The INTERNATIONAL COURT OF JUSTICE (ICJ) in The Hague decided on January 23 that Myanmar should take measures to protect the Rohingya, a persecuted Muslim minority group. It was the first decision by an international tribunal against Myanmar, accused of genocide, and a severe reprimand against Aung San Suu Kyi, the de facto leader of the country. She visited the court in person last month to deny allegations that the army systematically burned Rohingya villages in 2017, murdered and raped thousands and prompted more than 730,000 terrified victims to flee to neighboring Bangladesh .
In a complaint filed in November, The Gambia, acting on behalf of the Organization for Islamic Cooperation, an organization from 57 countries, not only accused Myanmar of violating an international genocide treaty, but also claimed that the Rohingya were still at risk. While the court deliberated on whether a genocide had indeed been committed, The Gambia wanted it to impose temporary injunctions, called “interim measures”, to prevent further damage from being caused. He asked the ICJ, which settles disputes between members of the United Nations, to order the government of Myanmar to protect the Rohingya from violence, to order the army to stop its persecutions, to keep all the evidence related to the allegations of genocide and submit a report to the court on the measures taken to comply with its orders within four months.
The 17 judges unanimously accepted Gambia’s requests – even Claus Kress, the German judge appointed by Myanmar, and Xue Hanqin, a Chinese judge who expressed reservations about Gambia’s right to sue. “It is not common to have this degree of consensus,” said Michael Becker, a former associate lawyer at the ICJ. In addition, the judges decided that after Myanmar had submitted its report to the court within four months, it should provide updates every six months until the case was closed. “It was not something that had been asked [by the Gambia]Says Priya Pillai, who heads the Asia Justice Coalition, an alliance of human rights organizations.
It was not a total victory for The Gambia. The ICJ has not asked Myanmar to admit United Nations investigators into the country. Members of the United Nations independent international fact-finding mission have been denied entry to Myanmar, hampering their ability to gather evidence from the 2017 “demining operations”. explained why he had rejected this request. Becker was not surprised that “this is a contentious issue, or one may wonder if Myanmar has a permanent obligation to authorize United Nations investigators in the country.”
However, the court-approved orders were welcomed by The Gambia and by Rohingya advocacy groups, such as The Burmese Rohingya Organization UK, who called the verdict “a defining moment in liability”. The interim measures are legally binding and, in November, Myanmar explicitly recognized the authority of the ICJ. “In general, interim measures are respected,” says Ms. Pillai. “There is a lot of weight given to the ICJ.”
If The Gambia decides that Myanmar does not comply with the court orders, it can request a new round of interim measures or, possibly, seek assistance from the UN Security Council. Becker, however, said it was unlikely that the Council would take action “due in part to China’s close relations with Myanmar”. As a permanent member of the Council, China can veto its resolutions and in the past has thwarted its efforts to punish Myanmar for its treatment of the Rohingya.
The president of the court, Abdulqawi Yusuf, tried to emphasize that the decision has no bearing on the merits of the case, which has not yet been heard. In order to meet the requirements for interim measures, The Gambia had to convince the ICJ that acts of genocide had likely taken place and were likely to recur. Above all, he did not have to prove that the genocide had indeed taken place. A decision on this should take years.
The day before the court verdict, more than 100 civil society groups in Myanmar signed a letter supporting the ICJ. “We understand very clearly that the ICJ case against Myanmar targets those responsible for the use of political power and military power, not the people of Myanmar,” they wrote. Unfortunately, their opinion is in the minority. When Aung San Suu Kyi visited The Hague in December, thousands of his supporters across Myanmar took to the streets to declare their allegiance. The ICJ’s decision may be embarrassing for Ms. Suu Kyi abroad, but at home it will only strengthen her image as the guardian of the nation. It is also likely to reinforce prejudice against the Rohingya not only as undesirable in Myanmar, but as an international embarrassment.