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By Amy Price
Introduction
After its military committed extensive atrocities against the minority Rohingya Muslims, Myanmar has once again been thrust into the international spotlight. Such international outcry prompted Gambia’s Application before the International Court of Justice (ICJ), alleging Myanmar’s violation of various provisions of the Convention on the Prevention and Punishment of the Crime of Genocide (1948).[1] This article will discuss Myanmar’s preceding Rohingya persecution, their violation of the “Genocide Convention”[2] and the ongoing ICJ proceedings poised to shape the future of Rohingya rights.
Who are the Rohingya?
Described by UN Secretary-General Antonio Guterres as “one of, if not the, most discriminated people in the world”, [3] the Rohingya are a stateless Muslim minority in Myanmar[4], numbering roughly 1 million at the beginning of 2017. Their statelessness is a direct consequence of systemic discrimination, persecution and exclusion by Myanmar law, policy and practice over decades.[5] This is predominantly committed by the Buddhist Myanmar, who deny the Rohingya people citizenship and consider to be illegal immigrants from Bangladesh who hadn’t even gratified recognition in the region’s 2014 census.[6] The majority occupy the Rakhine state, Myanmar’s poorest, which catapulted onto the world stage in 2012, when intercommunal conflict between ethnic Rakhine Buddhists and ethnic Rohingya Muslims first erupted.[7]
2016-17 Violence Spike
2012 is a prime example of one of many notable spikes of violence in Myanmar that have contributed to the worsening humanitarian crisis bred by ongoing conflict. Gambia accused Myanmar of carrying out genocidal violence against Rohingya Muslims. This was in response to two separate waves of attacks by the Arakan Rohingya Salvation Army (ARSA) on police border outposts in the northern Rakhine state in October 2016 and August 2017.[8] Abuses reached their peak during the Myanmar military’s (Tatmadaw) brutal ethnic cleansing campaign in August 2017, detailed by the Government as military “clearance operations”.[9] These particular “operations” forced a mass exodus of more than 740,000 Rohingya Muslims to neighbouring Bangladesh.[10] The Tatmadaw’s well-documented crimes against the Rohingya group span decades, but until Gambia brought a case before the ICJ, their atrocities had been largely beyond the reach of legal justice.[11]
Gambia’s application
As proclaimed by Marzuki Darusman, chair of the Fact-Finding Mission investigating Myanmar’s actions, “peace will not be achieved while the Tatmadaw remains above the law”.[12] Gambia’s case concerns “state-to-state” litigation between UN member states governed by legal provisions found in the UN Charter, ICJ Statute, and the Genocide Convention. Gambia claims that Myanmar severely violated the Genocide convention. This Convention is an instrument of international law that codified for the first time the crime of genocide,[13] and was adopted widely at both national and international levels. Most importantly, it established the obligation on State Parties to take measures to prevent and punish the crime of genocide, including the enactment of relevant legislation and punishing perpetrators, “whether they are constitutionally responsible rulers, public officials or private individuals”.[14] Gambia ratified the convention in 1978, and Myanmar has been party to it since 1956.[15]
Gambia brought their case under Article 9 of the Convention, which allows for disputes between parties “relating to responsibility of a State for genocide”[16] and related acts to be submitted to the ICJ by any party. Gambia’s filing marks the first time a country without any direct connection to the alleged crimes has used its membership to the Genocide Convention to bring a case before the ICJ.[17] Aung San Suu Kyi, Nobel Peace Prize winner and government leader of Myanmar, insisted their military campaign was waged to tackle the extremist threat in the Rakhine state.[18] Accusations of wrongdoing have been consistently denied, and every single report pinning blame on Myanmar has been vehemently dismissed by the government.[19]
Ground-breaking Judgement
In a momentous decision, the ICJ ruling imposed emergency “provisional measures” on Myanmar, intervening in its domestic affairs by instructing the government of Aung San Suu Kyi to respect the requirements of the 1948 Convention.[20] This vote was unanimous, and Myanmar has been ordered to take “all measures within its power” to prevent any potential genocide the remaining Rohingya Muslims were at serious risk of.[21] Declaring prima facie evidence of breaches of the Genocide Convention, the Court warned an estimated 600,000 Rohingya Muslims remaining in Myanmar were “extremely vulnerable” to attacks by the military. [22] The pressing nature of provisional measure implementation is reflected in the fourth stipulation outlined by the Court, wherein Myanmar has to submit a compliance report within four months, and thereafter, every 6 months until the final verdict on the case is delivered.[23]
The provisional measures orders are legally binding on parties, meaning Myanmar’s explicit recognition of the ICJ’s authority should dispense with any legal questions as to whether the government needs to comply with the Court’s orders and decisions.[24] This means the ICJ interim decision is an important first step towards changing that and ensuring Rohingya victims secure some tangible justice, attempting to ground Myanmar’s accountability. Furthermore, under Article 41(2) of the ICJ Statute, [25] the Court’s provisional measures orders are automatically sent to the UN Security Council. Such an order could increase pressure on the Council to take swift and concrete action in Myanmar, including through a binding resolution to address some of the flagged up indicators of genocidal intent.[26]
What does this ruling mean for the Rohingya?
