Myanmar's military, known as the Tatmadaw, has committed extensive atrocities against ethnic Rohingya Muslims, including murder, rape, and arson. These abuses reached their peak during the Tatmadaw's brutal ethnic cleansing campaign, beginning in August 2017, that forced more than 740,000 Rohingya to flee to Bangladesh. These crimes have been thoroughly documented by the United Nations, the media, and human rights groups, including Human Rights Watch.
Gambia – with the backing of the 57 members of the Organisation of Islamic Cooperation – has filed a case before the International Court of Justice (ICJ) alleging that Myanmar's atrocities against the Rohingya in Rakhine State violate various provisions of the Convention on the Prevention and Punishment of the Crime of Genocide ("the Genocide Convention"). Gambia, which ratified the convention in 1978, brought the case under article 9 of the convention, which allows for disputes between parties "relating to the responsibility of a State for genocide" and related acts to be submitted to the ICJ by any party. The ICJ previously confirmed that all member states of the convention have a duty to prevent and to punish genocide. Myanmar has been a party to the Genocide Convention since 1956.
The case before the ICJ is not a criminal case against individual alleged perpetrators and it does not involve the International Criminal Court (ICC), a separate body (see below). Rather, the case is "state-to-state" litigation between UN member states governed by legal provisions in the UN Charter, the ICJ Statute, and the Genocide Convention.
Gambia's filing marks the first time that a country without any direct connection to the alleged crimes has used its membership in the Genocide Convention to bring a case before the ICJ. Gambia has only recently emerged from the repressive 22-year rule of Yahyah Jammeh and its own difficult history of human rights violations. After filing the case, Gambian Justice Minister Abubacarr Tambadou said that "the aim is to get Myanmar to account for its action against its own people: the Rohingya."
The Tatmadaw's well-documented crimes against the Rohingya and other ethnic minority groups in Myanmar span decades, but until Gambia brought a case before the ICJ, the government's atrocities had largely been beyond the reach of justice.
While the case may take many years to reach a final ruling, Gambia has asked the court for an order for provisional measures "to protect the rights of the Rohingya group and those of The Gambia under the Genocide Convention, and to prevent the aggravation or extension of the dispute pending the final judgment of the Court." The hearing on provisional measures will take place on December 10-12, 2019 in The Hague, Netherlands.
Among the provisional measures that Gambia has requested the court to order "as a matter of extreme urgency" are that Myanmar should immediately take all measures to prevent all genocidal acts; Myanmar should ensure that the military does not commit any genocidal acts; and Myanmar should not destroy or render inaccessible any events related to the underlying application.
The timeline for a decision on the provisional measures can be relatively quick. Bosnia and Herzegovina asked for provisional measures when filing its Genocide Convention case against the Federal Republic of Yugoslavia on March 20, 1993. In that case the ICJ issued an order several weeks later, on April 8, 1993.
Myanmar announced that State Counsellor Aung San Suu Kyi, in her capacity as foreign affairs minister, will lead its delegation to the ICJ to "defend the national interests of Myanmar." In doing so, she reportedly enjoys the support of her political party, the National League for Democracy, and the Myanmar parliament. The military has said it "will fully cooperate with the government" and follow its instructions. The government explicitly noted that all members of the UN, including Myanmar, are bound by the ICJ Statute.
While public support in Myanmar for Aung San Suu Kyi's decision to represent the country before the ICJ is reportedly high, those who might want to criticize her or the government would do so at considerable risk. Myanmar authorities have frequently arrested and prosecuted people speaking or writing critically of the government, military, and officials.
Still, some representatives of ethnic groups both inside and outside the country have issued statements backing the ICJ proceedings, noting similarities in the Tatmadaw's brutal tactics against the Rohingya and other minority communities.
The ICJ's provisional measures orders are legally binding on the parties. Myanmar's explicit recognition of the ICJ's authority should dispense with any legal question as to whether the government needs to comply with the court's orders and decisions. Gambia has also asked the court to require Myanmar and Gambia to provide the court with a report on steps taken to implement a provisional measures order "no later than four months from its issuance."
