The persecuted Rohingya now have legal protection, but will it amount to anything?
Francis Wade
The ICJ ruling on Myanmar is a rare bright point in a woeful international response. Unfortunately its powers are limited
Fri 24 Jan 2020 16.38 GMTLast modified on Fri 24 Jan 2020 18.45 GMT
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Rohingya refugees in Kutupalong, Bangladesh, react to the verdict of the international court of justice in The Hague.
‘The case was brought to the ICJ by the Gambia.’ Rohingya refugees in Kutupalong, Bangladesh, react to the ICJ verdict. Photograph: Supplied
On Thursday the internet in Kutupalong, a city-sized refugee camp in south-eastern Bangladesh, was switched back on for a few hours. The camp’s residents gathered around their phones as, 5,000 miles away in The Hague, the international court of justice (ICJ) delivered a ruling on Myanmar’s treatment of its Rohingya Muslim minority. They cheered as the court issued a set of legally binding obligations: that Myanmar’s military does not commit acts of genocide against some 600,000 Rohingya who still live in the country, and that evidence of past crimes remains intact.
UN's top court orders Myanmar to protect Rohingya from genocide
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This was the first legal victory for Rohingya since 2017, when upwards of 700,000 were driven into Bangladesh in a campaign by Myanmar’s military that produced the most concentrated outflow of refugees anywhere since the Rwanda genocide in 1994. Responding to attacks by Rohingya militants on security posts in Myanmar’s Rakhine state in late August 2017, military units acted with such ferocity that, within two months, the country had been emptied of nearly half its entire Rohingya population. Those who made it to Bangladesh recounted how troops encircled villages at night and opened fire, cutting down those who fled. Satellite imagery revealed more than 380 destroyed villages, and in the year that followed, new security bases were built where Rohingya homes once stood. Yet until now, there had been little substantive international action.
Aung San Suu Kyi has dismissed the credibility of the case, which was brought to the ICJ by the Gambia. In December, she travelled to The Hague to defend the military, and in an piece for the Financial Times yesterday, she wrote that the ICJ has been “precariously dependent on statements by refugees” in Bangladesh who “may have provided inaccurate or exaggerated information”. She insisted there have been efforts to bring “stability and progress” to the region where the violence took place, but that they have been hindered by international condemnation.
In that corner of Myanmar, remaining Rohingya are confined to camps, ghettoes and villages – as they have been for seven years – and face arrest if they leave without permission. The tide of public antipathy is overwhelming, and Aung San Suu Kyi’s line echoes a popular view inside Myanmar of Rohingya as scheming and deceitful. Soon after the exodus began in 2017, government spokesperson U Zaw Htay told media that the flight of hundreds of thousands of Rohingya was part of a “plot” to mislead the international community.
For those in Myanmar who see deceit in everything Rohingya say, any investigation that draws on their testimony is illegitimate. But there is also no appetite for on-the-ground investigations: a UN fact-finding mission has been repeatedly denied visas. Mass demonstrations in support of the military’s campaign, and of Aung San Suu Kyi’s recent defence at The Hague, show that derision of Rohingya cuts across longstanding political divisions in Myanmar.
Unsurprisingly, Aung San Suu Kyi’s government was quick to reject yesterday’s ruling, stating that whatever occurred in 2017 was being investigated internally. This is unconvincing. When journalists working for Reuters produced evidence in 2018 that 10 Rohingya had been executed, seven soldiers were jailed. Less than a year later, they were quietly released.
The kind of language used by government officials provides further evidence of just how precarious the situation is for those who remain. Their supposed deviousness – spoken of as a collective trait, common to all Rohingya – has provided the basis for the violence of recent years to take on its collective dimension. That shift from individual to group produces the mental state in which genocide becomes possible, and the ICJ’s decision should be read as a warning that once that state has been established, the threat of recurrent violence is high.
The ruling, which requires that Myanmar produce periodic reports detailing the protective measures it is now obliged to enforce, ensures that whatever the military does from now on will remain under the close scrutiny of the court. But while violation of the Genocide Convention could, and certainly should, invite serious criminal charges against perpetrators, that remains subject to political will – the ICJ has no jurisdiction over individuals, so it cannot bring those charges itself. The likelihood that the architects of the genocide – chief among them Min Aung Hlaing, head of Myanmar’s military – will face trial is slim. International law has yet to devise effective mechanisms to bring actors protected on the UN Security Council by powerful countries – in Myanmar’s case, China – before a judge.
The Rohingya refugee crisis speaks to the worst acts of humanity
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Until that changes, states that seek to drive populations beyond their borders, whether in response to a perceived threat or for political capital, or both, can continue to do so. The ICJ ruling is a bright point in an otherwise woeful international response to the internment of Rohingya and the organised violence against them – a process that began long before the violence of 2017 – but its powers are limited.
As the international legal expert Priya Pillai notes, the ICJ twice ordered provisional measures during the Bosnian war, yet this did little to stop the Srebrenica genocide. Rohingya will become yet another test case for how international law protects vulnerable minorities, but they won’t be the last.
• Francis Wade is a journalist and author of Myanmar’s Enemy Within: Buddhist Violence and the Making of a Muslim ‘Other’
The top UN court ordered Myanmar to protect the Rohingya. An expert explains what it means.
This is just the first step in the case brought by the West African nation of Gambia.
By Jen Kirbyjen.kirby@vox.com Jan 24, 2020, 12:20pm EST
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People watch the ICJ hearing at a Rohingya refugee camp in Cox’s Bazar, Bangladesh, on January 23, 2020. Allison Joyce/Getty Images
About 900,000 Rohingya have fled from Myanmar to Bangladesh since August 2017, the result of a campaign of violence by the country’s security forces against the Muslim minority group. Even before that, the Rohingya faced decades of discrimination and persecution, including being denied basic citizenship rights.
Last year, a United Nations fact-finding mission documented “consistent patterns of serious human rights violations” by Myanmar’s military officials, including mass killings and gruesome sexual violence. The UN report concluded that members of Myanmar’s military officials “should be investigated and prosecuted in an international criminal tribunal for genocide, crimes against humanity and war crimes.”
In November, Gambia took action, bringing a case against Myanmar in the International Court of Justice (ICJ) in the Hague for genocide, accusing the country of violating the 1948 Genocide Convention in a systematic campaign of ethnic cleansing.
And on Thursday, the West African country got a victory, when the ICJ unanimously ordered Myanmar must protect the remaining Rohingya still within its borders, and required the country to report on its progress.
This is not a final verdict, not even close — this is just a provisional decision in a yearslong case. But it’s the first time an international court has held Myanmar accountable for its campaign against the Rohingya.
Myanmar has denied it committed acts of genocide, though its own commission admitted some members of its security forces may have committed war crimes in its so-called counterterrorism campaign against the Rohingya.
Myanmar’s de facto leader Aung San Suu Kyi, the former political prisoner who won the Nobel Peace Prize for her efforts to bring democracy to Myanmar, has conceded “disproportionate force” may have been used, but has framed it as part of a campaign to root out insurgents or terrorists. Aung San Suu Kyi has insisted that Myanmar can handle this internally, but she has been roundly criticized for for ignoring the plight of the Rohingya, if not being outright complicit in their oppression.
