For the first time, a court has ordered Myanmar to take actions to protect the Rohingya. Last Thursday, the International Court of Justice (ICJ), the United Nation’s highest court, issued an order in a case brought against Myanmar by Gambia claiming violations of the Genocide Convention. For more on Gambia’s filing in this case, as well as other efforts to bring accountability for the crimes against the Rohingya, see my previous post for Just Security here.

Preceding its decision, the ICJ held oral arguments concerning Gambia’s request for what are known as “provisional measures” in early December. A request for provisional measures is in some ways comparable to a request for a preliminary injunction in U.S. courts. A party is requesting that the court issue an order to prevent further harm while the case is proceeding, which can be particularly important at the ICJ where cases can take years to conclude. A request for provisional measures typically comes early in the case, and well before the record is fully developed and the issues can be judged on their merit. However, the standard of proof for granting provisional measures is that of a prima facie showing, considerably less than that required for final judgment. In theory, determinations made at the provisional measures stage have no bearing on the ultimate decision reached on those issues later.

While a request for provisional measures is not uncommon, what made the December oral arguments extraordinary is that Aung San Suu Kyi, the Nobel Peace Prize winner and the de facto head of Myanmar (albeit with the military retaining a great deal of power) chose to act as the “agent” for Myanmar. This meant she would be leading the delegation and defending Myanmar in court. Once a symbol for human rights, she had already been widely criticized for her actions and inactions in regards to the Rohingya people.

The arguments lasted three days and addressed multiple issues including whether the evidence was sufficient that what Myanmar perpetrated against the Rohingya met the legal definition of genocide (and in particular the mental element of “specific intent”), whether the ICJ had jurisdiction over the dispute, and whether provisional measures were in fact warranted. Gambia requested six provisional measures which in summary were that:

  1. Myanmar do everything in its power to prevent genocide including preventing specific types of attacks on the Rohingya;
  2. Myanmar prevent the military or other groups or persons under its control from perpetrating acts of genocide, including particular acts;
  3. Myanmar not “render inaccessible”, destroy, or alter evidence of the treatment of the Rohingya, including human remains;
  4. Myanmar and Gambia not do anything to aggravate the dispute;
  5. Myanmar and Gambia report on measures taken to affect the provisional orders in four months; and,
  6. Myanmar grant access to U.N. fact-finding bodies (Gambia did not include this last request in its initial filing with the ICJ, but raised it during oral arguments).

In the ICJ’s order issued last week, the 17 judges, including a judge selected by Myanmar to sit only on this case (under the court’s rules, if a national of a State party involved in a dispute is not already on the bench, they may select a judge to join the bench ad hoc), unanimously granted provisional measures. However, they did not grant all of the provisional measures requested by Gambia, and they exercised their right to issue measures that are not identical to those requested. In summary, the provisional measures the Court ordered are that:

  1. Myanmar must refrain from acts of genocide against the Rohingya;
  2. Myanmar must ensure that the military or other groups or organizations subject to Myanmar’s control refrain from acts of genocide or acts related thereto (including conspiring, inciting, or attempting);
  3. Myanmar must “prevent the destruction and ensure the preservation of any evidence related to” allegations of genocide; and,
  4. Myanmar must submit a report in four months regarding the steps it has taken to implement these measures, and submit a new report every six months thereafter.

The first two of these measures are largely repetitive of Myanmar’s obligations under the Genocide Convention, although more detailed. The court found the other two requested provisional measures that were not granted — regarding not aggravating the dispute, and granting access to U.N. investigative mechanisms — to be unnecessary.

Also of note in the Court’s order was the finding that Gambia had standing to bring a claim against Myanmar under the Genocide Convention even though it was not itself directly affected by Myanmar’s actions. Instead, it was acting under the theory that by joining the Genocide Convention, Myanmar had obligations to other members of the convention to fulfill its requirements (so-called erga omnes partes obligations), including Gambia. The Court wrote:

“In view of their shared values, all the States parties to the Genocide Convention have a common interest to ensure that acts of genocide are prevented and that, if they occur, their authors do not enjoy impunity. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention.”

