ICJ orders Myanmar to protect Rohingya Muslims

By: – Syed Ali Taher Abedi

The International Court of Justice has pronounced its judgment at Hague and ordered Myanmar to prevent genocide violence against Rohingya Muslim Minority and preserve any evidence of past crimes.

The ICJ said this in a case brought by the Gambia against Mynmar invoking the 1948 Genocide Convention.

In a momentous and unanimous decision, the International Court of Justice (ICJ)in the Hague imposed emergency “Provisional Measures “on the country-intervening in its domestic affairs by instructing government of Aung San Kyi to respect the requirements of the 1948 genocide convention.

The ICJ in its Judgment declared that there was a prima facie evidence of breach of the convention; the Court wanted that the estimated 600,000 Rohingya remaining in Myanmar were “Extremely Vulnerable” to attacks by the military.

The ruling has out rightly rejected the Noble Peace Prize winner Aung San Kyi’s defiance of her country against accusation of systematic human rights abuse and war crimes during a three day hearing at the ICJ last month.

The Application of the convention of the prevention and Punishment of the Crime of Genocide was filed by the Government of Gambia, a pre-dominantly Muslim west African state that alleges the Mynmar has breached the genocide convention, which was enacted after the Holocaust.

The Gambia contends that a dispute exists with Myanmar relating to the interpretation and application of the Genocide Convention and the fulfilment by Myanmar of its obligations    “to prevent genocide and to desist from its own acts of genocide”.

 Specifically, The Gambia asserts that in October 2016 the Myanmar military and other Myanmar security forces began widespread and systematic “clearance operations” against the Rohingya group, during the course of which they committed mass murder, rape and other forms of sexual violence, and engaged in the systematic destruction by fire of Rohingya villages, often with inhabitants locked inside burning houses, with the intent to destroy the Rohingya as a group, in whole or in part.

The Gambia alleges that, from August 2017 onwards, such genocidal acts continued with Myanmar’s resumption of “clearance operations” on a more massive and wider geographical scale.The Gambia maintains that, prior to filing its Application, it made clear to Myanmar that the latter’s actions constituted a violation of its obligations under the Genocide Convention, but that Myanmar “has rejected and opposed any suggestion that it has violated the Genocide Convention”.

In this connection, The Gambia argues that it has made several statements in multilateral settings whereby it clearly addressed the situation of the Rohingya in Rakhine State, including allegations of breaches by Myanmar of the Genocide Convention, and expressed its readiness to take this issue to the Court.

The Gambia adds that Myanmar was aware that the Independent International Fact-Finding Mission on Myanmar established by the Human Rights Council of the United Nations (hereinafter the “Fact-Finding Mission”) welcomed the efforts of States, in particular Bangladesh and The Gambia, and the Organisation of Islamic Cooperation (hereinafter the “OIC”) “to encourage and pursue a case against Myanmar before the International Court of Justice under the Convention on the Prevention and Punishment of the Crime of Genocide” (United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, doc. A/HRC/42/50, 8 August 2019, para. 107).

According to The Gambia, Myanmar completely rejected the Fact-Finding Mission reports and the conclusions contained therein. Finally, The Gambia emphasizes that its claims against Myanmar regarding breaches by the latter of its obligations under the Genocide Convention were specifically communicated to Myanmar by a Note Verbale sent on 11 October 2019, to which Myanmar did not respond.

This ruling is meant to forestall further harm to Rahinga while the court works towards a final ruling on the question of genocide, which could take years. The ICJ also ordered Myanmar to preserve the evidence of Rahingya’s persecution and report in four months on the protective measures it has taken.

The Gambia contends that there is a risk of irreparable prejudice to the rights of the Rohingya and to its own rights under the Genocide Convention, as well as urgency.

According to The Gambia, not only have the Rohingya been subjected to genocidal acts in the recent past, but there is a grave danger of further such acts because the Government of Myanmar continues to harbour genocidal  intent  and  to  commit  crimes  against  members  of  the  Rohingya  group.  The Gambia thus argues that the Rohingya remaining in Myanmar face grave threats to their existence, placing them in urgent need of protection.

Then plight of the Rohingya –long a persecuted minority in Mynmar- has brought international scrutiny to the government of suu kyi, a Noble Peace winner once lauded as a defender of human rights who has  nonetheless faced accusations that she stood aside as her country’s military carried out a campaign of terror against the Rohingya.

In view of the fundamental values sought to be protected by the Genocide Convention, the Court considers that the rights in question in these proceedings, in particular the right of the Rohingya group in Myanmar and of its members to be protected from killings and other acts threatening their existence as a group, are of such a nature that prejudice to them is capable of causing irreparable harm.

The Court is of the opinion that the Rohingya in Myanmar remain extremely vulnerable.

In this respect, the Court notes that in its resolution 74/246 of 27 December 2019, the General Assembly reiterated.

“its grave concern that, in spite of the fact that Rohingya Muslims lived in Myanmar for generations prior to the independence of Myanmar, they were made stateless by  the enactment of  the  1982 Citizenship  Law  and  were  eventually  disenfranchised, in 2015,   from   the   electoral    process”    (United Nations,    doc. A/RES/74/246,   27 December 2019, preambular para. 14

The Court further takes note of the detailed findings of the Fact-Finding Mission on Myanmar submitted to the Human Rights Council in September 2019, which refer to the risk of violations of the Genocide Convention, and in which it is “conclude[d] on reasonable grounds that the Rohingya people remain at serious risk of genocide  under  the  terms  of  the  Genocide  Convention”  (United Nations, Detailed findings of the Independent International Fact-Finding Mission on Myanmar, doc. A/HRC/42/CRP.5, 16 September 2019, para. 242; see also paras. 58, 240 and 667).

in Rakhine State have The Court takes note of the statement of Myanmar during the oral proceedings that it is currently engaged in repatriation initiatives to facilitate the return of Rohingya refugees present in Bangladesh and that it intends 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.

