Political will is extremely crucial since ICJ
has no jurisdiction or legal apparatus over individual nations.
In a historic
judgement, the International Court of Justice (ICJ) on 23 January ordered
Myanmar to implement vital measures to protect its Rohingya population from any
further atrocities. This ruling has been hailed as an “accomplishment of
international justice.” This lawsuit was brought by Gambia, a small African
Muslim state backed by the 57 nation Organisation of Islamic Cooperation (OIC)
in November at the United Nations’ highest body for disputes between states. It
accused Myanmar of genocide against Rohingya in violation of a 1948 Genocide Convention.
The court witnessed the trial on 10–11 December where the State
Counsellor of Myanmar Aung San Suu Kyi was herself present to defend her
country’s honour. She emphasised that the accusations made against her
government are “incomplete and misleading factual picture of the situation,”
thus categorically denying the allegations of genocide and thereby requesting
to dismiss the charges brought to it.
Read: https://www.nytimes.com/2019/12/11/world/asia/aung-san-suu-kyi-rohingya-myanmar-genocide-hague.html
Under the presiding Judge Abdulqawi Yusuf and
16 other judges present in the panel, the undisputed ruling on 23 January
granted Gambia’s request for preliminary measures. According to the court, the
Rohingyas face an ongoing threat that necessitates Myanmar to “take all
measures within its power to prevent all acts” prohibited under the 1948
Genocide Convention, and report back to the court within four months, and then,
every six months after that.
Difference of opinion
Interestingly, there remains a discrepancy
between the opinion of Myanmar and
the international community over the said genocide. The international community
calls the atrocities committed against the Rohingyas, the mass killings and
rapes as the text book example of ethnic cleansing. The head of a UN
fact-finding mission on Myanmar warned that there is a serious risk of genocide
recurring, and the mission also stated in its final report in September 2019
that Myanmar should be held responsible in international legal forums for
alleged genocide against the Rohingya.
The Government of Myanmar has strongly denied
carrying out organised human rights abuses. The country maintains that the
military action, which followed militant attacks on security forces in August
2017, as a legitimate counterinsurgency operation. Myanmar has rejected the UN
findings as “one-sided”. The state
counsellor has consistently in various occasions stated that her government
could have handled the situation in Rakhine state better, but did not
acknowledge to any major crimes.
Read: https://reut.rs/2N6025W
The initial ICJ judgement however, has
vindicated UN fact-finding reports from the last two years that recorded a massive
amount of violence, including mass slaughter and displacement. Overwhelming
levels of cruelty and brutality, combined with the material destruction of the
houses of the Rohingya that the Myanmar government has categorically denied to
date.
Since the entire court procedure may take a
while, the provisional measures hold much importance at this instance.
Benefits of the ruling
The current ruling
necessitates Myanmar to avoid a set of acts under the Genocide Convention that
indicate razing all or part of a national, ethnic, racial, or religious group.
These include not only killing members of a group (Rohingya in this instance),
but also seriously harming them physically or mentally. The court further
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.
This ruling has brought about immense relief
and hope to the Government of Bangladesh as well as the Rohingya community.
Bangladesh is currently catering to more than one
million Rohingyas at Cox’s Bazar.
The country has been suffering from lack of space and funds for more than two
long years. It has been at the receiving end due to two failed repatriations
and the listless attitude of the Government of Myanmar.
The full implementation of the ICJ ruling
will be instrumental in creating a conducive environment for the safe and
dignified repatriation of Rohingyas to Rakhine State. According to Bangladeshi
Foreign Minister A.K. Abdul Momen, this verdict is “a victory for humanity, a
milestone for human rights activists across all nations.” He further added that
it is “s victory for Gambia, OIC, the Rohingya and of course, for Bangladesh.”
This judgment also provides the nation an opportunity to re-engage with the four
major allies of Myanmar namely China, Japan, India and Russia. Since these
nations have robust bilateral ties with Mynamar, Bangladesh by deepening its
engagement with these nations may hope to proffer sustainable solution on the
Rohingya crisis.
The Myanmar government is supposed to deliver
a report on measures it has taken to implement the order to the court by May
2020. It must continue to do so every six months thereafter until a final
decision is reached. This reporting hopes to put Myanmar in scrutiny by the
highest court of justice. Although Myanmar has claimed that it is taking steps
to establish accountability for human rights violations and “war crimes”
against the Rohingya and to facilitate their return to Myanmar’s Rakhine State,
the court, relying on UN reports, decided that Myanmar’s feeble efforts are not
enough to overturn the case. However, while the final outcome of this case
regarding violation of the Genocide Convention could, and certainly should,
invite appropriate measures to ensure better living conditions of the Rohingyas
yet that remain subject to the political will of Myanmar.
Challenges
The two most significant impediments of the International Court of
Justice are that it has no power to execute its decisions and it is voluntary in
nature.
Thus, in such instances, political will is
extremely crucial since ICJ has no jurisdiction or legal apparatus over
individual nations. In this regard, appropriate and effective techniques and
measures are required to be devised by the international legal regime so that
the countries holding considerable political and economic clout within the UN
Security Council can be brought to justice.
Rejecting the ICJ’s ruling, Myanmar’s Foreign
Ministry has accused rights groups of presenting the Court with an overwhelming
and exaggerated picture of the prevailing situation. Nevertheless, this
assertion is at odds with the findings this week of an Independent Commission of Enquiry (ICOE)
established by Myanmar. The Commission acknowledged that war crimes and not
genocide had indeed been committed during the military campaign, when around
900 people were killed. But interestingly, there was nothing to back the
assertions of gang-rape, or evidence to presume any intent of genocide.
The ICJ verdict is a significant triumph for
the displaced Rohingyas currently living in the camps at Cox’s Bazar. Even as
it empowers the UN Security Council to prevail upon Myanmar to take suitable
measures for the repatriation as well as rehabilitation of the displaced
communities, the prospect of that happening might be distant with possible veto
from China, and also whether Myanmar abides by ICJ rulings remains to be seen.
Source: eurasiareview
