South-east Asia Correspondent
International Court of Justice
At a time when expectations of bringing Myanmar’s leaders and military to justice for atrocities committed against Rohingya Muslims were fading, a ray of hope has emerged with the filing of a case at the International Court of Justice (ICJ), accusing the South-east Asian nation of genocide.
But just a ray of hope, as proceedings are likely to be drawn out and, going by similar cases in the past, it may take years to complete hearings, and several more years to convict and punish the culprits. Or, there may even be no punishment or compensation at all!
The lawsuit against Myanmar has been lodged by Gambia, a tiny West African Muslim country, after winning the support of the 57-nation Organisation for Islamic Cooperation (OIC). Only a state can file a case against another state at the Hague-based ICJ, also known as World Court.
The United Nations’ highest court is scheduled to hold public hearings on the case from December 10. Lawyers for Gambia will argue for “provisional measures” to protect the Rohingya, sort of a legal injunction calling on Myanmar to stop actions that continue the crimes. Myanmar would then be bound by international law to comply.
Myanmar leader Aung San Suu Kyi will lead her country’s legal team to contest the case before the court.
It is the first international legal action against the Buddhist-majority nation for genocide, coming more than two years after the military purge of more than 700,000 minority Rohingya Muslims.
TIGHTENING THE NOOSE
November has seen a burst of legal action across the globe against Myanmar, providing fresh impetus for efforts to examine the atrocities committed against the Rohingya.
On November 11, Gambia filed the lawsuit at the World Court. It is accusing Myanmar of violating the 1948 Genocide Convention. Both Gambia and Myanmar are state parties to the Convention, which obliges them to prevent genocide and punish its perpetrators. Gambia alleges Myanmar has violated the Convention and has asked the ICJ to take action to stop Myanmar’s “genocidal conduct immediately”.
Separately, on November 14, judges at the International Criminal Court (ICC), which is also based in The Hague, Netherlands, gave the go-ahead to an investigation into the persecution and deportation of the Rohingya to neighbouring Bangladesh, actions considered crimes against humanity under international law.
In yet another legal challenge, a Rohingya rights group on November 13 launched a case calling on courts in Argentina to prosecute Myanmar’s military and civilian officials, including Ms Suu Kyi, under the concept of universal jurisdiction, which pushes for domestic courts to investigate international crimes.
“The net is tightening around the Myanmar military and civilian leadership. They must realise that,” says Chris Sidoti, an international human rights lawyer and one of three investigators appointed to a UN rights probe on Myanmar, which concluded its work in September.
“In one week, there have been developments in three jurisdictions…. I have no doubt that this will have a deterrent effect,” he told Swiss new agency The New Humanitarian.
The ICJ is mandated to settle disputes between nations, while the ICC is a war-crimes court that examines atrocity crimes involving individual suspects. Myanmar now faces the prospect of a damning judgment from the ICJ against the state itself. If the court decides that the country has committed the gravest offences under international law, there could be diplomatic consequences, say political observers.
“If a party fails to perform any of the obligations set out in a judgment, the matter can be referred to the UN Security Council, which may recommend or decide upon necessary measures,” says Kingsley Abbott, a senior legal adviser at the International Commission of Jurists, a non-governmental organisation.
If the court agrees, such an order could happen relatively quickly, say analysts.
Myanmar has largely shrugged off attempts at examining its actions, blocking UN investigators from entering the country and rejecting ICC jurisdiction. But now it is feeling the pinch as the ICJ case heaps fresh pressure on its leaders and severely damages the country’s reputation.
Ahead of the ICJ case, Myanmar’s military has begun a rare court martial of soldiers following a probe into alleged atrocities during a crackdown on Rohingya Muslims.
Thousands of Rohingya were killed and 740,000 fled to Bangladesh during an army crackdown in 2017. The Rohingya who fled into sprawling camps in Bangladesh brought with them accounts of widespread murder, rape and arson back home. While almost a million now live in squalor in Bangladeshi refugee camps, several hundred thousand remain inside Myanmar, confined to camps and villages in apartheid-like conditions.
Soldiers, police and Buddhist villagers are alleged to have razed hundreds of villages in the remote western Rakhine state, torturing Rohingya as they fled, carrying out mass killings and gang rapes.
Rohingya’s hopes
Rights campaigners and Rohingya organisations have welcomed the sudden spate of legal developments. The Rohingya Youth Association, a group based in Bangladesh’s refugee camps, says Myanmar has enjoyed international impunity and felt emboldened to intensify its campaign against the Rohingya and other ethnic minorities. It hopes the pursuit of genocide prosecutions after years of inaction might prevent further atrocities.
“It will take years, but a ruling against Myanmar would be proof that Myanmar committed genocide,” says Matthew Smith, who heads the Bangkok-based activist group Fortify Rights. “The court would likely issue remedies and there would be significant pressure on Myanmar to comply.”
Others see the potential for substantial longer-term impacts and, for comparison, cite the genocide case brought by Bosnia and Herzegovina before the ICJ in 1993 against Serbia and Montenegro.
The disintegration of Yugoslavia had triggered civil war and ethnic cleansing involving mass rape, assault and forced deportations. Serbia was alleged to have attempted to exterminate the Bosnian Muslims.
The case in the ICJ ended in 2006 and in 2007, the court ruled Serbia had violated its obligation to prevent genocide. But it did not make any order for compensation.
Should the final judgment go against Myanmar, and it does not comply, Gambia can refer the case to the UN Security Council for possible enforcement steps.
At the Security Council, it is sure of a Chinese and Russian veto, notes Dr Myint Zan, retired professor from Malaysia’s Multimedia University. He says China, which has long argued that the Rohingya issue is between Myanmar and Bangladesh, has already blocked what it calls attempts to “internationalise” it.
[The writer can be reached at [email protected]]