Dhaka Courier

The Gambia v Myanmar: Proceeding on the merits

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Influx of Rohingya Muslims from Myanmar to Bangladesh in August 2017 (UNB file photo)

On October 23, The Gambia filed a more than 500-page Memorial, which also includes more than 5000 pages of supporting material, in its lawsuit against Myanmar at the International Court of Justice in The Hague, making its case for how the Government of Myanmar is responsible for genocide against its own Rohingya population.

This was the follow-up to the ICJ’s January 23, 2020 decision on the request for “provisional measures” in the case of The Gambia v. Myanmar. Provisional measures serve as the equivalent of injunctions or even temporary restraining orders against a country. They are requested when one state believes that there is an ongoing legal violation from which it will continue to suffer some harm while the Court considers the underlying claims. In this case, The Gambia feared further harm to the Rohingya population.

So in its January 23 order, the court did not determine whether Myanmar had committed genocide or not. There remain years’ worth of written submissions and hearings before that issue will be determined. This was an order specifically addressing the short term, urgent request by The Gambia for provisional measures.

The ICJ first determined that it has “prima facie jurisdiction,” to justify issuing an order for provisional measures, meaning that The Gambia has made an initial showing sufficient to satisfy the Court, on a basic level, that it has the authority to adjudicate the dispute.

The Court also evaluated whether the provisional measures requested are necessary to prevent “irreparable harm.” The Court referenced the arguments from both states, but also took note of the report of the Independent International Fact Finding Mission on Myanmar, issued in 2018, which found that “the Rohingya in Myanmar have been subjected to acts which are capable of affecting their right of existence as a protected group under the Genocide Convention, such as mass killings, widespread rape and other forms of sexual violence, as well as beatings, the destruction of villages and homes, denial of access to food, shelter and other essentials of life.”

It also referenced the Independent International Fact-Finding Mission on Myanmar (IIFFMM) report in September 2019 to the UN Human Rights Council, which concluded that “the Rohingya people remain at serious risk of genocide under the terms of the Genocide Convention.”

Having reviewed the submissions from both states and the independent evaluations of the situation on the ground in Myanmar, the Court held that “there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia.” Accordingly, the Court found that it was justified in issuing provisional measures.

In determining which of the measures proposed by The Gambia to adopt, the Court held that Myanmar must take steps to prevent further genocidal acts by its own forces or by groups or forces acting within its territory over which it has any “control, direction, or influence.” It also held that Myanmar must take steps to preserve any evidence of wrongdoing under the Genocide Convention. The Court required Myanmar to submit a report to the ICJ within four months on the steps it is taking to comply with these orders. The Gambia is entitled to submit comments on Myanmar’s report.

The ICJ has released the schedule for both sides to submit their legal briefs addressing the issues on the merits that are in dispute. The Gambia was to submit its written memorial by July 23 and Myanmar its response by January 23, 2021. In the light of the pandemic, these were later extended.

The ICJ Statute requires that the order for provisional measures be transmitted to the U.N. Security Council for review. U.N. Secretary-General António Guterres issued a statement taking official notice of the ruling and expressing that he “trusts that Myanmar will duly comply.”

Among the Rohingya refugees watching the Court’s reading of the Order from their camps in Cox’s Bazar, even the provisional measures order ignited a sense of hope that official international mechanisms were finally taking action on behalf of the Rohingya population.

And yet, the actual effect depends on whether Myanmar chooses to follow the Court’s provisional measures order. If the Court’s orders are followed, this ruling would have a very positive impact on the situation on the ground in Myanmar. The critical provisional measures ordered by the Court would either contribute directly to a reduction in violence targeted towards the Rohingya or preserve evidence for later accountability. Regardless of whether the Court ultimately finds that genocide actually occurred in this case, the day-to-day life of the Rohingyan people would be immeasurably improved and the actors implicated in wrongdoing could potentially face individual criminal accountability. That promise of the cessation of wrong acts targeted at an at-risk population is the core goal behind the Genocide Convention.

Unfortunately, while the Myanmar military has said it won’t destroy any evidence, Myanmar political leadership has already said they don’t think they need to implement any special procedures to comply with the Court’s Order, arguing they have not committed genocide and thus do not need to change anything they are doing. At the same time, military strikes against Rohingya populations continued even after the Court’s ruling, such as the artillery fire alleged to have killed two women in a Rohingya village.

The impunity must end

The Government of Myanmar should immediately comply with International Court of Justice (ICJ) orders to prevent ongoing acts of genocide and preserve evidence of genocide against Rohingya Muslims, said Fortify Rights, which as a human rights organisation has continued to work with admirable dedication and commitment towards turning the world’s attention to the plight of the Rohingya, whose lack of a voice to speak up for them contributed to the view among rights advocacy groups that they were indeed the “most persecuted minority in the world”.

“Today is another step towards justice for Rohingya,” said Matthew Smith, Chief Executive Officer at Fortify Rights, following The Gambia’s submission  of the Memorial, which is essentially the substantive legal brief making the case on behalf of The Gambia.

“International accountability mechanisms, like the ICJ, are crucial, especially given that mass atrocity crimes continue against Rohingya and others in Myanmar,” added Smith.

According to Arsalan Suleman, counsel at Foley Hoag, the international law firm working with the Gambian Ministry of Justice, the evidence presented as part of the brief includes detailed reports from the UN, satellite imagery, independent reporting by human rights advocates and humanitarian organisations, public statements by Myanmar officials, and witness statements from Rohingya survivors, journalists, and former Tatmadaw soldiers who had essentially turned whistleblower.

In November 2019, The Gambia opened a case at the ICJ, also known as the World Court, against Myanmar for failing to prevent or punish genocide against Rohingya Muslims.

