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Crucial verdict on Myanmar genocide case coming soon

Published : Friday, 15 July, 2022 at 12:00 AM  Count : 986
Syed Badiuzzaman
The International Court of Justice (ICJ) will deliver a crucial judgement on the preliminary objections from the military council of Myanmar to the Gambia v. Myanmar case in The Hague on July 22. The verdict will decide the fate of the litigation concerning "Application of the Convention on the Prevention and Punishment of the Crime of Genocide."  

According to a press release issued by the ICJ, the principal judicial organ of the United Nations, there will be a public sitting of the court at 3 p.m. at the historic Peace Palace in The Hague during which Judge Joan E. Donoghue, the president of the International Court of Justice will read out the verdict. This verdict will pretty much decide in which direction the Gambia v. Myanmar case is going to go.  

Myanmar's military council sent a delegation to The Hague during the hearing of the case on February 25 this year. The delegation raised objections to the hearing saying that "the ICJ has no right to hear the case." Christopher Staker, a lawyer of the military council argued that the international community should not be allowed to prosecute Myanmar and the ICJ had no jurisdiction to hear the case, reported the Washington-based Radio Free Asia.

Was the lawyer who represented the military council of Myanmar at the hearing of the case in The Hague right in his argument? Many legal experts saidhe was not correct as theICJ was duly empowered to hearthe case and itacted very much within its authority. Established in 1945 under the UN charter, the ICJ is the principal judicial organ of the United Nations to settle legal disputes submitted to it by states in accordance with international law through binding judgements with no right of appeal.

Headquartered in the Dutch city of The Hague, the International Court of Justice is composed of 15 judges who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. The ICJ's role also includes giving advisory opinions on legal questions referred to it by authorized United Nations organs as well as specialized agencies. So, the ICJ does have a broad mandate to settle legal disputes among states and give advisory opinions on legal questions.

The court ruled that there was clearly a dispute between two states Gambia and Myanmar and that it had jurisdiction over the case. However, challenging the position of the ICJ, the defense team of the military council of Myanmar argued that Gambia sued Myanmar being prompted by the 57-nation Organization of Islamic Cooperation which wants to see Myanmar held responsible for assaults on Rohingya. However, the court ruled that Gambia is entitled to sue in its own right as a party to the convention.

Why should the ICJ protect Rohingya? The answer is simple: Because it has a legal obligation to do so. The international community also has a moral responsibility to protect the members of the minority Rohingya community of Myanmar who have been victims of all kinds of atrocities including mass killing, rapes, genocide, war crimes as well as crimes against humanity. Their ordeal began in the early 1980s when they were stripped of their citizenship by the government of what was then Burma under a discriminatory law.

The ICJ judges found the Rohingya "a protected group" and thus they must be shielded under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The ICJ has maintained that whether or not states have ratified the Genocide Convention, they are all bound as a matter of law by the principle that genocide is a crime prohibited under international law. The ICJ has also stated that the prohibition of genocide is a peremptory norm of international law and consequently no derogation from it is allowed.

As back as in February 2017, the Office of the High Commissioner for Human Rights published a damning report that included widespread evidence of torture, gang rape, killings of even children and babies and disappearances of Rohingya. Following that horrible report, the UN Human Rights Council set up a fact-finding mission to collect information about these crimes and in August 2018 the mission published a far more serious report calling for investigating and also prosecuting Myanmar's top-ranking military leaders for genocide, war crimes and the crimes against humanity.

The Simon-Skjodt Centre affiliated with the United States Holocaust Memorial Museum expressed concern about the plight of the Rohingya. In a report published on the museum's website, the centre said that Burma being a party to the Genocide Convention and under the international law has an obligation to prevent genocide. "To date, Burma has taken insufficient steps to mitigate the risk of genocide and advance effective justice measures," the centre said, adding: "It remains concerned about the potential for future atrocities against those Rohingya remaining in Burma."

The US Holocaust Museum has been sounding alarm since 2013 about what it called the "potential risk of genocide" and other atrocities against the Rohingya. However, those warnings largely went unheeded leading to what it described as "indescribable human suffering." "The Rohingya population suffered mass atrocities including crimes against humanity and ethnic cleansing and in December 2018 the Holocaust Museum determined that there was compelling evidence that genocide had been committed against the Rohingya."

The Biden administration has also come to a clear conclusion that the Burmese military did carry out genocide in northern Rakhine State. Making this declaration  from the United States Holocaust Memorial Museum in Washington just a few months ago, US Secretary of State Antony Blinken stated in unambiguous terms: "Beyond the Holocaust, the United States has concluded that genocide was committed seven times and today marks the eighth as I have determined that members of the Burmese military committed genocide and crimes against humanity against Rohingya."

Giving a detailed account of the atrocities committed by Burmese military against the Rohingya, Antony Blinken said that their attacks in 2016 forced nearly 100,000 Rohingya to flee to Bangladesh and in 2017 killed more than 9,000 Rohingya and again forced more than 740,000 members of the minority Rohingya community to take refuge in neighboring Bangladesh. He said: "These abuses were not isolated. The attack against Rohingya was widespread and systematic, which was crucial for reaching a determination of crimes against humanity."

Antony Blinken said that "Burma's Path to Genocide" was a familiar one, mirroring in so many ways the path to the Holocaust and other genocides. He said: "We see it in Burma's 1982 citizenship law, which effectively excluded Rohingya from citizenship and denied them full political rights, echoing the 1935 Nuremberg Laws that stripped Jews of their German citizenship. We see parallels in the dehumanizing hate speech. Rohingya were compared to fleas, to thorns, to an invasive species, just at Tutsis were compared to cockroaches, and Jews to rats and parasites."

The governments of many countries, especially Gambia, Bangladesh and the OIC member states, international human rights organizations and of course Rohingya everywhere in the world are hoping that the International Court of Justice will deliver a just and strong verdict on Myanmar military council's objections to the hearing of the Gambia v. Myanmar case in The Hague on July 22. They also hope that the Gambia v. Myanmar case will continue to play out in the court and end up holding Myanmar's military leaders liable for genocide and other war crimes in northern Rakhine State.  
Writer is a Toronto-based journalist who also writes for the Toronto Sun as a guest columnist.








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