What Does the ICJ Preliminary Ruling Really Mean for the Rohingya?

The ICJ verdict is an important first step toward ensuring that the Rohingya victims get some tangible justice.

By Angshuman Choudhury February 07, 2020

What Does the ICJ Preliminary Ruling Really Mean for the Rohingya?
Credit: Russell Watkins/UK Department for International Development

On January 23, the International Court of Justice (ICJ) based in The Hague ordered Myanmar to take immediate measures to prevent the genocide of the stateless Rohingya Muslim minority, based in northern Rakhine state. The court indicated four specific “provisional measures” in this regard, as requested by The Gambia in its November 11, 2019, application to the ICJ seeking proceedings against Myanmar for violating the 1961 Genocide Convention.

The Gambia, a small West African country, has accused Myanmar of carrying out genocidal violence against the Rohingya in response to two separate waves of attacks by the Arakan Rohingya Salvation Army (ARSA) on border outposts in northern Rakhine state in October 2016 and August 2017. As a direct result of the violent military “clearance operations” that followed the second attack, close to 800,000 Rohingya fled to neighboring Bangladesh, where they have been lodged in vast refugee camps since then.

The ICJ directed Myanmar to take all measures in its capacity to prevent the commission of genocidal acts against the Rohingya; ensure that its military and allied entities do not commit genocidal acts against the Rohingya; ensure that all evidence relating to the allegations of this case are preserved; and finally, submit a compliance report within four months and, thereafter, after every six months until the final verdict is delivered.

This is a major breakthrough in the multidimensional attempt to establish accountability for the deadly violence inflicted by Myanmar’s security forces and allied entities on the Rohingya.

Since the 2017 attacks, the Myanmar government and the Tatmadaw (Myanmar’s military) have constantly faced the music from various international entities, including the United Nations, for their troubling actions against the Rohingya. But save for a few General Assembly resolutions, sternly worded statements from UN envoys, and targeted yet limited sanctions against Tatmadaw commanders from some Western powers, Myanmar has so far been able to dodge accountability. The government, led by Nobel Peace Prize winner Aung San Suu Kyi, and military have consistently denied all accusations of wrongdoing and dismissed every single report that pins the blame on Myanmar.

The ICJ interim decision is, thus, an important first step toward changing that and ensuring that the Rohingya victims get some tangible justice. In fact, such is the gravity of the case brought by The Gambia that it was at the preliminary hearing at The Hague on December 10-11 where Myanmar conceded for the first time that its security forces did commit mass killings of Rohingya. However, no genocide was committed, Myanmar argued. Suu Kyi personally appeared before the Court to defend the charges.

Myanmar’s legal team also argued that because of the country’s reservations on the Genocide Convention, the ICJ has no jurisdiction over this case. But in its latest verdict, the court dismissed this claim and ascertained that it has prima facie jurisdiction over the case. It also concluded that the Rohingya — deemed by Myanmar as illegal immigrants — are a “protected group within the meaning of the Genocide Convention” and that “there is a real and imminent risk of irreparable prejudice to the rights [of the Rohingya] invoked by The Gambia.”

These are critical observations that bolster the Rohingya genocide claim and greatly reduce the space for Myanmar to summarily deny the charges, which it had been doing so far.Advertisement

Further, the court extensively relied on the September 2018 report of the International Fact-Finding Mission (IFFM), sanctioned by the UN Human Rights Council, to arrive at its own conclusions. The IFFM report concluded that Myanmar’s security forces had committed violent acts with specific “genocidal intent” against Rohingya men, women, and children in retaliation for the August 2017 attacks. The ICJ categorically took note of the report’s observation that “there are reasonable grounds to conclude to the commission of genocide against the Rohingya.”

This is crucial, as it reflects the bench’s confidence on the IFFM’s findings, which have been flatly dismissed by Myanmar. While the IFFM failed to gain access to the core crime scenes in northern Rakhine, thanks to Myanmar’s non-cooperation, it has furnished extensive textual and visual evidence, including interviews of displaced victims in Bangladesh, in support of its conclusions. The ICJ’s reliance on these could ultimately result in a verdict that favors the Rohingya victims and The Gambia’s position.

But this may not be the case. In the landmark 1993 genocide case of Bosnia & Herzegovina vs Serbia and Montenegro, where the former accused the latter of perpetrating genocide against Bosnian Muslims during the 1992-1995 conflict, the ICJ concluded that Serbia had not violated the Genocide Convention despite the International Criminal Tribunal on Yugoslavia (ICTY) furnishing extensive evidence in multiple formats and delivering damning judgments indicating otherwise. The Myanmar case could reach a similar conclusion, particularly given the lack of first-hand inspection reports from the main crime scenes in northern Rakhine.

Yet, the Bosnia-Serbia case appears uncannily similar to the Myanmar one. Serbia had conceded that its forces committed certain acts that could be classified as “war crimes or crimes against humanity,” but argued this was done without any “genocidal intent.” Myanmar made the same submission at the ICJ. Further, the “Independent Commission Of Enquiry (ICOE),” set up by the Myanmar government in July 2018, made the same observation in a summary report released two days before the ICJ decision. Myanmar cited its conclusion in a press release put out by its foreign ministry a few hours after the January 23 decision.

But the ICOE, which Myanmar insists is the proper way to go about prosecuting the crimes in question, has been widely accused of being biased. Even the IFFM concluded that the ICOE “will not and cannot provide a real avenue for accountability, even with some international involvement” and that “the impetus for accountability must come from the international community.”

Without doubt, the ICJ case is a solid step toward that. Moreover, alongside the ICJ, prosecutors at the International Criminal Court (ICC) are also investigating crimes allegedly perpetrated by Myanmar’s security forces against the Rohingya. But since Myanmar is not an ICC state party, the prosecution is moving through its neighbor and ICC member state, Bangladesh, arguing that the ICC has jurisdiction over Tatmadaw officers because the crime of “forced deportation” of the Rohingya was completed in Bangladeshi territory. Last November, a Pre-Trial Chamber gave the go-ahead for the prosecution’s investigations.

But both the ICJ and ICC have a major structural problem: neither has the mandate to enforce their judgments. In the ICJ case, actions against any violation of decisions can only be taken through resolutions at the UN Security Council. So far, Myanmar’s powerful ally, China, has vetoed all UNSC resolutions that condemn Naypyitaw’s actions against the Rohingya and call for greater accountability. A similar fate can be expected for ICJ-related resolutions. Furthermore, Beijing and Naypyitaw are bilaterally closer than ever before in recent history.

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Nevertheless, it is heartening to see powerful political-security actors being held accountable at international courts for crimes they have committed against disadvantaged minority groups. The ICJ’s latest decision reaffirms faith in a global justice system that is often deemed to be incompetent or spineless. Most importantly, it shows a glimmer of hope for the Rohingya, who have faced (and continue to face) the most unfathomable of injustices and horrors in Myanmar.

Angshuman Choudhury is a Senior Researcher at the Institute of Peace and Conflict Studies, New Delhi, and a GIBSA Visiting Fellow (Oct-Dec 2019), German Institute for International and Security Affairs.

The article appeared in the Diplomat on 4 February 2020

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