February 22, 2020

Justice for Rohingyas


Haroon Habib

n a significant ruling, the International Court of Justice orders Myanmar to protect the minority Rohingya population from human rights atrocities, particularly genocide.

IN the absence of any meaningful global effort to hold Myanmar accountable for the continued military campaign against the Rohingya community in Rakhine State, the ruling of the International Court of Justice (ICJ) that Myanmar should protect the Rohingyas against genocide comes as a relief to the beleaguered minority population. In November 2019, The Gambia, the West African country, filed a suit against Myanmar accusing it of systematic ethnic cleansing from October 2016 in violation of the 1948 United Nations Genocide Convention. It alleged that the country was committing “an ongoing genocide against its minority Muslim Rohingya population”.

The ICJ, based in The Hague, declared on January 23, that there was prima facie evidence of violation of the convention. The 17-judge panel found that the 6,00,000 Rohingyas remaining in Myanmar were “extremely vulnerable” to violence at the hands of the country’s military. The court has formulated a set of provisional measures that are seen as historic given the conditions of the minority group, an estimated 1.1 million of whom have been languishing in camps in Bangladesh for years.

The Gambia also asked the court to impose emergency measures following a 2017 military crackdown in Myanmar that forced around 7,40,000 Rohingyas to flee to Bangladesh. The new wave of refugees joined thousands of others who had fled to that country on earlier occasions. The international community watched the legal battle closely as counsel for The Gambia and Myanmar argued their cases from December 10 to 12. Myanmar’s main arguments were based on a mix of outright denial and the claim that The Gambia was being influenced by the Organisation of Islamic Conference (OIC) to pursue the case and that Myanmar’s domestic and military justice mechanisms were capable of resolving the issue. However, the ICJ rejected Myanmar’s civilian leader and State Councillor Aung San Suu Kyi’s arguments during the hearing.

The ICJ ruling vindicates the findings by the U.N. and human rights groups on the prevalence of hate speech, mass atrocities of rape and extrajudicial killings and torching of villages in Rakhine State, leading to the forced migration of thousands of Rohingyas to Bangladesh. The historic ruling directed Myanmar to prevent acts of genocide against the long-persecuted community and to stop destroying evidence.

Clear and unanimous

The ruling was clear and unanimous. While pronouncing it, the court’s presiding judge, Abdulqawi Ahmed Yusuf, upheld the provisions of the U.N. Genocide Convention, saying that Myanmar had “caused irreparable damage to the rights of the Rohingya”.

The court ordered the following: i. that Myanmar take all measures according to Article II of the convention to prevent the genocide of the Rohingyas, which includes killing, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about physical destruction in whole or in part, and imposing measures intended to prevent births; ii. that Myanmar ensure that its military and any irregular armed units supported, controlled or influenced by it do not commit the above acts and do not engage in conspiracy, incitement, complicity or attempt to commit genocide; iii. that Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to the allegations of genocide; and iv. that Myanmar shall submit a report to the court on all measures taken to give effect to the order within four months and every six months after that. Further, the ICJ said it was not satisfied with Myanmar’s efforts “to facilitate the return of Rohingya refugees present in Bangladesh, to promote ethnic reconciliation, peace and stability in Rakhine State, and to make its military accountable for violations of international humanitarian and human rights law”.

Understandably, the ICJ ruling is not the final judgment of the court but a set of provisional measures aimed at preventing further persecution of the ethnic group and considered the first step in the case. It comes at a time when the world community, including Bangladesh, which is facing the brunt of the crisis, failed to find any negotiated settlement.

Although the court ordered only some provisional measures, the ruling is likely to have a long-term effect because the accused was ordered to prevent the destruction of evidence and ensure the preservation of evidence relating to the alleged genocide. The Gambian Justice Minister Abubacarr Tambadou hailed the court’s directives, which was supported by the 57-member OIC, Canada and the Netherlands. “This is a historic day today, not just for international law, for the international community, but especially for the Rohingya,” he said.

