ICJ rules to impose provisional measures in Rohingya genocide trial

By ANDREW NACHEMSON and LUN MIN MANG | FRONTIER

YANGON — The International Court of Justice ruled today to impose most of the provisional measures on Myanmar that were requested by The Gambia, which demand that Myanmar take action to prevent future acts of genocide against the Rohingya Muslim community.

“The court concludes that the conditions required by its statute for it to indicate provisional measures are met. It is therefore necessary, pending its final decision, for the court to indicate certain measures in order to protect the rights claimed by The Gambia,” said ICJ President Mr Abdulqawi Yusuf.

The Gambia has accused Myanmar of committing genocide against its Muslim Rohingya minority, a position supported by many independent rights observers but denied by the Myanmar government.

The court methodically examined the Myanmar defence team’s arguments to throw out the case, dismissing them one by one. First, the ICJ concluded that The Gambia receiving support from other nations or international organisations does not disqualify it from bringing a complaint. 

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The court also confirmed the existence of a dispute, which Myanmar denied, given The Gambia’s accusations of genocide and Myanmar’s public denials. The ICJ argued that all signatories to the Genocide Convention have “common interest” in preventing genocide and impunity for genocide.

“Any state party to the Genocide Convention, not only an especially affected state may invoke the responsibility of another state party,” Yusuf said.

Throughout the proceedings, Yusuf emphasised that the court was not making a decision on whether Myanmar committed genocide, but only on whether provisional measures should be invoked.

By imposing the measures, the ICJ only indicated that it’s “plausible” that genocide occurred, that there’s a link between The Gambia’s claims and the provisional measures requested, and that the Rohingya are still in danger of “irreperable harm”.

“The court is of the opinion that the Rohingya in Myanmar remain extremely vulnerable,” Yusuf said.

The provisional measures require that Myanmar take steps to prevent genocide from occuring in the future, ensure that the military or its affiliates do not commit further acts of genocide, demand that Myanmar not destroy any evidence of genocide, and that Myanmar provide regular updates on its progress on these measures. The first report must be submitted within four months, with subsequent reports filed every six months thereafter until the case is completed.

Yusuf went on to say that Myanmar’s own steps in ensuring accountability for crimes committed and creating a safe situation for the Rohingya in Rakhine State have been insufficient, going directly against the government’s claims that it is capable of administering its own justice.

While State Counsellor Daw Aung San Suu Kyi did not attend today’s hearing, she published an op-ed in the Financial Times shortly before it began, asking for the international community “to give Myanmar time” to pursue justice domestically.

She touted the recent submission of a report by the Myanmar government-appointed Independent Commission of Enquiry, which has been criticised since its inception for a lack of independence. She claimed a “fair reading” of the report will show that international justice can become “attached to specific testimonies of victimisation”. Aung San Suu Kyi also criticised the UN’s Independent Fact Finding Mission on Myanmar’s reliance on testimony from refugees in Bangladesh, which she said could have been “inaccurate” or “exaggerated”.

The ICOE report, however, was widely dismissed as a whitewash that covered up the government’s crimes rather than investigating them. For example, the report found no evidence of sexual violence, despite the UN Fact Finding Mission and other independent investigations finding significant evidence. 

While the government attempted to whip up nationalist sentiment by portraying the genocide accusations as an attack on the entire country, the narrative did not wash with over 100 civil society organisations.

In a rare show of public defiance, 103 domestic groups put out a statement yesterday welcoming the case. “We understand very clearly that the ICJ case against Myanmar is directed toward those responsible for using political power and military might, and not to the people of Myanmar,” the statement says.

After the hearing, Daw Nang Pu, the founder of the Kachin State Women’s Network, one of the statement’s signatories, told Frontier that the ICJ ruling was expected.

“This is because those in power have a history of committing many grave crimes in ethnic areas,” she said. “The evidence presented by the Independent Fact-Finding Mission is so compelling that it cannot be denied.”

She also urged the government to fully comply with the provisional measures and to report as instructed to the court.

Positive reactions from international rights groups poured in following the decision, including a statement from Burma Campaign UK. “The priority now is to apply pressure on Aung San Suu Kyi and the military to implement the Court’s decision. The chances of Aung San Suu Kyi implementing this ruling will be zero unless significant international pressure is applied,” said executive director Ms Anna Roberts.

While the legal order is binding, Myanmar can simply ignore it. The Security Council would then have the authority to enforce the order, but China would be expected to block it.

Immediately prior to the decision, Ms Yanghee Lee, the UN’s Special Rapporteur on Human Rights in Myanmar gave her end of mission statement from Dhaka, speaking from the Bangladesh capital because she has been banned from entering Myanmar. She declined to comment in detail on the ICJ ruling before the decision was made, but said it was a “historic day in the quest for justice”.

She said that what she has seen in her time observing Myanmar has “quashed the optimism” she once felt towards the country’s democratic transition, but noted that Myanmar can still “change the course”. She called for the ICOE report to be made public in its entirety.

To the Rohingya she said: “You are my inspiration. In the face of such adversity you have come together in a peaceful and clear message you want to go home with your basic human rights. You must not give up hope.”

Ko Khin Maung, executive director of the Rohingya Youth Association, said he was happy that provisional measures were imposed and called it a “victory for every ethnic minority”. He said most Rohingya in the refugee camps in Bangladesh were unable to watch due to internet restrictions, but said that he and others are helping spread the word.

“I feel today I got justice,” he said, adding that he looks forward to the trial ahead.

“It does not matter if it will take a long time or not, we are happy. More than three years we are living in Bangladesh. If we wait more than ten years it does not matter. We need justice and freedom and our nationality. We will be patient,” he said.

Dr Myo Nyunt, a spokesperson for the ruling National League of Democracy, said the decision was not a surprise. “That’s something that we anticipated. Therefore, Daw Aung San Suu Kyi previously said ‘whatever happens, let’s face it together’. We have yet to calibrate the consequences the provisional measures would have. Only after that, would I comment further,” he said.

By Andrew Nachemson

By Andrew Nachemson

Andrew Nachemson is a journalist covering politics, human rights, and Chinese development in Southeast Asia. Prior to joining Frontier, he was based in Cambodia for three years.
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