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ICJ takes up genocide case against Myanmar, hearing next month

The Rohingya issue gains momentum

Muhammad Zamir   | Published: November 24, 2019 20:47:21 | Updated: November 24, 2019 22:14:14


The dynamics pertaining to the issue of Rohingya Muslims have continued to come to the forefront of international attention. This has become particularly significant since November 11.

United States, Canada, the European Union (EU) and the Organisation of the Islamic Conference (OIC) have been jointly addressing this issue in different for a - both in Geneva, Hague and in New York. They have condemned continuing serious human rights violations and abuses across Myanmar and underlined that Myanmar authorities need to deepen democratic reforms and ensure accountability for those responsible for human rights violations. It has also been asserted that Myanmar should promote freedoms of expression, religion or belief, association, and peaceful assembly. It has also been underlined that Myanmar should try to implement the recommendations of the Annan Advisory Commission in Rakhine State, including those related to access to citizenship and freedom of movement.

while co-sponsoring the resolution on the human rights situation in Myanmar on  November 14 in New York, the United States also re-affirmed the resolution's urgent call to ensure full protection of human rights and fundamental freedoms of all persons in Myanmar, including Rohingya Muslims and persons belonging to other minorities, in an equal and non-discriminatory manner. This view reflected the opinion of others that preventing further instability and insecurity would alleviate suffering and help to address the root causes of the crisis and also forge a viable, lasting, and durable solution.

Legal developments on the Rohingya crisis have also been in the international spotlight because of the International Criminal Court (ICC) judging on November 14 and approving a request from prosecutors to open an investigation into crimes committed against Myanmar's Rohingya Muslim minority. It may be recalled that in September, a two-year United Nations fact-finding mission reported that Myanmar's counterinsurgency campaign in 2017 included "genocidal acts", killed thousands and forced more than 740,000 people to flee across the border into Bangladesh..

The Court said in a statement that a panel of judges who studied Prosecutor Fatou Bensouda's request to open an investigation concluded that there are grounds to believe that widespread acts of violence were committed "that could qualify as crimes against humanity, of deportation across the Myanmar-Bangladesh border and persecution on grounds of ethnicity and/or religion against the Rohingya population."  It may also be noted here that this ICC decision has been seen as marking an important step in the fight for justice and accountability in Myanmar. It is sending a strong message to the orchestrators of atrocities against Rohingya that their days of impunity are numbered.

However, at this juncture it would be interesting to take note of the comment by Nicholas Bequelin, Amnesty International's Director for East and Southeast Asia: "while we welcome today's decision, it only allows the ICC to investigate some of the military's many crimes against ethnic minorities in Myanmar. This is why it remains essential that the UN Security Council refers the situation in the whole of the country to the ICC. Its ongoing failure to do so is a stain on its credibility and an abdication of its responsibilities."

This decision came just days after the government of Gambia accused Myanmar of genocide in proceedings initiated at the International Court of Justice and Rohingya activists filed a lawsuit in Argentinean Courts.

As expected Myanmar, enjoying strong backing from China and Russia, has rejected the possibility of the ICC probe over its alleged crimes. On November 15, 2019, Myanmar government spokesman Zaw Htay branded an investigation by the International Criminal Court (ICC) "not in accordance with international law". Myanmar has repeatedly defended the crackdown in 2017 as having been necessary to stamp out militants and has long refused to recognize the authority of the ICC - a position they reiterated once again. It would be important however to observe at this point that though Myanmar has not signed up to the Court, the ICC has ruled last year that it has jurisdiction over crimes against the Rohingya because Bangladesh, where they are now refugees, is a member. Critics have derided this latest Myanmar approach in trying to whitewash atrocities.

The ICC decision came soon after West African nation Gambia launched on  November 11 a separate case at the International Court of Justice (ICJ), the UN's top court, also based in The Hague. Gambia, acting on behalf of the 57-nation Organisation of Islamic Cooperation (OIC) has accused Myanmar of genocide. The first hearings in this regard are scheduled for December. It may be pointed out that the ICJ normally deals with more legalistic disputes between states but also rules on alleged breaches of UN Conventions. Myanmar's (which has signed the Genocide Convention) Zaw Htay, has however already observed that it would respond "in accordance with international legal means."