And it turns out, even with evidence of human rights atrocities, proving a country carried out genocide is a challenging legal task. To better understand this case, why Gambia is pursuing it, and what might happen next, Vox spoke to Michael Becker, an adjunct assistant professor at Trinity College Dublin and former legal officer at the International Court of Justice.
The conversation, edited for length and clarity, is below.
Jen Kirby
So what exactly is the International Court of Justice?
Michael Becker
The International Court of Justice is the principal judicial organ of the United Nations. It hears disputes between states. It is different from any of the international courts that are focused on criminal prosecutions — where you have a prosecutor bringing a case against a specific individual. No individuals appear as parties at the ICJ. Every case is between two states. In a way, it’s more analogous to a civil suit rather than a criminal case.
Jen Kirby
This particular lawsuit was bought by Gambia. And I wonder — why?
Michael Becker
You’re absolutely right to notice that because most cases are brought by two states where one is directly affected or injured in some way by what another state is doing. So where two states have a dispute over their boundary or, where one state uses force against another, and one state claims it was unlawful.
But there are certain types of obligations under international law that are considered to be enforceable by everyone, whether or not you are the party that has actually been injured or affected in some way.
And so the Genocide Convention, or not engaging in genocide, is considered one of those obligations. It’s called an obligation erga omnes — “an obligation owed to everyone.” And if it’s an obligation owed to everyone, any state can seek to enforce it if it feels it’s not being lived up to legally.
That’s why Gambia is legally able — or has legal standing, as we would say — to bring this case. Why Gambia in particular? That’s a little bit complicated.
Jen Kirby
How so?
Michael Becker
There’s the Organization of Islamic Cooperation (OIC), which is an international organization made up of Muslim majority countries. Gambia is part of that.
As I understand it, this Organization for Islamic Cooperation was talking about one of their member-states bringing a case for quite a while. The interest there is that the Rohingya are a Muslim minority in a Buddhist state. Gambia ended up being the state that took up that challenge.
But that also has to do with the fact that Gambia’s minister of justice is a former war crimes prosecutor at the ad hoc international tribunals in the Hague. He has personal expertise and interest, and he was able to persuade his government to bring the case.
That’s why Gambia: a combination of this obligation erga omnes, which any party to the Genocide Convention can seek to enforce, combined with individuals who felt strongly about wanting to do it.
Jen Kirby
So this decision is not the final verdict in the case — this is just the first step in a very long process. But my sense the court is saying there’s evidence there might have been genocide, and Myanmar has to take steps to protect the population. Is that gist of what this decision represents?
Michael Becker
You’re absolutely right that this is a long process. An ICJ case will typically take anywhere between three and five years, sometimes longer.
That’s obviously a long ways away, and one of the advantages of bringing a case at the International Court of Justice is they do have this power to issue what it calls provisional measures. In US legal language, it’s the equivalent of getting a preliminary injunction.
The court hasn’t decided anything in today’s decision about whether Myanmar has committed genocide. It hasn’t decided anything about whether Myanmar has breached its obligations under the Genocide Convention.
What it has found is that for the Rohingya population that remains in Myanmar, the situation is serious enough that there is a real risk that acts constituting genocide might take place.
That’s the basis for issuing these measures, which are meant to protect the Rohingya in Myanmar from anything that might constitute genocide until the court can rule on the merits questions.
Jen Kirby
It also seems that, as part of this provisional ruling, there was some sort of obligation to preserve evidence? Can you explain what that means in reality?
Michael Becker
Part of proving genocide can involve things like showing that entire villages have been burned down, or trying to figure out how many fatalities there have been, which might involve preserving a mass grave.
The idea here is that Myanmar should not be doing anything to further disturb sites, physical sites where some of the acts alleged by Gambia took place. Myanmar shouldn’t be bulldozing over village sites and building on them. If there are mass graves, Myanmar shouldn’t be doing anything to conceal those mass graves. It certainly would include — if there are any — relevant government documents. How Gambia is going to get ahold of those documents is quite a different thing.
Jen Kirby
This might be an inelegant metaphor, but this ICJ provisional ruling strikes me a bit as telling a murderer to stop killing and also preserve all evidence he’s killed in the past. Are there any enforcement mechanisms? What’s the incentive for Myanmar to comply with this ruling?
Michael Becker
A few things about that. The main orders imposed here are simply telling Myanmar to comply with obligations it already has. By telling Myanmar to take all measures to prevent genocide against the Rohingya from taking place, the court isn’t creating any new obligations for Myanmar. This is what Myanmar is supposed to be doing anyway under the Genocide Convention.
But what’s you’re saying — how can we really expect a bad actor to clean up his act because you tell them to? — there’s some truth to that.
Myanmar has made some important concessions, as it recently said gross human-rights abuses against the Rohingya may have taken place and some may have even risen to the level of war crimes. But Myanmar staunchly rejects the idea that any of this could be construed as an intent to destroy the Rohingya population, which is the requirement for genocide. That is difficult to prove. There is a high legal standard to prove genocide.
But the order, in a way, puts Myanmar on notice.
There already is a lot of scrutiny on Myanmar thanks to the work of the United Nations Fact Finding Mission on Myanmar, which found that top Myanmar officials should be investigated for genocide and human rights atrocities against the Rohingya. That has already put a lot of attention on the situation. This ICJ decision adds to that. It means that anything Myanmar’s security forces are doing will be looked at through this additional lens.
The ICJ also imposed a reporting requirement on Myanmar, so Myanmar has to send a report to the court after four months — and then every six months after while the case is pending — to show what steps it has taken to prevent conduct that might constitute genocide.
Gambia may dispute what Myanmar claims it is doing. If the situation is grave enough, if new information comes to light about things are taking place on the ground in Myanmar that threaten the Rohingya, there’s nothing to stop Gambia from going back to the ICJ.
Of course, you could say, “Isn’t that also more of the same? They weren’t that effective first time. What would make them effective the second time?”
When it comes to international law, enforcement of international court judgments often comes down to the political will of states. This ruling could provide something for states to focus on in their own assessment of what the government of Myanmar is doing, and to help them decide to put further pressure on Myanmar to change its policies or to undertake new efforts in resolving the situation of the Rohingya.
Jen Kirby
But can an ICJ case like this do anything on the ground for the Rohingya in Myanmar?
Michael Becker
There is definitely a risk in people expecting an ICJ case to be the solution to the entire problem.
The ICJ case can play an important role in responding to this particular situation. But it needs — and this is true of many other situations too, that might involve international litigation strategies or international courts — it has to be part of the broader political diplomatic strategy.
Jen Kirby
Since this is the top court of the United Nations, can the court make recommendations for the UN Security Council or other UN bodies to step in?
Michael Becker
The ICJ not going to impose orders or direct anyone to do anything that isn’t a party before it. So the ICJ would never even recommend action to the UN Security Council in a dispute between two states.
But can the UN do anything? Well, yes. The UN can always do something — if there’s political will. The remit of the UN Security Council is to deal with the maintenance of international peace and security or to respond to threats to international peace and security. At this point in history, that definition is extremely broad. So if the UN Security Council wanted to take action with regard to Myanmar or the Rohingya, they could.
