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Gambia vs Myanmar at the ICJ: What to expect going forward

  • Published at 12:03 pm January 23rd, 2020

The ICJ announcement marks a tremendous step forward for the Rohingya 

The Rohingya crisis now drags on through the third year after a brutal crackdown by Myanmar security forces starting August 25, 2017. It resulted in the displacement of over 700,000 people. 

The wheels of international justice have slowly begun to turn in response to the atrocities committed against the Rohingya. 

A number of announcements from international justice actors in late 2019 indicate that progress will continue throughout 2020. 

At the International Conclave on Justice and Accountability for Rohingya hosted by Centre for Peace and Justice, Brac University (CPJ) in The Hague, The Netherlands on October 18, 2019, Gambian Justice Minister Abubacarr Marie Tambadou announced to the world that he had instructed his office to file genocide charges against Myanmar at the International Court of Justice. 

Then, in November, the judges of the International Criminal Court announced that they had authorized a full investigation into whether Myanmar committed the crime against humanity of deportation. 

And in December, a case accusing Myanmar of genocide and crimes against humanity was filed by leading Rohingya activist Tun Khin in domestic court in Argentina. This case was filed under the principle of universal jurisdiction, on the basis of which international crimes can be prosecuted outside of the country in which they were committed.

Of all these developments, the ICJ proceedings moved forward the most quickly as Gambia petitioned the court to order that Myanmar implement a set of provisional measures to prevent any further genocidal acts from occurring. 

Because it takes several years for a case to wind its way fully through the ICJ process, provisional measures are an initial step by which the responded state must take immediate action in regard to the alleged violation. 

Provisional measures are granted when the court determines that there is at least a possibility that violations of international law are ongoing and recognizes that immediate action is needed to prevent the alleged crime from continuing.

The international community watched closely as legal counsel for Gambia and Myanmar argued their cases for and against the preliminary measures over three days, from December 10 to 12, 2019. 

Each side gave its arguments, with Aung San Suu Kyi representing Myanmar alongside a team of international legal counsel led by genocide scholar William Schabas. 

The willingness of Nobel Peace Laureate Suu Kyi’s to lead the Myanmar team caused international uproar and was seen by many as a heartless political manoeuvre, designed to paint the case as an impingement on Myanmar’s sovereignty in advance of elections slated for later this year.

Myanmar’s main arguments were based on a mix of outright denial, the claim that Gambia was being influenced by the OIC to pursue the case, and that Myanmar’s domestic and military justice mechanisms were capable of resolving the issue.

Gambia presented an overview of extensive documentation of the long-standing persecution of the Rohingya and the genocidal acts committed against them, including mass killings and sexual violence.

Ultimately, the ICJ judges found Gambia’s argument more compelling. Asserting its power to try the case and noting Myanmar’s obligation to comply with the 1948 Genocide Convention, the judges unanimously granted four provisional measures.

First and foremost, Myanmar has been ordered to take all steps within its power to prevent acts that contribute to the crime of genocide as specified under Article 2 of the Genocide Convention.

Second, Myanmar must ensure that its military, as well as any paramilitary or irregular armed units, do not commit the above acts either. 

Third, Myanmar must preserve all evidence, such as mass graves, village sites and all other sites and items that will need to be reviewed during future investigations. 

Finally, Myanmar as well as Gambia must report back to the court within four months that it has complied with the measures. As long as the case is open, Myanmar must continue to report its compliance with the provisional measures every six months.

The provisional measures are technically binding; if Myanmar fails or refuses to comply, the matter will be referred to the UN Security Council. 

In the absence of a straightforward enforcement mechanism, it remains to be seen if -- and the extent to which -- Myanmar will comply with the measures, and what can be done if they do not. 

While Myanmar will face tremendous pressure to follow the provisional measures, the Security Council members to which the matter will be referred include China and Russia, which have both taken stances against international accountability measures.

Ultimately, the ICJ’s announcement marked a tremendous step forward for the Rohingya and signified the first semblance of justice for their plight. 

Refugees in the camps of Cox’s Bazar are celebrating and hoping the measures bring quick protection to their loved ones remaining in Rakhine State.

Manzoor Hasan is Executive Director and Jessica Olney is Visiting Researcher, Centre for Peace and Justice, Brac University. The views and opinions expressed in this article are those of the authors and do not necessarily reflect the position of Brac University.

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