It would be significant to observe here that Canada in recent times has come forward through inter-active engagement to bring Myanmar to justice for the criminal acts perpetrated against the Rohingya Muslim community. In the International Court of Justice Canada has shown leadership. This was consistent with their earlier course of action undertaken in 2018. At that time the Canadian Parliament led the international community with its determination that the situation in Myanmar was indeed "genocide". Canadian special envoy to Myanmar, Bob Rae also issued strong statements calling for the accountability of the perpetrators, and urged Myanmar to uphold the international rules-based order. Despite such support, most unfortunately, no concrete legal action was taken to invoke the Genocide Convention on Myanmar.

This was disappointing. This time round, Gambia and the OIC have taken a different tack. The current dynamics has used the denotation contained in Article IX of the Genocide Convention that calls for a submission to be made to the International Court of Justice in case of a dispute between contracting parties relating to the interpretation and application of the Convention.

It is being hoped that Canada might further Gambia's efforts by becoming a party to the action and filing complementarily. Or, Canada might like to intervene positively in support of a strong adjudication regarding Myanmar's systematic state-sponsored sexual violence as genocide. From that context demand for reparations could be made for the still suffering rape victims in the Rohingya refugee camps in Bangladesh and villages in Myanmar. Canada's support to the action at the International Court of Justice will help to restore confidence in a rules-based international order and also also bring hope to the remaining genocide survivors. This may also act as a deterrent for Myanmar from continuing to perpetrate atrocities against other minorities, such as the Kachin, Karen, Shan and Chin who also are constantly being targeted, murdered, tortured and raped by Myanmar's military.

The European Union, a co-sponsor of the relevant Resolution on the Rohingya situation in the UNGA, has in its statement on  November 14 pointed out correctly that the international community needs to send a message of compassion and solidarity to the Rohingya people. It has also called upon the Government of Myanmar to end the continuous violations and abuses of human rights and international humanitarian law taking place in that country, to ensure accountability and justice, and to tackle the root causes of these violations and abuses by putting an end to the structural discrimination against the Rohingya and other minorities, and by implementing all recommendations contained in the Annan report.

It needs to be understood that the Resolution that was discussed in the UNGA Third Committee and was subsequently voted upon addressed not only the human rights of the Rohingya community, but also underscored deep concern at the human rights violations and abuses perpetrated by the Myanmar security and armed forced against persons belonging to other minorities in the Rakhine, Kachin and Shan states. Reference was made in this regard to the detailed findings of the Independent International Fact-Finding Mission on Myanmar which have drawn attention to the grave crimes under international law - where women, children and men witnessed the murder of family members and friends and were also subjected to enforced disappearance, torture, rape, sexual slavery, and other forms of violence.

The Resolution called for redress and justice for the mass atrocity crimes and also urged the operationalisation of the Independent Investigative Mechanism, whereby the International Fact-Finding Mission would be given the means and necessary access to play its crucial role in ensuring accountability for those responsible, in particular collecting, consolidating, preserving and analysing evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011. The resolution also recalled the role of the Security Council in that respect and urged Myanmar to repeal its 1982 discriminatory citizenship law. 

The Committee Resolution named "Situation of human rights of Rohingya Muslims and other minorities in Myanmar"' was placed in the UNGA by the United Arab Emirates and Finland on behalf of the Organisation of Islamic Cooperation (OIC) and European Union (EU). It was passed by a majority of 140 votes. Nine countries - China, Myanmar, Russia, Belarus, Cambodia, Lao PDR, Philippines, Vietnam and Zimbabwe - voted against the resolution and 32 countries abstained. The draft will now go to the full session of the UNGA for voting, if needed, before the Resolution is adopted by the UNGA.

Bangladesh Permanent Representative to the UN Masud Bin Momen while thanking the international community for their support has also expressed his hope that they will ensure quick implementation of this Resolution. He has correctly drawn attention to the observations made recently by Prime Minister Sheikh Hasina earlier this year. She had urged the world community to demonstrate clear political will and persuade Myanmar to agree to the deployment of civilian monitors as confidence builders in the Rakhine State. This would then facilitate the creation of a conducive environment among the affected Rohingyas and ensure their safe and sustainable return to Myanmar.

Muhammad Zamir, a former Ambassador, is an analyst specialized  in foreign affairs, right to information and good governance.

muhammadzamir0@gmail.com

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