ICJ Orders Provisional Measures Against Myanmar in Rohingya Case

Myanmar will have to take all effective measures to stop and prevent acts of genocide against the Rohingya.

Aung San Suu Kyi leaves the International Court of Justice.

(Photo: AP)

The International Court of Justice on Thursday, 23 January, granted the Gambia’s request for ‘indication of provisional measures’ in its case against Myanmar for alleged violations of the Genocide Convention in relation to its treatment of the Rohingya community.

‘Provisional measures’ are essentially interim orders by the ICJ, passed by the court before it actually starts hearing the main arguments in a case. The objective of such interim orders is to ensure that while the case is heard, the country accused of wrongdoing doesn’t do anything that would effectively render the case redundant.

For example, when India took Pakistan to the ICJ for the Kulbhushan Jadhav case, we asked the ICJ for provisional measures to ensure that Pakistan didn’t carry out the death sentence awarded to Jadhav till the ICJ heard the case.

The court granted India’s request, and directed Pakistan to ensure that this didn’t happen till the court decided whether or not Pakistan had violated international legal norms of consular access.

In the Gambia vs Myanmar case, the ICJ termed the Rohingya a protected group under the Genocide Convention and has directed Myanmar to take the following steps with regard to them:

1. Take all measures within its power to prevent commission of all acts within the scope of Article II of the Genocide Convention (killing members of the Rohingya, causing serious bodily/mental harm to them, deliberately inflicting conditions of life calculated to bring about physical destruction, imposing measures to prevent births or forcibly transferring Rohingya children to another).
2. Ensure its military or any irregular armed groups and anyone under its control do not commit genocide, or conspire/attempt to commit genocide, or incite genocide or behave in a way that makes them complicit in genocide.
3. The country must take effective measures to prevent destruction of evidence.
4. Myanmar must submit a report to the court on all measures taken to give effect to this order within four months from date of this order, and thereafter after every six months.

To arrive at this conclusion, the court first had to see if it had prima facie jurisdiction over the case, and whether the Gambia had the standing to institute the proceedings.

On the question of jurisdiction, the ICJ noted that it didn’t have to decide at this stage whether or not Myanmar had committed the acts that the Gambia alleges they have, or make any finding as to whether or not a genocide had actually taken place. All it had to do was see if the acts alleged to have taken place fell within the framework of the Genocide Convention.

Since the allegations included mass killings, rape, torture and other acts calculated to destroy the Rohingya, and a failure to prevent genocide, these prima facie fell within the scope of the Convention, thereby granting the court jurisdiction to hear the case.

On the question of standing, the ICJ held that the Gambia could file this case against Myanmar even though it was not specially affected by the alleged violations as any country which is a party to the Genocide Convention can file a case in the ICJ over violations of the Convention. Upholding its jurisdiction, the court then assessed whether provisional measures needed to be granted.

The request for provisional measures was accepted as there was an “imminent risk of irreparable prejudice to the rights invoked by the Gambia” – ie, there was a serious risk that the Rohingya population in Myanmar could continue to be at risk from the alleged genocidal conduct.

To arrive at this conclusion, the court relied strongly on a September 2018 report by the UN Human Rights Council’s independent fact-finding mission on Myanmar, which had concluded that the Myanmar military had committed acts of genocide against the Rohingya. The findings of this report had been heavily relied on by the Gambia when instituting proceedings in the ICJ.

You can read the full order here.

THE CASE

The Gambia filed this case in the ICJ on 11 November 2019, alleging that from around October 2016, Myanmar’s military and security forces had begun what it called ‘clearance operations’ against the Rohingya. During these operations, they committed “genocidal acts” which were

“intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses.”

The Gambia also alleged that these genocidal acts continued from August 2017 onwards on an even larger scale. On the basis of these claims, the Gambia requested the ICJ to declare that Myanmar had breached its obligations under the Genocide Convention, and that Myanmar would:

• stop any such ongoing actions;
• ensure that those who were committing genocide were punished by a proper tribunal, including an international penal tribunal;
• provide reparation to the victims of the genocidal acts including return of displaced Rohingya and respect for their citizenship and human rights;
• offer assurances and guarantees that such acts and violations of the Genocide Convention would not happen again.

Hearings over the requests for provisional measures took place from 10-12 December 2019, with state counselor Aung San Suu Kyi, the de facto leader of Myanmar, leading the Myanmar defence at the court, where she denied that Myanmar’s armed forces had committed acts of genocide as alleged by the Gambia.