ICJ ruling: Myanmar’s compliance and global pressure remains key

Published : Tuesday, 28 January, 2020 at 12:00 AM

More than 750,000 Rohingya fled Myanmar after a military crackdown in 2017. They entered the neighbouring Bangladesh crossing the river with tremendous risk on their lives. Bangladesh was valiant in open its border for this huge number of floating people on humanitarian grounds.

These Rohingyas were forced into fetid camps across the border in Bangladesh. They have lost all their assets, human rights and honour on their own soil. United Nations investigators concluded that the brutal military attack with the support of accomplice Buddhist locals had been executed with genocidal intent over these minority Rohingya Muslims. The UN also termed this act of the Myanmar army as ‘ethnic cleansing’.

The Gambia, a Muslim-majority country, launched a lawsuit in November, 2019 at the UN’s highest body for disputes between states, accusing Myanmar of genocide against Rohingya in violation of a 1948 convention. At public hearings last month, lawyers for Myanmar’s accusers used maps, satellite images and graphic photos to detail what they call a campaign of murder, rape and destruction amounting to genocide perpetrated by Myanmar’s military. The hearings drew intense scrutiny as Myanmar’s former pro-democracy icon Aung San Suu Kyi defended the campaign by military forces that once held her under house arrest for 15 years.

Suu Kyi, who as Myanmar’s state counsellor heads the government, was awarded the 1991 Nobel Peace Prize for championing democracy and human rights under Myanmar’s then-ruling junta. But she was already criticized throughout the globe for her silent gesture over this inhumane brutality and oppression of the Myanmar army and her defence in the UN’s top court just strengthened global audiences’ perception over her non-democratic killer attitude.

In a momentous and unanimous decision, the international court of justice (ICJ) in The Hague imposed emergency “provisional measures” on the country – intervening in its domestic affairs by instructing the government of Aung San Suu Kyi to respect the requirements of the 1948 genocide convention.Declaring that there was prima facie evidence of breaches of the convention, the court warned that the estimated 600,000 Rohingya remaining in Myanmar were “extremely vulnerable” to attacks by the military. The ruling amounts to outright rejection of the Nobel peace prize winner Aung San Suu Kyi’s defense of her country against accusations of systematic human rights abuses and war crimes during a three-day hearing at the ICJ last month. Even the judge nominated by Myanmar for the hearing voted against the country.

The ICJ’s orders are binding on Myanmar and create legal obligations that must be enforced. The provisional measures imposed by the court require the government to prevent genocidal acts, ensure military and police forces do not commit genocide, preserve evidence of genocidal acts and report back on its compliance within four months. The orders are automatically sent to the UN Security Council, where Myanmar’s response will be assessed. The country receives diplomatic support from China, which is one of the five permanent members of the council.


This ruling dealt only with Gambia’s request for so-called preliminary measures, the equivalent of a restraining order for states. It gave no indication of the court’s final decision, which could take years to reach.

Moments before the court in The Hague began reading its ruling, the Financial Times published an article by Suu Kyi in which she said war crimes may have been committed against Rohingya Muslims but that refugees had exaggerated the abuses against them. She said Myanmar was the victim of “unsubstantiated narratives” by human rights groups and UN investigators and the country could itself punish perpetrators through domestic mechanisms.
She also mentioned that the international justice system may not yet be equipped to filter out misleading information before shadows of incrimination are cast over entire nations and governments. She also alleged that the human rights groups have condemned Myanmar based on unproven statements without the due process of criminal investigation. During a week of hearings last month, Suu Kyi asked the judges to drop the case.

The international court’s rulings are final and without appeal, but it has no real way of enforcing them. More than 100 Myanmar civil society groups published a statement saying they hoped international justice efforts would “bring forth the truth” and end impunity. But the key to the success of this ruling still lies on the compliance of Myanmar, only which can save the fate of these thousands of floating Rohingya refugees. From the acts of Myanmar, we cannot be very hopeful till now.

Myanmar has responded defiantly to a ruling by the UN’s top court ordering measures to prevent the genocide of Rohingya Muslims. The country’s Ministry of Foreign Affairs said it presented a distorted picture of the situation. This sort of arrogant statement is amusing considering the fact that thousands of Rohingyas died and more than 700,000 fled to Bangladesh during the army crackdown in 2017 which is completely proven from all aspects. But this is again notable that the measures imposed by the International Court of Justice (ICJ) are binding and not subject to appeal but the ICJ has no way of enforcing them.

