On January 23, 2020, the International Court of Justice in The Hague, informally known as the World Court, rendered a historic judgment. The decree ordered the government of Myanmar to comply with several directives: to take measures to prevent genocide against the Rohingya people; to ensure that its military refrain from acts prohibited by the Genocide Convention; and to preserve evidence and submit a report to the court within four months, detailing compliance with the court’s order. The unanimous decision by the fifteen-judge court represented only the third time that the Genocide Convention has been invoked before the World Court in a contentious case—and the first case ever to consider the claims, under the convention, of non-contiguous, non-warring countries.
The case presents what may seem to casual observers a peculiarity of standing. Why was Myanmar being sued by Gambia, a small, largely Muslim country in West Africa, eight thousand miles away? Gambia was permitted to bring its case against Myanmar to the World Court—a civil, not criminal court—because both nations are parties to the Genocide Convention, which explicitly gives the court jurisdiction to resolve any disputes between state parties relating to “the interpretation, application, or fulfilment of the Convention.” Gambia presented compelling evidence to the court that under the doctrine of erga omnes partes, it had an interest in Myanmar’s compliance—or lack thereof—with the Genocide Convention. Myanmar disputed whether Gambia could bring a case without showing that it was “specially affected” by such alleged violations. The court held that such a dispute was sufficient to justify jurisdiction under the Convention.
The January order, technically referred to as “provisional measures,” was intended to “protect the rights claimed by The Gambia while the underlying case proceeds on the merits.” Because Myanmar is a party to the Genocide Convention of 1948, the court’s order essentially requires Myanmar “to take all measures within its power to prevent the commission of all acts” prohibited by that Convention. Whether the court ultimately concludes that Myanmar did in fact commit the crime of genocide in its treatment of the Rohingya people will depend largely on whether Gambia can prove that Myanmar violated Article 2 of the Genocide Convention, which prohibits such actions as killing members of the group or causing serious bodily or mental harm to them—and that it did so with the intent to destroy the group in whole or in part. (Neither of those findings was required for the court to impose “provisional measures”; rather, the court was only required to find that the allegations of genocide were “plausible.”) While this order will not resolve or even ameliorate the abhorrent conditions in which the Rohingya people are now living, primarily in Bangladesh, it will, if robustly implemented, prevent future acts of genocide against them.
The case brought to the World Court by Gambia results from the “clearance operation” conducted by the Myanmar army against the Rohingya people in the Rakhine State of Myanmar. The “clearance” was in retaliation for a series of alleged attacks against police posts and villages in October 2016 by a poorly armed Rohingya insurgent group calling itself “The Faith Movement,” formed after the 2012 Rakhine Riots and led by a Rohingya man raised in Saudi Arabia. In October 2016, the group changed its name to the Arakan Rohingya Salvation Army, recalling the centuries-long struggle by the so-called Arakan Army to create an independent state of Rohingya, or Arakan, as it had been called earlier.
That conflict and the accompanying action by the Myanmar military, known as the Tatmadaw, caused more than 900,000 Rohingya people to flee to nearby Bangladesh, where they are living in one of the largest refugee camps in the world. Although more than 600,000 Rohingya still live in Rakhine and are attempting to flee, Bangladesh has indicated that it will take in no more refugees and will encourage the Rohingya living in Bangladesh to return to Rakhine voluntarily. (So far, almost none have left.) Bangladesh is also planning to relocate 100,000 of the refugees to a small island in the Bay of Bengal.
Muslims who have been living for centuries in Myanmar—a largely Buddhist country formerly known as Burma—the Rohingya people are among the world’s most persecuted minorities. Under Myanmar’s complicated citizenship requirements, the government recognizes 135 ethnic groups, but the Rohingya are not among them; they are not considered citizens and are essentially stateless. Rakhine, where the Rohingyas live, is in the west of Myanmar, bordering Bangladesh. The Rohingyas are not permitted to leave Rakhine without government permission, and the province is among the poorest in the world, with few services and ghetto-like camps.
When the violence began in 2016, the United Nations High Commissioner for Refugees created an independent fact-finding group on Myanmar, led by distinguished lawyers from Australia, Indonesia, and Sri Lanka. Myanmar refused to cooperate. After two years of investigation and interviews with more than a thousand victims, the UN Mission concluded that Myanmar had acted with “genocidal intent” and that there was a “serious risk of genocidal actions recurring.” The Mission recommended that “senior generals of the Myanmar military” should be “investigated and prosecuted in an international tribunal for genocide.” Similarly, the UN Special Rapporteur on human rights in Myanmar, Yanghee Lee of Korea, rendered her final report on March 4, 2020. Among other things, she reported that “the magnitude and tragedy of what occurred in Myanmar...cannot be overstated” and that the “extreme violence [that] was perpetrated in northern Rakhine...bore the hallmarks of genocide.” She called for the UN Security Council “to refer the situation in Myanmar to the International Criminal Court or for the international community to establish an international tribunal to prosecute alleged perpetrators of international crimes committed in Myanmar.” Lee had earlier concluded that the commander-in-chief and other senior Tatmadaw generals “should be held accountable for genocide in Rakhine.” The UN Special Adviser on the Prevention of Genocide, Adama Dieng of Senegal, concluded that “Rohingya Muslims have been killed, tortured, raped, burnt alive and humiliated, solely because of who they are,” and further that “the intent of the perpetrators was to cleanse northern Rakhine state of their existence, possibly even to destroy the Rohingya as such, which, if proven, would constitute the crime of genocide.”