Politically speaking, that’s extremely unlikely. Particularly because of the relationship between China and Myanmar. As you know, China can obviously veto Security Council resolutions.
Jen Kirby
That makes sense — the realities of politics often get in the way of political will.
Michael Becker
One really interesting thing about the decision today was that it was unanimous, which is fairly unusual.
In the ICJ, if a state doesn’t have a judge on the court from the country, it’s allowed to appoint a judge for that case. Normally, there are 15 sitting judges on the court, but in this case, there are 17, because Gambia appointed a judge and Myanmar appointed a judge.
Judges on the court are independent actors, but it’s not surprising when these appointed judges side with the country that appointed them. They don’t always, but it’s certainly not surprising when they do.
But here we have a unanimous decision. Even the judge appointed by Myanmar found that the requirements for provisional measures were satisfied and that the situation posed a serious-enough risk of possible genocide to issue the measures.
Jen Kirby
It sounds then like the bar for this provisional decision is much lower than for the final ruling.
Michael Becker
It’s much lower because the provisional measures are meant to address or prevent the potential loss of human life while the case is still being decided. The court does have a much more relaxed standard about what evidence it’s going to credit.
The court cited the UN fact-finding mission report quite a lot in these provisional measures to establish there’s a real risk to human life right now. But those fact-finding reports are going to get a lot more scrutiny in the next phase. The court will have to do a much more rigorous assessment of all of the evidence at that stage.
So it’s really quite important to say that there is a more relaxed or forgiving standard when it comes to provisional measures. You can’t necessarily read that much into what the court has said here when it comes to how it might act on the merits.
Jen Kirby
So in terms of where we move from here, you mentioned that there will be a reporting requirement from Myanmar moving forward. Does Gambia get to investigate this case in the same way you would in a civil suit — like, depose witnesses? Or does the ICJ do this? How does this all play out?
Michael Becker
That’s a real tricky issue. The procedures for handling or gathering evidence at the end of the international level are not nearly as well developed as they are in most domestic legal systems.
Gambia requested — which the court actually rejected — a measure that would have required Myanmar to allow UN investigators into Myanmar. So far all of these UN fact-finding reports have been based on work that has been done outside of Myanmar, such as extensive interviewing of the Rohingya who’ve had to flee to Bangladesh and elsewhere. They haven’t gotten into Myanmar because Myanmar won’t allow them in.
But since the ICJ rejected Gambia’s request, it leaves the fact-finding situation in a little bit of flux.
Gambia is relying on all of this evidence that the UN has gathered, that NGOs have gathered, that journalists have gathered. But Gambia can decide if it wants to ask the courts to authorize some kind of investigation of its own. I think that’s unlikely, but they might want to press it.
But there isn’t any equivalent to deposing witnesses or anything like that. And so this is something that the International Court of Justice and some other international courts have been criticized for — for not having evidentiary practices that can really do justice to some of the claims that they have to decide.
I don’t know what Gambia is going to do now. It may come down on them continuing to rely on the very solid fact-finding work the UN investigators have already done. I’ve suggested that either the parties or the court itself might want to consider calling as witnesses the people involved in putting together the UN report. They should be subject to questioning and cross-examination at the ICJ.
Jen Kirby
If Gambia succeeds in making this difficult case, what would happen?
Michael Becker
The standard for proving genocide is quite high, and very challenging to meet, even in the face of abundant evidence of mass atrocity. That’s not enough. That alone is not enough to meet the strict legal definition of genocide.
If Gambia succeeded, there’s a separate question about what kind of relief it would be able to ask for. That’s all over the map. One focus might be on financial compensation.
There are bigger questions, too, about whether the court is in a position to compel Myanmar to change its citizenship laws, for example. The Rohingya have essentially been made stateless by being denied the right of citizenship, which has contributed to making their existence so precarious.
Those questions are years away, but they raise a lot of challenging and interesting legal questions about what type of relief might be available — and how likely would it be that relief could ultimately be implemented.
Jen Kirby
Myanmar also established an Independent Commission of Enquiry (ICOE) to investigate atrocities against the Rohingya, and this week the commission said there was evidence of human-rights violation, even war crimes, but no genocide. How big a deal is that? Or was this an attempt to basically get out in front of this ICJ decision?
Michael Becker
The commission of inquiry that Myanmar set up has been widely criticized because of the personnel involved. It looks very close to the government. It looks like it fails basic requirements to establish a baseline of independence and impartiality.
It’s very tempting to just criticize the commission on those grounds and say it’s a complete whitewash. I’m sympathetic to that, but I’ve tried to make the argument that even if that’s the case, it’s important to respond to its assertions and findings in a forensic way.
But, in a way, Myanmar also seems to be appealing to the international community to say, look, “We are taking it seriously. So back off.” There’s a strategic rationale for why they may be willing to admit to what are very serious transgressions. This is part of the overall narrative of Myanmar’s government, which is to say it’s dealing with an internal armed conflict. This is about counterterrorism; it’s not the government’s plan to wipe out the Rohingya. This is about military or security forces engaged in counterterrorism getting out of hand.
I think they will try to use that to undermine the claim that there’s genocidal intent. It’s quite a cynical argument: We engaged in war crimes, so it can’t possibly be genocide.
Jen Kirby
Sort of like “mistakes were made.”
Michael Becker
This is the problem with the court’s test. The ICJ has said if you are inferring genocidal intent, that has to be the only inference you can draw from the evidence.
If you can draw other inferences from the evidence — such as the possibility of counterterrorism run amok — that can defeat a genocide claim. That’s why genocide is so hard to prove.
Why the ICJ Is Trying to Protect Myanmar’s Rohingya
The International Court of Justice issued an important decision aimed at protecting Myanmar’s persecuted Rohingya minority, but its impact is unclear.
Article by David J. Scheffer
January 24, 2020
Myanmar leader Aung San Suu Kyi listens as Gambian Justice Minister Abubacarr Tambadou speaks at a hearing at the International Court of Justice in The Hague, Netherlands. Yves Herman/Reuters
The wheels of international justice turn slowly, but this week they sped up to protect the rights of the Rohingya, an ethnic Muslim minority population in Myanmar that has suffered brutal assaults by government forces since 2016. The International Court of Justice (ICJ), the primary judicial organ of the United Nations, ordered Myanmar to cease and desist all forms of alleged genocide against the Rohingya and to preserve evidence about alleged genocidal acts. How Myanmar intends to respond to the ruling remains to be seen.
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UN fact-finding reports from the last two years recorded a multitude of atrocities, including mass killing and displacement and “overwhelming levels of brutality, combined with the physical destruction of the home of the [Rohingya], in every sense and on every level.” An estimated one million Rohingya fled across the border into Bangladesh, where they remain packed in vast refugee camps.
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But does this violence amount to genocide? The ICJ is primed to answer that question in Gambia v. Myanmar, a case filed in November that seeks to enforce the UN Genocide Convention, a post-Holocaust treaty to which both nations are party.
The court’s order this week of “provisional measures” came swiftly after courtroom arguments were heard last month. Myanmar’s top political leader, Aung San Suu Kyi, who long ago fell from her Nobel Peace Prize perch, appeared in The Hague to argue the Myanmar government’s request to have the case dismissed and the provisional measures buried. The judges denied those demands.
