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The Gambia v. Myanmar: How Far is Justice for the Rohingya?

Updated: Nov 1, 2021

About the author: Sherry Shi (J.D. Candidate, Class of 2021) is a Travaux Contributor. Her interests include securities law, international trade law, and international political economy. Sherry holds B.A. degrees in Government and Economics from The College of William & Mary. Before law school, she interned at The Asia Foundation and Carnegie-Tsinghua Center for Global Policy. She is a native speaker of Mandarin and conversational in Japanese.

"Rohingya" by AK Rockefeller, available here.


Introduction


On November 11, 2019, The Gambia filed a suit against Myanmar in the International Court of Justice (ICJ) for violating the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). Based on evidence reported by the UN Human Rights Counsel’s Independent International Fact-Finding Mission on Myanmar (IIFFMM) in September 2019, The Gambia alleged that Myanmar violated multiple obligations under Articles I, III, IV, V, and VI of the Genocide Convention through committing genocide, conspiracy to commit genocide, and failing to prevent and punish genocide. The allegations refer to the systematic “clearance operations” that Myanmar’s armed forces (the Tatmadaw) launched against the Rohingya people, the Muslim minority in Myanmar, in Northern Rakhine State in 2016 and 2017. According to the IIFFMM, the Myanmar military commenced the ethnic “clearance operations'' on October 6, 2016, following a minor attack on three Myanmar Border Guard Police by Rohingya militants. It ended these operations in February 2017, and resumed the ethic cleansing on August 25, 2017. The “clearance operations” were extremely brutal and devastating: satellite imagery analysis and survivors’ testimonies revealed that the military committed atrocities including but not limited to indiscriminate shootings, sexual violence, looting and burning of homes, and desecrating religious structures. Today, 980,000 Rohingya refugees who have fled the country from ethnic cleansing are seeking asylum in neighboring countries. The majority of these refugees reside in camps in Bangladesh.


The Gambia, as a contracting party to the Genocide Convention, brought the suit under Article IX, which allows any contracting party to bring disputes “relating to the responsibility of a State for genocide” to the ICJ. On January 23, 2020, concluding that it prima facie has jurisdiction over the case, the ICJ granted provisional measures to prevent Myanmar from further persecuting the Rohingya. On January 20, 2021, Myanmar filed Preliminary Objections, which likely challenged the ICJ’s jurisdiction over the dispute, raising fundamental procedural questions. This step suspended the merit-based proceedings of the case and delayed Myanmar’s submission of its Counter-Memorial (a rebuttal to The Gambia’s claims) that was originally due by July 23, 2021. Alongside the proceedings of the case, several procedural disputes and political controversies have surfaced, adding uncertainties to the justice that the Rohingya have longed to receive. This article explores challenges and uncertainties that The Gambia faces and proposes several approaches that the international community should take.


Provisional Measures: hope for the Rohingya or not yet?


In the 36-page Application Instituting Proceedings and Request for Provisional Measures, The Gambia enumerates the Tatmadaw’s “sweeping genocidal acts” against the Rohingya, which are “intended to destroy the group in whole or in part.” Based on the evidence provided by the IIFFMM, The Gambia believed that Myanmar had no intention to stop the genocidal act, and that there were compelling circumstances that required the implementation of provisional measures to prevent further harm. Noting that “the Rohingya in Myanmar remain extremely vulnerable,” the ICJ granted the request, ordering Myanmar to take all measures within its power to prevent further genocidal acts and report the measures taken to the Court every six months until a final decision on the case is rendered.


The provisional measures order marked a significant turning point in the case. Although not a final victory, it confirms the Rohingya’s status as a protected group under Article II of the Genocide Convention, highlights Myanmar’s legal obligations, and conveys the idea that a state unrelated to an issue can intervene as part of the global community, as long as it is a proper party to the Genocide Convention. The order, as well as the case itself, extends hope and relief to survivors of these atrocities. However, it remains unclear whether the provisional measures have been or will be effectively implemented.


