The ICJ Ruling: On Legal Efficacy

Judges take their seats prior to reading a ruling at the International Court in The Hague, Netherlands on 23 January. AP/UNB Photo

The ICJ is the principal judicial organ of the United Nations and is commonly known as the world court. In a landmark verdict on the case of ‘The Gambia Vs Myanmar’ as interim order as provisional measures, the court ruled on January 23, 2020 that it has the authority to consider a genocide case against Myanmar and ordered the country to prevent genocide from being committed against its Rohingya Muslim minority.

In a unanimously-ruled order issued by a panel of 17 judges, the court upheld the provisions of the 1948 Genocide Convention - saying Myanmar had "caused irreparable damage to the rights of the Rohingya". In its application to the court, the Gambia requested six provisional measures requiring Myanmar to act "with immediate effect" to prevent further genocide of the Rohingya group and to take steps not to destroy or render inaccessible any evidence already described in the application.

Emerging from the end of World War II, the legal concept of genocide became internationally recognised and codified in the Genocide Convention in 1948. Both Myanmar and The Gambia, along with 150 other countries, are parties to this Convention and bound by its terms. The prohibition against genocide and the duty to prevent and punish genocide are in fact generally binding on all States, regardless of their participation in the Convention, as they have become accepted as principles of customary international law. In the Court’s view, the Rohingya in Myanmar appear to constitute a protected group within the meaning of Article II of the Genocide Convention.

Myanmar has been ordered by the United Nations’ highest court to prevent genocidal violence against its Rohingya Muslim minority and preserve any evidence of past crimes. In a momentous and unanimous decision, the international court of justice (ICJ) in The Hague imposed emergency “provisional measures” on Myanmar to respect the requirements of the 1948 genocide convention. It is pertinent that “the Court notes that the reports of the Fact-Finding Mission have indicated that, since October 2016, 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. The Court is also of  the  opinion  that the Rohingya in Myanmar remain extremely vulnerable.”

The ICJ also points out about the torture and genocidal act as irreparable loss and imminent risk to the Rohingya. The court states that “The context invoked by Myanmar does not stand in the way of the Court’s assessment of the existence of a real and imminent risk of irreparable prejudice to the rights protected under the Convention. The Court finds that there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia.”

The ICJ expounded explicitly about the necessity of provisional measures and the court ruled out that “In its view,  all  the  facts  and circumstances are  sufficient  to  conclude  that  the  rights  claimed  by  The Gambia and for which it is seeking protection namely the right of the Rohingya group in Myanmar and of  its  members  to  be  protected  from  acts  of  genocide  and  related  prohibited  acts mentioned  in Article III, and the right of The Gambia to seek compliance by Myanmar with its obligations not to commit, and to prevent and punish genocide in accordance with the Convention are plausible.” In this order the ICJ spelled about the genocide in Myanmar towards Rohingya specifically and set out the reasons of determining it as genocide.

The court strongly states that “bearing in mind Myanmar’s duty to comply with its obligations under  the Genocide Convention, the Court considers that, with regard to the situation described above, Myanmar must, in accordance with its obligations under the Convention, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of the Convention.”

The ICJ finally postulated about its decision as provisional measures on genocide case that “the Court is of the view that Myanmar must take effective measures to prevent the destruction and ensure the preservation of any evidence related to allegations of acts within the scope of Article II of the Genocide Convention. Finally, the Court considers that Myanmar must submit a report to it on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court.”

The Court’s decision in favour of the Rohingya has been hailed as a significant step forward in the fight for justice for the world’s most persecuted community. International lawyers and rights activists noted the unanimity of the decision despite the presence of a judge ad hoc nominated by Myanmar, although separate opinions were given later, and hailed the recognition of the Rohingya as “a protected group within the meaning of Article II of the Genocide Convention.” Given Myanmar’s efforts to strip the Rohingya of their identity and erase even the term “Rohingya”, first by excluding them from one of the 135 officially recognised ethnic groups that live in Myanmar through the 1982 Citizenship Law and then by forcing them to accept the identity of ethnic Bengalis in order to receive national verification cards, this is nothing short of a moral victory for the now stateless community.

