Myanmar and the ICJ: Ways Forward

A Special Just Security Forum

(Editors Note: This article introduces a special Just Security forum on the ongoing Gambia v. Myanmar litigation at the International Court of Justice and ways forward.)

In August 2017, Myanmar’s military carried out a brutal campaign of murder, rape and other abuses against the country’s Rohingya Muslims. These so-called “clearance operations” forced more than 740,000 Rohingya to flee to Bangladesh and constituted a range of international crimes. While the ferocity of this violence may have been new, the commission of acts of oppression and violence against the Rohingya is not. Indeed, as many have pointed out (see e.g. here and here), the Rohingya have been targeted by the government of Myanmar for decades.

For years, Myanmar evaded direct accountability, as the best the international community could muster in the face of these atrocities were condemnations in the United Nations Human Rights Council and General Assembly. However, in November 2019, Gambia filed an application before the International Court of Justice (ICJ) alleging that the violence committed by the Myanmar government against the Rohingya violated the Convention on the Prevention and Punishment of the Crime of Genocide.

In January 2020, the ICJ issued a provisional measures order directing Myanmar to take certain actions to protect the Rohingya from genocide and preserve evidence of genocidal acts. Recognizing the extraordinary urgency and importance of the measures ordered, the ICJ ordered Myanmar to submit a report on its compliance with the order on May 23, 2020 and every 6 months thereafter until the case is decided.

Since January, Myanmar has taken some steps seemingly aimed at complying with the orders. However, none of these steps address the long-standing structural discrimination against the Rohingya, nor do they provide a basis for safe, voluntary and dignified repatriation for the nearly one million stateless Rohingya people driven from their homes in Myanmar. The efficacy of these limited measures are further reduced by the ongoing global COVID-19 pandemic and escalating conflict in Rakhine State, the principal area of Rohingya residence in Myanmar.

At this critical juncture in time, as Myanmar seeks to be perceived as being compliant with the ICJ’s provisional measures order, while continuing to persecute the Rohingya population that remains in the country, it is important to consider pathways forward. This forum seeks to do so by analyzing the current situation in Myanmar and identifying paths forward toward accountability and improving the rule of law. The first article, by Param-Preet Singh, identifies steps Myanmar should take to comply with the ICJ order. The second, by Nadira Kourt, highlights the role and necessary steps for the international community to support the ICJ proceedings. The third, by Grant Shubin, looks at the ICJ case within the backdrop of the other ongoing international justice processes and the Myanmar military’s decades of violations against Myanmar’s ethnic minorities. These pieces discuss the key takeaways and central themes of a Webinar hosted by the Global Justice Center, Human Rights Watch, and the Global Centre on the Responsibility to Protect, on the eve of Myanmar’s first provisional measures report to the ICJ submitted this May. In addition to these articles, the forum concludes with a piece by Katherine Southwick that provides an overview of the various accountability efforts underway at the ICJ and elsewhere, and lays out how such international efforts can help contribute to the longer term structural changes needed to secure peace and better protect minority rights in Myanmar.

In its January order, the ICJ made clear that genocide remains a serious risk for the 600,000 Rohingya still living in Myanmar’s Rakhine State. Unless and until Myanmar addresses the root causes of the ongoing acts of violence and persecution being committed against the Rohingya – and discrimination against all of Myanmar’s ethnic minorities – the risk of atrocities will persist and the rule of law will languish.

Image: People watch the ICJ hearing at a restaurant in a Rohingya refugee camp on January 23, 2020 in Cox’s Bazar, Bangladesh. The International Court of Justice ordered Myanmar to take emergency measures to prevent genocide of the Rohingya. In a unanimously-ruled order  the court upheld the provisions of the 1948 Genocide Convention – saying Myanmar had “caused irreparable damage to the rights of the Rohingya”. (Photo by Allison Joyce/Getty Images)

 

About the Author(s)

Grant Shubin

Legal Director at The Global Justice Center. Follow him on Twitter (@Grant_GJC)