West African nation The Gambia, filed a case with the International Court of Justice against Myanmar on November 11, alleging violations of the convention of the prevention of the crime of genocide 1948 in connection with the Rohingya community of Myanmar. Noble laureate Aung San Suu Kyi, Myanmar’s state counsellor and the minister of foreign affairs headed a team of legal experts to defend the Republic of The Union of Myanmar (hereinafter Myanmar) at the International Court of Justice (hereinafter ‘The ICJ’) against allegations put forth by the Republic of Gambia (hereinafter The Gambia). Myanmar had signed the treaty on December 30, 1949 and had ratified on March 14, 1956. Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide grants power to the ICJ to hear disputes at the request of any party.
The United Nations has described the Rohingya “as the most persecuted minority in the world. The situation in the Rakhine is complex, not easy in nature to fathom. The Rohingya, effectively denied citizenship under Burmese law, have faced decades of repression and discrimination. War, violence, mass killings, widespread arson and persecution have forced millions of families from the northern Rakhine province of Myanmar to neighbouring Bangladesh, risking death by sea or on foot. The plight of Rohingya people is said to be the world’s fastest growing refugee crisis.
Analysis: Facts and the Arguments
While the refugees, activists and the international community have held the Myanmar Government responsible for carrying out a planned ‘mass ethnic cleansing operation’ against the Rohingya community under the term ‘nae myay shin lin’ of the local language, the government has continually denied the allegations and has blamed the armed militants for the conflict and the resulting destruction. In her speech at the ICJ, Aung San Suu Kyi informed the court that the struggle started on October 9, 2016, when approximately 400 fighters of the Arakan Rohingya Salvation Army – known as ARSA – launched simultaneous attacks on three police posts in Maungdaw and Rathedaung townships in northern Rakhine which led to mass vandalization and death of innocent civilians and military personnel.
The case presented before the ICJ by the Gambia relies heavily on the report of the UN Fact-Finding Mission which conducted an independent investigation on the alleged role of the Myanmar government. The report finds the Myanmar military of breaching human rights extending to genocide, crimes against humanity and war crimes. Mass-killings, sexual violence against women and minors, forced disappearances and burning of a large number of villages in which the Rohingya resided have worsened their conditions and rendered them ‘stateless’. The Gambia emphasised in the court that the beneficiaries of the Genocide Convention are not just state parties but also the groups that are protected by the Convention. International organisations and activists have come out in support of the Rohingya community to provide to them their basic rights. Gambia has received support from countries like The Netherlands and from organisations like the Organisation of Islamic Cooperation (OIC).
The International Criminal Court (ICC), recently ruled that even though Myanmar is not a party to the Rome statute, it still has jurisdiction over the alleged deportation of Rohingya people form Myanmar to Bangladesh. However, ICC exercises limited jurisdiction over Myanmar. A case still lies against Myanmar at the ICJ for the crime of genocide and the court can held the accused liable, if the allegations are proven. Since Myanmar has both signed and ratified the Geneva Convention, the government will have to respond to the grave allegations put against it, which by far, they have denied. Article 94 of the United Nations Charter provides that “each Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party”. The decision is hence binding to the parties of the case. It could however take years for the hearings to be completed and for any kind of conviction to take place.
As the hearings at the ICJ take place, Myanmar has denied genocide allegations against the Rohingya, however has acknowledged the use of disproportionate force in some instances during military operations. Aung San Suu Kyi in her speech at the ICJ informed the court that since Myanmar has a military justice system under its 2008 constitution, the same system will investigate and prosecute the offenders. Trials have already started and some convictions have taken place. An independent commission of inquiry (ICOE) has been established by the president of Myanmar, with members from other nationalities as well, to inquire and investigate into the happenings in the Rakhine. The active participation by Myanmar in investigating, prosecuting and punishing the wrong doers has mitigated some arguments alleging genocidal intent on part of the government and the military. While some stakeholders have batted for externalising the accountability for alleged war crimes, this undermines the sovereignty of the nation and the capabilities of the domestic investigations agencies, is in contradiction to Article 20(b) of the constitution of Myanmar and could prove to be a bone of contention between the military and the government; as the country is still going through the process of democratisation from the past military rule.
The emerging system of international criminal justice rests on the principle of complementarity. Accountability through domestic criminal justice is the norm of the time. The system and principle of international justice become applicable only when domestic accountability fails. Externalising either the investigation or the prosecution could as well backfire. As a young democracy which is still in the process of building itself up, perhaps the greatest challenge is to address the roots of distrust and fear, prejudice and hate, that undermine the very foundation of this nation and severely affects the relationship between different communities living in the country.
The way forward seems to a road of uncertainties. If the ICJ accepts any of the six provisional measures as sought by Gambia in its case against the Myanmar, it could prove to be a ground breaking milestone. Looking at the previous proceedings of the court, this would follow with the initiation of trial proceedings in the coming months. Also, this would bring a sigh of relief to the Rohingya community and could bring a halt to the alleged genocide happenings. It would also open the gates for international players to actively investigate and inquire on-ground reality of the allegations. If the court accepts the Myanmar’s proposal of either denying the measures sought by the Gambia or removes the case from its list, a case could be brought under violations of human rights of the Rohingya.
As the case marks the first step by the international community to acknowledge the issue legally, much of the work is yet to be done. The perpetrators need to be brought to justice irrespective of the system which prosecutes them. The international community needs to work with the Myanmar government to bring a halt to the persecution of the minority community. Enough have they suffered! Efforts should be made for their peaceful rehabilitation in Myanmar in a conducive environment. Fighting for justice to the Rohingya community should be a universal value and not just left to the court to decide. The law needs to take its course or it would have failed The Rohingya!