In a unanimous 17-0 decision, the International Court of Justice (ICJ) rejected Myanmar’s argument that the deaths of the Rohingya were part of an “armed military conflict.”
As part of the first step in a legal case that is expected to go on for years, the ICJ ordered Myanmar to “take all measures within its power” to end its military violence against the Muslim Rohingya community.
Judge Abdulqawi Ahmed Yusuf, president of the court, said in his order that the Rohingya in Myanmar “remain extremely vulnerable.”
Gambia filed the suit in November last year and accused Myanmar of “committing genocide” against the Rohingya. The case, which was put before the ICJ in The Hague, centres around a counterinsurgency campaign waged by Myanmar’s military in August 2017 in response to an insurgent attack.
Gambia asked the ICJ to order “provisional measures” to prevent more harm and ensure any evidence of Myanmar’s alleged crimes be preserved.
The court itself has no enforcement powers, but its decisions are binding and not subject to appeal. In the past, countries have occasionally ignored or failed to adhere fully to ICJ rulings.
Bob Rae, Canada’s special envoy to Myanmar, told Global News the ruling was “an exercise in accountability.”
“The first hurdle for the government is for the court to say no, we’re not going to throw it out,” he said of Gambia’s lawsuit.
“We accept jurisdiction, and we’re going to hear further arguments about whether or not this actually is a genocide and a breach of the Genocide Convention.”
In an ideal world, Rae said the government of Myanmar would recognize the Rohingya people are citizens and deserve to be treated with dignity and live in security as full citizens in Rakhine state, but “the reality is there are no signs of that happening.”
Rae also specified that the ruling does not determine whether or not genocide was committed but, rather, whether Canada and the UN have any jurisdiction “to try and get Myanmar to behave differently.”
While the ICJ cannot force Myanmar to comply with its ruling, Rae said it was important the plight of the Rohingya be made public.
“That entire process was important for the Rohingya people to know that people are listening and also to know that so far the government of Myanmar is still not ready to fully embrace their situation,” said Rae.
“Ultimately, there has to be a will on the part of the government of Myanmar,” said Rae. “In situations like this, what’s really required is the political will on the part of the government to actually do something.”
What happened in Myanmar?
For decades, Myanmar has considered Rohingya people to be from Bangladesh, even though they have lived in the country for generations. Nearly all Rohingya have been denied citizenship since 1982, effectively rendering them stateless. They are also denied freedom of movement and other basic rights.
The crisis came to a head on Aug. 25, 2017, when Myanmar’s military launched what it called a clearance campaign in Rakhine state in response to an attack by a Rohingya insurgent group, driving more than 742,000 to seek refuge in Bangladesh.
The latest UN Refugee Agency (UNHCR) report found over one million Rohingya refugees have fled violence in Myanmar in successive waves of displacement since the early 1990s.
In a 2018 report for the Canadian government, Rae described numerous incidents of mass rape, killings, separation of families and torching of homes and villages. UN investigators estimate over 10,000 people may have been killed.
At the peak of the crisis, the agency said thousands were crossing into Bangladesh daily. The UNHCR said most walked for days through jungles and mountains or braved dangerous sea voyages across the Bay of Bengal, adding that the vast majority who reached Bangladesh were women and children, with more than 40 per cent under the age of 12.
In December, Myanmar leader Aung San Suu Kyi defended the actions of her country’s military — the force that once held her under house arrest for 15 years — and said the exodus of men, women and children was a tragic consequence of hostilities started by Rohingya insurgents.
Asking the ICJ to drop the case, Suu Kyi — the first honorary Canadian to be stripped of citizenship — told the court that Gambia painted “an incomplete and misleading factual picture” of what happened in Rakhine.
The Harper government initially awarded Suu Kyi honorary citizenship in 2007 for what was deemed her pursuit of freedom and democracy in Myanmar, but it was revoked in 2018 after criticism emerged of Suu Kyi’s inaction amid the violence against Rohingya.
“Surely, under the circumstances, genocidal intent cannot be the only hypothesis,” Suu Kyi told the judges. “Can there be genocidal intent on the part of a state that actively investigates, prosecutes and punishes soldiers and officers that are accused of wrongdoing?”
Genocide vs. war crimes
The UN’s Genocide Convention defines genocide as any of a specific list of acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.
But Eyal Mayroz, a lecturer at the University of Sydney’s Peace and Conflict Studies department and member of the Genocide Prevention Advisory Network, said proof of intent is difficult to define, much less show.
Gambia’s case “is an example of the problematic nature of genocide because genocide is so hard to show that states are either not wanting to use that word,” he said. “I would not call the Genocide Convention effective.”
He added that states don’t usually take other states to court. Since the creation of the Genocide Convention in 1948, he said a case like Gambia’s has only happened two other times in history.
It happened once in 2007, when a case ruled genocide had occurred during the Bosnian War. It also occurred in 2010, when the court ruled that neither Serbia nor Croatia provided sufficient evidence that either side had committed genocide, thereby dismissing both cases.
Mayroz says the Genocide Convention’s language is so vague that it is a “distraction.”
“The real value of protecting (a) mass number of people from mass killings or different atrocities is being sidelined based on whether it’s considered genocide or not,” he said.
“In my view, that should not distract us from the main thing, which is protecting countless lives from four mass killings.”
On Tuesday, the Independent Commission of Enquiry (ICOE) — a commission established by the Myanmar government — released the findings of its own investigation. It concluded that some soldiers likely committed war crimes but insisted there was no genocide against the Rohingya.
Echoing Suu Kyi, the ICOE report found some security personnel had used disproportionate force to commit human rights violations and war crimes, including the “killing of innocent villagers and destruction of their homes.”
But Maung Zarni, a Buddhist native of Burma, genocide scholar and human rights activist, disagreed and called the mere admission of war crimes “a cop-out.”
He accused Myanmar’s legal team of trying to downplay its alleged genocide in order to frame it as an “armed conflict” with the Rohingya.
“What this war crime admission is designed to do is distort the essence of genocide, portraying that there are two sides in the conflict,” Zarni said in an interview.
“You cannot have two sides in the conflict where one side — the Rohingya people — just want to live in peace as Myanmar citizens, as Rohingya ethnic people, which they enjoy under successive Myanmar governments that know full and equal citizenship rights, as well as the group ethnic identity,” he said.
Zarni, who is also the Burmese co-ordinator for the Free Rohingya Coalition, likened the atrocities committed against the Rohingya to the Holocaust in Nazi Germany.
“If this is a conflict, then in Nazi Germany, Jews had conflicts with German society and the Nazi Party, which is factually untrue,” he said.
— With files from Global News’ Maham Abedi and the Associated Press