The recent arrest warrant issued by the International Criminal Court (ICC) against Russian President Vladimir Putin for the unlawful deportation and transfer of children during the Russian invasion of Ukraine has raised questions about the status of the Rohingya case at the International Court of Justice (ICJ) filed by The Gambia.
The Rohingya crisis, which is a humanitarian crisis that has been ongoing for several years, has received little attention from the international community. The Gambia took the initiative to file a case against Myanmar at the ICJ, accusing it of genocide against the Rohingya people. The case has been on-going since December 2019, and several countries have supported The Gambia’s case.
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However, progress on the case has been slow, and it has not received the same level of attention as the ICC’s indictment of Putin. Now many from Bangladesh are hovering on finding the answer of whether ICJ will take actions any time soon, or not, just like that of Putin.
All about ICJ case against Myanmar
In November 2019, The Gambia took the case against Myanmar to the ICJ with the backing of the Organisation for Islamic Cooperation after a brutal military crackdown forced hundreds of thousands of Rohingya to flee into neighbouring Bangladesh. Myanmar stands accused of violating the Convention on the Prevention and Punishment of the Crime of Genocide.
The ICJ has already ordered Myanmar to take urgent measures to protect the Rohingya, with the judges saying that it had “caused irreparable damage” to the group’s rights. According to a United Nations inquiry conducted in 2018, the military crackdown was executed with “genocidal intent,” and it recommended the prosecution of Senior General Min Aung Hlaing and five other generals.
The victim accounts were among “the most shocking human rights violations” the UN mission’s chairman had come across and would “leave a mark on all of us for the rest of our lives”. In March this year, the United States determined that the Myanmar military’s actions against the Rohingya amounted to genocide.
Myanmar has denied genocide and claims that the 2017 crackdown targeted Rohingya rebels who had attacked police posts. However, the military, which staged a coup in February 2021, has now taken control of the case, replacing elected leader Aung San Suu Kyi, who initially defended Myanmar at the court in The Hague. She has not been seen in public since the coup and is on trial in secret military courts on dozens of charges.
Certain human rights organizations and advocates have expressed reservations about the ICJ’s engagement with the military’s representatives, pointing out that Kyaw Moe Tun, who was appointed by Aung San Suu Kyi’s National League for Democracy and is now aligned with the National Unity Government formed by the overthrown politicians, continues to serve as Myanmar’s United Nations ambassador.
Is there any other case Myanmar is facing like this?
The case of Myanmar has attracted considerable attention due to alleged human rights abuses. Apart from the ICJ case, several lawsuits have been filed against Myanmar. In 2019, BROUK used the principle of universal jurisdiction to take its genocide case to court in Argentina.
Survivors are expected to testify in the coming months. In the same year, the International Criminal Court (ICC) initiated an investigation into the persecution of the Rohingya. Nevertheless, the progress of the case has been impeded due to the pandemic’s impact. The ICC prosecutes individuals, while the ICJ is a civil court that hears cases between states. Prosecutor Karim Khan assured Rohingya refugees and Bangladesh officials during his visit to Bangladesh that the investigation would be a priority.
The Myanmar Accountability Project’s claim of torture was acknowledged by a Turkish court in June. The UN Human Rights Council has established the Independent Investigative Mechanism for Myanmar (IIMM) to collect evidence and prepare files for prosecution. Its officers were in Bangladesh last month to assure victims of their safety and security and listen to their concerns.
A way further
Foreign ministry sources have stated that Myanmar must submit a counter memorial by April 24, 2023, in response to allegations of atrocities. The main argument will be held afterwards, and a verdict may be delivered by the end of 2024. If the authorities are found guilty, the court may issue directions for specific measures to be implemented, and the UN Security Council may be asked to execute these directives.
As a member of the UN, Myanmar will be obligated to comply with the measures ordered by the court. Although the ICJ does not issue individual arrest warrants, proving the leadership’s guilt in ethnic cleansing could lead to justice. Whether this will have a positive impact on the current Rohingya repatriation stalemate depends on several contributing factors. Before discussing this further, it is important to assess the current state of the repatriation process.
