The top court of the United Nations has ordered Myanmar to prevent acts of genocide against the country’s persecuted Rohingya minority and to stop destroying evidence, in a landmark case at The Hague.
The case was brought to the International Court of Justice (ICJ) in the Netherlands by the tiny West African nation of Gambia, which in November alleged that Myanmar committed “genocidal acts” that “were intended to destroy the Rohingya as a group” through mass murder, rape, and destruction of communities.
It asked the 15-judge court to enact provisional measures to compel the Myanmar government and military to end all acts that amount to or contribute to genocide, and to ensure Myanmar preserves evidence that could play a part in the case.
The emergency measures act like an injunction while the main genocide case gets underway. That central case has not yet been heard and it could take years to reach a verdict.
In its ruling on Thursday, which was unanimous, the court determined that it has jurisdiction to hear allegations of genocide made by Gambia against Myanmar.
The court found that Myanmar did not present concrete measures “recognizing and ensuring (the) right of Rohingya to exist as a protected group” under the genocide convention. And it said there was still a “real and imminent risk of irreparable prejudice” against the rights of the Rohingya.
The court ruled that Myanmar must take all steps within its power to prevent acts against the Rohingya such as “killing, causing serious bodily or mental harm, deliberately inflicting conditions calculated to bring about destruction of the group, and imposing measures intended to prevent births.”
The Myanmar military must also ensure it does not “commit any acts of genocide, or acts of conspiracy to commit genocide, incitement to commit genocide, or conspiracy to commit genocide.”
While Thursday’s decision by the court is final and binding, it doesn’t have the power to enforce its ruling.
The genocide case attracted worldwide attention when former democracy icon and Nobel laureate Aung San Suu Kyi personally defended Myanmar at the ICJ in December.
Suu Kyi, Myanmar’s de facto leader, called the allegations that the army acted with genocidal intent “incomplete and misleading.”
Addressing the court, Suu Kyi said that “genocidal intent cannot be the only hypothesis,” regarding the Myanmar military’s operations in Rakhine State in the summer of 2017.
More than 740,000 Rohingya fled from Myanmar into neighboring Bangladesh in 2016 and 2017 as the Myanmar military conducted a campaign of violence in Rakhine state. Survivors have recounted harrowing atrocities including gang rape, mass killings, torture and widespread destruction of property at the hands of the army.
The violence has been described as genocide by a United Nations fact-finding commission. Those Rohingya still in Rakhine are segregated and forced to live in conditions akin to prison camps, with restrictions on movement, education, and access to healthcare.
Ahead of the ruling, a group of Rohingya women issued a statement saying: “The scenes coming out of The Hague made us feel stronger and even more united.”
“We know that this fight for justice will be long and is far from being won,” the statement continued. “Many of our brothers and sisters are still at risk and we demand that they are protected.”
Akila Radhakrishnan, President of the Global Justice Center, said the ruling was a legal statement and a powerful recognition of what the Rohingya went through.
“It’s like a surface affirmation from the court, that kind of the basics of the case have been met,” she said. “There’s power in acknowledgment, there’s power in another country standing up for your rights, taking someone to court, putting a lot behind exposing in a very serious manner what happened. I think that that can’t be lost in this.”
Myanmar’s main argument rested on the premise that the country was dealing with an armed conflict in Rakhine that was challenging the “sovereignty and security of Myanmar.”
Days before the ICJ ruling on Thursday, a Myanmar government-appointed commission called the Independent Commission of Enquiry (ICOE) issued a report saying that while the military may have committed “war crimes and serious human rights abuses,” there was “no evidence” that the military’s actions were committed with “genocidal intent.”
Rights groups slammed the report, which has not been released to the public in full.
“Contrary to the UN’s findings, the report refuses to acknowledge the scale of atrocities against the Rohingya, shockingly denies the military’s widespread use of sexual violence, and fails to hold senior military officials responsible. The report isn’t a credible basis for justice and accountability for mass crimes,” Brad Adams, Asia director at Human Rights Watch, said in a statement.
Gambia’s arguments are based on the UN Fact-Finding Mission’s 2018 and 2019 reports that extensively detail atrocities carried out by the Myanmar military against Rohingya Muslims, and call for the country’s generals to face an international tribunal on charges of genocide.
The mission concluded that coordinated attacks and sexual violence against the Rohingya in Rakhine were pre-planned by senior military leaders “to weaken the social cohesion of the Rohingya community and contribute to the destruction of the Rohingya as a group and the breakdown of the Rohingya way of life.”
It details horrific accounts from survivors who spoke of gang-rape, mutilation, torture, mass killings, families being burnt alive in houses, and large-scale destruction of property.
Myanmar must submit a report to the ICJ to show it is enacting the emergency measures within four months, and every six months after that.
The ICJ, however, doesn’t have the power to enforce its decisions. Its orders are sent to the UN Security Council, which could decide to enact a resolution or take other concrete measures if Myanmar refuses to comply with the court’s ruling.
The court will now proceed into the merits of the central genocide case, with both Gambia and Myanmar filing arguments and objections.
“Get ready for a long haul as you’re talking two to three years,” said Radhakrishnan. “This is not a slam dunk case.”
