Gambia takes Myanmar to court for committing genocide

Gambia’s proceedings in the International Court of Justice against Myanmar could put pressure on the country, but is unlikely to resolve the situation for the Rohingya in the short term, Melanie O’Brien writes.

The small West African country of Gambia is punching above its weight in the international sphere. It has stepped forward as the only country to take concrete action against Myanmar for the crimes being committed against the Rohingya.

For several years, NGOs and academics have been calling out the genocide committed against the Rohingya, and in the past two years the UN finally recognised that the crimes being committed are genocide. Yet no country has been willing to take action against Myanmar, despite the fact that Myanmar is a state party to the Genocide Convention, which obligates state parties to prevent and punish genocide.

This week, Gambia, on behalf of the 57 states of the Organisation of Islamic Cooperation, filed proceedings at the International Court of Justice (ICJ) in The Hague. The ICJ is a court that oversees cases between countries, including for violations of international treaty law— such as the Genocide Convention.

Even though the Genocide Convention has been around since 1948, and the world has seen multiple genocides committed since then, there have only been two cases brought before the court alleging violations of that convention. These were both brought against Serbia by Croatia and Bosnia. Thus, these were cases brought by countries claiming to be victims of genocide against the country they claimed to be the perpetrator of genocide.

More on this: Confronting genocide in Myanmar

The Gambia case is clearly very different, because Gambia is not the victim. Rather, Gambia, as a state party to the Genocide Convention, is bringing the case against Myanmar, also a state party to the Genocide Convention, alleging breach of the treaty.

This is permissible under international law: any country that is a party to a convention can bring actions against any other state party for breaches of that convention.

Gambia’s filing asks the ICJ to find Myanmar guilty of committing genocide— of failing to prevent and punish genocide. Gambia’s request asks the ICJ to demand that Myanmar cease genocidal acts, provides reparations and punishes the perpetrators (including senior government officials and military officers).

It also requests that, in the meantime, the ICJ order Myanmar to stop committing actions that are part of the genocide campaign against the Rohingya. This preliminary request is vital, as recent assessments found the risk of genocide and other atrocities is ongoing and high.

Taking action in the ICJ may be a legal process, but at international level, it is fraught with potential political ramifications. A country may decide not to file against another country because it may jeopardise relations with that country – or even with other countries.

In the case of Myanmar, the reason why no resolutions have been passed in the UN Security Council against the country, is because China would veto any such resolution. China has a vested interest in Myanmar, with its Belt and Road Initiative including an agreement with the country relating to pipelines, railways and other infrastructure.

Russia is also a protector of Myanmar. With two such significant powers in their corner, Myanmar has been free to commit genocide without fear of repercussions. Gambia has clearly decided that these relationships are not important enough to deter action against the horrific crime of genocide.

More on this: Will Myanmar be the world’s next mass atrocity?

The next step is that the ICJ will first take into account the preliminary request to order Myanmar to stop atrocity actions.

After that, if the ICJ deems it has jurisdiction, the case will proceed, and each country will make its arguments in written and oral form.

However, the process is likely to take years. For example, the case filed by Bosnia against Serbia and Montenegro was filed in 1993 but the ruling did not emerge until 2007.

While this lengthy period may be less important if atrocities are finished, in the case of the Rohingya, genocide is ongoing, and so a quick process and decision may be a means of achieving some justice and respite for the Rohingya.

It is interesting to note that the Prosecutor of the International Criminal Court (ICC) is also taking action, but in the context of criminal accountability for individual perpetrators. Myanmar is not a state party to the ICC’s Rome Statute treaty. Relying on the fact that Bangladesh, where most Rohingya refugees are located in camps, is a state party to Rome Statute, the Prosecutor filed a request to investigate the crimes against humanity of deportation, inhumane acts and persecution, which forced victims to cross the border from Myanmar into Bangladesh. On 14 November 2019, the ICC’s Pre-Trial Chamber authorised the Prosecutor to investigate any crimes committed against the Rohingya since at least 1 July 2010, provided they fall under the Court’s jurisdiction. This opens up the possibility of not only charges of crimes against humanity, but also genocide.

With the combination of ICC and ICJ proceedings, as well as a new UN Independent Investigative Mechanism for Myanmar, we are now finally looking at both state responsibility and individual criminal responsibility as genuine possibilities for Myanmar and the individual perpetrators of genocide.

If the ICJ finds Myanmar has breached its treaty obligations, it may rule that Myanmar has to make restitution, which could include rebuilding destroyed Rohingya villages and allowing the Rohingya to return, and providing reparations to Rohingya victims.

The downside is that proceedings before both courts take years — time the Rohingya do not have. Rohingya remaining in Myanmar are still subject to persecution and violence, and those outside are stuck in refugee camps with no access to solid housing, education or employment, and limited access to food, water and healthcare.

Another issue is that Myanmar may ignore a ruling from the ICJ, despite its obligation to comply.

If Myanmar does so, then the ICJ can refer the issue to the UN Security Council, which is authorised to act against states that do not comply with ICJ rulings.

However, with China and Russia on the Security Council, it remains unlikely that they would support even an enforcement of an ICJ judgement. That said, while not unheard of, it is unusual that a country will completely ignore a ruling of the ICJ.

The Rohingya will, for now, at least, remain in limbo, unable to return to Myanmar and unable to settle elsewhere, hoping that some kind of justice will arrive, at some point, soon. However, with the action of the ICC Prosecutor and the small African nation of Gambia, we finally have action at international level that may be just enough to pressure Myanmar to stop committing genocide.

This article was updated on 15 November to note the ICC’s Pre-Trial Chamber decision.