The International Court of Justice (ICJ) order on January 23, 2020 directing Myanmar to prevent all genocidal acts against Rohingya Muslims is crucial for protecting the remaining Rohingya in Rakhine State, Human Rights Watch said on Thursday. The court unanimously adopted “provisional measures” that require Myanmar to prevent genocide and take steps to preserve evidence.
Myanmar’s military committed extensive atrocities against the Rohingya, including murder, rape, and arson, that peaked during its late 2017 campaign of ethnic cleansing, forcing more than 740,000 Rohingya to flee to Bangladesh. In September 2019, the United Nations-backed International Independent Fact-Finding Mission on Myanmar found that the 600,000 Rohingya remaining in Myanmar “may face a greater threat of genocide than ever.”
“The ICJ order to Myanmar to take concrete steps to prevent the genocide of the Rohingya is a landmark step to stop further atrocities against one of the world’s most persecuted people,” said Param-Preet Singh, associate international justice director at Human Rights Watch. “Concerned governments and UN bodies should now weigh in to ensure that the order is enforced as the genocide case moves forward.”
The order follows Gambia’s November 11, 2019 application to the court alleging that Myanmar military’s abuses in Rakhine State against the Rohingya violate the Convention on the Prevention and Punishment of the Crime of Genocide and urgently seeking provisional measures. The ICJ held hearings on Gambia’s provisional measures request in December.
The ICJ provisional measures order is legally binding on the parties. In November, Myanmar explicitly recognized the ICJ’s authority and in December, Aung San Suu Kyi, representing Myanmar before the ICJ in her capacity as foreign minister, acknowledged the court’s role as a “vital refuge of international justice.”
The court unanimously ordered Myanmar to prevent all acts under article 2 of the Genocide Convention, ensure that its military does not commit genocide, and take effective measures to preserve evidence relating to underlying the genocide case. The court has also ordered Myanmar to report on its implementation of the order in four months, and then every six months afterwards.
The order does not prejudge the question of the court’s jurisdiction to deal with the merits of the case, the case’s admissibility before the court, or the merits of Gambia’s allegation that Myanmar has violated provisions of the Genocide Convention. A case before the ICJ can take years to reach a resolution.
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 will 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 international 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 not taken [significant] action on Myanmar, in part because of Russia and China’s apparent willingness to use their vetoes to shield Myanmar’s government and military.
“The ICJ order brings increased scrutiny of Myanmar’s horrific brutality against the Rohingya and raises the political cost of the UN Security Council’s weak response to the crisis so far,” Singh said. “China and Russia should stop blocking the Security Council from taking action to protect the Rohingya.”
Even with a deadlocked Security Council, UN Secretary-General Antonio Guterres could bring the matter of Myanmar before the council under article 99 of the UN Charter. On September 2, 2017, Guterres wrote a letter to the Security Council president urging the council to “press for restraint and calm to avoid a humanitarian catastrophe,” and for “full respect for human rights and international humanitarian law, and the continued presence and safety of the United Nations partners to provide humanitarian assistance to those in need without disruption.”
Other UN bodies should take steps to reinforce the order, Human Rights Watch said. The UN Human Rights Council and the UN General Assembly could pass resolutions calling on Myanmar to comply with its terms. This could spur other countries to take concrete action in their bilateral relations with Myanmar.
In filing the genocide case, Gambia has the backing of the 57 members of the Organisation for Islamic Cooperation. On December 9, 2019, the governments of Canada and the Netherlands, both parties to the Genocide Convention, announced that they considered it “their obligation to support the Gambia before the ICJ, as it should concern all of humanity.” On January 9, 2020, the British government welcomed Gambia’s case against Myanmar. Other parties to the convention should press Myanmar to comply with the court’s order, Human Rights Watch said. If Myanmar fails to act, Gambia could raise Myanmar’s non-compliance with the Security Council under article 94 of the UN charter.
“The growing global support for Gambia’s case raises the stakes for Myanmar to engage in the ICJ process in a meaningful way and change its approach to the Rohingya,” Singh said. “The Myanmar government cannot hide behind its powerful friends or the banner of sovereignty to escape its responsibilities under the Genocide Convention.”
