By Abdul Tejan-Cole
On January 23rd 2020, the International Court of Justice (ICJ) delivered a provisional ruling in the case of the “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar).” Not to be confused with the International Criminal Court (ICC), the ICJ is the principal judicial organ of the United Nations. It only hears disputes between states. It does not focus on individuals or criminal prosecutions.
In November 2019, The Gambia acting on behalf of the Organization of Islamic Cooperation (OIC), an international organization founded on September 25, 1969, consisting of 57 member states spread over four continents and which endeavours to safeguard and protect the interests of the Muslim world in the spirit of promoting international peace and harmony among various people of the world.
Since 2018, the OIC took an interest in the case of the Rohingya, a stateless Indo-Aryan ethnic group who predominantly follow Islam with a minority following Hinduism and Christianity. Since a citizenship law was enacted in 1982, the government of Myanmar – a predominantly Buddhist country – has considered the Rohingya as illegal immigrants from Bangladesh and denied them citizenship. They excluded them from the 2014 census even though they had lived for centuries in Myanmar especially in the western coastal state of Rakhine.
Since the 1970s, the Tatmadaw, Myanmar’s military, has committed extensive atrocities against ethnic Rohingya Muslims, including rape, torture, arson and murder. In 2017, following decades of marginalization, brutality, discrimination and persecution, the Tatmadaw atrocities reached their peak and close to three-quarters of a million Rohinghyas were forced to flee into neighbouring Bangladesh. According to a report issued by three UN experts, an Independent International Fact-Finding Mission on Myanmar in September 2019: “The 600,000 Rohingya remaining inside Myanmar face systematic persecution and live under the threat of genocide.” Marzuki Darusman, Chair of the Fact-Finding Mission, stated thus: “(T)he threat of genocide continues for the remaining Rohingya…Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalizing and punishing genocide.” The report says the “deplorable living conditions of an estimated 600,000 Rohingya still inside Myanmar have worsened in the last year, and continuing persecution is a way of life in Rakhine State. These facts underscore the impossibility of return for the nearly one million Rohingya refugees, mostly in Bangladesh.”
As the OIC is not a contracting state under the Genocide Convention, it needed one of its members who is a party to the Convention to take the lead. The Gambia stepped up. The west African nation accused Myanmar of violating the 1948 Genocide Convention in a systematic campaign of ethnic cleansing. It alleged that Myanmar’s atrocities against the Rohingya violate various provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. Article IX of the Convention provides that “(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 or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.” Myanmar and the Gambia are parties to the Convention, both countries having ratified the Convention in 1956 and 1978 respectively.
Immediately after filing the case, The Gambia asked the ICJ for “provisional measures”, to prevent any more harm being done. It asked the ICJ for the following: Myanmar must take all steps within its power to prevent all acts that amount or contribute to the crime; Myanmar must ensure that no military, paramilitary or irregular armed units commit any act of genocide; Myanmar must not destroy or render inaccessible any evidence; Myanmar and The Gambia shall not take any action and shall assure that no action is taken which may aggravate or extend the existing dispute; and Myanmar and The Gambia shall each provide a report to the court on all measures taken to give effect to this order for provisional measures, no later than four months from its issuance.
On January 23 2020, the fifteen ICJ judges and two ad hoc judges (one selected by each party in the case) unanimously agreed to the Gambia's requests. Claus Kress, the German judge appointed by Myanmar, joined the other 16 judges to grant five of the six provisional measures sought by the Gambia. The court ordered Myanmar to prevent the full range of acts under the Genocide Convention that point to destroying all or part of a national, ethnic, racial, or religious group. These include not only killing members of a group such as the Rohingya but also seriously harming them physically or mentally, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,” or “imposing measures intended to prevent births within the group.” In its ruling, the ICJ affirmed the Gambia’s ability to institute proceedings against Myanmar for failure to leave up to its obligations under the Genocide Convention. This is significant because ordinarily under treaty law, it is only the specially affected state that can take action for the breach of treaty obligations.
The court ordered Myanmar to ensure that its military and any irregular armed units under its control will not commit any of these acts, form any conspiracy to do so, incite genocide, attempt to commit genocide, or be complicit in genocide. Myanmar also has to prevent the destruction of any evidence of possible genocide. The one order the ICJ did not grant The Gambia was to instruct Myanmar to admit UN investigators to the country. Members of the UN's Independent International Fact Finding Mission have been barred from entering Myanmar, hampering their ability to gather evidence about the 2017 ethnic cleansing. The court did not explain why it turned down this request.
The ICJ’s unanimous ruling is a major loss for Aung San Suu Kyi, 1991 Nobel Peace Prize laureate, who led the National League for Democracy that played a vital role in Myanmar’s state's transition from military junta to democracy. In her current role as First Counsellor, she led the team that travelled to The Hague to present Myanmar’s defence. In an open letter to Aung San Suu Kyi, the 1984 Nobel Peace laureate, Desmond Tutu, stated “My dear sister: If the political price of your ascension to the highest office in Myanmar is your silence, the price is surely too steep….We pray for you to speak out for justice, human rights and the unity of your people. We pray for you to intervene.”
In contrast, the Gambia and in particular its Attorney-General and Minister of Justice, Abubacarr Marie Tambadou, better known as Ba Tambadou have reasons to be proud. The Gambia’s case is 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. By bringing this application, the Gambia demonstrated the moral courage and leadership, as a member of the community of states, to prevent acts of genocide.
Ba Tambadou, a former Prosecutor at the International Criminal Tribunal for Rwanda (ICTR), used his personal expertise and interest to first convince the OIC to establish an ad hoc committee on accountability for human rights violations against the Rohingya and subsequently convinced President Adama Barrow and the Government of The Gambia to file the case against Myanmar. Many credit him with showing initiative and taking leadership.
As the president of the ICJ, Abdulqawi Yusuf noted that the provisional measures of the ruling have no bearing on the merits of the case. There is still a long way to go. The standard for proving genocide is quite high and very challenging burden to discharge. Aung San Suu Kyi has accepted that “disproportionate force” may have been used but defended the Military by saying it was used to fight terrorists and insurgents. Myanmar denies it committed genocide and says it has set up an Independent Commission of Enquiry (ICOE) to investigate atrocities against the Rohingya. The Gambia will need to show the Court that Myanmar had the intent to destroy a national, ethnic, racial, or religious group in whole or in part. It will need ample evidence to prove that the ‘clearance operations’ that took place in October 2016 and August 2017 that included mass executions of Rohingya men, women, and children; the systematic burning of Rohingya villages were done with genocidal intent. With the limitations on fact-finding missions’ ability to enter Myanmar, it will have to rely on current evidence and on the refugees in Bangladesh. It will not be an easy task. But The Gambia and Ba Tambadou in particular, must be hailed for taking this bold and fearless move.
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