Rohingya refugees walk through rice fields after crossing the border from Myanmar into Palang Khali, Bangladesh, October 19, 2017. © 2017 Jorge Silva/Reuters  

(The Hague) – The International Court of Justice (ICJ) on July 22, 2022, rejected Myanmar’s preliminary objections to the case brought by Gambia under the international Genocide Convention, Human Rights Watch said today. The case concerns Myanmar’s alleged genocide against the ethnic Rohingya population in Rakhine State, with a focus on military operations launched in October 2016 and August 2017.

Gambia filed the case before the ICJ in November 2019 alleging that the Myanmar military committed the genocidal acts of “killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births, and forcible transfers … intended to destroy the Rohingya group in whole or in part.”

“The ICJ decision opens the door toward an overdue reckoning with the Myanmar military’s murderous campaign against the Rohingya population,” said Elaine Pearson, acting Asia director at Human Rights Watch. “By holding the military to account for its atrocities against the Rohingya, the World Court could provide the impetus for greater international action toward justice for all victims of the Myanmar security forces’ crimes.”

In February 2022, the ICJ heard Myanmar’s four objections challenging the court’s jurisdiction and Gambia’s legal standing to file the case, as well as Gambia’s response.

In its ruling, the court unanimously rejected three of Myanmar’s objections, and rejected one by a vote of 15 to 1. The judgment affirmed that “the applicant in this case is the Gambia”; that “a dispute relating to the interpretation, application and fulfilment of the Genocide Convention existed between the parties at the time of the filing of the application by the Gambia”; and that “the Gambia, as a state party to the Genocide Convention, has standing to invoke the responsibility of Myanmar for the alleged breaches of its obligations under Articles I, III, IV and V of the Convention.”

In response to Myanmar’s argument that Gambia has no standing to bring the case due to its lack of ties to Myanmar or the Rohingya, the court concluded, “All the States parties to the Genocide Convention thus have a common interest to ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention.”

By rejecting the preliminary objections, the ICJ is allowing the case to proceed on the merits to examine Gambia’s genocide allegations against Myanmar. Myanmar will now have to submit its response to Gambia’s main arguments filed in October 2020 detailing its case.

The ICJ case is not a criminal case against individual suspects, but a legal action brought by Gambia against Myanmar alleging that Myanmar bears responsibility for genocide as a state.

In December 2019, the court held hearings on Gambia’s request for provisional measures to protect the Rohingya remaining in Myanmar from genocide, which it unanimously adopted in January 2020. The provisional measures require Myanmar to prevent all genocidal acts against the Rohingya, to ensure that security forces do not commit acts of genocide, and to take steps to preserve evidence related to the case. The court also ordered Myanmar to report on its compliance with the provisional measures every six months.

Myanmar is legally bound to comply with the order. However, Human Rights Watch and other groups have continued to document grave abuses against the 600,000 Rohingya remaining in Myanmar, contravening the provisional measures. The severe restrictions imposed on the Rohingya by the Myanmar authorities amount to the crimes against humanity of persecution, apartheid, and severe deprivation of liberty. Since the February 2021 coup, the military junta has placed even greater movement restrictions and harsher punishments on Rohingya for attempting to leave Rakhine State.

State Counsellor Aung San Suu Kyi led the Myanmar delegation at the December 2019 opening hearings of the ICJ. Since her arrest during the 2021 coup, Suu Kyi has been sentenced to 11 years in prison, while facing over 180 years total on various fabricated charges.

In the preliminary objections hearings, Myanmar was represented by the junta’s Minister for International Cooperation Ko Ko Hlaing and Union Attorney General Thida Oo, whom the United States and other governments have sanctioned for their roles in the military regime. Since the 2021 coup, the junta has imposed a brutal nationwide crackdown, killing over 2,000 people and arbitrarily arresting over 14,000.

While the opposition National Unity Government (NUG) and others raised concerns regarding the junta’s representation of Myanmar at the February hearings, the junta’s participation has no bearing on its recognition at the United Nations as Myanmar’s legitimate representative, Human Rights Watch said.

The court’s decision on Myanmar’s preliminary objections should encourage the United Kingdom, Netherlands, Canada, and other concerned governments to support Gambia’s case through formal interventions to bolster the legal analysis on specific aspects of the Genocide Convention as it relates to the Rohingya, Human Rights Watch said.

Under article 41(2) of the ICJ Statute, the court’s order for provisional measures is automatically sent to the UN Security Council. As the fifth anniversary of the military’s atrocities against the Rohingya approaches, Security Council members should take steps to address the failure to secure justice and security for the Rohingya. Council members should work to adopt a resolution that gives the International Criminal Court (ICC) a mandate over the situation in Myanmar and severs the junta’s supply of arms and revenue, even if the resolution would be vetoed by Russia or China.

As the Myanmar armed forces continue to carry out atrocities against civilians and ethnic minorities, the ICJ remains one of the few available paths for holding the military to account. Ethnic groups and human rights defenders have aligned in Myanmar to push for the establishment of democratic rule, efforts that are amplified by the pursuit of justice at the ICJ.

“Concerned governments seeking to be leaders for accountability in Myanmar should formally intervene in the Genocide Convention case,” Pearson said. “The case provides an important opportunity to scrutinize the Myanmar military’s abusive policies and practices that have preserved its power over decades.”

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