January 23, 2020

Rohingya Genocide Case: ICJ ruling today

The Daily Star January 23, 2020

Diplomatic Correspondent

The International Court of Justice (ICJ) is seen in this general view taken at The Hague, Netherlands August 27, 2018. Photo: Reuters

The International Court of Justice (ICJ) is set to deliver an order today in response to The Gambia’s seeking provisional measures to stop genocide against the Rohingyas in Myanmar’s Rakhine.

The top UN court, situated in The Hague, Netherlands and comprised of 15 judges, is scheduled to start delivering the order at 3:00pm (Bangladesh time).

The Gambia filed the case with the ICJ, also known as the World Court, in November last year. The West African nation, which is predominantly Muslim, took the legal step on behalf of the Organisation for Islamic Cooperation (OIC), which has held a series of meetings to encourage its 57 members to support the case.

Lawyers from The Gambia and Myanmar took part in the hearing held on December 10-12.

During the hearing, Justice Minister and Attorney General Abubacarr Marie Tambadou led the Gambian side, while the Myanmar side was headed by the country’s State Counsellor Aung San Suu Kyi, a Nobel Peace Prize laureate who has been widely criticised for her role in the Rohingya crisis.

The Gambia argued that Myanmar has been committing genocide against the Rohingya Muslim population living in Rakhine state. To prove its case, it cited reports by the UN Fact-Finding Mission and different global rights bodies.

About 750,000 Rohingyas fled a brutal military campaign since August 2017 and took shelter in Bangladesh. They joined some 300,000 others who had fled previous waves of violence from Rakhine, where they have been denied citizenship since the 1970s and are deprived of basic rights like health and education, and freedom of movement.

More than 24,000 Rohingyas have been killed by Myanmar’s state forces since August 2017, according to a report by the Ontario International Development Agency, which involved researchers and organisations from Canada, Australia, Bangladesh, Norway and the Philippines.

More than 34,000 people were thrown into fire and more than 114,000 others were beaten up, the report said.

It also said 17,718 Rohingya women and girls were raped since the Myanmar army and police systematically targeted the world’s most persecuted group.

The UN termed it a classic example of ethnic cleansing, while an independent UN Fact-Finding Mission described the violence as having genocidal intent and demanded probing the senior military officers.

Though the UN repeatedly adopted resolutions condemning the atrocities by Myanmar, the UN Security Council could take no concrete actions against Myanmar to stop the genocide mainly due to opposition from the country’s close allies -- China and Russia.

Bangladesh, influenced by China and India, signed a bilateral deal with Myanmar for the Rohingya repatriation, but the refugees refused to go back to Rakhine, saying the situation there were not conducive to their return and that there was no guarantee of safety and citizenship.

The Gambian Justice Minister Tambadou, who worked for years as a lawyer at the UN tribunal that dealt with the 1994 genocide in Rwanda, assumed a position of leadership in the lawsuit because of his special expertise.

Both The Gambia and Myanmar are signatories to the UN’s Genocide Convention.

Gambia’s filing the case marks the first time a country without any direct connection to alleged crimes has used its membership in the Genocide Convention to bring a case before the ICJ.

Earlier, the International Criminal Court began an investigation into the rights violation against the Rohingyas by Myanmar. The ICC holds accountable the individuals, while the ICJ holds accountable the state as a member of the UN Genocide Convention.

During the hearing, The Gambia argued that Myanmar had a state policy of eliminating the Rohingyas. Denial of citizenship, Rohingya ethnicity, restrictions on freedom of movement, marriage, health, education, and livelihood since 1970s are all part of that genocidal policy.

Further arguing that promoting the narratives of hatred, mass killings, rape and other forms of sexual violence, burning Rohingya villages in 2016 and 2017 bear the testimony of genocide, The Gambia requested the ICJ to ensure provisional measures to stop the ongoing genocide against the Rohingyas.

Lawyers for The Gambia also requested that Myanmar shall not destroy or render inaccessible any evidence related to the events described in the application.

Myanmar, on the other hand, outright denied the allegations of genocide and ethnic cleansing, though it said its army used disproportionate force and committed crimes against the civilians during clearance operations in Rakhine since August 2017.

Talking to The Daily Star, Nay San Lwin, media coordinator at the Free Rohingya Coalition, a global platform of the Rohingyas, said they were expecting the ICJ to order provisional measures to stop the genocide.

“We expect it because genocide has happened over the years against us. It still continues. It must stop and the evidences of genocide must be protected for holding Myanmar accountable,” he said over phone from Germany, where he lives.

In its analysis, the Human Rights Watch (HRW) said Myanmar is legally bound to comply with the order, if given by the ICJ.

Under article 41(2) of the ICJ Statute, the court’s provisional measures are automatically sent to the UN Security Council. Such an order would increase pressure on the council to take concrete actions in Myanmar, including through a binding resolution to address some of the indicators of genocidal intent.

Asked what would happen if China and Russia used their veto at the UN Security Council, Nay San Lwin said he expects that not to happen.

“If it happens, it means there will be no future for the Rohingyas as well as for the global justice and humanity. But we hope justice will be done.”

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