Genocide is difficult to prove in a court of law. Despite the UN reports and graphic media coverage of the Rohingya crisis in recent years, Gambia’s legal team has a long road ahead to hold Myanmar responsible for genocide. However, the court’s order is a good start, as it resolves some of the underlying legal issues for the next phase of the case and aims to protect the Rohingya in the meantime.
Protecting the Rohingya
The ICJ embraced five of the six provisional measures sought by Gambia, marking a considerable victory at this stage of the case. The fifteen international judges and two ad hoc judges (one selected by each party in the case) emphasized that there are fundamental rights at stake and that the Rohingya deserve protection of those rights immediately. They noted a recent UN report that found the Rohingya “remain at serious risk of genocide.”
The court order requires Myanmar to prevent the full range of acts under the Genocide Convention that point to destroying all or part of a national, ethnic, racial, or religious group. These include not only killing members of a group such as the Rohingya, but also seriously harming them physically or mentally, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,” or “imposing measures intended to prevent births within the group.” In a sweeping prohibition, the court ordered Myanmar to ensure that its military and any irregular armed units under its control will not commit any of these acts, form any conspiracy to do so, incite genocide, attempt to commit genocide, or be complicit in genocide. Myanmar also has to prevent the destruction of any evidence of possible genocide.
Do not bet the house on it, but by May 23 the Myanmar government must deliver a report to the court on all measures it has taken to implement the order, and it must continue to do so every six months thereafter until a final decision is reached. Myanmar recently claimed it is taking steps to establish accountability for human rights violations and war crimes—not genocide—against the Rohingya and to facilitate their return to Myanmar’s Rakhine State. But the court, relying on UN reports, decided that Myanmar’s anemic efforts are not enough to derail the case. Indeed, they found that Myanmar “has not presented to the court concrete measures aimed specifically at recognizing and ensuring the right of the Rohingya to exist as a protected group” under the convention.
The court’s jurisdiction in this case only covers the crime of genocide. The vast body of war crimes and crimes against humanity of which the Myanmar government and military have been accused has to be pursued in other forums, such as the International Criminal Court, which has its own Rohingya investigation underway.
Myanmar’s Weak Defense
The judges found that some of the worst atrocities allegedly committed against the Rohingya “are capable of falling within the provisions of the Convention.” This means genocidal acts may have taken place, and sets up the dispute required for the case to be argued on the merits.
The court shot down Myanmar’s view that a “plausible claim” under the Genocide Convention must at this stage include evidence demonstrating specific genocidal intent. There need not be a showing of specific genocidal intent to destroy all or part of a protected group of people—which is difficult to prove on the merits—as a predicate to ordering provisional measures. Nor is it necessary to show that genocide is the only plausible reading of the facts to move ahead with such measures.
The court ruled that it has jurisdiction over the case and that there is indeed a “dispute” between two states parties, Gambia and Myanmar. This is critical, because Myanmar had argued that Gambia sued Myanmar simply as a proxy for the Organization of Islamic Cooperation, which supports the judicial initiative to hold Myanmar accountable for assaults on the Rohingya. Gambia can sue in its own right as a state party to the convention.
The judges found that the Rohingya “appear to be a protected group” to be shielded by the Genocide Convention.*
The court also rejected Myanmar’s domestically popular claim, which was advanced in The Hague last month, that the ongoing internal conflict between armed groups, some aligned with the Rohingya, and the Myanmar military overshadows the nation’s obligations under the Genocide Convention. The existence of war, in the court’s view, is essentially irrelevant: “The context invoked by Myanmar does not stand in the way of the Court’s assessment of the existence of a real and imminent risk of irreparable prejudice to the rights protected under the Convention.”
A Test for International Justice
Diplomats, political leaders, and humanitarian agencies will have to keep up their fight to protect the long-suffering Rohingya. The provisional measures ordered by the court are legally binding on Myanmar. However, only the UN Security Council can enforce them, and the prospect of that happening is remote with possible vetoes from China and Russia.
So, as the case moves to the next stage and the court awaits Myanmar’s response in the months ahead, the force of the law itself will be severely tested.
*Editor’s note: This point was edited to clarify the court’s finding related to the protected status of the Rohingya.
NEWS/MYANMAR
After ICJ ruling, Myanmar denies genocide against Rohingya
In a statement, government fails to use word 'Rohingya' and rejects accusations of genocide after case at top UN court.
24 Jan 2020
Aung San Suu Kyi leaves a hearing in a case filed by The Gambia against Myanmar alleging genocide against the minority Muslim Rohingya population, at the International Court of Justice in The Hague, Netherlands on December 10, 2019 [Yves Herman/Reuters]
Aung San Suu Kyi leaves a hearing in a case filed by The Gambia against Myanmar alleging genocide against the minority Muslim Rohingya population, at the International Court of Justice in The Hague, Netherlands on December 10, 2019 [Yves Herman/Reuters]
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In response to an international court's decision ordering Myanmar to take emergency measures to prevent the genocide of the Rohingya, the country's government responded by saying that there has been "no genocide in Rakhine" - the state from which most of the Muslim-minority group hails.
Rights groups and members of the Rohingya minority have celebrated Thursday's ruling from International Court of Justice (ICJ) judges.
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But a statement released by Myanmar's Ministry of Foreign Affairs said it was "important for Myanmar that Court [ICJ] reaches a factually correct decision on the merits of the case", and condemned human rights organisations that it accused of presenting a "distorted picture" of the situation in Rakhine.
Those groups, the statement said, had "affected Myanmmar bilateral relations with several countries" and hampered efforts for "sustainable development" in the northwest province.
While acknowledging "war crimes had occurred", the statement said "there has been no genocide in Rakhine."
While defending her country at the ICJ in December, Myanmar leader Aung San Suu Kyi, in a 30-minute speech, failed to use the word "Rohingya" once.
Critics said her refusal to use the word was part of Myanmar's attempt to strip the minority of their identity and rights.
Again on Thursday, the word "Rohingya" was absent from the Ministry of Foreign Affairs' statement.
'A great day for hundreds of thousands of Rohingyas'
The ICJ case was filed by Muslim-majority The Gambia, which had asked the court to impose emergency measures following the Myanmar army's violent 2017 crackdown that forced around 740,000 Rohingya to flee to neighbouring Bangladesh.
The Hague-based court, which is the principal judicial organ of the United Nations, ordered Myanmar to take urgent and "provisional measures" to protect its Rohingya population from genocide.
READ MORE
'Justice served': Rohingya refugees in Bangladesh hail ICJ ruling
Provisional measures are steps aimed at preventing further harm, and come as the first step in the legal case.
Legal experts have applauded the court's decision.
Reed Brody, a commissioner at the International Commission of Jurists who was instrumental in the prosecution of the former Chadian dictator Hissene Habre, told Al Jazeera: "This is a great day for the hundreds of thousands of Rohingyas who have been displaced, killed and raped. The UN's highest court has recognised their suffering."
The ICJ's orders are legally binding.
Brody said the fact that the decision was unanimous would add weight to the court's measures.
