by Iqbal Jassat (News & Analysis, Crescent International Vol. 51, No. 6, Muharram, 1444)
A question uppermost in the minds of the Rohingya refugees would be, “has our plight withered away?”
And no one can blame them as more than a million Rohingya face uncertainty about their future as refugees in squalid Bangladeshi camps.
Forced to flee Myanmar’s brutal ethnic cleansing, the Rohingya refugees are saddled with misery and poverty, while clinging to the hope that an end to their suffering is imminent. Against this backdrop, it is refreshing to read an interesting assessment by Melbourne scholar Binoy Kampmark.
He provides a detailed analysis of Gambia’s case at the International Court of Justice (ICJ) against Myanmar alleging genocide. Kampmark reminds that in November 2018, this West African country with the support of the Organisation of Islamic Cooperation (OIC) filed a case alleging that Myanmar’s military had been responsible for genocidal acts resulting in “killings, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births, and forcible transfers ... intended to destroy the Rohingya group in whole or in part.”
He goes on to explain that the UN Genocide Convention (UNGC) permits the ICJ, Under Article 9 to hear “disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the (UNGC), including those relating to the responsibility of a State for genocide or any of the acts enumerated in Article III.”
Kampmark is clear that Gambia’s case involved a request for provisional protective measures for members of the Rohingya community remaining in Myanmar. In 2019 the number estimated was 600,000.
These measures, Kampmark insists, required the military regime to prevent all genocidal acts against the Rohingya, ensure that the security forces not commit acts of genocide, and take steps to preserve evidence related to the case. He writes that in January 2020, the ICJ voiced agreement with the request. The Hague-based body further gave Myanmar a timeline of four months to report on the country’s implementation of the order, followed by six-month deadlines to monitor performance.
Myanmar responded with a number of objections, all rejected by the judges by a vote of 15 to 1 on July 22. These included the claim that the Court lacked jurisdiction, or, alternatively, that the genuine applicant in the proceedings was the Organisation of Islamic Cooperation. Kampmark points out that Judge Xue Hanqin was the only judge to accept the latter argument: that “The Gambia was tasked and appointed by the OIC to institute proceedings against Myanmar in the Court.”
However, according to the bench, the applicant is Gambia and the case involved an existing “dispute relating to the interpretation, application and fulfilment of the Genocide Convention” when the filing was made and “The Gambia, as state party to the Genocide Convention, has standing to involve the responsibility of Myanmar for the alleged breaches of its obligations under Articles ... of the Convention.”
It therefore followed that “All State parties to the Genocide Convention thus have a common interest to ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention.”
As the legal battle continues, it is unfortunate that more countries have not supported Gambia’s efforts. Ideally, given South Africa’s foreign policy ethos on human rights, it would be best placed to not only back Gambia, but to insist that the African Union throws its weight behind a fellow member state. The same applies to other Muslim countries that can do a lot more to assist the suppressed and brutalized Rohingya community of Myanmar. While the refugees are languishing in terrible conditions in refugee camps, those left behind face a real threat of genocide.
This is crucial as the ICJ Statute also notes that the court’s order for provision measures is relayed to the UN Security Council.
In this regard it is prudent to heed Kampmark’s observation that while many an action goes to the Security Council to wither, the use of the ICJ in assessing state responsibility for grave human rights violations can only be cheered by advocates of that often nebulous idea known as the ‘rule of law’.
“The effectiveness of such processes must be seen alongside the work of prosecutors from the International Criminal Court, which has jurisdiction to try individuals.”
An apt reminder to the world is the message of a protest banner outside the Peace Palace in The Hague, “The genocide survivors can’t wait for generations.”
Iqbal Jassat, Executive Member, Media Review Network, Johannesburg, South Africa