The ICJ on the Myanmar Military’s Genocide Issue and True Justice

The International Court of Justice, the top court of the UN, rejected Myanmar’s arguments against Gambia’s claim that Myanmar committed genocide against the Rohingyas. After the Gambia filed a lawsuit alleging genocidal acts, the Myanmar government disputed the accusations and made a number of objections. Myanmar argued that Gambia lacked standing to bring the case and that the court lacked authority to hear it. Myanmar’s position was that because Bangladesh did not bring a case before the ICJ as a directly affected country as a result of the Rohingyas’ refuge, Gambia was not entitled to do the same without being an affected country.

The country also objected to the fact that Gambia brought the lawsuit on behalf of the Organization of Islamic Cooperation. (OIC). However, a state, not a coalition, may bring a lawsuit under ICJ regulations. As there was no disagreement between the two parties — Myanmar and the Gambia — the country argued that the case was not admissible in court. Myanmar has also objected, claiming that this court has no right to take the case because it has not signed Article 9 of the UN Genocide Convention.

Regarding these Myanmar complaints, ICJ President Judge Joan Donoghue stated in the ruling that any country that has ratified the Genocide Convention may bring a case in support of other countries’ genocide remedies, and that this does not infringe upon that country’s rights. The court affirmed that the Gambia brought the case on its own initiative and out of a feeling of obligation as a signatory to the Genocide Convention, not in the shadow of any coalition. The Gambia has the right to ask any group or coalition for financial or political backing in order to pursue the case. 

The argument that there was no disagreement between the parties was also rejected by the judge. Because in 2018 and 2019, the Gambia made statements at the UN General Assembly emphasizing the genocide in Myanmar. Myanmar has also responded there. The Gambia wrote to Myanmar in a diplomatic letter before filing the lawsuit to demand an end to the genocide. Myanmar made no comment. The court further declared that the country’s argument that Myanmar has not signed the Genocide Charter does not affect the court’s authority. After a long hearing, Myanmar’s objection was rejected. As a consequence, Gambia’s case against Myanmar for genocide has no barrier to continue.

It should be mentioned that in August 2017, approximately 750,000 Rohingyas fled to Bangladesh as a result of the Myanmar army’s killing, raping, and setting fire to Rohingya communities in Rakhine. Bangladesh has become a haven for more than 1.1 million Rohingyas now. The Gambia, an African nation with a majority of Muslims, submitted a case at the ICJ on Nov. 11, 2019, describing this atrocity as a genocide. By waging a brutal military campaign against the Rohingyas, Myanmar is alleged by the Gambia to have broken the 1948 United Nations Charter on Human Rights. In its preliminary ruling in the Gambia v. Myanmar case, the ICJ gave Myanmar four directives to safeguard the Rohingya community.

The primary goal of bringing a case before the International Court of Justice was to demand that countries take action to stop the Rohingyas’ oppression. The recent news that Min Aung Hlaing’s junta government has begun the pilot project in Myanmar for Rohingya repatriation is nothing more than a means of evading external pressure. By employing brutal methods, they are evading international criticism for genocide and other crimes. It appears that Myanmar’s military officials believed that by focusing on one ethnic group after another, they could continue to violate human rights.  

The newest Rohingya repatriation conundrum is an attempt by the junta government to deceive the international community. But because the international court has tried the perpetrators of the genocides committed by Nazi Germany, Suharto’s Indonesia, and the Khmer Rouge in Cambodia, Myanmar’s military rulers will not be able to get away with the atrocities they perpetrated against a number of ethnic groups, including the Rohingya. The Nazi regime carried out genocide in the 1930s and 1940s against communists, disabled Germans, Jews, Roma, and Sinti. Under the guise of communism, the Suharto government killed Chinese and Indonesians in the 1960s, and the Khmer Rouge committed genocide against Buddhist monks, Cham Muslims, and the Khmer bourgeoisie in the 1970s.

At the International Court of Justice, the Gambia v. Myanmar case involving the genocide of the Rohingyas continues. However, the same military authorities in Myanmar, led by Min Aung Hlaing, continue to perpetrate the same sort of crimes. That crime is being committed against minority groups including Karenni, Karen, Kachin in Myanmar. The most painful aspect is that identical crimes are being committed against members of the Buddhist community in the center who oppose the coup. 

A report by the United Nations High Commission for Human Rights on the human rights situation in Myanmar was recently published by the United Nations. High Commissioner Volker Turk presented the report at the 52nd session of the UN Human Rights Council held in Geneva. It said a strategy has been used most frequently by the military of Myanmar and that is, burning villages and people’s houses systematically and extensively. According to a UN report, military actions nationwide resulted in the burning or destruction of at least 39,000 homes as of February 2022.

In an effort to completely exterminate the Rohingya people, the Myanmar military carried out systematic persecution for many years. 740,000 Rohingya left Myanmar’s Rakhine just five years ago and entered Bangladesh crossing the border as the troops of Myanmar destroyed hundreds of villages. Since the military coup in 2021, Myanmar military has been employing the same methods. In areas where the war is still raging, which makes up 80% of Myanmar, more than 1.3 million people have already been displaced. Worth noting, Myanmar military has been accused of committing heinous human rights violations and crimes for decades against individuals who do not practice Buddhism or are not Burmese by ethnicity or religion. But this time, the military authorities are crushing the groups that voiced criticism or opposition to the massive unpopular coup of February 2021. The way Myanmar’s genocidal army continues to deny of genocide of Rohingyas in the International Court of Justice, they will repeat it if they face fresh genocide crimes.

Since the military coup that overthrew Aung San Suu Kyi, 211 unarmed and peaceful anti-coup demonstrators have been killed, 17336 people still detained including sentenced in Myanmar for the offense of sedition or other charges. The Independent International Mechanism for Myanmar, a UN agency on Myanmar, has recorded numerous crimes against humanity and war crimes, including the military’s brutal propaganda against politically dissident ethnic minority communities. Barbed wire fences are imprisoning 500,000 Rohingyas who are confined in the region where the Rohingya massacre took place in Rakhine State. Most people in Myanmar don’t consider the rulers to be their rightful representatives.

True justice for the Rohingya survivors in the camps, however, does not necessarily mean a ruling from the International Court of Justice (ICJ) on Myanmar as a UN member state; Rather, it certainly means the safe return of the more than one million Rohingyas who are currently residing in Bangladesh, Malaysia, Saudi Arabia, India, and Pakistan under illegal and inhumane circumstances.

[Photo by, CC BY 4.0, via Wikimedia Commons]

Dr. Sabera Chowdhury is a Senior Researcher at South Asian Studies, University of Toronto, Canada. The views and opinions expressed in this article are those of the author.

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