Francis Wade
The ICJ ruling on Myanmar is a rare bright point in a woeful international response. Unfortunately its powers are limited
Fri 24 Jan 2020 16.38 GMTLast modified on Fri 24 Jan 2020 18.45 GMT
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Rohingya refugees in Kutupalong, Bangladesh, react to the verdict of the international court of justice in The Hague.
‘The case was brought to the ICJ by the Gambia.’ Rohingya refugees in Kutupalong, Bangladesh, react to the ICJ verdict. Photograph: Supplied
On Thursday the internet in Kutupalong, a city-sized refugee camp in south-eastern Bangladesh, was switched back on for a few hours. The camp’s residents gathered around their phones as, 5,000 miles away in The Hague, the international court of justice (ICJ) delivered a ruling on Myanmar’s treatment of its Rohingya Muslim minority. They cheered as the court issued a set of legally binding obligations: that Myanmar’s military does not commit acts of genocide against some 600,000 Rohingya who still live in the country, and that evidence of past crimes remains intact.
UN's top court orders Myanmar to protect Rohingya from genocide
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This was the first legal victory for Rohingya since 2017, when upwards of 700,000 were driven into Bangladesh in a campaign by Myanmar’s military that produced the most concentrated outflow of refugees anywhere since the Rwanda genocide in 1994. Responding to attacks by Rohingya militants on security posts in Myanmar’s Rakhine state in late August 2017, military units acted with such ferocity that, within two months, the country had been emptied of nearly half its entire Rohingya population. Those who made it to Bangladesh recounted how troops encircled villages at night and opened fire, cutting down those who fled. Satellite imagery revealed more than 380 destroyed villages, and in the year that followed, new security bases were built where Rohingya homes once stood. Yet until now, there had been little substantive international action.
Aung San Suu Kyi has dismissed the credibility of the case, which was brought to the ICJ by the Gambia. In December, she travelled to The Hague to defend the military, and in an piece for the Financial Times yesterday, she wrote that the ICJ has been “precariously dependent on statements by refugees” in Bangladesh who “may have provided inaccurate or exaggerated information”. She insisted there have been efforts to bring “stability and progress” to the region where the violence took place, but that they have been hindered by international condemnation.
In that corner of Myanmar, remaining Rohingya are confined to camps, ghettoes and villages – as they have been for seven years – and face arrest if they leave without permission. The tide of public antipathy is overwhelming, and Aung San Suu Kyi’s line echoes a popular view inside Myanmar of Rohingya as scheming and deceitful. Soon after the exodus began in 2017, government spokesperson U Zaw Htay told media that the flight of hundreds of thousands of Rohingya was part of a “plot” to mislead the international community.
For those in Myanmar who see deceit in everything Rohingya say, any investigation that draws on their testimony is illegitimate. But there is also no appetite for on-the-ground investigations: a UN fact-finding mission has been repeatedly denied visas. Mass demonstrations in support of the military’s campaign, and of Aung San Suu Kyi’s recent defence at The Hague, show that derision of Rohingya cuts across longstanding political divisions in Myanmar.
Unsurprisingly, Aung San Suu Kyi’s government was quick to reject yesterday’s ruling, stating that whatever occurred in 2017 was being investigated internally. This is unconvincing. When journalists working for Reuters produced evidence in 2018 that 10 Rohingya had been executed, seven soldiers were jailed. Less than a year later, they were quietly released.
The kind of language used by government officials provides further evidence of just how precarious the situation is for those who remain. Their supposed deviousness – spoken of as a collective trait, common to all Rohingya – has provided the basis for the violence of recent years to take on its collective dimension. That shift from individual to group produces the mental state in which genocide becomes possible, and the ICJ’s decision should be read as a warning that once that state has been established, the threat of recurrent violence is high.
The ruling, which requires that Myanmar produce periodic reports detailing the protective measures it is now obliged to enforce, ensures that whatever the military does from now on will remain under the close scrutiny of the court. But while violation of the Genocide Convention could, and certainly should, invite serious criminal charges against perpetrators, that remains subject to political will – the ICJ has no jurisdiction over individuals, so it cannot bring those charges itself. The likelihood that the architects of the genocide – chief among them Min Aung Hlaing, head of Myanmar’s military – will face trial is slim. International law has yet to devise effective mechanisms to bring actors protected on the UN Security Council by powerful countries – in Myanmar’s case, China – before a judge.
The Rohingya refugee crisis speaks to the worst acts of humanity
Michael Sheen
Michael Sheen
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Until that changes, states that seek to drive populations beyond their borders, whether in response to a perceived threat or for political capital, or both, can continue to do so. The ICJ ruling is a bright point in an otherwise woeful international response to the internment of Rohingya and the organised violence against them – a process that began long before the violence of 2017 – but its powers are limited.
As the international legal expert Priya Pillai notes, the ICJ twice ordered provisional measures during the Bosnian war, yet this did little to stop the Srebrenica genocide. Rohingya will become yet another test case for how international law protects vulnerable minorities, but they won’t be the last.
• Francis Wade is a journalist and author of Myanmar’s Enemy Within: Buddhist Violence and the Making of a Muslim ‘Other’
The top UN court ordered Myanmar to protect the Rohingya. An expert explains what it means.
This is just the first step in the case brought by the West African nation of Gambia.
By Jen Kirbyjen.kirby@vox.com Jan 24, 2020, 12:20pm EST
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People watch the ICJ hearing at a Rohingya refugee camp in Cox’s Bazar, Bangladesh, on January 23, 2020. Allison Joyce/Getty Images
About 900,000 Rohingya have fled from Myanmar to Bangladesh since August 2017, the result of a campaign of violence by the country’s security forces against the Muslim minority group. Even before that, the Rohingya faced decades of discrimination and persecution, including being denied basic citizenship rights.
Last year, a United Nations fact-finding mission documented “consistent patterns of serious human rights violations” by Myanmar’s military officials, including mass killings and gruesome sexual violence. The UN report concluded that members of Myanmar’s military officials “should be investigated and prosecuted in an international criminal tribunal for genocide, crimes against humanity and war crimes.”
In November, Gambia took action, bringing a case against Myanmar in the International Court of Justice (ICJ) in the Hague for genocide, accusing the country of violating the 1948 Genocide Convention in a systematic campaign of ethnic cleansing.
And on Thursday, the West African country got a victory, when the ICJ unanimously ordered Myanmar must protect the remaining Rohingya still within its borders, and required the country to report on its progress.
This is not a final verdict, not even close — this is just a provisional decision in a yearslong case. But it’s the first time an international court has held Myanmar accountable for its campaign against the Rohingya.
Myanmar has denied it committed acts of genocide, though its own commission admitted some members of its security forces may have committed war crimes in its so-called counterterrorism campaign against the Rohingya.
Myanmar’s de facto leader Aung San Suu Kyi, the former political prisoner who won the Nobel Peace Prize for her efforts to bring democracy to Myanmar, has conceded “disproportionate force” may have been used, but has framed it as part of a campaign to root out insurgents or terrorists. Aung San Suu Kyi has insisted that Myanmar can handle this internally, but she has been roundly criticized for for ignoring the plight of the Rohingya, if not being outright complicit in their oppression.
