The International Court of Justice (ICJ) unanimously adopted “provisional measures” on January 23, 2020, that require Myanmar to prevent genocidal acts against Rohingyas and take steps to preserve evidence. The ICJ was acting on an application by Muslim-majority Gambia last November which accused Myanmar’s military of committing genocide to wipe out the Rohingya population. More than 780,000 Rohingya fled across the border into neighbouring Bangladesh to escape the onslaught.
International Court of Justice – In a Nutshell
The Court is the
principal judicial organ of the United Nations. It was established by the
United Nations Charter, which was signed in 1945 in San Francisco (United
States), and began work in 1946 in the Peace Palace in Hague (Netherlands).
The Court has a dual role:
- To settle, in accordance with international law the legal disputes submitted to it by States (Contentious Function);
- To give advisory opinions on legal questions referred to it by duly authorized UN organs and agencies (Advisory Function).
Only States are eligible to appear
before the Court in contentious cases. At present, this essentially means the
193 Member States of the United Nations.
The jurisdiction of
the Court in contentious proceedings is based on the consent of the States to
which it is open. Since States alone are entitled to appear before the Court,
public (governmental) international organizations cannot be parties to a case
before it. However, a special procedure, the advisory procedure, is available
to such organizations and to them alone.
Convention on the Prevention and Punishment of the Crime of Genocide
The Convention on Genocide was among
the first United Nations conventions addressing humanitarian issues. It was
adopted in 1948 in response to the atrocities committed during World War II and
followed G.A. Res. 180(II) of 21 December 1947 in which the UN recognised that
"genocide is an international crime, which entails the national and
international responsibility of individual persons and states."
The jurisprudence of the
International Court of Justice considers the prohibition of genocide as
peremptory norms of international law. Moreover, the ICJ recognises that the
principles underlying the Convention are principles which are recognised by
civilised nations binding on States, even without any conventional obligation.
Noteworthy, the Convention provides for a precise definition of the crime of
genocide, in particular in terms of the required intent and the prohibited acts
(Article II). It also specifies that the crime of genocide may be committed in
time of peace or in time of war.
The
Article
II of the Convention, defines genocide means any
of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
(a) Killing members of the
group;
(b) Causing serious bodily or
mental harm to members of the group;
(c) Deliberately inflicting on
the group conditions of life calculated to bring about its physical destruction
in whole or in part;
(d) Imposing measures intended
to prevent births within the group;
(e) Forcibly transferring
children of the group to another group.
While the scope of
punishment is defined in Article III, under which the following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit
genocide;
(c) Direct and public
incitement to commit genocide;
(d) Attempt to commit
genocide;
(e) Complicity in genocide.
Also Article IV, says,
Persons committing genocide or
any of the other acts enumerated in article III shall be punished, whether they
are constitutionally responsible rulers, public officials or private
individuals.
Background of the Proceedings
On 11
November 2019, the Republic of The Gambia filed in the Registry of the Court an
Application instituting proceedings against the Republic of the Union of
Myanmar concerning alleged violations of the Convention on the Prevention and
Punishment of the Crime of Genocide.
In its
Application, The Gambia argues in particular that Myanmar has committed and
continues to commit genocidal acts against members of the Rohingya group, which
it describes as a “distinct ethnic, racial and religious group that resides
primarily in Myanmar’s Rakhine State”. The Application contained a Request for
the indication of provisional measures, seeking to preserve, pending the
Court’s final decision in the case, the rights of the Rohingya group in
Myanmar, of its members and of The Gambia under the Genocide Convention.
Risk of Irreparable Prejudice and Urgency
In view of the
fundamental values sought to be protected by the Genocide Convention, the Court
considers that the rights in question in these proceedings, in particular the
right of the Rohingya group in Myanmar and of its members to be protected from
killings and other acts threatening their existence as a group, are of such a
nature that prejudice to them could cause irreparable harm. 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, such as mass killings, widespread rape and other forms of sexual
violence, as well as beatings, the destruction of villages and homes, denial of
access to food, shelter and other essentials of life. The Court is of the
opinion that the Rohingya in Myanmar remain extremely vulnerable, observing in
particular that the Fact-Finding Mission concluded in September 2019 that the
Rohingya people remained at serious risk of genocide.
In light of these considerations, the Court finds
that there is a real and imminent risk of irreparable prejudice to the rights invoked
by The Gambia.
Myanmar’s Contention
Standing
Party
Gambia did not have prima facie standing to bring a
case before it in relation to Myanmar’s alleged breaches of the Genocide
Convention because The Gambia was not specially affected by such alleged
violations. Also there was no dispute between the Parties since The Gambia
acted as a “proxy” for the Organisation of Islamic Cooperation (“OIC”)
Exaggeration
Myanmar's
leader Aung San Suu Kyi says the Rohingya have "exaggerated" abuses.
The
Independent Commission of Enquiry (ICOE) released the findings of its
investigation, The ICOE conceded some security personnel had used
disproportionate force and committed war crimes and serious human rights
violations, including the "killing of innocent villagers and destruction
of their homes". But the crimes did not constitute genocide, the panel
decided.
