ICJ, finally, acts on the Rohingyas of Myanmar | Opinion – analysis
The inability of international law to effectively address situations of mass human rights atrocities, in particular genocide, within States has been the source of much consternation for international lawyers. The term genocide, deriving from the Greek prefix genos meaning race or tribe and the Latin suffix cide meaning killing, was coined by Polish lawyer Raphael Lemkin in 1944, in the aftermath of the Holocaust.
It was soon codified as an independent crime under the 1948 United Nations Convention, acceded to by around 152 states. However, in over 70 years of operation of the Convention, the record of establishing State responsibility for the prevention and punishment of the crime of genocide has been unsatisfactory, illustrated by well-documented failures in Cambodia, Rwanda and Yugoslavia.
However, in a significant ruling on the Rohingya issue, the International Court of Justice (ICJ) took tentative steps towards remedying its otherwise unenviable record of adjudicating allegations of genocide.
In its preliminary judgment, the ICJ unanimously granted provisional measures, at the request of Gambia, directing Myanmar to take all measures within its power to prevent the commission of all acts, including by any persons subject to its direction, control or influence, which constitute genocide under the convention in relation to the Rohingya people in its territory; and take all measures to prevent the destruction and ensure the preservation of evidence related to the allegation of genocide. More strikingly, the ICJ sought to oversee the implementation of its provisional measures, directing Myanmar to submit a report to the court on all measures taken to give effect to the order, within four months from the date of the order, and thereafter every six months until the final decision.
The case before the ICJ concerned allegations made by Gambia that, from October 2016, Myanmar security forces began a widespread and systemic “cleansing operation” against the Rohingya people, during which they committed mass murder, rape and other atrocities, including setting fire to villages, and which, from August 2017 onwards assumed genocidal proportions.
The Rohingyas are a largely Muslim ethnic group belonging to the Rakhine region, who were rendered stateless under a controversial 1982 citizenship law and have been the subject of persecution since.
In recent years, the attempts of the Rohingya to flee Myanmar by sea or land have captured international media attention. During the proceedings, Gambia relied on the report published by the Independent Fact Finding Mission on Myanmar established by the UN Human Rights Council to support its case.
However, it is important to reiterate that the ICJ did not find Myanmar guilty of genocide and only found that Gambia had established a prima facie basis of jurisdiction, a plausible case on merits, a real and imminent risk of irreversible prejudice, and a link between the measures sought and the rights claimed.
Nevertheless the decision of the ICJ is legally significant for a number of reasons.
First, it reiterated that the international community had a “common interest” in the prevention and punishment of genocide, and consequently obligations under the convention were not owed to any particular State, but to the international community as a whole. The ICJ accordingly rejected Myanmar’s contention that Gambia, geographically distant from Myanmar, and an alleged proxy for the Organisation of Islamic States, was not “specially affected” by the subject matter of the application.
Second, the ICJ, while recognising that provisional measures create legally binding obligations, however aware of the difficulty in procuring their compliance through enforcement action, sought to remain seized of the matter, by prescribing timely reporting obligations for Myanmar.
Third, despite the reluctance of Myanmar to even use the word Rohingyas during the proceedings, the ICJ expressly recognised the Rohingyas as a “protected group” within the meaning of the convention. The recognition of their plight by the UN’s principal judicial organ is more than just symbolic.
The decision has important implications for the Indian subcontinent, which in recent years, has witnessed an increasing influx of Rohingya refugees fleeing persecution at the hands of Myanmar security forces. In particular, the decision has practical relevance for national refugee policies.
Although India is not a signatory to the Refugee Convention and does not have any refugee legislation, it extends protection to refugees under the 2011 Standard Operating Procedure (SOP). Moreover, the obligation to not deport or return refugees to countries where they may face a threat to their lives or freedoms has assumed customary international law status and binds the Indian government internationally.
Last year, amid much media attention, the Indian Supreme Court had refused to intervene in the government decision to deport Rohingya refugees back to Myanmar.
In view of the ICJ decision, however, Indian authorities would be required to more carefully consider the case for temporary protection of the Rohingya people within their territory, or at the very least refrain from returning them to Myanmar, where admittedly they face threats to their lives and freedoms.
Jay Manoj Sanklecha is a lawyer, who has specialised in international law
The views expressed are personal