A small group of Rohingya community activists gathered in The Hague just before the hearings began earlier in January before the International Court of Justice (ICJ). In 2017 Sayedul Karim was forcibly displaced from his home in Myanmar. He now lives in Cox’s Bazar, in Bangladesh, where he leads the Rohingya Justice Initiative, described as “the first Rohingya-led organisation dedicated to documenting human rights violations against the Rohingya” by the NGO Legal Action Worldwide who facilitated his visit to The Hague.
“We are Rohingya, we were institutionally discriminated against,” he declared. “We have suffered, we have lost everything, including our wealth, our positions, our dignity.” What they ask from the court is a way for “everything that we left behind to be restored and compensated so that we can resume living a normal life back in our own original homeland where everyone has the opportunity to enjoy life and where everyone is treated equally”.
His words were echoed by his colleagues, also calling for reparations, return, equality for the Rohingya. But, in addition to declaring a genocide, whether judges at the ICJ will feel comfortable in telling Myanmar the specific measures it should take to restore Rohingya citizenship and full rights in their homeland, is debatable.
The evidence for genocide
The central part of the case brought by The Gambia against Myanmar at the ICJ is the evidence collected by the United Nations Fact-Finding Mission (FFM) outlining the details of what happened during what are known as “the clearance operations” carried out by Myanmar's armed forces, the Tatmadaw, during 2017. Myanmar has argued that these were counterinsurgency against the armed militant group ARSA. Gambia’s military expert, professor Mike Newton, a former Lieutenant Colonel in the United States Army, now at Vanderbilt University, described in detail in court why the military tactics were similar in his mind to genocide committed by Bosnian Serbs at Srebrenica in 1995 and by the Iraqi authorities against the Kurdish minority in 1988.
“The pattern of attacks, the modus operandi that was consistently followed, which appears over and over and over in the FFM, is to surround the village, a pure civilian area. They surrounded it first. Then they began to shoot indiscriminately. That’s in the record. Over and over and over. There is no discrimination there. There is no effort at all to target specific houses or specific individuals. So the panic happens, people have to choose which kid to take, some people are shot in their homes, some people are shot in public places by this indiscriminate fire. These are co-ordinated, pre-planned attacks against Rohingya areas. And when I read that, I think of Srebrenica and other examples. They segregate the men and the boys, sometimes slitting their throats while their hands are still bound. As they are doing that, they are taking off groups of women to be gang raped. Other people are beginning to set fire to houses, other people are taking babies from the women’s arms and throwing them into those burning houses. Some women are forced to throw their children down into wells. Those efforts are part of an extermination campaign. One of the key features that you see over and over is shooting at fleeing refugees. They’re moving and they’re still shot at and killed as they flee, followed by mass burnings. There is satellite evidence to corroborate that those burnings focused on Rohingya areas. There are Rakhine areas left completely untouched, followed by bulldozing, which, to me, from my experience in Iraq, makes me think of the Anfal genocide.”
As part of its case, Gambia has also outlined the institutional discrimination and dehumanisation the Rohingya minority has suffered in Myanmar for many years and provided evidence collected by the UN’s Independent Investigative Mechanism for Myanmar (IIMM) on the use of social media, especially Facebook as the main platform for distributing hate speech against the Rohingya. Melanie O’Brien of University Western, Australia, and former president of the Genocide Scholars Association says this kind of detail “is really what we would walk through when we're trying to determine whether genocide has taken place”.
Broad remedies
Pierre d’Argent, professor at Université catholique de Louvain, Belgium, told the court that Gambia was looking for a range of remedies which he outlined briefly. It’s “a very wide-ranging set of remedies, if we get to that point,” says Mike Becker of Trinity College, Dublin, of which the most simple is what is known as ‘declaratory relief’, which is a “declaration that Myanmar has violated the genocide convention”.
When judges had the opportunity to ask questions for the parties to address in the next round, the US judge Sarah Cleveland asked specifically about the broad scope of remedies ”including reparations, assurances and guarantees of non-repetition” that Gambia is seeking: “Are there decisions of other international courts, tribunals or bodies that either Party considers relevant to the propriety or appropriate scope of such remedies, should those questions arise in this case?”
The court has only ever previously ruled in one genocide convention case, brought by Bosnia against Serbia, that genocide occurred. The judges based that essentially on the genocide judgements of the UN International Criminal Tribunal for the former Yugoslavia (ICTY), “finding that Serbia had violated the duty to prevent genocide and to cooperate with the ICTY”, says Becker .“But even in the Bosnia case,” he notes, “the court did not go so far as to require a guarantee of non-repetition”, as Gambia has requested.
Return of the Rohingya?
