The International Court of Justice has ordered Myanmar to prevent genocide against its Rohingya minority and to preserve evidence of past attacks, in a ruling that was hailed for giving protection to a defenseless group.
In its unanimous 17-0 decision, the top United Nations court rejected Myanmar’s argument – put forward by the country’s top civilian leader Aung San Suu Kyi – that the deaths of 10,000 Rohingya, and the flight of 700,000 others to neighbouring Bangladesh, were part of an “internal military conflict.”
While it will likely be years before the ICJ reaches a final ruling on whether the violence that occurred in 2016 and 2017 amounted to a genocide, the court decided on Thursday that the situation faced by the estimated 600,000 Rohingya still in Myanmar was urgent enough to order emergency interim measures.
“The court is of the opinion that the Rohingya in Myanmar remain extremely vulnerable,” said the decision, which was read to a packed courtroom in The Hague by the court’s president, Abdulqawi Ahmed Yusuf.
The case was brought before the ICJ by the tiny African country of Gambia, which – acting as a proxy for the 57-member Organization of Islamic Co-operation – complained that Myanmar had violated the 1948 Genocide Convention, to which both countries are signatories. Gambia’s legal action was supported by Canada and the Netherlands.
The ICJ ordered Myanmar to “take all measures within its power” to halt violence against the Rohingya by its military “as well as any irregular armed units which may be directed or supported by it.” The court also demanded that all evidence related to the allegations of a 2016-17 genocide be protected and preserved.
In a statement on Thursday, Foreign Affairs Minister François-Philippe Champagne said Canada welcomed the ICJ’s decision and urged the government of Myanmar to “fully comply with this decision and to co-operate with the ICJ.” Rob Oliphant, Mr. Champagne’s parliamentary secretary, said Canada will now consider if it will intervene in the genocide lawsuit.
Myanmar must report to the ICJ in four months on its progress in implementing the court’s judgment, and then report again every six months after that.
“This is a historic day for international justice,” said Payam Akhavan, a professor of international law at McGill University who served as counsel for Gambia in the case. “The court has risen to the occasion and given a measure of hope to the Rohingya, who now know at the very least that the world is watching.”
The spotlight will now move to Myanmar to see if and how the country’s hybrid military-civilian government implements the ICJ’s interim ruling.
While the ICJ’s decisions are legally binding, the court has no enforcement mechanism. A 1993 ICJ ruling that used almost identical wording in ordering Serbia to take “all measures within its power” to prevent a genocide in Bosnia-Herzegovina did little to halt the Srebrenica massacre two years later.
Myanmar has strenuously denied that any genocide took place. Ms. Suu Kyi travelled to The Hague in December to argue that while some crimes may have been committed by the military, those actions did not collectively amount to a genocide. She described the violence of 2016 and 2017 as part of an “internal armed conflict” triggered by Rohingya militant attacks on government posts.
A 2018 UN fact-finding mission, however, called the estimate of 10,000 dead “conservative” and said there was evidence that “gravest crimes under international law” had been committed against the Rohingya by Myanmar’s army.
It has acknowledged carrying out “clearance operations” in the country’s western Rakhine state. Rohingya survivors interviewed by The Globe and Mail described experiencing torture and extreme sexual violence – as well as witnessing the murders of relatives – during those military campaigns.
Many in Buddhist-majority Myanmar consider the Rohingya to be immigrants from Bangladesh, even though they have lived in the country for generations. Most ethnic Rohingya have been denied citizenship in Myanmar and they are routinely denied freedom of movement and other basic rights.
In her December statement to the ICJ, Ms. Suu Kyi – once viewed as a human-rights icon for her long opposition to military rule in her country – seemed to avoid using the word “Rohingya,” referring instead to Muslim residents of Rakhine.
Ms. Suu Kyi was not in the courtroom on Thursday, but in an editorial published in Britain’s Financial Times newspaper hours before the ruling, she criticized the international justice process. She said the UN fact-finding mission had relied too heavily on testimonies given by refugees who “may have provided inaccurate or exaggerated information,” and called for Myanmar to be given time to investigate.
“The international justice system may not yet be equipped to filter out misleading information before shadows of incrimination are cast over entire nations and governments,” Ms. Suu Kyi wrote.
The ICJ, however, found that Myanmar’s promise of seeking justice through domestic processes wasn’t enough. “Myanmar has not presented to the court concrete measures aimed specifically at recognizing and ensuring the right of the Rohingya to exist as a protected group,” the ruling reads.
Antonia Mulvey, a lawyer with Legal Action Worldwide, a non-governmental organization representing some of the Rohingya victims, said the ICJ’s verdict was met with cheering in the refugee camps of Bangladesh. “They’re so happy,” she said. “For the Rohingya, it’s a great verdict."
Canada’s Parliament unanimously voted in 2018 to declare the campaign against the Rohingya amounted to a genocide. Ms. Suu Kyi was stripped of her honorary Canadian citizenship over her failure to stem the violence.
With a report from Michelle Carbert in Ottawa