No signs of solution
The talks on repatriation of Rohingya refugees have commenced amidst global pressure on Myanmar. However, sources suggest that significant progress is unlikely due to the insincerity of the Myanmar authorities in repatriating their citizens. The ongoing civil war in Myanmar has further complicated the situation, with rebels intensifying their efforts to overthrow the military regime. China, the largest backer of Myanmar, is reportedly maintaining distance from the junta without effectively siding with the National Unity Government led by Suu Kyi’s NLD opposition coalition, which has left Myanmar in serious turmoil.
The latest efforts by the military regime could be seen as an attempt to ease global pressure rather than a genuine effort to take the Rohingyas back. Additionally, without Myanmar ensuring a secure environment for the Rohingyas in Rakhine, it is not practical to believe that the refugees will agree to return to the hostility they escaped.
Bangladesh has provided shelter to a massive number of refugees, and repatriation has been the country’s top priority for several years. However, the lack of progress has been a big concern for the country. The refugees have been residing in Bangladesh for a long time, and their presence has been a significant burden on the country’s resources.
To strategically avoid creating enmity with Myanmar, Bangladesh has refrained from directly involving itself in the International Court of Justice (ICJ) case. However, sources have stated that Bangladesh has provided the ICJ with necessary information and its officials, particularly those who were at the camp in the early days, have been involved in the procedure by sharing their experiences. TBS sources have said that creating a tense situation with Myanmar is not the right move as it may lead to cutting off all contacts.
Despite this approach, Bangladesh’s stance on the stalemate has faced criticism from analysts. They argue that since the junta regime is losing control and forces like the Arakan Army are gaining control in Rakhine and other provinces, Bangladesh should engage with alternate stakeholders in the escalating scenario. They also insist on continuing efforts to engage more stakeholders in such initiatives, rather than engaging in short-term bilateral discussions that may only benefit the regime by buying more time and easing pressure.
What are the experts saying?
According to Prof Imtiaz Ahmed of the Centre for Genocide Studies at Dhaka University’s international relations department, the ICJ has been supporting the Rohingya cause since the beginning, referring to them as Rohingyas, which acknowledges their ethnic identity. Therefore, the recent ICJ verdict is crucial for justice and repatriation for the Rohingyas. Myanmar will now feel pressure to act seriously on the issue of Rohingya repatriation. However, Bangladesh needs to ensure that Myanmar does not make it a token repatriation and addresses the root causes of the problem.
Prof Imtiaz believes that Bangladesh should engage with countries like India, Japan, and the US, to contribute to the repatriation process more effectively. While Canada and the Netherlands have officially joined the Gambia’s case to hold Myanmar accountable, the United States has offered financial support to the cause. Nay San Lwin, who coordinates the Free Rohingya Coalition, is optimistic that Myanmar will facilitate the repatriation of Rohingya refugees by creating a favorable environment, as the recent ICJ ruling has put the country under renewed scrutiny.
However, Myanmar is yet to implement the provisional measures ordered by the ICJ. Frequent fights between the Arakan Army and the Myanmar military in Rakhine State have put the Rohingyas at risk. The UN and other aid agencies have limited access to the Rohingya communities in Northern Rakhine State, and over 130,000 Rohingyas still live in camps in Rakhine. This suggests that the Myanmar army is not taking the ICJ provisional measures seriously.
Nay San Lwin called on all UN member states to support the Gambia in its efforts to end the atrocities committed by the Myanmar military. According to Elaine Pearson, the representative of Human Rights Watch, taking responsibility for the military’s brutalities against the Rohingya population might serve as a catalyst for increased global efforts to bring justice to all individuals affected by the Myanmar security forces’ unlawful actions.
Pearson called on concerned governments to formally intervene in the Genocide Convention case, as it provides an important opportunity to scrutinize the Myanmar military’s abusive policies and practices that have preserved its power over decades.