Other UN bodies could take steps to increase the power of the ICJ's order and, by extension, increase the political cost should Myanmar fail to comply.
Under article 41(2) of the ICJ Statute, the court's provisional measures orders are automatically sent to the UN Security Council. Such an order would increase pressure on the council to take concrete action in Myanmar, including through a binding resolution to address some of the indicators of genocidal intent outlined in the comprehensive 2018 report of the UN Independent International Fact-Finding Mission on Myanmar ("Fact Finding Mission").
For example, the Security Council could pass a resolution directing Myanmar to lift restrictions on Rohingya's freedom of movement, eliminate unnecessary restrictions on humanitarian access to Rakhine State, repeal discriminatory laws, and ban practices that limit Rohingya access to education, health care, and livelihoods. Thus far, the Security Council has been deadlocked on Myanmar, in part because of China's support for Myanmar's leadership and its veto power.
The UN General Assembly can also reinforce the weight of an ICJ order on Myanmar by passing a resolution urging the government to comply with its terms.
Establishing that genocide has taken place under the Genocide Convention requires demonstrating genocidal intent and genocidal acts, meaning the state had the intent to destroy a national, ethnic, racial, or religious group in whole or in part.
In 2018, the Fact-Finding Mission presented a comprehensive analysis of the Rohingya's status as a protected group, genocidal acts, and indicators of genocidal intent and concluded that "the actions of those who orchestrated the attacks on the Rohingya read as a veritable check-list" on how to destroy the target group in whole or in part. The Fact-Finding Mission further concluded in 2019 that "the State of Myanmar breached its obligation not to commit genocide under the Genocide Convention."
Gambia's application identifies two elements of Myanmar's persecution of the Rohingya as "particularly indicative of genocidal intent": its systematic denial of legal rights to Rohingya, notably restrictions on their ability to marry and bear children and severe restrictions on freedom of movement, including detention camps, and its support for, and participation in, pervasive hate campaigns aimed at demonizing and dehumanizing the group.
As for the genocidal acts, the application points to incidents from the October 2016 and August 2017 "clearance operations" including mass executions of Rohingya men, women, and children; the systematic burning of Rohingya villages "with the intent to destroy the group in whole or in part"; the targeting of children; and the commission of rape and sexual violence on a massive scale.
As for ongoing acts of genocide, the application highlights continuing attacks on the Rohingya, notably the destruction of more than 30 villages between November 2018 and May 2019 and the denial to Rohingya of access to food. It also notes the Fact-Finding Mission's recent warning that the 600,000 Rohingya still in Myanmar live under the threat of further genocidal acts by Myanmar.
Gambia has asked the court to declare that Myanmar has and continues to breach its obligations under the Genocide Convention; must cease ongoing genocidal acts and fully respect its obligations moving forward; must ensure that perpetrators of genocide are held to account before a competent tribunal; and must provide reparations to Rohingya victims of genocidal acts, including "allowing the safe and dignified return" of those who have been forcibly displaced and "respect for their full citizenship and human rights and protection against discrimination, persecution and other related acts." Gambia has also asked that Myanmar offer assurances and guarantees of non-repetition of violations of the Genocide Convention.
Under article 94 of the UN Charter, all member countries must abide by ICJ decisions in cases to which they are a party, and in the event of non-compliance, the UN Security Council may "decide upon measures to be taken to give effect to the judgment."
The ICJ's 15-member bench is composed of judges from different countries representing the world's main legal systems. ICJ judges work independently of any government and before taking up their duties, must solemnly declare in open court that they will "exercise their powers impartially and conscientiously." Each judge is elected to serve a nine-year term.
Under article 31 of the ICJ Statute, a party to a case before the ICJ can appoint an ad hoc judge to act in the case if it does not already have a judge of its nationality on the bench.
Gambia has asked the court to appoint South African jurist Dr. Navanethem (Navi) Pillay as its ad hoc judge. Pillay served as a judge on the International Criminal Tribunal for Rwanda and the International Criminal Court before becoming the UN High Commissioner for Human Rights from 2008 to 2014.
Myanmar has asked the court to appoint German academic Professor Claus Kress as its ad hoc judge. Kress is the director of the Institute of International Peace and Security Law at the University of Cologne, Germany.
