ISSN 2330-717X

ICJ’s Judgement On The Rohingya And Its Challenges – Analysis

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Political will is extremely crucial since ICJ has no jurisdiction or legal apparatus over individual nations.

By Sreeparna Banerjee and Anasua Basu Ray Chaudhury

In a historic judgement, the International Court of Justice (ICJ) on 23 January ordered Myanmar to implement vital measures to protect its Rohingya population from any further atrocities. This ruling has been hailed as an “accomplishment of international justice.” This lawsuit was brought by Gambia, a small African Muslim state backed by the 57 nation Organisation of Islamic Cooperation (OIC) in November at the United Nations’ highest body for disputes between states. It accused Myanmar of genocide against Rohingya in violation of a 1948 Genocide Convention.

The court witnessed the trial on 10–11 December where the State Counsellor of Myanmar Aung San Suu Kyi was herself present to defend her country’s honour. She emphasised that the accusations made against her government are “incomplete and misleading factual picture of the situation,” thus categorically denying the allegations of genocide and thereby requesting to dismiss the charges brought to it.

Under the presiding Judge Abdulqawi Yusuf and 16 other judges present in the panel, the undisputed ruling on 23 January granted Gambia’s request for preliminary measures. According to the court, the Rohingyas face an ongoing threat that necessitates Myanmar to “take all measures within its power to prevent all acts” prohibited under the 1948 Genocide Convention, and report back to the court within four months, and then, every six months after that.

Difference of opinion

Interestingly, there remains a discrepancy between the opinion of Myanmar and the international community over the said genocide. The international community calls the atrocities committed against the Rohingyas, the mass killings and rapes as the text book example of ethnic cleansing. The head of a UN fact-finding mission on Myanmar warned that there is a serious risk of genocide recurring, and the mission also stated in its final report in September 2019 that Myanmar should be held responsible in international legal forums for alleged genocide against the Rohingya.

The Government of Myanmar has strongly denied carrying out organised human rights abuses. The country maintains that the military action, which followed militant attacks on security forces in August 2017, as a legitimate counterinsurgency operation. Myanmar has rejected the UN findings as “one-sided”. The state counsellor has consistently in various occasions stated that her government could have handled the situation in Rakhine state better, but did not acknowledge to any major crimes.

The initial ICJ judgement however, has vindicated UN fact-finding reports from the last two years that recorded a massive amount of violence, including mass slaughter and displacement. Overwhelming levels of cruelty and brutality, combined with the material destruction of the houses of the Rohingya that the Myanmar government has categorically denied to date.

Since the entire court procedure may take a while, the provisional measures hold much importance at this instance.

Benefits of the ruling

The current ruling necessitates Myanmar to avoid a set of acts under the Genocide Convention that indicate razing all or part of a national, ethnic, racial, or religious group. These include not only killing members of a group (Rohingya in this instance), but also seriously harming them physically or mentally. The court further ordered Myanmar to ensure that its military and any irregular armed units under its control will not commit any of these acts, form any conspiracy to do so, incite genocide, attempt to commit genocide, or be complicit in genocide. Myanmar also has to prevent the destruction of any evidence of possible genocide.

This ruling has brought about immense relief and hope to the Government of Bangladesh as well as the Rohingya community. Bangladesh is currently catering to more than one million Rohingyas at Cox’s Bazar. The country has been suffering from lack of space and funds for more than two long years. It has been at the receiving end due to two failed repatriations and the listless attitude of the Government of Myanmar.

The full implementation of the ICJ ruling will be instrumental in creating a conducive environment for the safe and dignified repatriation of Rohingyas to Rakhine State. According to Bangladeshi Foreign Minister A.K. Abdul Momen, this verdict is “a victory for humanity, a milestone for human rights activists across all nations.” He further added that it is “s victory for Gambia, OIC, the Rohingya and of course, for Bangladesh.” This judgment also provides the nation an opportunity to re-engage with the four major allies of Myanmar namely China, Japan, India and Russia. Since these nations have robust bilateral ties with Mynamar, Bangladesh by deepening its engagement with these nations may hope to proffer sustainable solution on the Rohingya crisis.

The Myanmar government is supposed to deliver a report on measures it has taken to implement the order to the court by May 2020. It must continue to do so every six months thereafter until a final decision is reached. This reporting hopes to put Myanmar in scrutiny by the highest court of justice. Although Myanmar has claimed that it is taking steps to establish accountability for human rights violations and “war crimes” against the Rohingya and to facilitate their return to Myanmar’s Rakhine State, the court, relying on UN reports, decided that Myanmar’s feeble efforts are not enough to overturn the case. However, while the final outcome of this case regarding violation of the Genocide Convention could, and certainly should, invite appropriate measures to ensure better living conditions of the Rohingyas yet that remain subject to the political will of Myanmar.

Challenges

The two most significant impediments of the International Court of Justice are that it has no power to execute its decisions and it is voluntary in nature.

Thus, in such instances, political will is extremely crucial since ICJ has no jurisdiction or legal apparatus over individual nations. In this regard, appropriate and effective techniques and measures are required to be devised by the international legal regime so that the countries holding considerable political and economic clout within the UN Security Council can be brought to justice.

Rejecting the ICJ’s ruling, Myanmar’s Foreign Ministry has accused rights groups of presenting the Court with an overwhelming and exaggerated picture of the prevailing situation. Nevertheless, this assertion is at odds with the findings this week of an Independent Commission of Enquiry (ICOE) established by Myanmar. The Commission acknowledged that war crimes and not genocide had indeed been committed during the military campaign, when around 900 people were killed. But interestingly, there was nothing to back the assertions of gang-rape, or evidence to presume any intent of genocide.

The ICJ verdict is a significant triumph for the displaced Rohingyas currently living in the camps at Cox’s Bazar. Even as it empowers the UN Security Council to prevail upon Myanmar to take suitable measures for the repatriation as well as rehabilitation of the displaced communities, the prospect of that happening might be distant with possible veto from China, and also whether Myanmar abides by ICJ rulings remains to be seen.

Observer Research Foundation

Observer Research Foundation

ORF was established on 5 September 1990 as a private, not for profit, ’think tank’ to influence public policy formulation. The Foundation brought together, for the first time, leading Indian economists and policymakers to present An Agenda for Economic Reforms in India. The idea was to help develop a consensus in favour of economic reforms.

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