ICJ has given its ruling on different instances of genocidal incidents. Serbia was alleged to have attempted to exterminate the Bosnian Muslim population of Bosnia and Herzegovina. The claim was filed by Dr. Francis Boyle, an adviser to Alija Izetbegovi? during the Bosnian War. The case was heard in the International Court of Justice (ICJ) in The Hague, Netherlands and ended on 9 May 2006.

The Court found, although not unanimously, that Serbia was neither directly responsible for the Srebrenica genocide, nor that it was complicit in it, but it did rule that Serbia had committed a breach of the Genocide Convention by failing to prevent the genocide from occurring and for not cooperating with the International Criminal Tribunal for the former Yugoslavia (ICTY) in punishing the perpetrators of the genocide, in particular General Ratko Mladi?, and for violating its obligation to comply with the provisional measures ordered by the Court.

Serbia’s violations of its obligations stem not only from the Convention on the Prevention and Punishment of the Crime of Genocide but also from two provisional protective measures issued by the ICJ in April and September 1993. The then Yugoslavia was ordered explicitly to do everything in its power to prevent the crimes of genocide and to make sure that such crimes are not committed by military or paramilitary formations operating under its control or with its support. The judges concluded that despite this explicit order, Serbia did nothing in July 1995 to prevent the Srebrenica massacre, although it should normally have been aware of the serious danger that acts of genocide would be committed.

To nobody’s surprise, the ICJ, has rejected both a claim by Croatia filed in 1999 charging Serbia with genocide and a claim by Serbia filed in 2010 charging Croatia with the same. This verdict was expected because it was clear that both claims lacked merit. Nobody has been convicted or charged with genocide for any incident in the 1991-1995 war in Croatia and while there is clear evidence of large-scale crimes, none reached the level of being committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as the Genocide Convention specifies.

In many other occasions, genocidal allegations were filed in the ICJ. The court successfully provided ruling considering the facts in most cases. But the consequence of a ruling over a guilty party is the matter of concern as unfortunately nothing much changed for the guilty ones according to the history. On the ground of national sovereignty, the UN had not intervened in most cases after non-compliance.

There is a possibility that Myanmar would refuse to comply with the IJC’s ruling. Then it will become an international political question that could go to the UNSC or General Assembly and according to the experts it will not be in their interests to not comply. Under the ruling, Myanmar is required to report back to the court in four months and again six months later, which will keep its government under pressure for nearly the entire year. Intense pressure could also come from Myanmar’s neighbors and members of the ASEAN. On the contrary, some experts feared that the ICJ ruling could enrage the Myanmar military to carry out revenge attacks or incite Buddhist paramilitary units or other armed groups to do so.

Genocide is very different from war. Those Myanmar army members, who directly participated in the genocide, will be creating trouble for Myanmar itself. Suu Kyi should take measures to remove those officers and to reinstall humanity in Myanmar armed forces for the welfare of her country. For this, she should not wait for any external ruling. Myanmar should also follow the recommendations of Annan Commission to restore the rights of the uprooted Rohingya Muslims to get spared from further shame and tragedy.

From another perspective, Bangladesh is pursuing for the repatriation of these Rohingya refugees. But this case does not reflect anything on that. There are bigger questions, too, about whether the court is in a position to compel Myanmar to change its citizenship laws, for example. The Rohingya have essentially been made stateless by being denied the right of citizenship, which has contributed to making their existence so insecure.

So, the fate of these refugees is still uncertain from all aspects though it was a more of a moral win till now. This is not a final verdict, not even close as this is just a provisional decision in a years-long case. But it’s the first time an international court has held Myanmar accountable for its campaign against the Rohingya. But it is highly required for the global powers and Myanmar’s neighbors to keep the pressure mounting on Myanmar in the upcoming days.
We, as human, can now only expect that Myanmar complies with the ICJ ruling as we want humanity to win. If Aung San Suu Kyi can portray humanity like Bangladeshi premier Sheikh Hasina, the world will be a much better place for these Rohingyas. We just hope Myanmar realizes its political and moral obligations to save humanity.

The writer is Chief Editor at Mohammadi News Agency (MNA), Editor at Kishore Bangla and Vice-Chairman, Democracy Research Center (DRC)


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