However, Suu Kyi, who was widely criticised for her defence of the military that kept her under house arrest for several years, denying the nation polity a transition to democracy, said that some Rohingya refugees may have “exaggerated” the extent of the abuses. “The international justice system may not yet be equipped to filter out misleading information before shadows of incrimination are cast over entire nations and governments,” she wrote in an opinion piece in Financial Times published ahead of the ruling. The country’s powerful military refrained from making a direct comment. Suu Kyi virtually shocked the world by deciding to personally defend her country’s military at the ICJ. She did not use the word “Rohingya” even once in her 3,379-word speech, a testament to how deep the racial divides run in Myanmar.

Rights groups across the globe hailed the court ruling, pleading for effective pressure on Suu Kyi and her country’s military so that the court’s directives are followed.“Today’s decision sends a message to Myanmar’s senior officials: the world will not tolerate their atrocities,” Amnesty International’s Regional Director Nicholas Bequelin said. Param-Preet Singh, associate international justice director at Human Rights Watch, hailed the ruling as a landmark step “to prevent the genocide of the Rohingya” and “to stop further atrocities against one of the world’s most persecuted people”.

The U.N. High Commissioner for Human Rights has asked Myanmar to implement the order “fully, immediately and unconditionally”, saying the provisional measures indicated by the ICJ are binding under international law. Reed Brody, Commissioner at the International Commission of Jurists, said: “This is a great day for the hundreds of thousands of Rohingyas who have been displaced, killed and raped.” The Asia Justice Coalition, a network of organisations, has welcomed the ICJ order. “It is imperative that Myanmar comply with the order of the International Court of Justice. This is a legally binding decision of the court, and Myanmar must fulfil the legal obligations arising from this order,” the coalition said. Bangladesh Foreign Minister A.K. Abdul Momen has termed the ruling “a victory for humanity and a milestone for human rights activists across the world”.

The ICJ ruling is believed to mark a step forward for the Rohingyas and signifies the first semblance of justice for them. Many experts agree that the ruling will place “huge pressure” on Myanmar to comply, but some opined that Myanmar might try to flout the ruling as the ICJ has no formal mechanism for enforcement. However, since the ICJ’s rulings are final and without appeal, Myanmar’s compliance with the ruling will be monitored by the U.N. Security Council and the court itself. If Myanmar fails to take the necessary steps, the issue will be taken to the Security Council for necessary action.

In 2007, the ICJ handed down the final judgment in a a genocide case in which Bosnia accused Serbia of masterminding a genocide of Bosnian Muslims during the 1992-95 war. The court ruled that genocide had been committed in the Bosnian town of Srebrenica but maintained that there was not enough evidence that the Serbian government had been directly involved in the slaughter. Nay San Lwin, media coordinator of the Free Rohingya Coalition (FRC), a global platform for the group, said: “Justice is partially served. We know that there is a long road ahead.” Khin Mung, Bangladesh coordinator of the FRC, who fled the 2017 military crackdown, told a Bangladesh daily from a refugee camp in Cox’s Bazar: “I had a dream of studying law and working for Rohingya rights. That dream remains unfulfilled.”

“We are happy and demand proper implementation of the ruling,” said Sayeed Ullah, general secretary of the Arakan Rohingya Society for Humanity.

Yanghee Lee, U.N. Special Rapporteur on the situation of human rights in Myanmar, said hours before the ICJ ruling that the U.N. should set up an “International Adhoc Tribunal” for the Rohingya genocide. It is shameful, she said, that China and Russia, being U.N. Security Council members, have not taken any action against Myanmar about the Rohingya genocide. “China cannot be a global leader if it ignores such atrocities,” Yanghee Lee observed.

The international community has so far failed to stop the most egregious crimes against a helpless population. Analysts say that if China, Bangladesh’s major development partner but a close ally of Myanmar for strategic reasons, does not change its mindset, it will be difficult to see the implementation of the court’s ruling. Although affected by the crisis, Bangladesh has so far adopted a soft line, understandably because of the strategic preference of the two big regional powers, India and China, for Myanmar. Because the international court has recognised Rohingyas as a protected group under the Genocide Convention, the ruling, analysts say, may give Bangladesh an additional advantage in its efforts to repatriate the refugees quickly and to press Myanmar further to resolve the Rohingya citizenship issue. The ruling may also provide scope for a stronger world position against the genocide in Myanmar. 

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