The International Court of Justice has unanimously ordered Myanmar to “take all measures within its power” to prevent all acts of genocide against the Rohingya Muslim ethnic minority group.
- Gambia brought the ICJ case against Myanmar late last year
- The UN has said the military raped women to prevent Rohingya births
- Aung San Suu Kyi has said disproportionate military force did not equate to genocide
The decision in the Hague on Thursday morning (local time) also required Myanmar to stop its military from committing or inciting genocide, and to preserve evidence of potential crimes against humanity.
Presiding Judge Yusuf Abdulqawi said that in the court’s opinion, the Rohingya “remain extremely vulnerable” in Myanmar and they faced “real and imminent risk”.
“Genocide is denial of right of existence of whole human group,” he said.
“It shocks the conscience of mankind … and is contrary to moral law and the spirit and aims of the United Nations.”
He added that the court was not at this stage required to make an assessment as to whether genocide had occurred, but did have jurisdiction to put in emergency measures.
The court rejected Myanmar’s request to throw the case out, and also said Myanmar must deliver a report within four months about the steps
How did we get here?
Late last year Gambia brought a case against Myanmar to the ICJ, often called the “world court”, alleging it breached the Geneva Convention on preventing and punishing genocide.
It called for binding emergency measures to be put in place, including for Myanmar to take all steps possible to prevent further genocide, monitoring of the military, requests for the preservation of evidence, and for the UN to have access to be able to carry out investigations on the ground.
“All that The Gambia asks is that you tell Myanmar to stop these senseless killings,” Gambia’s Justice Minister Abubacarr Tambadou said.
“To stop these acts of barbarity and brutality that have shocked and continue to shock our collective conscience. To stop this genocide of its own people.”
According to the UN, a Myanmar army crackdown in 2017 led to mass killings and rapes of Rohingya people, a Muslim minority in Rakhine state.
That led to a mass exodus, with 730,000 people fleeing to Cox’s Bazar in Bangladesh.
In a rare move, Myanmar’s State Counsellor Aung San Suu Kyi, who was awarded a Nobel Peace Prize in 1991, defended her country against the accusations.
“Gambia has placed an incomplete and misleading picture of the factual situation in Rakhine state in Myanmar,” she said.
Myanmar has labelled the widespread displacement of Rohingya people as “military clearances”, and Ms Suu Kyi said disproportionate military force did not amount to genocidal intent.
Her stance has made her a pariah abroad, but she remains popular at home.
Myanmar denies ‘genocidal intent’
The ICJ decision was handed down just days after a final report from the Independent Commission of Enquiry (ICOE), which was set up by the Myanmar Government.
Those findings echoed what Aung San Suu Kyi said while defending Myanmar.
“The ICOE has not found any evidence suggesting that these killings or acts of displacement were committed pursuant to an intent or plan to destroy the Muslim or any other community in northern Rakhine State,” it said.
“There is insufficient evidence to argue, much less conclude, that the crimes committed were undertaken with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, or with any other requisite mental state for the international crime of genocide.”
The full report is not public, but the Global Justice Centre cast doubt on the commission’s independence and said it couldn’t provide real accountability.
“All signs point to what human rights experts and Rohingya themselves already know, which is that the government has no intention of bringing perpetrators of mass rape and other genocidal crimes to justice,” Akila Radhakrishnan, president of the Global Justice Centre, said.
“This Commission is just yet another domestic attempt to deflect responsibility and whitewash the situation of the Rohingya.”
She pointed out that the report “also seemingly fails, like the Government of Myanmar, to use the term ‘Rohingya’, which continues to deny the identity of the group”.
A UN investigation has already reported that genocide has occurred, explicitly pointing out how “sexual violence was a hallmark of the Tatmadaw’s military operations”.
That included raping women and girls of reproductive age and brutal attacks on pregnant women and children, actions that sought to prevent Rohingya births and were “calculated to bring about the destruction of the Rohingya in whole or in part”.
Why is the ICJ case significant?
As international lawyer Professor Veronica Taylor points out, the ICJ case is the latest move to put legal and moral pressure on the Myanmar government.
She notes that Gambia’s request hasn’t been framed as a direct accusation of genocide, although that’s the implication, but is instead a claim for preventative measures to stop genocide occurring — a subtle but crucial legal distinction.
“The difficulty is that while there’s a civilian government in place in Myanmar, internal security is controlled by the armed forces,” she said.
“It’s very difficult because the armed forces in Myanmar have historically had a xenophobic worldview.
“There is a very deep sense that the international community does not understand that Myanmar, and that Myanmar is being treated unfairly.”
Professor Taylor said Ms Suu Kyi sought to characterise the atrocities as part of an historic internal conflict and a matter of internal affairs and national sovereignty.
The ICJ deals with disputes between states, but it “has no jurisdiction to try individuals accused of war crimes or crimes against humanity”. That’s the role of the International Criminal Court (ICC).
However, Myanmar is not covered by the jurisdiction of the ICC because it is not a party to the Rome Statute that established the court.
Bangladesh is, however, and so the ICC has an ongoing investigation into crimes committed against the Rohingya over the border that could fall under its purview.
Myanmar does recognise the jurisdiction of the ICJ, which is why the current case is significant, Professor Taylor said.
“It’s so important because it is the peak international legal forum that these issues can be aired in,” she said.
The ICJ is not the only international legal response to the Rohingya crisis.
The UN Fact Finding Mission investigated alleged human rights violations, but wrapped up in September last year and handed its evidence over to the Independent Investigative Mechanism for Myanmar (IIMM).
That body, as well as the ICC, is continuing to gather evidence that could be used in legal cases, but the UN has not been granted access to the country to carry out investigations on the ground.
Global Justice Centre’s Grant Shubin said the court would have been aware of the fanfare and scrutiny, especially after Peace Prize Nobel Laureate Ms Suu Kyi defended the case, and that the decision likely took into account “geopolitical realities”.
“The provisional measures stage is a super early stage in an ICJ case … there’s a lot of gravity to a genocide case,” he said.
“The international community needs to be sceptical of the breadcrumbs that Myanmar has been extremely adept at leaving in order to string the international community along to not have extra scrutiny, or to not hold them accountable for the human rights atrocities that they’ve been committing.”