The Rohingya are not considered citizens of Myanmar and have no legal rights pursuant to the country’s 1982 Citizenship Law. Based on this legal regime, citizenship and rights are dependent upon belonging to one of Myanmar’s 135 predetermined “national races”. The Rohingya are not regarded as such. While evidence of grave human rights violations against them have been documented by the UN since 1992, the situation escalated when Myanmar security forces began widespread and systematic “clearance operations” against them in October 2016. A second wave of violence in August 2017 occurred on an even larger and wider geographical scale, which displaced more than 740,000 Rohingya to Bangladesh. Investigations conducted by UN bodies have documented the commission of, inter alia, mass murders, sexual and gender-based violence, torture, and the burning of houses and other property during these operations.
Since August 2017, the ongoing Rohingya humanitarian crisis and the associated international crimes against the ethnic Rohingya have been evoking extensive international attention. Though the Security Council could not pass a resolution on the crisis due to veto given by China, the Pre-trial Chamber of the ICC delivered its decision on 6 September 2018 agreeing with the prosecution request that it can exercise jurisdiction to the crime against humanity of deportation under the Rome Statute of the International Criminal Court (ICC) 1998. Despite the positive developments at the ICC, the question remains as to whether the prosecutor will investigate the crime of genocide.
The Republic of Gambia, a member of OIC and a Muslim country, is a country in West Africa plays an active role in international affairs, especially West African and Islamic affairs, although its representation abroad is limited. As a member of the Economic Community of West African States (ECOWAS), the Gambia has played an active role in that organization’s efforts to resolve the civil wars in Liberia and Sierra Leone and contributed troops to the community’s ceasefire monitoring group (ECOMOG) in 1990 and (ECOMIL) in 2003.
Bangladesh will extend its all-out support to the Gambia as it is playing the lead role in taking the Rohingya issue to the International Court of Justice for establishing the legal rights of Rohingyas and addressing the question of accountability and justice. In its first Genocide Convention case, the ICJ imposed provisional measures against Serbia in 1993 and eventually found that Serbia had violated its duty to prevent and punish genocide in Bosnia-Herzegovina.
The International Court of Justice, the top court of the UN, is a court that hears disputes between states, and hence permits only states as parties to the proceedings. It is not a human rights court that addresses individuals, and adjudicates between states on the basis of violations of international treaties. On 11 November 2019, The Gambia instituted proceedings before the ICJ against Myanmar alleging “manifest violation” of the latter’s obligations under the 1948 Genocide Convention. Both are States Parties to the Convention.
The application by The Gambia charges Myanmar as a state with violating the Genocide Convention in numerous ways, including committing, failing to prevent, and failing to punish genocide, and also failing to pass domestic legislation to enact the provisions of the Genocide Convention (as the Convention requires). As a remedy, The Gambia requests cessation of the genocidal acts, prosecution and punishment of those responsible, and reparations for the victims. The application limits its temporal scope to events occurring since October 2016 to date.
The Republic of Gambia also requests for “provisional measures,” i.e., court-mandated actions that Myanmar must take during the pendency of the litigation to prevent further irreparable harm. The provisional measures The Gambia requests include requiring Myanmar to take all actions within its power to prevent genocide and its underlying acts such as killing, rape, and destruction of property, and to not destroy or “render inaccessible” evidence.
Myanmar is a party to the 1948 Convention on the Prevention and Punishment of Genocide. Article IX of the Genocide Convention provides that any contracting party may submit a dispute between it and another contracting party relating to the interpretation, application or fulfillment of the Convention to the ICJ, including disputes about the responsibility of a state for genocide. Fifteen states have lodged reservations relating to Article IX, but Myanmar has not. It has instead made reservations to Articles VI and VIII of the Genocide Convention, neither of which is an obstacle to pursuing an ICJ case.
Article VI of the Genocide Convention merely requires that persons (i.e. individuals) charged with genocide be tried by a competent tribunal of the state where an offense occurs or by an international penal tribunal. In its reservation, Myanmar only asserts the exclusive jurisdiction of national tribunals over the trial of individuals for offenses under the Genocide Convention and nothing more. In the current case, the Gambians are not seeking to try any individual of Myanmar for genocide but are rather accusing the state of Myanmar, and thus Article VI is inapplicable here. Article VIII provides that the contracting parties to the Genocide Convention “may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide.”
Bringing the case under the Genocide Convention in the ICJ can be important for several reasons. First, the focus of the International Criminal Court is to ensure individual criminal responsibility; on the other hand, the ICJ focus is on the responsibility at the state level. Second, in the ICJ proceeding, there are chances for the world community to witness and observe the entire state policy of the Myanmar government including the “ethnic cleansing” and persistent violation of fundamental rights of the Rohingyas. Third, if the ICJ finally finds the violation of state responsibility not to commit genocide, the question of reparation may arise. It may include financial compensation for the victims to resettle in their homelands that may trigger also to claim citizenship rights and end of a wide range of discrimination. Fourth, the ICJ can issue provisional measures if there are reliable shreds of evidence that Myanmar is not complying with the obligation under the Genocide Convention. The verdict on merit may take several years, so provisional measures may help to cease the persistent abuses. Fifth, the ICJ could issue provisional measures directing Bangladesh and Myanmar to postpone their agreement to repatriate the Rohingya. While Myanmar may not comply with those measures, Bangladesh, which has been cooperative with the ICC, may be more inclined to do so.
In the court of ICJ, the hearing of this case has already been concluded in the Peace Palace in The Hague. The court keeps the case for order. The State Counsellor of Myanmar, Aung San Suu Kyi led the Myanmar team. She personally defended her country from accusations of genocide against the Rohingya community and claimed the case is not maintainable in the ICJ. She also acknowledged there may have been some war crimes or crimes against humanity, but insisted none of these rose to the level of genocide - for which the specific intent to destroy a group has to be proven. The whole world raises the demand for justice and to boycott Myanmar. Gambia’s Justice Minister Abu Bakar Tambadu and his team vehemently presented the case before ICJ pointing every evidences relating to Genocide with Rohingya. The Gambia’s request for the International Court of Justice (ICJ) to order provisional measures as “a matter of extreme urgency” requiring Myanmar to take among others measures to prevent ongoing genocidal acts and elsewhere from further threats or violence. These will be legally binding. To rule that Myanmar has committed genocide, the court will have to determine that the state acted “with intent to destroy in whole or in part” the Rohingya minority.
A judgment on provisional measures in the form of an injunction against Myanmar should deter it from persecuting the Rohingya who are still within Myanmar. If the court decides that Myanmar committed the gravest offences under international law, there could be diplomatic consequences. If a party fails to perform any of the obligations set out in a judgment of ICJ, the matter can be referred to the UN Security Council, which may recommend or decide upon necessary measures.
A binding legal judgment on the question of Myanmar’s responsibility for genocide against the Rohingya is not a panacea. It could, however, serve as a powerful focal point within a broader strategy aimed at promoting, protecting and vindicating the rights of the Rohingya people. If we are serious about our paeans to the international rule of law and the fight against impunity, the idea of an ICJ case is at least worthy of consideration. Beyond this specific case, a judgment may also send a message to future perpetrators of genocide that there is no complete impunity for such egregious violations of international law. The case should also encourage many other states in the future to punch above their weight and fight for justice by invoking the principles of international law.
The Writer is a member of Bangladesh Judicial Service & Senior Judicial Magistrate, Chief Judicial Magistrate Court, Feni.