Feeling the pressure

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Will Myanmar finally be brought to book for its crimes against the Rohingya?

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations and is commonly known as the world court. It settles legal disputes submitted by states and gives advisory opinions on legal questions referred by UN entities.

In a landmark verdict as an interim order, the UN’s highest court ruled that it has the authority to consider a genocide case against Myanmar on January 23, 2020, 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, Gambia requested six provisional measures requiring Myanmar to act “with immediate effect” to prevent further genocide of the Rohingya and to take steps not to destroy or render inaccessible evidence already described in the application.

In the court’s view, the Rohingya in Myanmar appears to constitute a protected group within the meaning of Article II and III of the Genocide Convention. The ICJ also pointed out the torture and genocidal act as irreparable loss and imminent risk to the Rohingya.

The court expounded explicitly about the necessity of provisional measures and 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 out regarding the genocide in Myanmar towards Rohingya specifically and set out the reasons for determining it as genocide.

The court strongly stated: “Bearing in mind Myanmar’s duty to comply with its obligations under the Genocide Convention, the court considers that … 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 its decision as provisional measures on genocide case: “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 considered that Myanmar must submit a report to it on all measures taken to give effect to the Order within four months, as from the date of the Order, and thereafter every six months until a final decision on the case is rendered by the court.

In this interim order, the ICJ accepted the Rohingya as the citizen of Myanmar. Another great achievement is that the court outcry refused the defense of Myanmar about the maintainability of the case by Gambia.

In the order, the court clearly stated the genocide and inhuman torture to the Rohingya — admitted by Myanmar — as a 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 as genocide. In the whole order, the court referred several times about the application of the Genocide Convention 1948 regarding the case.

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, which is led by Nobel Peace laureate Aung San Suu Kyi, could be found responsible for genocide, which is among the worst crimes under international law.

Those charges have been resoundingly rejected by Myanmar authorities, who have maintained that they were responding to an insurgency by Rohingya Muslim radicals and did not have any premeditated intention against the group. 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. The ICJ’s orders are binding on Myanmar and have created 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 about the court’s ruling that Gambia did indeed have a case against Myanmar set a strong precedent. The decision at the UN’s 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.

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 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, 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 cannot hide behind its powerful friends or the banner of sovereignty to escape its responsibilities under the Genocide Convention. 

Md Zakir Hossain is a member of Bangladesh Judicial Service and Senior Judicial Magistrate, Chief Judicial Magistrate Court, Feni.