The ICJ’s latest judgment Myanmar genocide
Source: By The Indian Express
Judges at the United Nations’ highest court have dismissed preliminary objections by Myanmar to a case alleging the Southeast Asian nation is responsible for genocide against the Rohingya ethnic minority.
The decision on 22 July 2022 clears the way for the highly charged case, brought by Gambia, to go ahead at the International Court of Justice (ICJ), a process that will take years.
A small group of pro-Rohingya protesters gathered outside the court’s headquarters, the Peace Palace, ahead of the decision with a banner reading: “Speed up delivering justice to Rohingya. The genocide survivors can’t wait for generations.” One protester stamped on a large photograph of Myanmar’s military government leader, Senior Gen. Min Aung Hlaing.
Myanmar’s military launched what it called a clearance campaign in Rakhine state in 2017 in the aftermath of an attack by a Rohingya insurgent group. More than 700,000 Rohingya fled into neighbouring Bangladesh and Myanmar security forces have been accused of mass rapes, killings and torching thousands of Rohingya homes.
The case by Gambia
Amid international outrage at the treatment of the Rohingya, Gambia filed the case with the world court in November 2019, alleging that Myanmar is breaching the genocide convention. The nation argued that both Gambia and Myanmar are parties to the convention and that all signatories have a duty to ensure it is enforced.
The Gambia, a predominantly Muslim country, is backed by the 57-member Organisation for Islamic Cooperation (OIC). Gambia’s Attorney General and Justice Minister Dawda Jallow insisted in February that the case should go ahead and that it was brought by his country, not the OIC. “We are no one’s proxy,” Jallow told the court.
In 2019, lawyers representing Gambia at the ICJ outlined their allegations of genocide by showing judges maps, satellite images and graphic photos of the military campaign. That led the court to order Myanmar to do all it can to prevent genocide against the Rohingya. The interim ruling was intended to protect the minority while the case is decided in The Hague, a process likely to take years
How did Myanmar Respond?
Lawyers representing Myanmar argued in February that the case should be tossed out because the world court only hears cases between states and the Rohingya complaint was brought by Gambia on behalf of the Organization of Islamic Cooperation.
They also claimed that Gambia could not bring the case to court as it was not directly linked to the events in Myanmar and that a legal dispute did not exist between the two countries before the case was filed.
The ICJ case was complicated by last year’s military coup in Myanmar. The decision to allow the Southeast Asian nation’s military-installed government to represent the country at the February hearings drew sharp criticism. A shadow administration known as the National Unity Government made up of representatives including elected lawmakers who were prevented from taking their seats by the 2021 military coup had argued that it should be representing Myanmar in court.
International support for Gambia’s case
The Netherlands and Canada are backing Gambia, saying in 2020 that the country “took a laudable step towards ending impunity for those committing atrocities in Myanmar and upholding this pledge. Canada and the Netherlands consider it our obligation to support these efforts which are of concern to all of humanity.”
In March, US Secretary of State Antony Blinken said that the violent repression of the Rohingya population in Myanmar amounts to genocide.
What next?
The ICJ’s ruling sets the stage for court hearings, airing evidence of atrocities against the Rohingya that human rights groups and a UN probe say amount to breaches of the 1948 Genocide Convention.
The International Court of Justice rules on disputes between states. It is not linked to the International Criminal Court, also based in The Hague, which holds individuals accountable for atrocities. Prosecutors at the ICC are investigating crimes committed against the Rohingya who were forced to flee to Bangladesh.
The ruling of the ICJ is binding on Myanmar, and cannot be appealed. However, no means are available to the court to enforce it. Cases at the ICJ often drag on for years on end, and no quick closure can be reasonably expected. Also, as commentators quoted by international media reports have argued, the legal bar for handing out a conviction for genocide is very high.
So far, only three cases of genocide worldwide have been recognised since World War II: Cambodia (the late 1970s), Rwanda (1994), and Srebrenica, Bosnia (1995).