In this interim order the ICJ accepted the Rohingya as the citizen of Myanmar and the word Rohingya is got international recognition. Another great achivement is that the court outcry refused the defense of Myanmar about the maintainability of the case by the Gambia. In the order the court clearly stated about the genocide and inhuman torture to the Rohingya People which is admitted by the Myanmar as war crime by the military forces by a recent fact finding report. The court relied on the evidence and report of UN Fact Finding Commission and marked the crime is genocide. In the whole order the court referred several times about the application of the Genocide Convention 1948 regarding this case. But in this order, the ICJ is quite silent about the role of Bangladesh giving shelter to Rohingya and the process of repatriation to Rakhine State of Myanmar. Myanmar has been violating bilateral instruments signed with Bangladesh for more than two years, as it did not take back hundreds of thousands of Rohingya people sheltered in Cox’s Bazar back to their homes in Rakhine. It was also agreed by both the countries in mid- January, 2018 that the repatriation would be completed within two years of the commencement by January, 2020.

The order is the first step in a legal process that is likely to take years, did not make a final determination on whether Myanmar could be found responsible for genocide, which is among the worst crimes under international law. Under article 41(2) of the ICJ Statute, the orders now are automatically sent to the UN security council, where Myanmar’s response will be assessed. Such an order will increase pressure on the council to take concrete action in Myanmar, including through a binding resolution to address some of the indicators of genocidal intent outlined in the comprehensive 2018 report of the international fact-finding mission. Thus far, the Security Council has not taken significant action on Myanmar, in part because of Russia and China’s apparent willingness to use their vetoes to shield Myanmar’s government and military. UN Secretary General António Guterres has welcomed the court decision. He strongly supports the use of peaceful means to settle international disputes and recalls that, pursuant to the (UN) Charter and to the Statute of the Court, decisions of the Court are binding and trusts that Myanmar will duly comply with the Order from the Court.

The ICJ’s orders are binding on Myanmar and create legal obligations that must be enforced. The provisional measures imposed by the court require the government to prevent genocidal acts, ensure military and police forces do not commit genocide, preserve evidence of genocidal acts and report back on its compliance within four months. Experts in international justice commented the court’s ruling that Gambia did indeed have a case against Myanmar set a strong precedent. The decision at the United Nations’ highest court also acknowledged that Rohingya Muslims constitute a vulnerable group that is in need of protection. The ruling also sends a strong signal of hope to the more than 700,000 Rohingya Muslims who have lived in squalid refugee camps in Bangladesh since August 2017.

The ICJ’s rulings are final and without appeal, but it has no way of enforcing them. Still, a ruling against Myanmar could hurt its international reputation and set legal precedent. The court has handed down a final judgment in 2007 in one previous genocide case, in which Bosnia accused neighbouring Serbia of masterminding genocide of Bosnian Muslims during the 1992-95 war. Myanmar faces a series of legal challenges around the world accusing it of atrocities against Rohingya Muslims during a military-led crackdown two years ago, but there are no legal precedents.

Now it is an aspiration of the globe and Rohingya people that Myanmar’s compliance to the rulings will be monitored by the UN Security Council (UNSC) and the ICJ itself. If Myanmar fails to take the adequate steps, it would be up to the UNSC to take actions to ensure Myanmar’s compliance. The international community must vigorously monitor how Myanmar follows this ruling. If the Myanmar authorities both the civilian government and the military fail to end their genocidal practices, the world must be ready to take action. The growing global support for Gambia’s case raises the stakes for Myanmar to engage in the ICJ process in a meaningful way and change its approach to the Rohingya. The Myanmar government can’t hide behind its powerful friends or the banner of sovereignty to escape its responsibilities under the Genocide Convention.

The Writer is a member of Bangladesh Judicial Service and Senior Judicial Magistrate, Chief Judicial Magistrate Court, Feni.

  • The ICJ Ruling: On Legal Efficacy
  • Md. Zakir Hossain
  • Vol 36
  • Issue 30
  • DhakaCourier

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