide determination, US officials said.
Their views were by that time supported by the Office of the Legal Adviser, which in late 2020 reached a new verdict that supported a genocide determination against Myanmar, four former US officials familiar with the matter said. The legal case had been bolstered by the testimony of two Myanmar army defectors, now in the custody of the ICC at The Hague, who said they were given orders to massacre Rohingya.
But there was “vigorous opposition” to the genocide label from officials in the State Department’s East Asian and Pacific Affairs bureaus, which favoured continued engagement with Myanmar, according to Currie, the former ambassador on women’s issues.
“They opposed it on two grounds: that it would cause the military to launch a coup, and that it would push Burma closer to China,” she said.
On Jan. 19, his last full day in office, Pompeo declared that China had committed genocide and crimes against humanity in Xinjiang. That determination came despite the objections of some State Department lawyers that the criteria for genocide were not met, four officials told Reuters.
On Myanmar, there was silence. Officials said they never heard back from Pompeo.