Myanmar has been ordered by the United Nations’ highest court to prevent genocidal violence against its Rohingya Muslim minority and preserve any evidence of past crimes.
In a momentous and unanimous decision, the international court of justice (ICJ) in The Hague imposed emergency “provisional measures” on the country – intervening in its domestic affairs by instructing the government of Aung San Suu Kyi to respect the requirements of the 1948 genocide convention.
Declaring that there was prima facie evidence of breaches of the convention, the court warned that the estimated 600,000 Rohingya remaining in Myanmar were “extremely vulnerable” to attacks by the military.
The ruling amounts to outright rejection of the Nobel peace prize winner Aung San Suu Kyi’s defence of her country against accusations of systematic human rights abuses and war crimes during a three-day hearing at the ICJ last month. Even the judge nominated by Myanmar for the hearing voted against the country.
The ICJ’s orders are binding on Myanmar and create legal obligations that must be enforced. The provisional measures imposed by the court require the government to prevent genocidal acts, ensure military and police forces do not commit genocide, preserve evidence of genocidal acts and report back on its compliance within four months.
The orders are automatically sent to the UN security council, where Myanmar’s response will be assessed. The country receives diplomatic support from China, which is one of the five permanent members of the council.
For Aung San Suu Kyi, awarded the Nobel peace prize in 1991 for non-violent democracy and human rights campaigns, the ICJ ruling ordering Myanmar to prevent genocidal violence against its Rohingya Muslim minority marks another devastating blow to her reputation.
She may have calculated, as many commentators believe, that defending her country’s reputation abroad would play well at home.
Defeat at The Hague, however, could demonstrate even to her Buddhist and nationalist supporters that her authority is diminished.
The ICJ only hears actions between states and does not issue warrants for arrest. There could, however, be consequences for Myanmar’s leaders in future.
Separate claims have been lodged in both the International Criminal Court and Argentina’s courts over torture and other war crimes. The interim ICJ orders preventing genocide may encourage judges elsewhere to take action against individuals.
Dr Andrew Fagan, the director of Essex University’s human rights centre, said: “The ruling… marks a definitive stage in Aung San Suu Kyi’s horrific fall from grace. Her decision to lead her country’s case in The Hague served to destroy any hope that she is anything other than a puppet of the Myanmar military. Ironically, her actions in The Hague increased her support at home, but has served to destroy any traces of international credibility she may have retained."
Success for the Gambia at The Hague may also encourage other countries to join the action which will now progress to more detailed judicial investigative hearings. Both Canada and the Netherlands have been supportive of the initiative.
Shortly before the ruling, the Financial Times published an article by her in which she admitted war crimes may have been committed against Rohingya Muslims but that refugees had exaggerated abuses against them. Owen Bowcott
The case was brought to the ICJ by the Gambia, a predominantly Muslim west African state that alleges Myanmar has breached the genocide convention, which was enacted after the Holocaust.
Prof Philippe Sands QC, who acted as counsel for the Gambia, said: “On the cusp of the 75th anniversary of the liberation of Auschwitz, the court’s clear and forceful order, which is binding, is a significant day for international law, the rights of individuals and groups, and the meaningful obligation of every state and person to desist from any act that could plausibly be characterised as genocide.”
The decision was read out by the court president, Abdulqawi Yusuf. Alongside him sat 16 of the 17 judges who heard the case, all wearing black robes and white lace cravats.
For just over an hour, Yusuf read out the ICJ’s findings in a clear and deliberate speech that culminated in the court’s four remarkable conclusions.
Across the crowded camps in Cox’s Bazar, where more than 700,000 Rohingya fled to neighbouring Bangladesh in 2017, the result was welcomed by those who were able to follow the news. Internet restrictions across the camps are understood to have prevented many from doing so.
Khin Maung, 24, founder of the Rohingya Youth Association, said: “People are discussing and talking to each other. People did not sleep the whole night. This is one of the exciting things for us. If the court did not decide [to call for] provisional measures, our life [would have been] lost.
“In every way we are limited. Our children, the upcoming generation, I am very sorry there is no school for them. I am crying for that issue. There are religious leaders and community leaders talking to each other. Good news will spread quickly around the camps.”
Mohammed Arfaat, a Rohingya peace builder, actor and singer, described Thursday as a historic day.
“Before I thought we will not get back our rights and justice from the Myanmar government,” he said. “After a long time, I’m really happy for the Gambia and other people who are doing hard work for us.”
Thursday’s ruling dealt only with the Gambia’s request for “provisional measures”, the equivalent of a restraining order for states.
The complaint is one of the first attempts to use the international justice system to help the Rohingya people. The ICJ imposed provisional measures on Serbia in relation to preventing genocide in the 1990s but this is the first time they have been unanimous and so wide-ranging. Even the ad hoc judge chosen by Myanmar expressed judgement against the country.
Aung San Suu Kyi’s decision to attend the court in person astounded human rights groups. Once an international icon representing peaceful defiance of military dictatorship, the 74-year-old has seen her reputation plummet as she repeatedly defended her country’s army in the aftermath of the Rohingya exodus.
She urged ICJ judges to dismiss allegations that Myanmar committed genocide and instead allow the country’s court martial system to deal with any human rights abuses.
A Myanmar government-appointed panel, the Independent Commission of Enquiry, said on Monday it had found no evidence of genocide. Rohingya leaders have branded the investigation a “whitewash”.
The ICJ only hears cases brought by one state against another. It has jurisdiction to hear complaints of breaches of the genocide convention even if the aggrieved state is not directly affected by violence or refugees.
Dr Simon Adams, executive director of the Global Centre for the Responsibility to Protect, said: “This is the first step on a path to justice for the Rohingya. I hope that all members of the UN security council will uphold their moral and political obligation to ensure that the provisional measures ordered by the court are fully implemented. Those responsible for genocide are still in power in Myanmar. Justice has been delayed but can no longer be denied.”
