January 23, 2020

Will the ICJ order Myanmar to stop the Rohingya genocide?

Mia Swart

The International Court of Justice is set to decide on emergency measures to stop the genocide of the Rohingya.
Myanmar's Aung San Suu Kyi testified at the ICJ, denying there was a genocidal campaign against the Rohingya people [Eva Plevier/Reuters]

The highest court of the United Nations, the International Court of Justice, will on Thursday be issuing its much-anticipated decision on a request for "emergency measures" in a landmark genocide case against Myanmar.

The case against Myanmar was filed by The Gambia in November, alleging that Myanmar was committing "an ongoing genocide" against its minority Muslim Rohingya population. Myanmar denies those allegations.

The appearance of Myanmar's political leader, Aung San Suu Kyi, at the ICJ - also known as the "World Court" - in The Hague in December brought the case into the international spotlight. Experts describe the case as an "historic legal challenge" - but have expressed concerns about whether Myanmar will comply with whatever the court orders.

"The world's most authoritative court is about to rule on one of the worst mass atrocities of our time while those crimes are still going on," said Reed Brody, commissioner at the International Commission of Jurists, who was instrumental in the prosecution of Hissene Habre, among others.

"It doesn't get more dramatic than that."


Gleider Hernandez, professor of international law at the Catholic University of Leuven, agreed. "The very nature of the case matters," he told Al Jazeera. "It's one of the first cases brought where every state of the international community has a legal interest in the claimed violation, namely the crime of genocide."
International scrutiny

The gravity of the crimes of which Myanmar is accused adds to the urgency, and places the case under greater international scrutiny, says Mike Becker, adjunct lecturer at Trinity College Dublin and a former legal officer at the ICJ. But he cautions against overestimating the importance of the provisional order: "This is a preliminary decision that is without prejudice to the merits of the case."
Sergey Vasiliev, assistant professor of law at the University of Amsterdam, adds: "By every measure, this is a landmark case concerning not only its gruesome subject matter and urgency. There have only been a handful of comparable cases dealing with allegations of human rights violations of comparable gravity and scale."

Hernandez told Al Jazeera the ICJ judges could order any measure it sees fit to ensure no further acts of genocide take place. "The court could indicate more specific measures such as access to humanitarian relief or to UN inspectors," he said.

To date, the ICJ has ruled on only one other genocide case. In 2007 the court ruled that there had been a genocide in the Srebrenica enclave of Bosnia and Herzegovina and that Serbia violated its duty to prevent genocide. Becker describes the provisional measures ordered in that case as "ineffective".

"At least in the sense they did not prevent Serb forces from continuing to wage an armed conflict that amounted to a campaign of genocide against the Bosnian Muslims," he told Al Jazeera.

"The apparent ineffectiveness of the court's provisional measures in the Bosnia case does not mean that they were a failure on all counts, however. It would be important to consider how the requests for provisional measures - and the court's willingness to grant them - may have had a wider influence, whether in terms of giving further publicity to the situation of the Bosnian Muslims or influencing other governments."

Becker also points out the two situations are somewhat different, and that an ICJ ruling against Myanmar may be more effective than it was in Bosnia.

"The provisional measures in the Bosnia case were granted in the context of a large-scale armed conflict that had both internal and international dimensions. This is quite different from the situation in Myanmar ... It seems likely that provisional measures in the context of wide-scale armed conflict have a much lower prospect of halting violence than provisional measures in situations of peace or low-level violence."
The Gambia's application

Among the provisional measures that The Gambia requested were an order that "as a matter of extreme urgency", Myanmar should immediately take all measures to prevent all genocidal acts. Myanmar should also ensure that that the military does not commit any genocidal acts; and Myanmar should not destroy or render inaccessible any events related to the underlying application. The Gambia further asked that Myanmar cooperate with UN investigators.

The Gambia alleges that Myanmar's actions in its campaign against the Rohingya "include killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, [and that] imposing measures to prevent births are intended to destroy the Rohingya group in whole or in part".
Although an order on provisional measures is binding, the ICJ has no means of enforcing its judgements. Many are asking whether Myanmar will implement the decision, should provisional measures be ordered.

Brody says Suu Kyi's presence in the court is relevant: "By sending Aung San Suu Kyi to The Hague, Myanmar bought into these proceedings in a big way. It's going to be really hard now for the government to deny the court's legitimacy."

In case of non-compliance, The Gambia can refer the case to the UN Security Council - which will then decide whether it will use its powers to induce Myanmar to comply.

Myanmar might incur responsibility if it is subsequently proven that it failed to comply with the order. Brody adds: "The more precise the court's order is, the easier it will be to identify whether there have been any breaches."

Vasiliev says: "My expectation is that the court will side with The Gambia and grant the majority of the measures it requested.

"The stakes are very high for Myanmar. It can by no means be excluded that Myanmar will not immediately halt its policies in respect of Rohingya and refrain from destroying evidence, but instead will double down its effort to play down and cover up the crimes in Rakhine." 


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