Beyond the straightforward declaration of genocide and guarantees of non-recurrence, Becker also notes the request for “a set of measures that Myanmar would need to implement to facilitate the safe and dignified return, both of internally displaced [and] externally displaced Rohingya, the people in Bangladesh or elsewhere”.
“With respect to repatriation” to their homes in their villages – point three on Gambia’s list of requested remedies – “I do think that there is a very plausible case, because that would be the natural form of restitution,” says Adil Haque of Rutgers University, “because the displacement was a direct and proximate result of the alleged acts of genocide.” Becker though notes that Gambia argues in addition that “safe and dignified return means putting into place various protections in the law to ensure that the Rohingya enjoy all the same rights protections everyone else in Myanmar enjoys, including access to full citizenship”. That may be “the most challenging aspect here,” he says.
Haque can see the judges might not be keen and would instead say something about “state sovereignty and borders and that we can't order a state to do that”. But the judges will also consider Myanmar’s counter arguments which, he says, have been “quite cold-blooded and somewhat off-putting – essentially saying that this is a matter of internal affairs, constitutional structure.” If the court were to order Myanmar to accept return “the court would basically have to say that this is part of a duty to assure non-repetition of the act. And I think that would be a very dramatic step by the court to do that”.
Becker agrees this may be unlikely: “Even though these are laudatory goals on the part of the Gambia, and we might all agree that of course the Rohingya should be entitled to all of those protections under the law, this goes far beyond anything the ICJ has ever done in a contentious case.” The closest comparison he suggests would be what the court ordered at the end of the advisory opinions on the Chagos Islands and more recently on the Occupied Palestinian Territory, where “the logical conclusion from what the court has said in those opinions would require specific states to undertake very significant changes in law and policy”. But, he emphasises, “I can't think of any contentious case where the court has done something along the lines of what the Gambia is asking for here”.
A case brought by a non-injured state
Looking back at the Bosnia case, despite the court declaring that there was a genocide, it did not order any kind of payment of compensation as a form of reparation. More recently, in the Democratic Republic of Congo vs Uganda case, the court ordered “very significant amounts of compensation,” says Becker: it ordered Uganda to pay 325 million U.S. Dollars in compensation. So, “it's not that the court is incapable of awarding a kind of large global sum like that in cases involving a mass violation of human rights. And in this case, it would be a mass violation of rights under the Genocide Convention”.
The main legal question is whether the Gambia can even ask for these kinds of remedies. “Myanmar's argument is that the nature of this type of case – a case brought by a non-injured state on behalf of some other group – precludes the court from awarding reparations,” notes Becker. Myanmar argues “that you are limited to declaratory relief and you're not entitled to reparation, including compensation, monetary compensation, but also other forms of reparation like restitution”.
This is the first of a series of ICJ cases of states who are not directly injured themselves arguing on behalf of others. Following this will be South Africa vs Israel and potentially Nicaragua vs Germany. So this legal issue is “another layer of complication,” says Becker. If the ruling is in Gambia’s favour, “this will automatically be a landmark decision because it's the first opportunity the court will have had to decide some of these questions about the scope of relief available to what we officially call a state other than an injured state”.
According to Haque, Myanmar’s argument that the court cannot issue reparations in this case is not correct because in the advisory opinions last year on Palestine and climate change, the court “seemed to indicate that if an obligation is owed to individuals, then in principle, reparations would be owed to those individuals”. “In other words,” he says, “the Gambia can't ask for reparations for itself, but what it can do is require Myanmar to fulfil its obligation of reparations to the victims of its violations of the obligation not to engage in genocide, which would be the Rohingya. So, I would be very surprised if the court went along with [Myanmar’s argument].” Becker agrees. “To me, it seems like something that's not insurmountable,” even though “the clever lawyers on Myanmar's side have usefully highlighted reasons why this might not be a foregone conclusion”.
An open-ended formulation?
But, says Becker, “the real problem here is that the things the Gambian is asking for – a right to full citizenship, for example – are not actually necessary to ensure that the rights of the Rohingya under the Genocide Convention are protected, or that Myanmar is meeting its obligations under the Genocide Convention. They might be very helpful in that respect, but they aren't strictly speaking necessary to prevent genocide”.
So if the case gets to this stage, he says the judges could come up with “an open-ended formulation that will look very familiar to people who follow the ICJ closely, a formulation that would require Myanmar to ensure that the rights of the Rohingya under the Genocide Convention are upheld, but ultimately leaving the exact means of doing so to Myanmar. Wide-ranging forms of equitable relief extending to citizenship [for the Rohingya] is beyond what the court would feel entitled to do or feel comfortable doing.”
A judgement is not expected before the end of the year.
