The Rohingya case could redefine genocide and that matters for ASEAN

YUYUN WAHYUNINGRUM

As hearings concluded on 30 January at the International Court of Justice (ICJ) in The Hague, Rohingya survivors expressed cautious hope that the world’s highest court would finally recognise what they endured in Myanmar as genocide. The case has now entered judicial deliberation, with a judgement expected within three to six months after three weeks of hearings. While the ruling will determine Myanmar’s responsibility under international law, its significance extends further: it may reshape how genocide itself is legally interpreted, with important consequences for Southeast Asia’s regional human rights framework.

At its core, the Rohingya proceedings confront one of the most underdeveloped questions in genocide law: whether sexual and gender-based violence (SGBV) can constitute evidence of genocidal intent. The Gambia argues that the Myanmar military’s systematic rape, sexualised torture, and reproductive harm inflicted on Rohingya women and girls were not incidental to conflict, but deliberate instruments of group destruction prohibited under the 1948 Genocide Convention. Sexual violence has too often been treated as a secondary harm rather than a constitutive act of genocide.

In its submissions, The Gambia framed SGBV as an instrument of genocide along two interlinked dimensions. First, the infliction of severe physical and mental harm: mass rape and sexualised torture were used to destroy dignity, fracture families, and terrorise communities. Second, the prevention of births: evidence before the court points to lasting reproductive injuries and trauma suffered by Rohingya women, undermining their ability to bear children. These harms amount to biological destruction of the group, not merely individual suffering, requiring the court to view genocide as a slow, gendered process of erasure rather than only immediate annihilation.

This is not an accidental flaw but a product of a state-centric design that prioritises consensus over protection.

The factual record supports this claim. United Nations investigators documented widespread sexual violence during the 2016–17 “clearance operations,” including mass gang rape and sexual assault targeting women and girls of reproductive age. Survivors consistently described the violence as patterned rather than opportunistic, occurring alongside village burnings, killings, and forced displacement. The cumulative effect was the destruction of Rohingya social continuity and reproductive futures.

If the ICJ recognises such violence as constitutive of genocidal intent, the judgement would mark a watershed moment in international law. It would affirm that genocide can be committed through gendered violence that prevents a group from sustaining itself biologically and socially, narrowing the long-standing gap between legal doctrine and survivors’ lived realities and strengthening the Genocide Convention’s relevance to contemporary conflicts.

Myanmar did not use the word Rohingya, instead referring to “persons from Rakhine state” in the statement. It also rejected this interpretation, portraying the 2017 operations as legitimate counterterrorism measures. Yet the court has already dismissed Myanmar’s jurisdictional objections and proceeded to the merits. While an ICJ ruling will not impose criminal penalties, it will shape how genocide obligations are interpreted globally and reinforce parallel accountability efforts across international mechanisms.

For ASEAN, the implications are direct and uncomfortable. Despite repeated crises in Myanmar, the regional grouping has struggled to respond meaningfully to mass atrocities within its own membership. Its commitment to non-interference has constrained collective action, often reducing regional responses to diplomacy without accountability. The failure of ASEAN’s Five-Point Consensus to curb violence starkly illustrates the limits of this approach.

ASEAN’s human rights institutions reflect similar structural weaknesses. The ASEAN Human Rights Declaration and the ASEAN Intergovernmental Commission on Human Rights (AICHR) provide weaker safeguards than international treaties already ratified by most member states. This is not an accidental flaw but a product of a state-centric design that prioritises consensus over protection. The Rohingya case exposes the cost of this ambiguity, particularly when systematic gendered violence is at stake.

Institutionally, ASEAN has tended to treat sexual and gender-based violence through a welfare or social development lens rather than as a matter of international criminal responsibility. Bodies such as the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) and ASEAN Committee on Women (ACW) often frame SGBV as a cultural or social issue, avoiding direct political confrontation with state or military actors. Their consultative mandates further limit their capacity to investigate sexual violence in conflict or atrocity settings.

There have been gradual shifts. The integration of the Women, Peace and Security agenda has begun to reframe SGBV from a domestic concern into a regional security issue. Through the 2022 ASEAN Regional Plan of Action on Women, Peace and Security, ASEAN now recognises SGBV as an early-warning indicator of mass violence. Yet implementation remains uneven, constrained by stigma, weak gender-sensitive legal frameworks, and limited political will.

The ICJ proceedings nevertheless offer ASEAN a policy opening. Rather than sweeping reform, incremental steps are more plausible. First, AHA-Centre could explicitly acknowledge SGBV as a risk indicator of wider mass violence within existing conflict monitoring and humanitarian frameworks. Second, AICHR could expand thematic reporting on SGBV, including cross-border impacts on displaced populations, building on its current promotional mandate rather than transforming it into an investigative body. Third, ASEAN member states could gradually align regional guidelines with existing international obligations under the Genocide Convention and the Convention on the Elimination of All Forms of Discrimination Against Women, signalling normative convergence without requiring formal institutional overhaul.

Ultimately, the Rohingya case asks whether international law is prepared to confront genocide as it is lived: gendered, cumulative, and deeply embodied. If the ICJ recognises sexual and gender-based violence as constitutive of genocidal intent, it would mark a critical step toward justice. For ASEAN, such a judgement could catalyse long-overdue reform, aligning regional norms with the realities of mass violence and the voices of those who have survived it.

The article appeared in the lowyinstitute