The Financial Express

ICJ Ruling and the road map for Myanmar

Mohammad Zaman | Published: February 02, 2020 21:18:05 | Updated: February 13, 2020 20:30:40

Gambia's Justice Minister Abubacarr Tambadou speaks on the first day of hearings in a case against Myanmar alleging genocide against the minority Muslim Rohingya population at the International Court of Justice in The Hague. 	—Credit: UN Photo/ICJ-CIJ/Frank van Beek Gambia's Justice Minister Abubacarr Tambadou speaks on the first day of hearings in a case against Myanmar alleging genocide against the minority Muslim Rohingya population at the International Court of Justice in The Hague. —Credit: UN Photo/ICJ-CIJ/Frank van Beek

The International Court of Justice (ICJ) ruling on the Gambia v. Myanmar case directing Myanmar to prevent all genocidal acts against the Rohingyas is a critical step for protecting the rights of the Rohingyas in Rakhine state and also those in the refugee camps in Bangladesh. The ICJ "provisional measures" require Myanmar to prevent genocide and take steps to preserve evidence underlying the genocide case. The ruling is legally binding on Myanmar and must be complied with, although ICJ has limited ability to enforce its order without the assistance of the UN Security Council, where the order is automatically sent for action under article 41(2) of the ICJ Statute. The court has asked Myanmar to report back on the implementation of the order in four months and then every six months afterwards while the case may likely take years by ICJ to reach a resolution.

This historic ruling by the court was welcomed by the Rohingyas as well as many countries and concerned national and international organisations around the world. For the Rohingyas, justice has been partially achieved despite the long road ahead. In its essence, the ruling itself is already a victory for the hundreds of thousands of Rohingyas who have been displaced, killed, and raped. While the ICJ ruling highlights their appalling and genocidal treatment, the Myanmar government Independent Commission of Enquiry (ICOE) denied any "genocidal intent," but found that war crimes did take place during the 2017 anti-Rohingya campaign. Aung Sun Kyi, Myanmar de facto leader, in her defence at The Hague also acknowledged that war crimes may have been committed, but adamantly refused to consider those atrocities as genocide. Thus, reactions to the ruling were initially one of rejection and denial. Myanmar must now face up to its international obligations, duties and responsibilities.

Inside Myanmar, many ethnic minority and civil society organisations strongly support the ICJ proceedings. Prior to the ruling on January 23, more than 100 civil society groups in Myanmar came out with a strong statement against the military and political leadership for use of violent force and intimidation due to their ethnic and religious beliefs. Welcoming the ICJ case, the statement expressed solidarity with the people and commitment "to working together on the side of truth and justice according to the international human rights standards."

In the light of the ICJ ruling and the crisis surrounding the Rohingya case, Myanmar leadership should consider charting a comprehensive new road map to address the Rohingya genocide case. The government should take actions in some specific areas immediately to make the transition and regain trust of the international community. For instance, the ICOE admission of atrocities and its recommendations should constitute an important first step towards meaningful domestic accountability. The trial of the military and security personal responsible for atrocities and crimes against humanity will then form the basis for going forward.

Second, as a matter of urgency the Myanmar government should grant full citizenship to Rohingyas without further discrimination. This will hugely encourage the 1.2 million Rohingya refugees in Bangladesh to return almost immediately. The citizenship has been the core issue since the 1982 Citizenship Law, which classified the Rohingyas  as "illegal" and thus "stateless." For decades, Myanmar has considered the Rohingyas Bangladeshi even though they have lived in Myanmar for generations. Further, the Rohingya "identity" as a separate racial, linguistic and religious group must be recognised by Myanmar with basic human rights and equal treatment as Myanmar citizens.

Third, Myanmar should allow full access to international investigators, the media people, and members of the humanitarian aid agencies. Thus far, the lack of access by UN investigators and international media has further impacted the efforts of the global community to respond to emergency assistance from various governments and human rights organisations. The free access will help create welcoming environment in central and northern Rakhine necessary to build up confidence and trust among the Rohingya people and the international community.

Fourth, Myanmar must address the root causes of conflicts in Rakhine and other ongoing ethnic conflicts in Kachin and Shan states. As a multi-ethnic country, ethnic harmony based on greater understanding of cultural, linguistic and religious differences must be built at the political level for stability and development. To address the atrocities in Rakhine state against the Rohingyas - for instance, the slaughters, killings, murders and brutalities, the Myanmar government should constitute a truth and reconciliation commission aimed at improving inter-ethnic relations, respect and mutual trust.

Fifth, the Myanmar government should take renewed efforts for repatriation of its citizens from Bangladesh. This is, however, contingent upon creating the conditions for and facilitating a voluntary, safe, dignified and sustainable return of the Rohingya to Myanmar. This include provisions to return to their lands and homes as opposed to built-in camps, with all necessary support and help to rebuild and restore their communities. Further, the government must initiate post-conflict socio-economic development plan to assist the region ravaged by the army and security forces.

Finally, the ICJ ruling is a crucial moment for Rohingya justice and vindication for those who have lived through this genocide for decades in Myanmar. The court's decision clearly demonstrates that it takes the allegations of genocide seriously. It is now equally important that other parties, particularly the UN Security Council, take immediate and concrete actions in the form of a binding resolution directing Myanmar to lift restrictions on Rohingya's freedom of movement, eliminate all unnecessary restrictions on humanitarian access to Rakhine state, repeal all discriminatory laws and ban practices that limit Rohingya access to land, livelihoods, education and healthcare. The big powers at the Security Council should not shield Myanmar government and the military any further; instead Myanmar should be encouraged and assisted by the big powers to resolve the crisis and facilitate the repatriation of the 1.2 million Rohingya refugees from Bangladesh.


Mohammad Zaman, PhD is an international development/resettlement specialist and Advisory Professor, National Research Centre for Resettlement, Hohai University, Nanjing, China.


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