 In the view of the Court, however, these steps do not appear sufficient in themselves to remove the possibility that acts causing irreparable prejudice to the rights invoked by The Gambia for the protection of the Rohingya in Myanmar could occur.

In particular, the Court notes that Myanmar has not presented to the Court concrete measures aimed specifically at recognizing and ensuring the right of the Rohingya to exist as a protected group under the Genocide Convention. Moreover, the Court cannot ignore that the General Assembly has, as recently as on 27 December 2019, expressed its regret that “the situation has not improved in Rakhine State to create the conditions necessary for refugees and other forcibly displaced persons to return to their places of origin voluntarily, safely and with dignity” (United Nations, doc. A/RES/74/246, 27 December 2019, preambular para. 20). At the same time the General Assembly reiterated

“its deep distress at reports that unarmed individuals been and continue to be subjected to the excessive use of force and violations of human rights and international humanitarian law by the military and security and armed forces, including extrajudicial, summary or arbitrary killings, systematic rape and other forms of sexual and gender-based violence, arbitrary detention, enforced disappearance and government seizure of Rohingya lands from which Rohingya Muslims were evicted and their homes destroyed” (ibid., preambular para. 16).Finally, the Court observes that, irrespective of the situation that the Myanmar Government is facing in Rakhine State, including the fact that there may be an ongoing internal conflict between armed groups and the Myanmar military and that security measures are in place, Myanmar remains under the obligations incumbent upon it as a State party to the Genocide Convention.

The Court recalls that, in accordance with the terms of Article I of the Convention, States parties expressly confirmed their willingness to consider genocide as a crime under international law which they must prevent and punish independently of the context “of peace” or “of war” in which it takes place (Application of the Convention on the Prevention and Punishment of  the  Crime  of  Genocide  (Bosnia  and  Herzegovina uv.goYslavia),  Preliminary  Objections, Judgment, I.C.J. Reports 1996 (II), p. 615, para. 31).

The context invoked by Myanmar does not stand in the way of the Court’s assessment of the existence of a real and imminent risk of irreparable prejudice to the rights protected under the Convention.

In light of the considerations set out above, the Court finds that there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia, as specified by the Court (see paragraph 56 above).

CONCLUSION AND MEASURES TO BE ADOPTED

From all of the above considerations, the Court concludes that the conditions required by its Statute for it to indicate provisional measures are met.

It is therefore necessary, pending its final decision, for the Court to indicate certain measures in  order to protect the rights claimed by       The Gambia, as identified above (see paragraph 56).

The Court recalls that it has the power, under its Statute, when a request for provisional measures has been made, to indicate measures that are, in whole or in part, other than those requested. Article 75, paragraph 2, of the Rules of Court specifically refers to this power of the Court.

The Court has already exercised this power in the past (see, for example, Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018

In the present case, having considered the terms of the provisional measures requested by The Gambia and the circumstances of the case, the Court finds that the measures to be indicated need not be identical to those requested.

Bearing in mind Myanmar’s duty to comply with its obligations under the Genocide Convention, the Court considers that, with regard to the situation described above, Myanmar must, in accordance with its obligations under the Convention, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of the Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.

Myanmar must also, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit acts of genocide, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide.

The Court is also of the view that Myanmar must take effective measures to prevent the destruction and ensure the preservation of any evidence related to allegations of acts within the scope of Article II of the Genocide Convention.

Regarding the provisional measure requested by The Gambia that each Party shall provide a report to the Court on all measures taken to give effect to its Order, the Court recalls that it has the power, reflected in Article 78 of the Rules of Court, to request the parties to provide information on any matter connected with the implementation of any provisional measures it has indicated. In view of the specific provisional measures it has decided to indicate, the Court considers that Myanmar must submit a report to the Court on all measures taken to give effect to

This Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court. Every report so provided shall then be communicated to The Gambia which shall be given the opportunity to submit to the Court its comments thereon.

The Gambia has further requested the Court to indicate measures aimed at ensuring the non-aggravation of the dispute with Myanmar. In this respect, the Court recalls that when it is indicating provisional measures for the purpose of preserving specific rights, it also possesses the power to indicate additional provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that the circumstances so require (see Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011,

I.C.J. Reports 2011 (II), pp. 551-552, para. 59). However, in the circumstances of the present case, and in view of the specific provisional measures it has decided to take, the Court does not deem it necessary to indicate an additional measure relating to the non-aggravation of the dispute between the Parties.

1. The Court reaffirms that its “orders on provisional measures under Article 41 [of the Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment,

I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party to whom the provisional measures are addressed.

• The Court further reaffirms that the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves. It leaves unaffected the right of the Governments of The Gambia and Myanmar to submit arguments and evidence in respect of those questions.

The U.N estimates that at least 10,000 Rohingya were killed by Myanmar’s state forces in the August 2017 crackdown, but others put the number higher. Human Rights Watch says another 730,000 fled Myanmar, crossing the border into Bangladesh, since the crackdown began in August 2017.

The crackdown came in response to a 2016 attack by the Arkan Rohingya Salvation Army, a militant group, on local police.

Myanmar also face other legal challenges over the Rohingaya, including a probe by the International Criminal Court— a separate war crimes tribunal— and lawsuit in Argentina which notably alleges Suu Kyi’s complicity.

Read The Judgement Here.