And it turns out, even with evidence of human rights atrocities, proving a country carried out genocide is a challenging legal task. To better understand this case, why Gambia is pursuing it, and what might happen next, Vox spoke to Michael Becker, an adjunct assistant professor at Trinity College Dublin and former legal officer at the International Court of Justice.
The conversation, edited for length and clarity, is below.
Jen Kirby
So what exactly is the International Court of Justice?
Michael Becker
The International Court of Justice is the principal judicial organ of the United Nations. It hears disputes between states. It is different from any of the international courts that are focused on criminal prosecutions — where you have a prosecutor bringing a case against a specific individual. No individuals appear as parties at the ICJ. Every case is between two states. In a way, it’s more analogous to a civil suit rather than a criminal case.
Jen Kirby
This particular lawsuit was bought by Gambia. And I wonder — why?
Michael Becker
You’re absolutely right to notice that because most cases are brought by two states where one is directly affected or injured in some way by what another state is doing. So where two states have a dispute over their boundary or, where one state uses force against another, and one state claims it was unlawful.
But there are certain types of obligations under international law that are considered to be enforceable by everyone, whether or not you are the party that has actually been injured or affected in some way.
And so the Genocide Convention, or not engaging in genocide, is considered one of those obligations. It’s called an obligation erga omnes — “an obligation owed to everyone.” And if it’s an obligation owed to everyone, any state can seek to enforce it if it feels it’s not being lived up to legally.
That’s why Gambia is legally able — or has legal standing, as we would say — to bring this case. Why Gambia in particular? That’s a little bit complicated.
Jen Kirby
How so?
Michael Becker
There’s the Organization of Islamic Cooperation (OIC), which is an international organization made up of Muslim majority countries. Gambia is part of that.
As I understand it, this Organization for Islamic Cooperation was talking about one of their member-states bringing a case for quite a while. The interest there is that the Rohingya are a Muslim minority in a Buddhist state. Gambia ended up being the state that took up that challenge.
But that also has to do with the fact that Gambia’s minister of justice is a former war crimes prosecutor at the ad hoc international tribunals in the Hague. He has personal expertise and interest, and he was able to persuade his government to bring the case.
That’s why Gambia: a combination of this obligation erga omnes, which any party to the Genocide Convention can seek to enforce, combined with individuals who felt strongly about wanting to do it.
Jen Kirby
So this decision is not the final verdict in the case — this is just the first step in a very long process. But my sense the court is saying there’s evidence there might have been genocide, and Myanmar has to take steps to protect the population. Is that gist of what this decision represents?
Michael Becker
You’re absolutely right that this is a long process. An ICJ case will typically take anywhere between three and five years, sometimes longer.
That’s obviously a long ways away, and one of the advantages of bringing a case at the International Court of Justice is they do have this power to issue what it calls provisional measures. In US legal language, it’s the equivalent of getting a preliminary injunction.
The court hasn’t decided anything in today’s decision about whether Myanmar has committed genocide. It hasn’t decided anything about whether Myanmar has breached its obligations under the Genocide Convention.
What it has found is that for the Rohingya population that remains in Myanmar, the situation is serious enough that there is a real risk that acts constituting genocide might take place.
That’s the basis for issuing these measures, which are meant to protect the Rohingya in Myanmar from anything that might constitute genocide until the court can rule on the merits questions.
Jen Kirby
It also seems that, as part of this provisional ruling, there was some sort of obligation to preserve evidence? Can you explain what that means in reality?
Michael Becker
Part of proving genocide can involve things like showing that entire villages have been burned down, or trying to figure out how many fatalities there have been, which might involve preserving a mass grave.
The idea here is that Myanmar should not be doing anything to further disturb sites, physical sites where some of the acts alleged by Gambia took place. Myanmar shouldn’t be bulldozing over village sites and building on them. If there are mass graves, Myanmar shouldn’t be doing anything to conceal those mass graves. It certainly would include — if there are any — relevant government documents. How Gambia is going to get ahold of those documents is quite a different thing.
Jen Kirby
This might be an inelegant metaphor, but this ICJ provisional ruling strikes me a bit as telling a murderer to stop killing and also preserve all evidence he’s killed in the past. Are there any enforcement mechanisms? What’s the incentive for Myanmar to comply with this ruling?
Michael Becker
A few things about that. The main orders imposed here are simply telling Myanmar to comply with obligations it already has. By telling Myanmar to take all measures to prevent genocide against the Rohingya from taking place, the court isn’t creating any new obligations for Myanmar. This is what Myanmar is supposed to be doing anyway under the Genocide Convention.
But what’s you’re saying — how can we really expect a bad actor to clean up his act because you tell them to? — there’s some truth to that.
Myanmar has made some important concessions, as it recently said gross human-rights abuses against the Rohingya may have taken place and some may have even risen to the level of war crimes. But Myanmar staunchly rejects the idea that any of this could be construed as an intent to destroy the Rohingya population, which is the requirement for genocide. That is difficult to prove. There is a high legal standard to prove genocide.
But the order, in a way, puts Myanmar on notice.
There already is a lot of scrutiny on Myanmar thanks to the work of the United Nations Fact Finding Mission on Myanmar, which found that top Myanmar officials should be investigated for genocide and human rights atrocities against the Rohingya. That has already put a lot of attention on the situation. This ICJ decision adds to that. It means that anything Myanmar’s security forces are doing will be looked at through this additional lens.
The ICJ also imposed a reporting requirement on Myanmar, so Myanmar has to send a report to the court after four months — and then every six months after while the case is pending — to show what steps it has taken to prevent conduct that might constitute genocide.
Gambia may dispute what Myanmar claims it is doing. If the situation is grave enough, if new information comes to light about things are taking place on the ground in Myanmar that threaten the Rohingya, there’s nothing to stop Gambia from going back to the ICJ.
Of course, you could say, “Isn’t that also more of the same? They weren’t that effective first time. What would make them effective the second time?”
When it comes to international law, enforcement of international court judgments often comes down to the political will of states. This ruling could provide something for states to focus on in their own assessment of what the government of Myanmar is doing, and to help them decide to put further pressure on Myanmar to change its policies or to undertake new efforts in resolving the situation of the Rohingya.
Jen Kirby
But can an ICJ case like this do anything on the ground for the Rohingya in Myanmar?
Michael Becker
There is definitely a risk in people expecting an ICJ case to be the solution to the entire problem.
The ICJ case can play an important role in responding to this particular situation. But it needs — and this is true of many other situations too, that might involve international litigation strategies or international courts — it has to be part of the broader political diplomatic strategy.
Jen Kirby
Since this is the top court of the United Nations, can the court make recommendations for the UN Security Council or other UN bodies to step in?
Michael Becker
The ICJ not going to impose orders or direct anyone to do anything that isn’t a party before it. So the ICJ would never even recommend action to the UN Security Council in a dispute between two states.
But can the UN do anything? Well, yes. The UN can always do something — if there’s political will. The remit of the UN Security Council is to deal with the maintenance of international peace and security or to respond to threats to international peace and security. At this point in history, that definition is extremely broad. So if the UN Security Council wanted to take action with regard to Myanmar or the Rohingya, they could.