To comply with the Court’s ruling, Myanmar needs to report its compliance measures every six months, but these reports have been and will be confidential. The confidentiality bars the Rohingya and the international community from monitoring actual actions taken by Myanmar’s government. Because the Court did not point out specific measures that Myanmar has to undertake besides the general obligations in the Genocide Convention, it is possible that the Myanmar military will manipulate the confidential nature of the reports and circumvent responsibilities. On June 19, 2000, 30 Rohingya representative groups expressed their concerns regarding the implementation of provisional measures to the Court and requested publication of the report, but the Court did not respond to the request. Given that the default of the ICJ’s proceedings is to have reports available to the public, the Court should have provided reasonable justification for keeping Myanmar’s filings confidential, but it did not do so in the order. The Gambia did not file the case for its own interests, as the issue is not a bilateral dispute, but an effort to protect the public interest of the global community under the Genocide Convention. With the reports available to all, third-party states contracting to the Genocide Convention can assess the level of Myanmar’s compliance to the order and make strategies to join The Gambia in the suit. Therefore, considering the vulnerable status of the Rohingya and the case’s global significance in combating genocidal acts, the ICJ should have made the reports public.


Myanmar’s Response: from “No” to A More Definite “No”


On January 20, 2021, Myanmar filed preliminary objections to the ICJ, halting the merits proceedings of the case. The record is not published, but it is likely that Myanmar disputed The Gambia’s ability to bring this suit. In provisional measures hearings, Myanmar claimed that because it has no genuine disputes with The Gambia, the Court lacks jurisdiction under Article IX, which requires “[D]isputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide.” Although the Court found support for the existence of a dispute, Myanmar might further focus on the language of Article IX to undermine the Court’s jurisdiction and circumvent the suit.


Is the filing of preliminary objections a strategic move to purposely delay or undermine the case? Given Myanmar’s previous responses to the suit, it is a definite possibility. After the provisional measures order, in February 2020, Myanmar shut mobile internet access down in multiple townships in Northern Rakhine State where the Rohingya constitute a majority of the population. The government lifted the shutdown after six months but only allowed 2G internet, hindering the global community’s access to information from Northern Rakhine State. Meanwhile, violence against the Rohingya never stopped even after the provisional measures were implemented. According to Burmese Rohingya Organization UK (BROUK), the Tatmadaw and Myanmar Border Guard Police committed multiple unlawful killings of innocent Rohingya villagers in the months after the ICJ issued the order. Because of restricted internet access, BROUK’s documentation of the killings only “represent a small fraction rather than a comprehensive account.” The real situation may be far more dire.


Myanmar has refused to admit its military’s genocidal acts since the beginning of the lawsuit. In December 2019, Aung San Suu Kyi, who at the time was Myanmar’s de facto Prime Minister, appeared at the Hague to defend the Myanmar military, despite the fact that Suu Kyi has been fighting against the junta’s rule for decades. During hearings, she claimed that the ICJ should drop the case because the allegations were based on “unproven statements without the due process of criminal investigation.” While the democratic government failed to properly address the issue, the current military government could do worse. Following the Tatmadaw’s coup d'état on February 21, 2021, Rohingya refugees in Bangladesh expressed their concerns with the current junta as they have experienced the nightmare imposed by the military. Moreover, in claiming that Myanmar does not recognize the Rohingya, Tatmadaw leader Min Aung Hlaing affirmed their concerns. Although the coup itself does not affect the proceedings of The Gambia v. Myanmar, since the party here is Myanmar as a state, it is doubtful that the junta will comply with the provisional measures and keep properly defending the case.


In Conclusion


Given all these procedural and political uncertainties, whether the Rohingya will receive justice from The Gambia v. Myanmar remains a hard question. However, there are multiple ways for the international community to impact the case. First, there should be continued pressure on the Myanmar military to assure the transparency of information in Northern Rakhine State. Such pressure can include human rights sanctions and advocacy by non-state players. Second, third-party states contracting to the Genocide Convention should take initiatives to intervene in the suit, as the Maldives already did. Third, it is important that the UN Security Council take the difficult decision of referring the case to the International Criminal Court, where international law can hold individuals involved in the Tatmadaw’s “clearance operations” criminally liable. This case is central not only to the fate of the Rohingya, but also the international campaign against genocide as a whole. Therefore, state and non-state players should not hesitate to intervene to the best of their abilities while paying close attention to the plight of the Rohingya.


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