Gambia files Rohingya genocide case against Myanmar at UN court
Application seeks punishment for culprits, compensation for victims and end to attacks
Rohingya refugees at a camp in Bangladesh. The Gambia has taken the legal lead in drafting the claim against Myanmar. Photograph: Allison Joyce/Getty Images Owen Bowcott Legal affairs correspondent@owenbowcott
Myanmar is to face accusations of genocide at the UN’s highest court over its treatment of Rohingya Muslims.
A 46-page application has been submitted to the international court of justice by the Gambia, alleging Myanmar has carried out mass murder, rape and destruction of communities in Rakhine state.
If the ICJ takes up the case, it will be the first time the court in The Hague has investigated genocide claims on its own without relying on the findings of other tribunals, such as the international criminal tribunal for the former Yugoslavia, which it consulted for claims against Serbia and Croatia.
Under the rules of the ICJ, the application argues, member states can bring actions against other member states over disputes alleging breaches of international law – in this case, the 1948 convention on the prevention and punishment of the crime of genocide.
The Gambia, a member of the Organisation of Islamic Cooperation, has taken the legal lead in drafting the claim against Myanmar. It is being supported by other Muslim states. An initial hearing is expected at the ICJ in December.
In the application, the vice-president of the Gambia, Isatou Touray, describes her state as “a small country with a big voice on matters of human rights on the continent and beyond”.
In October 2016, Myanmar’s military began what it described as “clearance operations” against the Rohingya, according to the submission. “The genocidal acts committed during these operations were intended to destroy the Rohingya as a group … by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses,” it says.
A “pervasive campaign of dehumanisation” had preceded the attacks, including demands from the local Rakhine Nationalities Development party for a “final solution” to deal with the Rohingya, the application notes.
Who are the Rohingya and what happened to them in Myanmar?
Members of Myanmar’s military were the “prime operatives” behind a “systematic campaign on Facebook” that targeted the Rohingya, the submission says.
The submission records that “in the early hours of 9 October 2016, a small number of Rohingya, armed mainly with sticks, knives and a few firearms, reacting to Myanmar’s persecution of the group, attacked three border guard police posts in northern Rakhine state”.
Shortly afterward, Myanmar’s military forces began “clearance operations”. During these operations, the Gambian submission says, troops “systematically shot, killed, forcibly disappeared, raped, gang-raped, sexually assaulted, detained, beat and tortured Rohingya civilians, and burned down and destroyed Rohingya homes, mosques, madrassas, shops and Qur’ans”.
There were mass killings of Rohingya men and boys, the application states. “The UN fact-finding mission reported that at the village of Dar Gyi Zar, soldiers captured a group of up to 200 men, women and children, and took them to a paddy field, where they were told to kneel,” it says. The men and boys were separated.
Women and children were taken to a house where they “heard repeated gunfire and the screams of the men and boys outside”. When they emerged, the women saw bodies of men and boys who had been piled up and burned using hay, harvested rice and shirts removed from the victims. Some were tied to trees and burned alive, it is alleged. Others had their throats cut with long knives.
The 600,000 Rohingya who remains in Myanmar are said to be in “real and significant danger” of further genocidal acts. The Gambia is calling for punishment for those responsible, compensation for the victims and an immediate end to attacks.
About 95% of the Gambia’s population is Muslim, and its role was welcomed by human rights groups. Its attorney general, Abubacarr Marie Tambadou, previously served as a special assistant to the prosecutor at the international criminal tribunal for Rwanda. He was instrumental in encouraging the Organisation of Islamic Cooperation to support the case against Myanmar.
Tambadou, who qualified as a barrister in the UK, said he wanted to “send a clear message to Myanmar and to the rest of the international community that the world must not stand by and do nothing in the face of terrible atrocities that are occurring around us. It is a shame for our generation that we do nothing while genocide is unfolding right before our own eyes.”
The application has been drafted with the help of Prof Philippe Sands QC, who has written a book tracing the origins of the genocide convention.
Sands, who is counsel for the Gambia, said: “The international court of justice is the ultimate guardian of genocide convention, conceived seven decades ago, on the initiative of Raphael Lemkin [the lawyer who devised the convention], to prevent and punish the horrors of the kind that have occurred – and are continuing to occur – in Myanmar.
“The court will be acutely aware of its responsibilities, [and] will surely wish to live up to them in ensuring the fullest possible protection of individuals and groups.”
The prosecutor of the international criminal court (ICC), also in The Hague, has already opened a preliminary investigation against Myanmar. Because the country has not signed up to the court, however, the claim relies on more complex legal basis that the alleged crime of deportation of hundreds of thousands of Rohingya refugees partially took place inside neighbouring Bangladesh, which is a member of the ICC.
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CJ’s judgement on the Rohingya and its challenges
In a historic judgment, the International Court of Justice (ICJ) on 23 January ordered Myanmar to implement vital measures to protect its Rohingya population from any further atrocities. This ruling has been hailed as an “accomplishment of international justice.” This lawsuit was brought by Gambia, a small African Muslim state backed by the 57 nation Organisation of Islamic Cooperation (OIC) in November at the United Nations’ highest body for disputes between states. It accused Myanmar of genocide against Rohingya in violation of a 1948 Genocide Convention.
