Gambia wins round one against Myanmar in Rohingya genocide case

The International Court of Justice on Thursday ordered Myanmar to stop any further targeted violence against the Muslim community in the country and ensure their protection, in a landmark decision whose case was filed by The Gambia.

A 17-judge bench, led by Somali justice Abdulqawi Ahmed Yusuf unanimously, ordered the government of Myanmar to ensure no further operations are conducted against Rohingya Muslims living in Rhakine state, near the border with Bangladesh.

The country was ordered to provide a report by end of April on how it will implement protective measures for the Rohingya, and update the court every six months until the case is heard and determined.

“Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, 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 this Convention,” the judges ruled.

IMPLICATIONS

The ruling means Myanmar’s security agencies will be penalised if they order the killing, maiming and forced displacement of community members or impose forced birth control.

“Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide.”

The Gambia, the smallest mainland West African country, sued Myanmar at The Hague, arguing the Asian nation was violating its own principles under laws on genocide by authorising an ethnic cleaning operation that amounted to mass killings.

In November, banking on support from the Organisation of Islamic Cooperation, The Gambia took the case to court, seeking to have Myanmar punished for operations that have seen thousands of Rohingya killed and millions displaced into neighbouring Bangladesh.

REQUIREMENTS

While the case would have fallen under the jurisdiction of the International Criminal Court, the non-UN court that deals with individual perpetrators of war crimes, The Gambia sued based on a clause that requires all signatories of the genocide convention to observe their obligations, or seek redress at the ICJ to have violating countries forced to observe them.

Usually, the ICJ may order provisional measures only if the provisions relied on by the applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded.

The court must also satisfy itself that the rights whose protection is sought are at least plausible and that there is a link between those rights and the measures requested.

On Thursday, the court said it had found prema facie evidence to indicate The Gambia and Myanmar disagreed on interpretation of the convention, meaning the ICJ had jurisdiction to determine the issue.

“The court thus concludes that The Gambia has prima facie standing to submit to it the dispute with Myanmar on the basis of alleged violations of obligations under the Genocide Convention.”

PR DISASTER

The decision known as the provisional measures had seen Myanmar reject The Gambia’s charges, including arguing the African country was acting as a proxy for the OIC.

Judges rejected the view as court filings indicated the name of The Gambia as the applicant.

“The Gambia may have sought and obtained the support of other States or international organisations in its endeavour to seize the court does not preclude the existence between the parties of a dispute relating to the convention.”

The initial decision could be a public relations disaster for Myanmar, which has tried to cover up the Rohingya massacre as an operation against armed militants.

Even more damaging was the fact that Myanmar’s lead defendant, Nobel Laureate and State Counsellor of Myanmar Aung San Suu Kyi, argued the violent operations were an internal matter which local agencies could deal with.

Running over several years, The Gambia alleged Myanmar’s armed forces or allied militants have been responsible for killings, rape and other forms of sexual violence, torture, beatings, cruel treatment, destruction, as well as denial of access to food, shelter and other essentials of life, “all with the intent to destroy the Rohingya group, in whole or in part.”