Judges at the United Nations’ highest court have dismissed Myanmar’s initial objection to the Southeast Asian nation’s accusations that it is responsible for the genocide against the Rohingya ethnic minority.
The July 22 decision clears the way for the highly charged case brought by Gambia to proceed to the International Court of Justice (ICJ), a process that will take years.
A small group of pro-Rohingya protesters gathered outside the court’s headquarters, the Peace Palace, ahead of the decision with a banner reading: “Speed up justice for the Rohingya. Generations of genocide survivors can’t wait.” A protester stamps a large photo of Myanmar’s military government leader Senior General Min Aung Hlaing.
Myanmar’s military launched a clearance operation in Rakhine State in 2017 after attacks by Rohingya insurgent groups. More than 700,000 Rohingya have fled to neighboring Bangladesh, and Myanmar’s security forces have been accused of gang-raping, killing and setting fire to thousands of Rohingya homes.
The case is Gambia
Amid international outrage towards the Rohingya, Gambia filed a case at the World Court in November 2019, alleging that Myanmar is violating the Genocide Convention. The nation argued that both The Gambia and Myanmar are parties to the Convention and that all signatories have a duty to ensure its implementation.
The Gambia, a predominantly Muslim country, is supported by the 57-member Organization for Islamic Cooperation (OIC). Gambia’s Attorney General and Justice Minister Dauda Jallo insisted in February that the case should go ahead and that it was brought by his country, not the OIC. Jalo told the court, “We are not proxies of anyone.
In 2019, lawyers representing The Gambia at the ICJ outlined their allegations of genocide by showing judges maps, satellite images and graphic images of military operations. As a result, the court ordered Myanmar to do everything possible to prevent the genocide against the Rohingya. The interim ruling was intended to protect minorities while the case is decided in The Hague, a process that can take years.
How has Myanmar responded?
Lawyers representing Myanmar argued in February that the case should be thrown out because the World Court only hears cases between states and Gambia brought the Rohingya case on behalf of the Organization of Islamic Cooperation.
They also claimed that Gambia could not bring the case to court because it was not directly linked to the Myanmar incident and there was no legal dispute between the two countries before the case was filed.
The ICJ case was complicated by the military coup in Myanmar last year. The Southeast Asian nation’s decision to allow the military-installed government to represent the country at the February hearing drew sharp criticism. A shadow administration known as the National Unity Government, made up of representatives including elected lawmakers barred from taking their seats by a 2021 military coup, argued that it should represent Myanmar at the court.
International support for Gambia
The Netherlands and Canada are supporting The Gambia, saying in 2020 that the country “has taken a commendable step towards ending impunity for atrocities in Myanmar and upholding this commitment. Canada and the Netherlands consider it our obligation to support these efforts which are of concern to all humanity.”
In March, US Secretary of State Anthony Blinken said the violent crackdown on the Rohingya population in Myanmar amounted to genocide.
The ICJ’s ruling set the stage for the court’s hearing, airing evidence of atrocities against the Rohingya that rights groups and a UN investigation say amount to violations of the 1948 Genocide Convention.
The International Court of Justice rules on disputes between states. It is not affiliated with the International Criminal Court, based in The Hague, which holds individuals accountable for atrocities. ICC prosecutors are investigating crimes committed against Rohingyas who were forced to flee to Bangladesh.
ICJ judgments are binding on Myanmar, and cannot be appealed. But the court has no way to enforce it. Cases at the ICJ often drag on for years, and no speedy closure can reasonably be expected. Also, commentators cited in international media reports have argued, the legal bar to conviction for genocide is too high.
To date, only three cases of genocide have been recognized worldwide since World War II: Cambodia (late 1970s), Rwanda (1994), and Srebrenica, Bosnia (1995).