Erna Paris is the author of several books, including The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice.
Gambia, mainland Africa’s smallest country, took an unprecedented step this week. To everyone’s surprise, it opened a lawsuit against Myanmar at the International Court of Justice (ICJ) in The Hague – the tribunal that adjudicates disputes among states – accusing Myanmar of genocide against the Rohingya Muslims.
Gambia is operating within the larger auspices of the Organization of Islamic Cooperation, but as is often the case, the impetus came from one individual. Abubacarr M. Tambadou, Gambia’s justice minister, visited a Rohingya refugee camp where he saw a parallel with the violent past of his own country. Importantly, he had been a judge on the International Criminal Tribunal for Rwanda in the 1990s and recognized genocide when he saw it. That court was the first to convict an individual of ordering mass rape as a tool of war. Significantly, the Myanmar perpetrators have also been accused of this crime.
Although they had lived in Burma/Myanmar for centuries, the Rohingya were incrementally dispossessed of their rights by the Buddhist majority and an authoritarian regime. Eventually, in 1982, they were deprived of full citizenship. In August, 2017, some Rohingya pushed back, giving the military an excuse to force them from the country. It is estimated that the military and their Buddhist allies killed at least 60,000 people and committed sexual violence against 18,000 women. Today, most of the survivors are in Bangladesh refugee camps, but Bangladesh is one of the poorest countries on earth and is complaining about the burden. Something had to give.
One remedy may be international justice. Push back against those who believe they can commit major crimes with impunity.
It’s not as though the world hadn’t noticed their plight. Rights groups have expressed outrage. In 2017, Archbishop Desmond Tutu called on State Counsellor Aung San Suu Kyi, the country’s civilian leader, to respond appropriately. (She didn’t.) The parliaments of several countries, including Canada, have called the situation a genocide. In 2018, an independent United Nations fact-finding mission concluded that Myanmar’s military acted with “genocidal intent” and recommended that six individuals be prosecuted. Reports of risk assessment have concluded that genocide remains a risk for those Rohingya who remain in Myanmar. But if too little happened until Gambia decided to act, it is because reality – and realpolitik – got in the way.
First, reality. Last year, a ruling from the International Criminal Court said that tribunal could investigate the case of Myanmar – but in a limited way only. The problem was the court’s statutory jurisdiction: Myanmar is not an ICC member country. Bangladesh, however, is a member, which makes it possible for the tribunal to investigate the cross-border ethnic expulsions as a crime against humanity. Not perfect, but a start.
Second, realpolitik. Had the UN Security Council decided to refer the Myanmar case to the ICC for investigation, the tribunal would, according to its statute, have had full jurisdiction. China and Russia did not prevent a Security Council briefing on the UN inquiry accusing Myanmar’s military of genocide, but their subsequent obstruction meant no referral. Still in the realm of realpolitik, there might have been pressure from the Association of Southeast Asian Nations (ASEAN), but Myanmar is a member of that organization, complicating matters. So, although it can prosecute only states, not individuals, the ICJ looked like the best route.
Support from other countries will be critical and Canada is already engaged. Along with the European Union, this country has imposed sanctions on individuals linked to the military operations of August, 2017, and has since stepped up its involvement. The legal case will need funding; the refugees need more help, as does Bangladesh; and Canada is well positioned to intervene in the case, should it decide to do so.
Given worries over diminishing respect for international institutions and the rules-based global order, it is important that the world’s liberal democracies buttress the case against Myanmar. There is already encouraging momentum. In the aftermath of the Gambia lawsuit, Rohingya and Latin American human-rights groups opened litigation in Argentina under the principle of “universal jurisdiction,” a legal concept based on the premise that horrific crimes, such as genocide, can be tried anywhere.
The Gambia case has rightly revived the doctrine called “The Responsibility to Protect”. To demand accountability for the world’s worst crimes is in everyone’s self-interest.
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