In 2007, the ICJ ruled that there was a genocide in the Srebrenica enclave in Bosnia and Herzegovina, and that Serbia violated its duty to prevent genocide. The court also ruled that Serbia violated its duty to punish genocide by failing to surrender Bosnian Serb general Ratko Mladic, one of the architects of the Srebrenica genocide, to the International Criminal Tribunal for the former Yugoslavia for prosecution. Serbia finally surrendered Mladic to the Yugoslav tribunal in 2011.
In November, the International Criminal Court's judges gave Prosecutor Fatou Bensouda authorization to open an investigation into crimes against humanity, notably the forced deportation in 2017 of more than 740,000 Rohingya into Bangladesh, an ICC member. ICC judges previously confirmed that the court had jurisdiction because the crime of deportation was completed in an ICC member country. The judges also ruled that the prosecutor can investigate other crimes, including future crimes, if they are within the ICC's jurisdiction and are sufficiently linked to the situation described in the prosecutor's request – which focused on crimes committed during two waves of violence, in 2016 and 2017 in Rakhine State – since Bangladesh became an ICC member in June 2010.
Myanmar is not a member of the Rome Statute, the court's founding treaty, so only the UN Security Council can refer all grave crimes in Myanmar to the ICC for investigation. An ICC referral remains critical to address the full scope of criminality in Rakhine State and in Kachin and Shan States, where the military has used many of the same brutal tactics against other ethnic minorities. An ICC referral would also give the court jurisdiction to address alleged criminality by ethnic armed groups in Myanmar.
Also in November, a group of Rohingya and Latin American human rights organizations filed a criminal case in Argentina against Myanmar's top military leaders for crimes committed in Rakhine State. The case was filed using the principle of universal jurisdiction – an avenue for crimes so serious that all states have an interest in addressing them.
Finally, in September 2018, the UN Human Rights Council created the Independent Investigative Mechanism for Myanmar to collect evidence of the most serious international crimes and prepare files for criminal prosecution "to facilitate and expedite fair and independent criminal proceedings" in national, regional, or international courts. Myanmar announced at the General Assembly that it "reject[s] the establishment of the new Investigation Mechanism (IIM) set up to bring Myanmar to tribunals to which we object strongly," and that "we do not recognize nor will we cooperate with this mechanism."
The Myanmar government has repeatedly avoided taking meaningful steps towards justice for crimes committed by its military.
In July 2018, the government established the "International Commission of Enquiry," with the participation of two international members, including the chair who has said that "there will be no blaming, [...] no finger-pointing of anybody." This commission has yet to deliver any results, and likely will not, given its own lack of credibility and the resounding failure of previous government commissions. Myanmar authorities have also taken steps to erase evidence of crimes, notably bulldozing over numerous Rohingya villages to make way for military installments.
In November 2018, Myanmar's commander-in-chief, Sr. Gen. Min Aung Hlaing, pardoned seven Tatmadaw soldiers who served just seven months of their 10-year prison sentences for their role in a massacre of Rohingya in Inn Din village. They served less prison time than Wa Lone and Kyaw Soe Oo, the two Reuters journalists who uncovered the killings and who were convicted by a Yangon court of obtaining state secrets in a proceeding that highlighted the lack of independence of Myanmar's judiciary. Both journalists spent a total of 17 months in prison before their May 2019 amnesty and release. The government's handling of the Inn Din case casts serious doubt on the ability of the military's court of inquiry created in March 2019 to address allegations of human rights violations in northern Rakhine State committed by its own soldiers.
In November 2019, the government announced it had formed yet another mechanism, this time a "Special Unit on International Criminal Justice in order to strengthen internal capacity and expertise, and provide legal opinion to relevant Ministries on issues related to international criminal law," under the State Counsellor's office, including two military officers. But the UN-documented structural obstacles to criminal accountability in Myanmar – including the lack of independence of Myanmar's judges, as well as the current constitutional and legal framework that prevents the civilian authorities from holding the military or its members accountable for human rights violations – significantly dim the prospects for any credible justice mechanism in Myanmar.