Three judges, in addition to supporting the provisional measures, wrote separate opinions to expound on different points. A Brazilian judge provided additional comentary on issues concerning the ICJ’s jurisdiction and provisional measures (including by quoting a poem!). A Chinese judge wrote that despite voting in favor of the provisional measures she has “serious reservations with regard to the plausibility of the present case under the Genocide Convention.” In her view, the evidence does not support a finding of the specific intent necessary for genocide, but nevertheless constitutes an “appalling situation of human rights violations” and a “protracted problem of ill-treatment of ethnic minorities in Myanmar.” She also questioned Gambia’s standing to bring the claim.

The third (which, in the lexicon of the ICJ, was titled a “Declaration” instead of a “Separate Opinion”) was by a German professor that Myanmar selected as their ad hoc judge in this case. He made further points on the “plausibility” standard that must be met at the provisional measures stage, i.e., does the evidence plausibly show that Gambia’s rights under the Genocide Convention have been violated. He also lamented that the order did not explore in a more fulsome way whether the Rohingya constitute a “protected group” under the Genocide Convention. (The Genocide Convention protects groups that are national, ethnic, racial, or religious, and that are targeted on that basis.)

The order, as well as some of the judges writing individually, also re-affirmed that the decisions made at this time to do not prejudge these questions at the merits stage.

In a short statement issued after the ICJ decision was announced, Myanmar’s Ministry of Foreign Affairs declared that “there was no genocide in Rakhine,” the state in Myanmar where the alleged crimes took place.  It noted that the order was not a decision on the merits, and referenced an executive summary of a report issued two days before the ICJ’s decision by a group established by the Burmese government called the Independent Commission of Enquiry (ICOE). The ICOE (comprised of Burmese, Japanese, and Filipino members) found that “war crimes, serious human rights violations, and violations of domestic law took place” and that “Myanmar’s security forces were involved,” but stated that it did not find evidence of genocidal intent.

The Ministry of Foreign Affairs’ statement also appeared to claim that those accusing Myanmar of violations were themselves harming Rohingya by preventing development in Rakhine State:

“The unsubstantiated condemnation of Myanmar by some human rights actors has presented a distorted picture of the situation in Rakhine and affected Myanmar’s bilateral relations with several countries. This has hampered Myanmar’s ability to lay the foundation for sustainable development in Rakhine.”

Myanmar additionally insinuated that the ICJ granted provisional measures not because there was a legitimate evidentiary grounding for them, but in order to avoid criticism, stating:

“We should all be aware that one of the historical functions of ‘provisional measures’ has been to protect the Court against possible accusations of failure [to] take preventive action at the start of a case.”

The ICJ’s ordering of provisional measures is certainly a positive development, but of course ordering and enforcing are two different things. Normally, enforcement for a recalcitrant State would run through the U.N. Security Council, but to date China and Russia have used their veto power to protect Myanmar. Hopefully, Myanmar will comply and no additional enforcement will be necessary.

On the night before the ICJ’s provisional measures decision was announced, Philippe Sands, one of the attorneys representing Gambia in the case, spoke at an event on atrocity crimes in Washington, D.C. As he had at oral arguments at the ICJ, he noted as a cautionary tale that in the Bosnian Genocide case at the ICJ, the Court issued provisional measures twice in 1993, including a requirement that Yugoslavia “take all measures within its power to prevent commission of the crime of genocide.”  Nevertheless, just two years later the massacre at Srebrenica happened anyway. Only time will tell whether the provisional measures now issued are sufficient to prevent future genocide in Myanmar.

Image: The judges of the Court of Justice during the session held at International Court Of Justice on January 23, 2020 in The Hague, Netherlands. Photo by Nacho Calonge/Getty Images