Politically speaking, that’s extremely unlikely. Particularly because of the relationship between China and Myanmar. As you know, China can obviously veto Security Council resolutions.
Jen Kirby
That makes sense — the realities of politics often get in the way of political will.
Michael Becker
One really interesting thing about the decision today was that it was unanimous, which is fairly unusual.
In the ICJ, if a state doesn’t have a judge on the court from the country, it’s allowed to appoint a judge for that case. Normally, there are 15 sitting judges on the court, but in this case, there are 17, because Gambia appointed a judge and Myanmar appointed a judge.
Judges on the court are independent actors, but it’s not surprising when these appointed judges side with the country that appointed them. They don’t always, but it’s certainly not surprising when they do.
But here we have a unanimous decision. Even the judge appointed by Myanmar found that the requirements for provisional measures were satisfied and that the situation posed a serious-enough risk of possible genocide to issue the measures.
Jen Kirby
It sounds then like the bar for this provisional decision is much lower than for the final ruling.
Michael Becker
It’s much lower because the provisional measures are meant to address or prevent the potential loss of human life while the case is still being decided. The court does have a much more relaxed standard about what evidence it’s going to credit.
The court cited the UN fact-finding mission report quite a lot in these provisional measures to establish there’s a real risk to human life right now. But those fact-finding reports are going to get a lot more scrutiny in the next phase. The court will have to do a much more rigorous assessment of all of the evidence at that stage.
So it’s really quite important to say that there is a more relaxed or forgiving standard when it comes to provisional measures. You can’t necessarily read that much into what the court has said here when it comes to how it might act on the merits.
Jen Kirby
So in terms of where we move from here, you mentioned that there will be a reporting requirement from Myanmar moving forward. Does Gambia get to investigate this case in the same way you would in a civil suit — like, depose witnesses? Or does the ICJ do this? How does this all play out?
Michael Becker
That’s a real tricky issue. The procedures for handling or gathering evidence at the end of the international level are not nearly as well developed as they are in most domestic legal systems.
Gambia requested — which the court actually rejected — a measure that would have required Myanmar to allow UN investigators into Myanmar. So far all of these UN fact-finding reports have been based on work that has been done outside of Myanmar, such as extensive interviewing of the Rohingya who’ve had to flee to Bangladesh and elsewhere. They haven’t gotten into Myanmar because Myanmar won’t allow them in.
But since the ICJ rejected Gambia’s request, it leaves the fact-finding situation in a little bit of flux.
Gambia is relying on all of this evidence that the UN has gathered, that NGOs have gathered, that journalists have gathered. But Gambia can decide if it wants to ask the courts to authorize some kind of investigation of its own. I think that’s unlikely, but they might want to press it.
But there isn’t any equivalent to deposing witnesses or anything like that. And so this is something that the International Court of Justice and some other international courts have been criticized for — for not having evidentiary practices that can really do justice to some of the claims that they have to decide.
I don’t know what Gambia is going to do now. It may come down on them continuing to rely on the very solid fact-finding work the UN investigators have already done. I’ve suggested that either the parties or the court itself might want to consider calling as witnesses the people involved in putting together the UN report. They should be subject to questioning and cross-examination at the ICJ.
Jen Kirby
If Gambia succeeds in making this difficult case, what would happen?
Michael Becker
The standard for proving genocide is quite high, and very challenging to meet, even in the face of abundant evidence of mass atrocity. That’s not enough. That alone is not enough to meet the strict legal definition of genocide.
If Gambia succeeded, there’s a separate question about what kind of relief it would be able to ask for. That’s all over the map. One focus might be on financial compensation.
There are bigger questions, too, about whether the court is in a position to compel Myanmar to change its citizenship laws, for example. The Rohingya have essentially been made stateless by being denied the right of citizenship, which has contributed to making their existence so precarious.
Those questions are years away, but they raise a lot of challenging and interesting legal questions about what type of relief might be available — and how likely would it be that relief could ultimately be implemented.
Jen Kirby
Myanmar also established an Independent Commission of Enquiry (ICOE) to investigate atrocities against the Rohingya, and this week the commission said there was evidence of human-rights violation, even war crimes, but no genocide. How big a deal is that? Or was this an attempt to basically get out in front of this ICJ decision?
Michael Becker
The commission of inquiry that Myanmar set up has been widely criticized because of the personnel involved. It looks very close to the government. It looks like it fails basic requirements to establish a baseline of independence and impartiality.
It’s very tempting to just criticize the commission on those grounds and say it’s a complete whitewash. I’m sympathetic to that, but I’ve tried to make the argument that even if that’s the case, it’s important to respond to its assertions and findings in a forensic way.
But, in a way, Myanmar also seems to be appealing to the international community to say, look, “We are taking it seriously. So back off.” There’s a strategic rationale for why they may be willing to admit to what are very serious transgressions. This is part of the overall narrative of Myanmar’s government, which is to say it’s dealing with an internal armed conflict. This is about counterterrorism; it’s not the government’s plan to wipe out the Rohingya. This is about military or security forces engaged in counterterrorism getting out of hand.
I think they will try to use that to undermine the claim that there’s genocidal intent. It’s quite a cynical argument: We engaged in war crimes, so it can’t possibly be genocide.
Jen Kirby
Sort of like “mistakes were made.”
Michael Becker
This is the problem with the court’s test. The ICJ has said if you are inferring genocidal intent, that has to be the only inference you can draw from the evidence.
If you can draw other inferences from the evidence — such as the possibility of counterterrorism run amok — that can defeat a genocide claim. That’s why genocide is so hard to prove.
Why the ICJ Is Trying to Protect Myanmar’s Rohingya
The International Court of Justice issued an important decision aimed at protecting Myanmar’s persecuted Rohingya minority, but its impact is unclear.
Article by David J. Scheffer
January 24, 2020
Myanmar leader Aung San Suu Kyi listens as Gambian Justice Minister Abubacarr Tambadou speaks at a hearing at the International Court of Justice in The Hague, Netherlands. Yves Herman/Reuters
The wheels of international justice turn slowly, but this week they sped up to protect the rights of the Rohingya, an ethnic Muslim minority population in Myanmar that has suffered brutal assaults by government forces since 2016. The International Court of Justice (ICJ), the primary judicial organ of the United Nations, ordered Myanmar to cease and desist all forms of alleged genocide against the Rohingya and to preserve evidence about alleged genocidal acts. How Myanmar intends to respond to the ruling remains to be seen.
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UN fact-finding reports from the last two years recorded a multitude of atrocities, including mass killing and displacement and “overwhelming levels of brutality, combined with the physical destruction of the home of the [Rohingya], in every sense and on every level.” An estimated one million Rohingya fled across the border into Bangladesh, where they remain packed in vast refugee camps.
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But does this violence amount to genocide? The ICJ is primed to answer that question in Gambia v. Myanmar, a case filed in November that seeks to enforce the UN Genocide Convention, a post-Holocaust treaty to which both nations are party.
The court’s order this week of “provisional measures” came swiftly after courtroom arguments were heard last month. Myanmar’s top political leader, Aung San Suu Kyi, who long ago fell from her Nobel Peace Prize perch, appeared in The Hague to argue the Myanmar government’s request to have the case dismissed and the provisional measures buried. The judges denied those demands.