Following the October 23 by The Gambia, the Government of Myanmar has three months to file a Counter-Memorial at the ICJ in response to The Gambia’s genocide allegations. The Memorial and Counter-Memorial will not be made public for the duration of the trial, which is expected to last several years.

Fortify Rights released an animated explainer on international accountability in English and Rohingya languages, describing the justice mechanisms under the International Criminal Court (ICC) and the ICJ.

An estimated 600,000 Rohingya remain in Rakhine State where they face ongoing genocide. On January 23, 2020, the ICJ unanimously indicated legally binding provisional measures, requiring the Government of Myanmar to take all steps within its power to prevent the commission of all acts of genocide, such as killing, causing serious mental or bodily harm, and other acts listed in the Genocide Convention.

It also requires the government to preserve evidence of genocide and to report to the court every six months on its progress implementing the order, among other measures. Since the court’s issuance of provisional measures, authorities in Myanmar continue to commit human rights violations against the Rohingya.

The government continues to confine more than 125,000 Rohingya to more than 20 internment camps. Hundreds of thousands of other Rohingya are confined to villages in Rakhine State. The authorities systematically deny Rohingya the right to freedom of movement and other fundamental freedoms.

On September 22, the U.N. Special Rapporteur on the situation of human rights in Myanmar, Thomas Andrews, presented satellite photographs of a Rohingya village–Khan Da Para, also known as Kan Kya, in Rakhine State—before and after it was attacked and destroyed in military-led “clearance operations” in August 2017.

The satellite photographs dated this year showed a military installation where homes once stood, raising questions about the destruction of evidence.

“Where is justice for those stranded in refugee camps in Bangladesh while facilities are constructed on their homeland for the same military that stands accused at the International Court of Justice for committing genocide against them?” said Thomas Andrews.

The provisional measures ordered by the court are binding. Should the court find that Myanmar has failed to comply, the ICJ can issue additional measures and the U.N. Security Council can take up the matter.

In July 2020, Fortify Rights obtained two videos showing two Myanmar Army deserters—Private Myo Win Tun, 33, and Private Zaw Naing Tun, 30—confessing to mass killings of Rohingya and other crimes and explaining the chain-of-command with regard to orders to “exterminate all” Rohingya.

The men traveled to Bangladesh in mid-August, and on September 8, they were transferred to the ICC in The Hague, where they remain.

Prior to their transfer to The Hague, the Government of Bangladesh collected statements from the two men, which The Gambia’s legal team will reportedly make use of in the trial at the ICJ.

“Justice is possible for Rohingya, and when it comes, it will be because of Rohingya human rights defenders and members of the community who stood up and provided evidence,” said Matthew Smith. “Rohingya people are at the center of the accountability process.”

The UN’s new special rapporteur Thomas Andrews released his first comprehensive report on the human rights situation in Myanmar last September. It would be remiss of anyone not to go through it and note some of the most relevant and important sections:

Democratic space

Fundamental rights, including freedom of expression and association and a free press, are the lifeblood of a democracy. The Special Rapporteur regrets that laws undermining these core freedoms remain in the legal framework of Myanmar and continue to be enforced. They have been used to violate the rights of human rights defenders, journalists and citizens seeking to freely express their views. Amending or repealing these laws does not require the constitution to be amended, and they could therefore be amended or repealed by a majority of members of Parliament. Unfortunately, Parliament has failed to do so. Laws that continue to infringe these fundamental rights include the Telecommunications Law, the Penal Code, the Peaceful Assembly and Peaceful Procession Law and the Unlawful Associations Act, among others.

It was reported to the Special Rapporteur that nationalist groups continue to use social media platforms, in particular Facebook, to post hate speech that targets State Counsellor Aung San Suu Kyi and members of the Government, as well as Muslims, Rohingya and political parties deemed supportive of freedom of religion. Dangerous speech, hate speech and disinformation reportedly continue unabated on Facebook in Myanmar, posing significant challenges for upcoming elections and beyond.

Right to a nationality

The right to a nationality is a fundamental human right, and it is denied to ethnic Rohingya. There are an estimated 600,000 Rohingya in Rakhine State, more than 1 million Rohingya refugees in camps in Bangladesh and more than 100,000 Rohingya refugees in Malaysia. The Government of Myanmar has long denied Rohingya access to full citizenship rights, most recently through the national verification card process. While national verification cards are not intended solely for Rohingya, they effectively identify Rohingya as foreigners and strip them of full citizenship rights. The Special Rapporteur received reports that various authorities continue to force or coerce Rohingya to accept the cards. Rohingya and human rights defenders have commented that this appears to be a systematic campaign to erase Rohingya identity. Additionally, the 1982 Citizenship Law, which hinges access to citizenship rights on race and ethnicity, continues to effectively deny Rohingya equal access to full citizenship rights, thus contributing to the problem of statelessness. The Special Rapporteur notes that the denial of citizenship is historically a common feature in the commission of the crime of genocide. In this regard, ensuring that the 1982 Citizenship Law is brought into line with international standards should be a matter of urgency.

Right to return

At the time of writing, the conditions for the voluntary, safe, dignified and sustainable return of Rohingya refugees to Myanmar are not in place. Despite select military tribunals, impunity for mass atrocity crimes against Rohingya civilians in 2016 and 2017 continues, and restrictions on freedom of movement, access to livelihoods, access to citizenship, health and education continue to be enforced against Rohingya and other Muslims in Rakhine State. Myanmar officials continue to deny the existence of Rohingya, and restrictions on freedom of movement in Rakhine State are imposed indefinitely, outside of domestic law, and in a discriminatory fashion, putting them in violation of international human rights law.

  • International Court of Justice (ICJ)
  • Rohingya Crisis
  • Myanmar
  • Gambia v. Myanmar

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