The Gambia v Myanmar

The Gambia v Myanmar

Application of the Convention on the Prevention and Punishment of the Crime of Genocide

Mohammad Ponir Hossain/Reuters

Abstract

The The Gambia v Myanmar case of the International Court of Justice is a historic lawsuit that marked the first time a country without any direct connection to the alleged crimes has used its ratification of the Genocide Convention to bring a case before the ICJ. A landmark case in many respects, it shed a much-needed light on the Rohingya crisis in Myanmar’s Rakhine state. Without further ado, let’s dive into one of the ICJ’s most groundbreaking cases, its merits, and the context behind The Gambia’s claim.

Introduction to the Issue

In order to better grasp the case and each side’s claims, we’ll take a look at the historical context of the issue, Myanmar’s policy regarding its Muslim minorities and the recent developments of the situation, as well as some of the key actors in this conflict.

Historical Context

The complicated history of the Muslim Rohingya with the majoritarily Buddhist rest of the country began during the British occupation of the region we now know as Myanmar, as the two groups supported different sides of the conflict. The Rohingya supported the British colonists, while the others supported the Japanese invaders in the hopes that they would liberate them from British rule.

When the Burmese military took over Burma in 1962 and established a military junta in the country, a strong sense of nationalism was promoted throughout the nation in order to maintain stability. This nationalism was often based on the Buddhist identity of the country, which inevitably meant that the Rohingya were singled out as a threat and branded as a “common enemy” to unite the fragmented nation.

In 1978, a violent crackdown of the military in the Rakhine state, codenamed “Operation Dragon King” forced around 200,000 Rohingya to flee to Bangladesh in order to escape persecution. To deepen the chasm between the minority and the rest of the country, in 1982, a Citizenship Act was passed, recognizing 135 ethnic minorities. Unsurprisingly, the Rohingya, with a population of one million, were not recognized as a minority, officially branding them as a stateless people.

On September 19, 2017, the United Nations announced that more than 400,000 Rohingya men, women and children were forced to flee Myanmar due to a “vicious circle of persecution, discrimination, radicalization and violent repression”. [1]

During the last decades, the government has stripped the Rohingya of their citizenship, terrorised them, systematically driven them out and destroyed their homes. A stateless people, many fled to Bangladesh, Malaysia or Indonesia, neighbouring countries that have majoritarily Muslim populations.

Recent Developments in the Conflict

An Economist article from 2017 outlined the exodus of people during crises in the past three decades. [2] Looking at the weekly refugee outflow in the selected situations, we can see quite clearly that people were fleeing Myanmar at rates surpassing even the Rwandan genocide of ‘94. This only comes to show that the dire situation of the Rohingya was exponentially worsening at the time of the survey.

The second graphic indicates the degrading situation of the Rohingya over a time period of three months in terms of refugees escaping to Bangladesh. [3]

The Case

“On 11 November 2019, the Republic of The Gambia filed suit against the Republic of the Union of Myanmar in the International Court of Justice (“ICJ”) for violating the Genocide Convention. Two months later and at the request of The Gambia, the ICJ ordered the government of Myanmar to take certain actions to protect the Rohingya via “provisional measures” while the case proceeds. This historic lawsuit brings a critical focus to Myanmar’s responsibility as a state for the Rohingya genocide.

The Gambia’s case focuses on the actions of Myanmar’s security forces, starting in October 2016 and then again in August 2017, where they engaged in so-called “clearance operations” against the Rohingya, a distinct Muslim ethnic minority, in Rakhine State. (...) As a result, an estimated 745,000 people – mostly ethnic Rohingya – were forced to flee to Bangladesh. The “clearance operations” followed decades of institutionalized discrimination and systematic persecution of the Rohingya, including the passage of laws that stripped the Rohingya of their citizenship, restricted their religious freedoms, as well as reproductive and marital rights.” (Global Centre for the Responsibility to Protect, 2020)

Why is The Gambia filing the lawsuit?

Gambia’s unlikely intervention came about through a series of circumstances. The Organisation of Islamic Cooperation (OIC) had been looking for a way to stand up for the Rohingyas and sponsored Gambia out of its 57 members to lead on the case. “Gambia was seen as the right country to do it. It was important that it was a democratic country with relatively clean hands,” said Reed Brody, legal counsel for Human Rights Watch, in an article for EqualTimes.org.

It is also symbolic that Gambia is itself going through a transitional justice process to create a historical record of human rights abuses perpetrated during Jammeh’s 22-year regime, which ended with his exile to Equatorial Guinea in January 2017.