Genocide is difficult to prove in a court of law. Despite the UN reports and graphic media coverage of the Rohingya crisis in recent years, Gambia’s legal team has a long road ahead to hold Myanmar responsible for genocide. However, the court’s order is a good start, as it resolves some of the underlying legal issues for the next phase of the case and aims to protect the Rohingya in the meantime.
Protecting the Rohingya
The ICJ embraced five of the six provisional measures sought by Gambia, marking a considerable victory at this stage of the case. The fifteen international judges and two ad hoc judges (one selected by each party in the case) emphasized that there are fundamental rights at stake and that the Rohingya deserve protection of those rights immediately. They noted a recent UN report that found the Rohingya “remain at serious risk of genocide.”
The court order requires Myanmar to prevent the full range of acts under the Genocide Convention that point to destroying all or part of a national, ethnic, racial, or religious group. These include not only killing members of a group such as the Rohingya, but also seriously harming them physically or mentally, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,” or “imposing measures intended to prevent births within the group.” In a sweeping prohibition, the court ordered Myanmar to ensure that its military and any irregular armed units under its control will not commit any of these acts, form any conspiracy to do so, incite genocide, attempt to commit genocide, or be complicit in genocide. Myanmar also has to prevent the destruction of any evidence of possible genocide.
Do not bet the house on it, but by May 23 the Myanmar government must deliver a report to the court on all measures it has taken to implement the order, and it must continue to do so every six months thereafter until a final decision is reached. Myanmar recently claimed it is taking steps to establish accountability for human rights violations and war crimes—not genocide—against the Rohingya and to facilitate their return to Myanmar’s Rakhine State. But the court, relying on UN reports, decided that Myanmar’s anemic efforts are not enough to derail the case. Indeed, they found that Myanmar “has not presented to the court concrete measures aimed specifically at recognizing and ensuring the right of the Rohingya to exist as a protected group” under the convention.
The court’s jurisdiction in this case only covers the crime of genocide. The vast body of war crimes and crimes against humanity of which the Myanmar government and military have been accused has to be pursued in other forums, such as the International Criminal Court, which has its own Rohingya investigation underway.
Myanmar’s Weak Defense
The judges found that some of the worst atrocities allegedly committed against the Rohingya “are capable of falling within the provisions of the Convention.” This means genocidal acts may have taken place, and sets up the dispute required for the case to be argued on the merits.
The court shot down Myanmar’s view that a “plausible claim” under the Genocide Convention must at this stage include evidence demonstrating specific genocidal intent. There need not be a showing of specific genocidal intent to destroy all or part of a protected group of people—which is difficult to prove on the merits—as a predicate to ordering provisional measures. Nor is it necessary to show that genocide is the only plausible reading of the facts to move ahead with such measures.
The court ruled that it has jurisdiction over the case and that there is indeed a “dispute” between two states parties, Gambia and Myanmar. This is critical, because Myanmar had argued that Gambia sued Myanmar simply as a proxy for the Organization of Islamic Cooperation, which supports the judicial initiative to hold Myanmar accountable for assaults on the Rohingya. Gambia can sue in its own right as a state party to the convention.
The judges found that the Rohingya “appear to be a protected group” to be shielded by the Genocide Convention.*
The court also rejected Myanmar’s domestically popular claim, which was advanced in The Hague last month, that the ongoing internal conflict between armed groups, some aligned with the Rohingya, and the Myanmar military overshadows the nation’s obligations under the Genocide Convention. The existence of war, in the court’s view, is essentially irrelevant: “The context invoked by Myanmar does not stand in the way of the Court’s assessment of the existence of a real and imminent risk of irreparable prejudice to the rights protected under the Convention.”
A Test for International Justice
Diplomats, political leaders, and humanitarian agencies will have to keep up their fight to protect the long-suffering Rohingya. The provisional measures ordered by the court are legally binding on Myanmar. However, only the UN Security Council can enforce them, and the prospect of that happening is remote with possible vetoes from China and Russia.
So, as the case moves to the next stage and the court awaits Myanmar’s response in the months ahead, the force of the law itself will be severely tested.
*Editor’s note: This point was edited to clarify the court’s finding related to the protected status of the Rohingya.
NEWS/MYANMAR
After ICJ ruling, Myanmar denies genocide against Rohingya
In a statement, government fails to use word 'Rohingya' and rejects accusations of genocide after case at top UN court.
24 Jan 2020
Aung San Suu Kyi leaves a hearing in a case filed by The Gambia against Myanmar alleging genocide against the minority Muslim Rohingya population, at the International Court of Justice in The Hague, Netherlands on December 10, 2019 [Yves Herman/Reuters]
Aung San Suu Kyi leaves a hearing in a case filed by The Gambia against Myanmar alleging genocide against the minority Muslim Rohingya population, at the International Court of Justice in The Hague, Netherlands on December 10, 2019 [Yves Herman/Reuters]
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In response to an international court's decision ordering Myanmar to take emergency measures to prevent the genocide of the Rohingya, the country's government responded by saying that there has been "no genocide in Rakhine" - the state from which most of the Muslim-minority group hails.
Rights groups and members of the Rohingya minority have celebrated Thursday's ruling from International Court of Justice (ICJ) judges.
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But a statement released by Myanmar's Ministry of Foreign Affairs said it was "important for Myanmar that Court [ICJ] reaches a factually correct decision on the merits of the case", and condemned human rights organisations that it accused of presenting a "distorted picture" of the situation in Rakhine.
Those groups, the statement said, had "affected Myanmmar bilateral relations with several countries" and hampered efforts for "sustainable development" in the northwest province.
While acknowledging "war crimes had occurred", the statement said "there has been no genocide in Rakhine."
While defending her country at the ICJ in December, Myanmar leader Aung San Suu Kyi, in a 30-minute speech, failed to use the word "Rohingya" once.
Critics said her refusal to use the word was part of Myanmar's attempt to strip the minority of their identity and rights.
Again on Thursday, the word "Rohingya" was absent from the Ministry of Foreign Affairs' statement.
'A great day for hundreds of thousands of Rohingyas'
The ICJ case was filed by Muslim-majority The Gambia, which had asked the court to impose emergency measures following the Myanmar army's violent 2017 crackdown that forced around 740,000 Rohingya to flee to neighbouring Bangladesh.
The Hague-based court, which is the principal judicial organ of the United Nations, ordered Myanmar to take urgent and "provisional measures" to protect its Rohingya population from genocide.
READ MORE
'Justice served': Rohingya refugees in Bangladesh hail ICJ ruling
Provisional measures are steps aimed at preventing further harm, and come as the first step in the legal case.
Legal experts have applauded the court's decision.
Reed Brody, a commissioner at the International Commission of Jurists who was instrumental in the prosecution of the former Chadian dictator Hissene Habre, told Al Jazeera: "This is a great day for the hundreds of thousands of Rohingyas who have been displaced, killed and raped. The UN's highest court has recognised their suffering."
The ICJ's orders are legally binding.
Brody said the fact that the decision was unanimous would add weight to the court's measures.
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