Rohingya Genocide Case at ICJ

News Desk

The Gambia’s case against Myanmar at the International Court of Justice (ICJ) for violating the Genocide Convention, filed on November 11, 2019, will bring the first judicial scrutiny of Myanmar’s campaign of murder, rape, arson and other atrocities against the Rohingya Muslims. The Rohingya, an ethnic minority in Myanmar had been living predominantly in the western state of Rakhine. They are not officially recognized by the Myanmar government as citizens, and for decades Myanmar’s Buddhist majority has been accused of subjecting them to discrimination and violence.

In 2012, clashes between the Rohingya and Buddhist nationalists led to scores of deaths, forcing tens of thousands of Rohingya to flee to Bangladesh, Malaysia, Thailand and Indonesia. Myanmar’s security forces conducted brutal military actions against the Rohingya community on the plea of a counter-action due to Rohingya militants attack on several security checkpoints in August 2017. Human rights groups, such as Human Rights Watch and Amnesty International, said operations by Myanmar army involved arbitrary killings, systematic rapes, the burning of houses and forced expulsions of the locals.

A UN fact-finding mission which investigated the allegations found such compelling evidence that it said the Burmese army must be investigated for genocide against Rohingya Muslims in Rakhine.

On 11 December 1948, the Convention on the Prevention and Punishment of the Crime of Genocide was opened for signature. As of December 2019, 152 states have ratified or acceded to the treaty. As per article 3 of the convention, ‘Genocide means any of the following 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; (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.

International Court of Justice is the principal judicial organ of the UN. The ICJ’s primary functions are to settle international legal disputes submitted by states and give advisory opinions on legal issues referred to it by the UN.

In November 2019, Republic of The Gambia filed an “Application Instituting Proceedings and Request for Provisional Measures” at the ICJ against the Republic of the Union of Myanmar. The Gambia is seeking special measures to protect the Rohingyas until the genocide case is heard in full. For now, The Gambia is just asking the court to impose “provisional measures” to protect the Rohingya in Myanmar and elsewhere from further threats or violence.

State Counselor of Myanmar – de facto ruler and Union Minister for Foreign Affairs Aung San Suu Kyi has been widely criticized for remaining mostly silent on accusations of anti-Rohingya violence. Possibly, she faces a dilemma – As a human rights icon known internationally, it is her duty to raise her voice in support of the Rohingya plight and condemn the acts by the government and the majority Buddhists. But Suu Kyi as a leader does not want to lose support of the majority Buddhists for raising her voice in support of the Rohingya. She does not have control over the army, but has been accused by the UN investigator of “complicity” in the military clearances.

Suu Kyi said during hearings that the charge of genocide is “misleading” because “cycles of inter-communal violence” in Myanmar date “back to the 1940s.” She argued that the military’s action in Rakhine state, Myanmar, was an anti-terrorism campaign against a violent Rohingya extremist group. Conceding that Myanmar’s military might have used disproportionate force at times, she told the court that if soldiers had committed war crimes they would be prosecuted.

A ruling from the court to approve measures to protect the Rohingya is expected within weeks. A final ruling on the accusation of genocide could take several years. A guilty ruling could lead to sanctions, and would cause significant reputational and economic damage to Myanmar.

The ICJ lacks any coercive mechanism to enforce its judgments. United Nations Security Council can compel the states to follow the court’s ruling. But there are several problems with this method of enforcement. It was demonstrated by the execution of the Srebrenica massacre two years after provisional measures were imposed in the Bosnia v Serbia case. China can veto any such resolution against Myanmar.