\u201cWe are Rohingya, we were institutionally discriminated against,\u201d he declared. \u201cWe have suffered, we have lost everything, including our wealth, our positions, our dignity.\u201d What they ask from the court is a way for \u201ceverything 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\u201d.<\/p>\n\n\n\n
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. <\/p>\n\n\n\n
The evidence for genocide<\/h2>\n\n\n\n
The central part of the case brought by The Gambia against Myanmar at the ICJ<\/a> is the evidence<\/a> collected by the United Nations Fact-Finding Mission (FFM) outlining the details of what happened during what are known as \u201cthe clearance operations\u201d 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\u2019s 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<\/a> in 1995 and by the Iraqi authorities against the Kurdish minority in 1988.\u00a0<\/p>\n\n\n\n \u201cThe 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\u2019s 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\u2019s 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\u2019re moving and they\u2019re 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.\u201d <\/p>\n\n\n\n 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\u2019s Independent Investigative Mechanism for Myanmar (IIMM)<\/a> on the use of social media, especially Facebook<\/a> as the main platform for distributing hate speech against the Rohingya. Melanie O\u2019Brien of University Western, Australia, and former president of the Genocide Scholars Association says this kind of detail \u201cis really what we would walk through when we're trying to determine whether genocide has taken place\u201d.\u00a0<\/p>\n\n\n\n Pierre d\u2019Argent, professor at Universit\u00e9 catholique de Louvain, Belgium, told the court<\/a> that Gambia was looking for a range of remedies which he outlined briefly. It\u2019s \u201ca very wide-ranging set of remedies, if we get to that point,\u201d says Mike Becker of Trinity College, Dublin, of which the most simple is what is known as \u2018declaratory relief\u2019, which is a \u201cdeclaration that Myanmar has violated the genocide convention\u201d. <\/p>\n\n\n\n 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 \u201dincluding reparations, assurances and guarantees of non-repetition\u201d that Gambia is seeking: \u201cAre 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?\u201d<\/p>\n\n\n\n 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\u00a0on the genocide judgements of the UN International Criminal Tribunal for the former Yugoslavia (ICTY)<\/a>, \u201cfinding that Serbia had violated the duty to prevent genocide and to cooperate with the ICTY\u201d, says Becker .\u201cBut even in the Bosnia case,\u201d he notes, \u201cthe court did not go so far as to require a guarantee of non-repetition\u201d, as Gambia has requested.<\/p>\n\n\n\t Beyond the straightforward declaration of genocide and guarantees of non-recurrence, Becker also notes the request for \u201ca 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\u201d. <\/p>\n\n\n\n \u201cWith respect to repatriation\u201d to their homes in their villages \u2013 point three on Gambia\u2019s list of requested remedies \u2013 \u201cI do think that there is a very plausible case, because that would be the natural form of restitution,\u201d says Adil Haque of Rutgers University, \u201cbecause the displacement was a direct and proximate result of the alleged acts of genocide.\u201d Becker though notes that Gambia argues in addition that \u201csafe 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\u201d. That may be \u201cthe most challenging aspect here,\u201d he says.<\/p>\n\n\n\n Haque can see the judges might not be keen and would instead say something about \u201cstate sovereignty and borders and that we can't order a state to do that\u201d. But the judges will also consider Myanmar\u2019s counter arguments which, he says, have been \u201cquite cold-blooded and somewhat off-putting \u2013 essentially saying that this is a matter of internal affairs, constitutional structure.\u201d If the court were to order Myanmar to accept return \u201cthe 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\u201d.<\/p>\n\n\n\n Becker agrees this may be unlikely: \u201cEven 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.\u201d The closest comparison he suggests would be what the court ordered at the end of the advisory opinions on the Chagos Islands<\/a> and more recently on the Occupied Palestinian Territory<\/a>, where \u201cthe logical conclusion from what the court has said in those opinions would require specific states to undertake very significant changes in law and policy\u201d. But, he emphasises, \u201cI can't think of any contentious case where the court has done something along the lines of what the Gambia is asking for here\u201d.\u00a0<\/p>\n\n\n\n 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 \u201cvery significant amounts of compensation,\u201d says Becker: it ordered Uganda to pay 325 million U.S. Dollars in compensation<\/a>. So, \u201cit'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\u201d. <\/p>\n\n\n\n The main legal question is whether the Gambia can even ask for these kinds of remedies. \u201cMyanmar's argument is that the nature of this type of case \u2013 a case brought by a non-injured state on behalf of some other group \u2013 precludes the court from awarding reparations,\u201d notes Becker. Myanmar argues \u201cthat 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\u201d.<\/p>\n\n\n\n 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<\/a> and potentially Nicaragua vs Germany<\/a>. So this legal issue is \u201canother layer of complication,\u201d says Becker. If the ruling is in Gambia\u2019s favour, \u201cthis 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\u201d.<\/p>\n\n\n\nBroad remedies<\/h2>\n\n\n\n
Return of the Rohingya?<\/h2>\n\n\n\n
A case brought by a non-injured state <\/h2>\n\n\n\n
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