By Vasundhara Sharan
Image: Abubacarr Tambadou, Minister of Justice and Attorney General, The Gambia at the International Court of Justice
Background of the Conflict
For decades, the military forces in Myanmar, known as the Tatmadaw, have been committing atrocities against Rohingya Muslims. The Burmese Military and State has refused to provide Rohingya Muslims with citizenship on the ground that Rohingya are not recognized in Myanmar as an ‘ethnic group.’ This has left them stateless, as a result of which they are not able to vote, study, work, travel, practice their religion, or access to healthcare, among a range of other things. In short, they have been left without any fundamental human rights.
With the backing of 57 members of the Organization of Islamic Cooperation, Gambia filed a case before the International Court of Justice (ICJ) in late 2019. The case was filed pursuant to Article 9 of the Convention on the Prevention and Punishment of Genocide, which provides for disputes that are related to the responsibility of a state for genocide to be submitted to the ICJ by any party. Gambia contended that Myanmar's crimes against the Rohingya in Rakhine State breach several provisions under the Convention on the Prevention and Punishment of Genocide.
What Does Gambia Want?
Gambia is seeking several determinations from the ICJ, the main ones being that Myanmar has violated the provisions of the Genocide Convention and shall cease any acts that violate the convention and uphold the obligation to prevent genocide. The Court's decision on these claims is likely to take several years. Meanwhile, because of the continuous threat to the Rohingya community, Gambia has asked the Court to rule on "provisional measures" to safeguard the Rohingya Muslims while the case is ongoing. ‘Provisional measures’ against a state are similar to injunctions or even temporary restraining orders. Gambia is concerned about future harm to the Rohingya people in this situation.
In December, 2019, Aung San Suu Kyi, the State Counselor of Myanmar gave a speech at the ICJ, defending the Tatmadaw’s violence against the Rohingyas, calming that these were ‘clearance operations’ against ‘extremist Bengali insurgents’ and ‘counter-terrorism’ against ‘Afghan and Pakistani militants.’ Myanmar critiqued the fact-finding mission, and claimed that the case by Gambia was incomplete and misleading. The denied claims of ‘genocide’ my arguing that only a small portion of the Rohingya population – 10,000 people - had been eliminated.
On January 23, 2020, the ICC released an order that facilitated provisional measures urgently requested by Gambia and did not rule on whether the genocide was committed by Myanmar.
The ICJ determined its jurisdiction and noted that it has the authority to hear and make a determination on the case. Thereafter, it analyzed the imminence and urgency of requirement of the requested provisional measures to prevent ‘irreparable harm’. It referred to the Independent International Fact Finding Mission’s Report on Myanmar, issued in 2018, which stated that “the Rohingya in Myanmar have been subjected to acts which are capable of affecting their right of existence as a protected group under the Genocide Convention, such as mass killings, widespread rape and other forms of sexual violence, as well as beatings, the destruction of villages and homes, denial of access to food, shelter and other essentials of life.” Another report by the Mission to the UN Human Rights Council, issued in 2019, mentioned, “the Rohingya people remain at serious risk of genocide under the terms of the Genocide Convention.”
Assessing and taking note of the submissions made by the two States, and the evidence before it, the ICJ granted provisional measures to Gambia, owing to the “real and imminent risk of irreparable prejudice to the rights invoked by The Gambia”. It highlighted Myanmar’s duty to use its influence, and control on forces to prevent and limit genocidal acts. Following the 2019 report, the Court ordered the preservation of any evidence of wrongdoing under the Genocide Convention.
What does the Order mean for Rohingya Muslims?
The Order, albeit only for provisional measures, has shed light on the systematic human rights violations faced by the Rohingya. The Order has been immensely praised and welcomed by the Rohingya citizens and community who intend on keeping this momentum intact.
However, Myanmar is still resolute in its stance of not having committed or intended any genocidal acts against the Rohingya. Their domestic Independent Commission of Enquiry (ICOE) which issued a report which although acknowledges the commission of war crimes, completely negates any genocidal intent by the country. This has been observed to be an explicit attempt to counter the Order of the ICJ.
This poses issues and challenges pertaining to compliance of the said Order by Myanmar and emphasizes on the role of international bodies, such as the UN Security Council, in persuading the former to do so. The investigation by ICC, owing to the complexity of the dispute, the situation prevailing and the difficulties arising while connecting with victims of the crimes, will likely be long drawn and is assumed to take a monumental time.
 https://www.hrw.org/news/2019/12/05/questions-and-answers-gambias-genocide-case-against-myanmar-international-court  https://www.icj-cij.org/files/case-related/178/178-20191111-PRE-01-00-EN.pdf  https://treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-english.pdf  https://www.asil.org/insights/volume/24/issue/2/what-does-icj-decision-gambia-v-myanmar-mean  https://www.icj-cij.org/public/files/case-related/178/178-20191211-ORA-01-00-BI.pdf  https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/A_HRC_39_64.pdf  https://www.aljazeera.com/opinions/2019/12/22/myanmar-defending-genocide-at-the-icj  https://www.icj-cij.org/files/case-related/178/178-20200123-ORD-01-00-EN.pdf  https://www.ohchr.org/en/hrbodies/hrc/myanmarFFM/Pages/ReportoftheMyanmarFFM.aspx  https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/20190916/A_HRC_42_CRP.5.pdf.  https://www.coalitionfortheicc.org/fr/node/2831  https://www.coalitionfortheicc.org/fr/node/2831