The court witnessed the trial on 10–11 December where the State Counsellor of Myanmar Aung San Suu Kyi was present to defend her country’s honour. She emphasized that the accusations made against her government are “incomplete and misleading factual picture of the situation,” thus categorically denying the allegations of genocide and thereby requesting to dismiss the charges brought to it.
Under the presiding Judge Abdulqawi Yusuf and 16 other judges present in the panel, the undisputed ruling on 23 January granted Gambia’s request for preliminary measures. According to the court, the Rohingyas face an ongoing threat that necessitates Myanmar to “take all measures within its power to prevent all acts” prohibited under the 1948 Genocide Convention, and report back to the court within four months, and then, every six months after that.
Difference of opinion
Interestingly, there remains a discrepancy between the opinion of Myanmar and the international community over the said genocide. The international community calls the atrocities committed against the Rohingyas, the mass killings and rapes as the textbook example of ethnic cleansing. The head of a UN fact-finding mission on Myanmar warned that there is a serious risk of genocide recurring, and the mission also stated in its final report in September 2019 that Myanmar should be held responsible in international legal forums for alleged genocide against the Rohingya.
The Government of Myanmar has strongly denied carrying out organized human rights abuses. The country maintains that the military action, which followed militant attacks on security forces in August 2017, as a legitimate counterinsurgency operation. Myanmar has rejected the UN findings as “one-sided”. The state counsellor has consistently in various occasions stated that her government could have handled the situation in Rakhine state better, but did not acknowledge to any major crimes.
The Government of Myanmar has strongly denied carrying out organized human rights abuses.
The initial ICJ judgment, however, has vindicated UN fact-finding reports from the last two years that recorded a massive amount of violence, including mass slaughter and displacement. Overwhelming levels of cruelty and brutality, combined with the material destruction of the houses of the Rohingya that the Myanmar government has categorically denied to date.
Since the entire court procedure may take a while, the provisional measures hold much importance in this instance.
Benefits of the ruling
The current ruling necessitates Myanmar to avoid a set of acts under the Genocide Convention that indicate razing all or part of a national, ethnic, racial, or religious group. These include not only killing members of a group (Rohingya in this instance), but also seriously harming them physically or mentally. The court further ordered Myanmar to ensure that its military and any irregular armed units under its control will not commit any of these acts, form any conspiracy to do so, incite genocide, attempt to commit genocide, or be complicit in genocide. Myanmar also has to prevent the destruction of any evidence of possible genocide.
This ruling has brought about immense relief and hopes to the Government of Bangladesh as well as the Rohingya community. Bangladesh is currently catering to more than one million Rohingyas at Cox’s Bazar. The country has been suffering from lack of space and funds for more than two long years. It has been at the receiving end due to two failed repatriations and the listless attitude of the Government of Myanmar.
The full implementation of the ICJ ruling will be instrumental in creating a conducive environment for the safe and dignified repatriation of Rohingyas to Rakhine State. According to Bangladeshi Foreign Minister A.K. Abdul Momen, this verdict is “a victory for humanity, a milestone for human rights activists across all nations.” He further added that it is “s victory for Gambia, OIC, the Rohingya and of course, for Bangladesh.” This judgment also provides the nation an opportunity to re-engage with the four major allies of Myanmar namely China, Japan, India and Russia. Since these nations have robust bilateral ties with Mynamar, Bangladesh by deepening its engagement with these nations may hope to proffer a sustainable solution to the Rohingya crisis.
This ruling has brought about immense relief and hopes to the Government of Bangladesh as well as the Rohingya community.
The Myanmar government is supposed to deliver a report on measures it has taken to implement the order to the court by May 2020. It must continue to do so every six months thereafter until a final decision is reached. This reporting hopes to put Myanmar in scrutiny by the highest court of justice. Although Myanmar has claimed that it is taking steps to establish accountability for human rights violations and “war crimes” against the Rohingya and to facilitate their return to Myanmar’s Rakhine State, the court, relying on UN reports, decided that Myanmar’s feeble efforts are not enough to overturn the case. However, while the final outcome of this case regarding violation of the Genocide Convention could, and certainly should, invite appropriate measures to ensure better living conditions of the Rohingyas yet they remain subject to the political will of Myanmar.
The two most significant impediments of the International Court of Justice are that it has no power to execute its decisions and it is voluntary in nature.
Thus, in such instances, political will is extremely crucial since ICJ has no jurisdiction or legal apparatus over individual nations. In this regard, appropriate and effective techniques and measures are required to be devised by the international legal regime so that the countries holding considerable political and economic clout within the UN Security Council can be brought to justice.
Rejecting the ICJ’s ruling, Myanmar’s Foreign Ministry has accused rights groups of presenting the Court with an overwhelming and exaggerated picture of the prevailing situation. Nevertheless, this assertion is at odds with the findings this week of an Independent Commission of Enquiry (ICOE) established by Myanmar. The Commission acknowledged that war crimes and not genocide had indeed been committed during the military campaign when around 900 people were killed. But interestingly, there was nothing to back the assertions of gang-rape, or evidence to presume any intent of genocide.
The ICJ verdict is a significant triumph for the displaced Rohingyas currently living in the camps at Cox’s Bazar. Even as it empowers the UN Security Council to prevail upon Myanmar to take suitable measures for the repatriation as well as rehabilitation of the displaced communities, the prospect of that happening might be distant with possible veto from China, and also whether Myanmar abides by ICJ rulings remains to be seen.