rohingya-issue-in-icj

Context: Myanmar has been ordered by the United Nations’ highest court to prevent genocidal violence against its Rohingya Muslim minority and preserve any evidence of past crimes.

Background:

  • The case was brought to the ICJ by the Gambia, a predominantly Muslim west African state that alleges Myanmar has breached the Convention on the Prevention and Punishment of the Crime of Genocide which was enacted after the Holocaust.
  • Genocide is an international crime requiring not only the act of mass killings but also a genocidal intent by the perpetrator. 
  • This intent can be found in the Genocide Convention as being the "intent to destroy, in whole or in part" the targeted group of people. 
  • It is this that distinguishes an act of genocide from "lesser" crimes such as murder or crimes against humanity. 
  • The interpretation of this clause has been generally accepted as a requirement of specific intent to target a victim on the basis of their membership of a group which the perpetrator wishes to be destroyed.

About the ruling 

  • The international court of justice (ICJ) in The Hague imposed emergency “provisional measures” on the country – intervening in its domestic affairs by instructing the government of Aung San Suu Kyi to respect the requirements of the 1948 genocide convention.
  • Declaring that there was prima facie evidence of breaches of the convention, the court warned that the estimated 600,000 Rohingya remaining in Myanmar were “extremely vulnerable” to attacks by the military.

Implications of the order:

  • The ICJ’s orders are binding on Myanmar and create legal obligations that must be enforced. 
  • The provisional measures imposed by the court require the government to prevent genocidal acts, ensure military and police forces do not commit genocide, preserve evidence of genocidal acts and report back on its compliance within four months.
  • The orders are automatically sent to the UN security council, where Myanmar’s response will be assessed. 
  • The country receives diplomatic support from China, which is one of the five permanent members of the council.

About Convention on the Prevention and Punishment of the Crime of Genocide 

  • Unanimously adopted by the United Nations General Assembly in 1948, the Convention entered into force in 1951. 
  • 152 states have ratified or acceded to the treaty, most recently Mauritius in 2019. 
  • It defines genocide in legal terms as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 
    • Killing members of the group; 
    • Causing serious bodily or mental harm to members of the group; 
    • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; o Imposing measures intended to prevent births within the group; Forcibly transferring children of the group to another group. 
  • India ratified the treaty in 1959.

Conclusion: In order to further this type of process the international criminal legal system must change its stance towards the interpretation of the requisite elements for genocide in order to allow more perpetrators to be held accountable for their actions.

About the Rohingya crisis 

  • Rohingya Muslims represent the largest percentage of Muslims in Myanmar, with the majority living in Rakhine state.
  • They have their own language and culture and say they are descendants of Arab traders and other groups who have been in the region for generations.
  • But the government of Myanmar, a predominantly Buddhist country, denies the Rohingya citizenship and even excluded them from the 2014 census, refusing to recognise them as a people.
  • It sees them as illegal immigrants from Bangladesh.
  • Since the 1970s, Rohingya have migrated across the region in significant numbers. Estimates of their numbers are often much higher than official figures.
  • In the last few years, before the latest crisis, thousands of Rohingya made perilous journeys out of Myanmar to escape communal violence or alleged abuses by the security forces.
  • Their exodus began on 25 August 2017 after Rohingya Arsa militants launched deadly attacks on more than 30 police posts.