The 600,000 Rohingya remaining inside Myanmar face systematic persecution and live under the threat of genocide, the Independent International Fact-Finding Mission on Myanmar says in a 2019 report. “The threat of genocide continues for the remaining Rohingya”, said Marzuki Darusman, Chair of the Fact-Finding Mission, recalling that a year ago the Mission said it had found “genocidal acts” in Myanmar’s 2017 “clearance operations” that killed thousands and caused more than 740,000 Rohingya to flee for their lives to Bangladesh. “Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalizing and punishing genocide,” Darusman added. [4]

The Gambia’s Claim

According to Court documents, The Gambia claims the following:

1. Myanmar has violated the provisions of the Genocide Convention;

2. Myanmar must cease any acts that violate the Convention (in effect, stop committing genocide), but also to implement its obligation to prevent genocide;

3. Myanmar must hold individuals who committed acts in violation of the Genocide Convention criminally accountable within its domestic legal system;

4. Myanmar must pay reparations to the victims of the Rohingya, including allowing them to return to Myanmar, reinstating their citizenship, and undertaking protection of the group’s human rights; and

5. Myanmar must demonstrate its intent to not commit further violations of the Genocide Convention.

In order to prevent the further persecution of the Rohingya, The Gambia requested provisional measures as follows:

1. Require Myanmar to immediately stop all acts that could possibly be construed as violations of the Genocide Convention;

2. Require Myanmar to exert control over any non-state actors (like militias or paramilitary groups) that might also be committing such acts;

3. Require Myanmar to preserve evidence (and explicitly forbid it from destroying evidence) which might relate to genocidal acts;

4. Order both The Gambia and Myanmar not to do anything that would further “aggravate or extend the existing dispute”;

5. Require both states to provide regular written reports to the Court about their compliance with any provisional measures the Court might order; and

6. Require Myanmar to cooperate with the United Nations and any of its bodies that might seek to investigate ongoing violence related to the case.

January 23, 2020 Ruling

On January 23, 2020, after having reviewed the submissions from both states and the independent evaluations of the situation on the ground in Myanmar, the Court held that “there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia.” Accordingly, the Court found that it was justified in issuing provisional measures.

The Court didn’t determine whether Myanmar had committed genocide in this ruling. There is a lengthy process still to unfold before there can be a final verdict on the matter. The order was specifically addressing the urgent, short-term request made by The Gambia in the matter of the provisional measures. As a mention, the judgments delivered by the Court (or by one of its Chambers) in disputes between States are binding upon the parties concerned, therefore Myanmar is obliged to abide by the provisional measures regarding the Rohingya.

Conclusion and Main Takeaways

The The Gambia v Myanmar case is a landmark case in many respects. While there is no question in the minds of many regarding the treatment of the Rohingya, the Court has yet to decide their fate in what will undoubtedly be a historical decision regardless of the outcome.

“At a time when wealthier nations appear to be taking less responsibility for intervening against human rights abuses by other nations, there is a growing need for similar interventions of solidarity”.

Bibliography

Albert, Eleanor and Maizland, Lindsay. Council on Foreign Relations. “The Rohingya Crisis”. Backgrounder. Last updated on January 23, 2020. https://www.cfr.org/backgrounder/rohingya-crisis.

Mandhana, Niharika and Solomon, Feliz. Wall Street Journal. “Rohingya Genocide Case Against Myanmar Opens Before U.N. Court”. December 10, 2019. https://www.wsj.com/articles/rohingya-genocide-case-against-myanmar-opens-before-u-n-court-11575990274.

Global Center for the Responsibility to Protect. “Q&A: The Gambia v. Myanmar, Rohingya Genocide at The International Court of Justice, May 2020 Factsheet”. Policy Brief. 21 May 2020. https://www.globalr2p.org/publications/myanmarqav2/.

Hunt, Louise. EqualTimes.org. “Gambia’s genocide case against Myanmar shows that smaller countries can also help balance the scales of international justice”. 27 March, 2020. https://www.equaltimes.org/gambia-s-genocide-case-against?lang=en#.YOAab-gzY2w.

D. Wes Rist. The American Society of International Law. “What Does the ICJ Decision on The Gambia v. Myanmar Mean?”. February 27, 2020. https://www.asil.org/insights/volume/24/issue/2/what-does-icj-decision-gambia-v-myanmar-mean.

International Court of Justice. “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar)”. https://www.icj-cij.org/en/case/178.

United Nations. “Ethnic Cleansing”. https://www.un.org/en/genocideprevention/ethnic-cleansing.shtml.

Vox. “The “ethnic cleansing” of Myanmar’s Rohingya Muslims, explained”. September 25, 2017. https://www.youtube.com/watch?v=04axDDRVy_o.

Directed References

1. UN. “UN scaling up assistance as number of Rohingya refugees grows to over 400,000”. September 19, 2017. https://news.un.org/en/story/2017/09/565222-un-scaling-assistance-number-rohingya-refugees-grows-over-400000.

2. The Economist, “The Rohingya refugee crisis is the worst in decades”. September 21, 2017. https://www.economist.com/graphic-detail/2017/09/21/the-rohingya-refugee-crisis-is-the-worst-in-decades.

3. The Economist, “The flow of Rohingya refugees into Bangladesh shows no sign of abating”. October 19, 2017. https://www.economist.com/graphic-detail/2017/10/19/the-flow-of-rohingya-refugees-into-bangladesh-shows-no-sign-of-abating.

4. Office of the High Commissioner of Human Rights. “Myanmar’s Rohingya Persecuted, Living under Threat of Genocide, UN Experts Say”. September 16, 2017. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.