Asad Ali
ON 11 November 2019 The Gambia filed a lawsuit against Myanmar in the International Court of Justice (ICJ) at The Hague alleging that Myanmar’s brutalities against the Rohingyas violate various provisions of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and requested to take the provisional measures to protect Rohingyas life and property. The case is “state-to-state” litigation between UN member states governed by legal provisions in the UN Charter, the ICJ Statute, and the Genocide Convention. Both The Gambia and Myanmar are signatory to the ICJ Statute. The jurisdiction of International Court of Justice (ICJ) is only to the crime of genocide. The other crimes like crimes of war and crimes against humanity fall under the jurisdiction of International Criminal Court (ICC). This was the first time when a country, which is not directly involved or victim, filed a case against the other country. No other big country or the champions of human rights nation had the moral courage to file the case because most are concerned about protecting their investments and national interests in Myanmar.
Within a few days of the lawsuit filed by The Gambia, a lawsuit was filed by Argentina against leaders in Myanmar, including Aung San Suu Kyi, who is the first Nobel Peace Laureate to face legal charges. The State Counsellor of Myanmar Aung San Suu Kyi continues to justify the torture of Rohingyas while branding them as “terrorists”.
The lawsuit by The Gambia is being led by Attorney General and Minister of Justice of The Gambia, Abubacarr Tambadou, who decided to pursue actions after a recent visit to Cox’s Bazaar in Bangladesh, a region where about one million Rohingya refugees are living in camps. According to United Nations Office for the Coordination of Humanitarian Affairs it is the world’s biggest refugee camp. Since 2016, the military of Myanmar with the help of local Buddhists killed more than 24000 Rohingyas and destroyed about three hundred villages in Rakhine State (the area with the majority of Rohingya Muslims).
The State Counsellor of Myanmar Aung San Suu Kyi appeared in the court and requested to dismiss the case and challenged the jurisdiction of International Court of Justice (ICJ). On 23 January 2020 the panel of 17 judges refused the request of Myanmar and voted unanimously to order Myanmar to take “all measures within its power” to prevent genocide.
This includes the prevention of killing and “causing serious bodily or mental harm” to members of the group, as well as preserving evidence of possible genocide that has already occurred. On response to ICJ decision, Minister of Justice of The Gambia, Abubacarr Tambadou, said that he is “very, very pleased”. UN chief António Guterres has welcomed the court decision, his spokesman said in a statement. “The Secretary-General strongly supports the use of peaceful means to settle international disputes. He further recalls that pursuant to the (UN) Charter and to the Statute of the Court, decisions of the Court are binding and trusts that Myanmar will duly comply with the Order from the Court”.
The ICJ decision is legally binding on Myanmar and they cannot appeal against the decision. But the problem is ICJ has no mechanism to force the decision. However, the United Nations Security Council can enforce them. The Gambian Justice Minister was Prosecutor for the Rwanda Genocide case. His personal interest is also involved as he has high moral grounds to file the case. The other fact is that Rohingyas are Muslim and The Gambia is also a Muslim majority country.
Now it is the responsibility of human rights organisations, human rights activists, diplomats, civil society and world media to keep alive the case of Rohingyas and fight for their rights until they get justice because the case of genocide will take time in ICJ. Muslim countries should raise their voice to support Rohingyas without taking any economic pressure. International community also needs to boycott the products which have been produced in the Myanmar’s military owned companies.
– The writer is a Researcher at the Institute of Strategic Studies, Islamabad.