Whilst the ICJ’s orders are binding on Myanmar, and create legally binding obligations, the ICJ itself has no way of directly enforcing them, as it only capable of ruling on disputes between states. [27] However, whilst the ICJ doesn’t hold this power, the ICC has the authority to try individuals, such as Aung San Suu Kyi, accused of war crimes or crimes against humanity.[28] In the interest of securing proper justice and relief, and holding Myanmar to even greater account for their genocidal crimes, in November 2020 this body approved full investigation into the case of the Rohingya in Myanmar. [29] Myanmar have long denied carrying out genocide, in spite of an admission to “war crimes, serious human rights violations, and violations of domestic law”.[30] This more microscopic scrutiny of a potential future case conducted by the ICC would persecute a larger number of accountable individuals and therefore deconstruct the current government composition. It is much more likely provide the Rohingya justice they’ve been so shamefully denied.
2021
The Rohingya’s case is still ongoing, provisional measures enacted by the ICJ having only been ruled by the Court in December 2020. This also means proceedings remain within the four month window of the compliance report submission. The recently published Order of 28th January 2021[31] fixes 20th May 2021 as the time-limit within which the Republic of the Gambia may present a written statement of its observations and submissions on the preliminary objections raised by the Republic of the Union of Myanmar. [32] This deadline has been previously extended by various Orders of 23rd January 2020 and 18th May 2020, both of which having pushed Gambia’s deadline for case progression further and further into the future. Myanmar filed preliminary objections to the jurisdiction of the Court (ICC) and admissibility of Gambia’s Application on 20th January 2021.
So, regrettably, it’s now simply a matter of sitting tight and waiting to see what the subsequent stages of Court proceedings have in store for Rohingya retribution. 2021 has the potential to nurture or nullify the gravity of the ICJ’s preliminary proceedings that have already marked a milestone in their protection as a Muslim minority in Myanmar.
[1] Human Rights Watch, ‘Questions and Answers on Gambia’s Genocide Case against Myanmar before the International Court of Justice’ (Human Rights Watch, 5th December 2019) <https://www.hrw.org/news/2019/12/05/questions-and-answers-gambias-genocide-case-against-myanmar-international-court > accessed 18th February 2021. [2] Ibid. [3] Eleanor Albert, ‘Myanmar Rohingya: What you need to know about the crisis’ (BBC, 23rd January 2020) <https://www.bbc.co.uk/news/world-asia-41566561> accessed 19th February 2021. [4] The UN Refugee Agency, ‘Rohingya Emergency’ (UNCHR, 31st July 2019) < https://www.unhcr.org/uk/rohingya-emergency.html > accessed 18th February 2021. [5] Amal de Chickera, ‘Statelessness and identity in the Rohingya refugee crisis’ (HPN, October 2018) < https://odihpn.org/magazine/statelessness-identity-rohingya-refugee-crisis/ > accessed 20th February 2021. [6] ‘Questions and Answers on Gambia’s Genocide Case against Myanmar before the International Court of Justice’ (Human Rights Watch, 5th December2019) <https://www.hrw.org/news/2019/12/05/questions-and-answers-gambias-genocide-case-against-myanmar-international-court > accessed 18th February 2021. [7] Jonathon Gorvett, ‘It Isn’t Just the Rohingya. Myanmar is Now Attacking Buddhists in Rakhine State, too’ (Foreign Policy, 31st October 2019) < https://foreignpolicy.com/2019/10/31/rohingya-refugees-myanmar-attacking-buddhists-rakhine/ > accessed 17th February 2021. [8] Angshuman Choudhury, ‘What Does the ICJ Preliminary Ruling Really Mean for the Rohingya?’ (The Diplomat, 4th February 2020) < https://thediplomat.com/2020/02/what-does-the-icj-preliminary-ruling-really-mean-for-the-rohingya/ > accessed 20th February 2021. [9] Angshuman Choudhury, ‘What Does the ICJ Preliminary Ruling Really Mean for the Rohingya?’ (The Diplomat, 4th February 2020) < https://thediplomat.com/2020/02/what-does-the-icj-preliminary-ruling-really-mean-for-the-rohingya/ > accessed 20th February 2021. [10] ‘Questions and Answers on Gambia’s Genocide Case Against Myanmar before the International Court of Justice’ (Human Rights Watch, 5th December 2019) <https://www.hrw.org/news/2019/12/05/questions-and-answers-gambias-genocide-case-against-myanmar-international-court > accessed 18th January 2021. [11] Amnesty International, ‘MYANMAR 2019’ (Amnesty International, December 2019) < https://www.amnesty.org/en/countries/asia-and-the-pacific/myanmar/report-myanmar/ > accessed 21st February 2021. [12] Marzuki Darusman, ‘Myanmar: UN Fact-Finding Mission releases its full account of massive violations by military in Rakhine, Kachin and Shan States’ (2018), United Nations Human Rights Council <https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=23575&LangID=E > accessed 22nd February 2021. [13] Genocide Convention 1948. [14] Ibid, Art 4. [15] ‘Questions and Answers on Gambia’s Genocide Case Against Myanmar before the International Court of Justice’ (Human Rights Watch, 5th December 2019) <https://www.hrw.org/news/2019/12/05/questions-and-answers-gambias-genocide-case-against-myanmar-international-court > accessed 18th January 2021. [16] Genocide Convention 1948, Art 9. [17] ‘Questions and Answers on Gambia’s Genocide Case Against Myanmar before the International Court of Justice’ (Human Rights Watch, 5th December 2019) <https://www.hrw.org/news/2019/12/05/questions-and-answers-gambias-genocide-case-against-myanmar-international-court > accessed 18th January 2021. [18] BBC Asia, ‘Myanmar Rohingya: Government rejects ICJ Ruling’ (BBC, 23rd January 2020) < https://www.bbc.co.uk/news/world-asia-51229796 > accessed 21st February 2021. [19] Ibid. [20] Owen Bowcott and Rebecca Ratcliffe, ‘UN’s top court orders Myanmar to protect Rohingya from genocide’ (The Guardian, 23rd January 2020) < https://www.theguardian.com/world/2020/jan/23/international-court-to-rule-on-rohingya-genocide-safeguards > accessed 18th January 2021. [21] BBC Asia, ‘Myanmar Rohingya: Government rejects ICJ Ruling’ (BBC, 23rd January 2020) < https://www.bbc.co.uk/news/world-asia-51229796 > accessed 21st February 2021. [22] Owen Bowcott and Rebecca Ratcliffe, ‘UN’s top court orders Myanmar to protect Rohingya from genocide’ (The Guardian, 23rd January 2020) < https://www.theguardian.com/world/2020/jan/23/international-court-to-rule-on-rohingya-genocide-safeguards > accessed 18th January 2021. [23] Brian McGarry, ‘Third-State Intervention in the Rohingya Genocide Case: How, When, and Why?’ (OpinioJuris, 11th September 2020) < https://opiniojuris.org/2020/09/11/third-state-intervention-in-the-rohingya-genocide-case-how-when-and-why-part-ii/ > accessed 19th February 2021. [24] Jonathon Gorvett, ‘It Isn’t Just the Rohingya. Myanmar is Now Attacking Buddhists in Rakhine State, too’ (Foreign Policy, 31st October 2019) < https://foreignpolicy.com/2019/10/31/rohingya-refugees-myanmar-attacking-buddhists-rakhine/ > accessed 17th February 2021. [25] Statute of the International Court of Justice (ICJ Statute) 1945. [26] ‘Questions and Answers on Gambia’s Genocide Case Against Myanmar before the International Court of Justice’ (Human Rights Watch, 5th December 2019) <https://www.hrw.org/news/2019/12/05/questions-and-answers-gambias-genocide-case-against-myanmar-international-court > accessed 18th January 2021. [27] Ibid. [28] Eleanor Albert, ‘Myanmar Rohingya: What you need to know about the crisis’ (BBC, 23rd January 2020) <https://www.bbc.co.uk/news/world-asia-41566561> accessed 19th February 2021. [29] Ibid. [30] Amnesty International, ‘MYANMAR 2019’ (Amnesty International, December 2019) < https://www.amnesty.org/en/countries/asia-and-the-pacific/myanmar/report-myanmar/ > accessed 21st February 2021. [31] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) [2021] General List, No.178. [32] Ibid, p2.
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