Existence of War
Myanmar has held that there was an ongoing conflict
between rebels like Rohingyas, who were rebelling for succession and the
Myanmar’s military. It held that the military action was a response to the
attacks on military by Rohingya muslims. Myanmar has accused Rohingyas of
killing other minorities in the Rakhine state. Myanmar has said, that it was a
response to extremist threat.
Clearance Operations
Myanmar stated that violations of
international humanitarian law may have occurred during what it characterizes
as “clearance operations” carried out in Rakhine State in 2017.
ICJ’s Stand
No Proxy
Applicant i.e. Gambia instituted proceedings in its
own name, and that it maintains that it has a dispute with Myanmar regarding
its own rights under the Genocide Convention.
Common Interest
Also, The Court recalls that all the States parties
to the Genocide Convention have a common interest to ensure that acts of
genocide are prevented and that, if they occur, their authors do not enjoy
impunity; that common interest implies that the relevant obligations under the
Genocide Convention are owed by any State party to all the other States.
Obligations
It follows that any State party to the Genocide Convention may invoke the
responsibility of another State party with a view to ascertaining the alleged
failure to comply with its obligations erga omnes partes, and to bring
that failure to an end.
Question of Genocide
The Gambia contended that Myanmar’s
military and security forces and persons or entities acting on its instructions
or under its direction and control have been responsible, inter alia,
for killings, rape and other forms of sexual violence, torture, beatings, cruel
treatment, and for the destruction or denial of access to food, shelter and
other essentials of life, all with the intent to destroy the Rohingya group, in
whole or in part. The Court noted that Myanmar, for its part, denied that it
has committed any of the violations of the Genocide Convention. In the Court’s
view, at least some of the acts alleged by The Gambia are capable of falling
within the provisions of the Convention.
Established Facts
The Court further refers to resolution 73/264
adopted on 22 December 2018 by the General Assembly of the United Nations, in
which the latter condemned the widespread and systematic crimes committed by
Myanmar forces against the Rohingya in Rakhine State, as well as to the reports
of the Fact-Finding Mission affirming that there are reasonable grounds to
conclude to the commission of genocide against the Rohingya. In the Court’s
view, these facts and circumstances are sufficient to find that the rights
claimed by The Gambia and for which it is seeking protection.
Provisional Measures
Following
“Provisional Measures” were indicated on 23 January 2020, by ICJ to the
Republic of the Union of Myanmar on the “Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (The Gambia v. Myanmar)”:
·
The
Republic of the Union of Myanmar shall, 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 the Convention, in particular:
a)
killing members of the group;
b)
causing serious bodily or mental harm to the members of the
group;
c)
deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part; and
d)
imposing measures intended to prevent births within the
group;
·
Myanmar
to ensure that its military, as well as any irregular armed units which may be
directed or supported by it and any organizations and persons which may be
subject to its control, direction or influence, do not commit any acts
described above, or of conspiracy to commit genocide, of direct and public incitement
to commit genocide, of attempt to commit genocide, or of complicity in
genocide;
·
Myanmar
shall take effective measures to prevent the destruction and ensure the
preservation of evidence related to allegations of acts;
·
Finally,
Myanmar shall submit a report to the Court 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.
Significance of the Order
·
The ICJ provisional measures order is legally
binding on the parties. In November 2019, Myanmar explicitly
recognized the ICJ’s authority and in December, Aung San Suu Kyi,
representing Myanmar before the ICJ in her capacity as foreign
minister, acknowledged the court’s role as a “vital refuge of
international justice.”
·
Under article 41(2) of the ICJ Statute, the court’s
provisional measures orders are automatically sent to the UN Security Council.
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.
·
The ICJ order brings increased scrutiny of Myanmar’s horrific
brutality against the Rohingya and raises the political cost of the UN Security
Council’s weak response to the crisis so far.
·
In filing the genocide case, Gambia has the backing of the
57 members of the Organisation of Islamic Cooperation. Later, Canada,
Netherlands and Britain welcomed Gambia's case against Myanmar as they considered it “their obligation to support
the Gambia before the ICJ, as it should concern all of humanity.” 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.
Way Forward
The UN's highest court has recognised
the suffering of Rohingyas. Though there is still a long way to go before this
order becomes reality and we see actual improvements in the lives of the
Rohingya, but the affected people had their first taste of justice.
Additionally it was a stunning rebuke of Aung San Suu Kyi, especially after she
went personally to The Hague to defend the actions of the Myanmar
military.
ICJ has made clear that it intends to
supervise the implementation of the judgement. Though not unprecedented, the
regularity with which Myanmar had to submit reports is striking.
Mahbub Alam Talukder, the refugees'
relief and repatriation commissioner appointed by Bangladesh, has said that the
verdict "boosts the morale of Rohingya refugees".
Myanmar's Ministry of
Foreign Affairs reacted to the ICJ’s order as a "distorted picture of the
situation". Though the order is binding but ICJ has no way of enforcing
it. On the other hand, there is fear amongst Rohingyas to go back to Myanmar as
they fear similar treatment. The refugee crisis which has spilled over to the
nighbouring nations calls for a composite formula to settle the issue which
should encompass the needs of the refugees and balance their fundamental rights
with the associated security issues. What must be taken care is that the matter
of human suffering should not become the powerplay of international politics
and international organisations.
