“Wanted for war crimes and crimes against humanity!” A nicely capped toddler was seen holding a big photo of Min Aung Hlaing, the current Commander-in-Chief of the Myanmar Armed Forces, with this imprinted message. Another tiny girl, in the same photo, was seen with the portrait of Aung San Suu Kyi, who needs no introduction but here was being cited in her role as Myanmar’s State Counsellor. The message was same - “WANTED!” And Suu Kyi, the fallen democracy icon, was described as “Rohingya Genocide Denier and Cheerleader.”
This was one of the dozen of photos that I received from The Hague, Netherlands on my phone over WhatsApp on the afternoon of December 10 when Myanmar’s leader Suu Kyi was appearing at the UN’s International Court of Justice (ICJ) to defend her country against accusations of genocide. Suu Kyi, who was once held under house arrest for nearly two decades by the army, was scheduled to defend the same army’s actions on December 11 at the top UN court.
Unlike the International Criminal Court (ICC) or domestic courts, an individual cannot sue or be sued at the ICJ, which is also known as the World Court. Cases before the ICJ determine whether a state breached a law.
In 2017, Myanmar’s military, police and local militia burned Rohingya villages, systematically shot and killed Rohingya and committed acts of sexual violence and rape – used as a weapon of war – against women and girls.
The Rohingya, a Muslim and ethnic minority largely concentrated in Myanmar’s Rakhine State (that borders Bangladesh), have suffered decades of systematic discrimination with the government of Myanmar loathe to even recognising the ethnonym ‘Rohingya’.
Since August 2017, Bangladesh has received over 740,000 Rohingyas escaping persecution in Rakhine. Added to the residual populations of previous influxes, there are now some 1.1 million Rohingya living in squalid refugee settlements in Bangladesh’s southernmost district of Cox’s Bazar. Many are scared of repatriation as there is no guarantee for their safety if returned to Myanmar.
The Gambia, a tiny West African nation that itself emerged out of the shadow of a brutal dictatorship asked the top UN court to urgently order measures “to stop Myanmar’s genocidal conduct.” On November 11, Gambia filed a case with the ICJ, accusing Myanmar of committing “genocide” in its campaign against its Rohingya Muslim minority.
Gambia, which filed the case on behalf of the Organization of Islamic Cooperation (OIC), asked the International Court of Justice (ICJ) to urgently order measures “to stop Myanmar’s genocidal conduct immediately.”
The case was filed by Gambia as Chair of the OIC Ad Hoc Ministerial Committee on Accountability for Human Rights Violations against the Rohingya, for violations by Myanmar of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
As part of the lawsuit, the ICJ is requested to impose Provisional Measures, as a matter of extreme urgency, to protect the Rohingya against further harm by ordering Myanmar to stop all of its genocidal conduct immediately.
Opening Gambia’s case on December 10, Justice Minister Aboubacarr Tambadou urged the court to “tell Myanmar to stop these senseless killings, to stop these acts of barbarity that continue to shock our collective conscience, to stop this genocide of its own people.”
“It is indeed sad for our generation that 75 years after human kind committed itself to the words ‘never again’, another genocide is unfolding right before our eyes,” Tambadou said. “Yet we do nothing to stop it.”
“This is a stain on our collective conscience,” he said.
Holding Suu Kyi Accountable
Nobel Peace laureates have demanded that their fellow laureate Aung San Suu Kyi, along with the army commanders, be held criminally accountable for the crimes committed.
“As Nobel Peace laureates, we call on Aung San Suu Kyi, a Nobel Peace Prize recipient, to publicly acknowledge the crimes, including genocide, committed against the Rohingya,” said the Nobel peace laureates in a joint statement. The signatories to the statement were Shirin Ebadi (Nobel Peace Laureate 2003, Iran), Leymah Gbowee (2011, Liberia), Tawakkol Karman (2011, Yemen), Mairead Maguire (1976, Northern Ireland) Rigoberta Menchú Tum (1992, Guatemala), Jody Williams (1997, USA), Kailash Satyarthi (2014, India) and Muhammad Yunus (Nobel Peace Laureate 2006, Bangladesh).
“We commend The Gambia for taking this step to hold Myanmar responsible for the genocide against the Rohingya and for advancing justice for the victims of these crimes,” the statement said.
“As people of peace, we urge Aung San Suu Kyi to address the systematic discrimination of the Rohingya in Rakhine State, and ensure the Rohingya’s right to nationality, land ownership, freedom of movement and other fundamental rights,” said the Nobel laureates.
They also urged her to exercise her personal and moral responsibility towards the Rohingya and acknowledge and condemn the genocide committed under her watch.
In February 2018, three Nobel peace laureates -- Tawakkol Karman, Shirin Ebadi, and Mairead Maguire -- visited Cox’s Bazar in Bangladesh. They spent time with and listened to the stories of over 100 women refugees. After hearing testimonies describing how security forces burned villages, tortured, killed and systematically raped women and girls—as well as reports from humanitarian organizations and UN officials— the Laureates concluded that the attacks on the Rohingya of Rakhine State amounted to crimes against humanity and genocide. They requested visas to meet Aung San Suu Kyi in Myanmar, but permission to travel to Myanmar was not granted.
Canada, Netherlands Extend Support
Meanwhile, Canada and the Netherlands called upon all States Parties to the Genocide Convention to support The Gambia in its efforts to address the alleged acts of genocide committed against Rohingyas by Myanmar.
In a joint statement, the two countries welcomed The Gambia’s application against Myanmar before the International Court of Justice (ICJ) on the alleged violation of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).
Canada and the Kingdom of the Netherlands said they strongly believe this is a matter that is rightfully brought to the ICJ to provide international legal judgment on whether acts of genocide have been committed.
In order to uphold international accountability and prevent impunity, Canada and the Netherlands expressed their intention to jointly explore all options to support and assist The Gambia in these efforts, reads the joint statement.
The Genocide Convention embodies a solemn pledge by its signatories to prevent the crime of genocide and hold those responsible to account. Myanmar is a signatory to the convention.
Bosnia and Herzegovina had asked for provisional measures when filing its Genocide Convention case against the Federal Republic of Yugoslavia on March 20, 1993. In that case, the ICJ issued an order several weeks later, on April 8, 1993.
The timeline for a decision on the provisional measures can be relatively quick, according to the Human Rights Watch (HRW).
Bangladesh made its presence felt through various engagements among the international community during the three-day hearing at The Hague. A Bangladesh delegation, led by Foreign Secretary Md. Shahidul Haque, watched and listened to the hearing making no statement. Bangladesh felt that it would be helpful to interact with other stakeholders during the hearing. The delegation had some civil society members, too.
The ICJ’s 15-member bench is composed of judges from different countries representing the world’s main legal systems. ICJ judges work independently of any government and before taking up their duties, must solemnly declare in open court that they will “exercise their powers impartially and conscientiously.” Each judge is elected to serve a nine-year term.
Under article 31 of the ICJ Statute, a party to a case before the ICJ can appoint an ad hoc judge to act in the case if it does not already have a judge of its nationality on the bench. Gambia has asked the court to appoint South African jurist Dr. Navanethem (Navi) Pillay as its ad hoc judge. Myanmar has asked the court to appoint German academic Professor Claus Kress as its ad hoc judge.