On January 23rd, 2020 the International Court of Justice (ICJ) ordered the Myanmar government to take immediate action in protecting the Rohingya people, warning that the population is at risk of genocide. The ruling of the ICJ has sent reverberations through the international community as this decision presents itself as one of the primary steps to accountability for the tremendous loss of life in Myanmar since the 1970’s. The top United Nations court’s decision comes from a panel of 17 judges. The case was first brought by the government of Gambia last November, who accused the Myanmar government of being complacent in the acts of genocide against the Rohingya population, violating the provisions of the 1948 Genocide Convention .
For decades, the Rohingya population has been a minority group concentrated in the Western region of Myanmar, most specifically the state of Rakhine. After independence in 1948, the Myanmar state has denied citizenship to the Rohingya people, declaring that migration from Bangladesh during colonial rule was illegal. Citizenship acts, most specifically the one passed in 1982, have not only deprived Rohingya people of the opportunity of citizenship, but ultimately disenfranchised an entire population. Later in 1989, the government statement on 135 ethnic groups conveniently left out the Rohingya population, denying them recognition and agency. The government’s disregard of the Rohingya population was solidified by a number of brutal military campaigns in the 1970s, in which violent suppression caused thousands of Rohingya people to flee Myanmar, marking the beginning of one of the most devastating refugee crises of the 20th century. In recent years, the Rohingya have been stripped of their right to vote in Myanmar forced to hold national verification card which identifies them as foreigners. Although many officials of Myanmar have stipulated these cards to have the purpose of an alternative to citizenship, the cards have often been used by security forces to further suppress the rights of Rohingya people. The measures of the government of Myanmar have deeply entrenched institutionalized prejudice, diminishing Rohingya people’s ability to wed, their access to employment and educational opportunities, freedom of movement, religious freedoms and more. In 2018 UN Secretary-General António Guterres made a statement “I have no doubt that the Rohingya people have always been one of, if not the, most discriminated people in the world, without any recognition of the most basic rights starting by the recognition of the right of citizenship by their own country”.
Over the past few years there has been a significant exodus of Rohingya people, prompted by a violent crackdown which began in 2016 in the Northern part of the state of Rakhine. Throughout 2016, Myanmar’s military has been accused of war crimes which include but are not limited to maiming of civilians, including extrajudicial killings, mass rapes, arbitrary detention and arrests, and the destruction of personal property. The number of casualties in this period has yet to be confirmed, yet continues to increase with the discovery of mass graves in Rakhine. In 2017, militant group Arakan Rohingya Salvation Army (ARSA) began to target Rohingya villages. Doctors Without Borders reported that between August 25 and September 24, 2017 6,700 Rohingya died as a result of the violence. Reports have also stated that Myanmarese security forces have opened fire on Rohingya people fleeing Rakhine. The actions of the security forces are enabled by the silence of Myanmar’s government and by the overall culture of impunity which has manifested itself over years of ethnic and religious tension. As a result, thousands of Rohingya people have fled to neighboring countries, causing a tremendous spillover effect of a humanitarian crisis in South East Asia. The United Nations High Commissioner for Refugees (UNHCR) most recent figure has reported 914,998 Rohingya refugees living in Bangladesh.
The international community’s response to the events in Myanmar have been beyond inadequate. In 201,8 Yanghee Lee, the United Nations Special Rapporteur on Human Rights for Myanmar, suggested that the possibility of Myanmar generals seeing a day in the ICC court was unlikely as the government has powerful international allies such as Russia and China. Many people have addressed the genocidal nature of the crisis, such as scholars of the Allard K. Lowenstein International Human Rights Clinic at Yale Law School. However the crisis has largely fallen on deaf ears amongst the great powers, and most notably members of the security council. China especially has been reportedly blocking multiple resolutions to end the violence against the Rohingya people.
However, the decision in November of Gambia to initiate legal action against Myanmar marked a significant turning point. The lawsuit includes accusation against Myanmar of genocide a crime against humanity which is in violation of the 1948 Geneva convention. Prime Minister Aung San Suu Kyi dismissed all existing allegations of genocide in court in December 2019 as well as advocated for the internal resolution to the conflict. However, the recent ruling indicates the existence of genocide and has called for immediate action from the government. In a unanimous decision, the court ordered the Myanmar government to “take all measures within its power to prevent all acts” against Rohingya people. Despite the historic ruling of the International Criminal Court of Justice, the ability to hold a government accountable for crimes against humanity such as genocide is, to say the least, difficult. The state sponsored violence against the Rohingya and the inaction of the international community showcase the weaknesses in the application of existing provision of International Humanitarian Law (IHL). Enforcement of 1948 Geneva convention is key to ensuring that governments abide by their legal duties to their citizens yet international politics and concerns of state sovereignty continue to get in the way. Although the ICJ ruling is not yet definitive, it must mark the beginning of a new chapter of IHL as it pertains to genocide. Questions as to how this ruling will alter the trajectory of the crisis have arised. As the evidence mounts and the highest court has spoken there is hope that the security council fulfills its obligation to the preservation of international peace and security.