On November 13, civilian leader Aung San Suu Kyi and army chief Min Aung Hlang along with several other top Myanmar officials faced first legal action over the Rohingya crisis. The International Criminal Court has approved a full investigation of crimes against the Rohingya minority, according to Reuters from the Hague. As Myanmar has long denied accusations of genocide or ethnic cleansing, the Burmese Rohingya Organization UK (BROUK) and other groups filed a lawsuit in Argentina under the principle of universal jurisdiction. It was done through Argentina, lawyer Tomas Ojea told AFP, “because they have no other possibility of filing the criminal complaint anywhere else.” On November 10, Gambia filed a separate case against Myanmar at the UN’s top court in the Hague.
The 46-page application alleged that Myanmar has carried out mass murder, rape, and destruction of communities in Rakhine state. It sought the criminal sanction of the perpetrators, accomplices and cover-ups of the genocide. Foley Hoay LLC, the international law firm assisting Gambia with the case, stated that the lawsuit calls on the ICJ to order Myanmar to cease and desist from all acts of genocide, to punish those responsible, and to issue reparations to victims. AFP has confirmed that first hearings by the case are due to take place in December.
According to Human Rights Watch, rights groups and NGOs have responded with overwhelming support for the initiative, lauding Gambia’s monumental leadership on this issue. Nicholas Bequelin, Amnesty International’s Director for East and Southeast Asia, applauds the lawsuit as an important step in the fight for justice and accountability in Myanmar, in its strong message to the atrocities’ orchestrators that their “days of impunity are outnumbered.” Tun Khin, president of BROUK, acknowledges that this government-to-government lawsuit will be more likely to proceed and that only action of this degree will save the Rohingya from genocide, which is a part of government policy.
This is the ICJ’s first lawsuit on settling humanitarian issues, as the court is meant to settle disputes between member countries for border or legal disputes. Hau Do Suan, Myanmar’s ambassador to the UN, contended at RFA’s Myanmar Service Monday that since this is a bilateral issue between Myanmar and Bangladesh, and has nothing to do with the OIC or Gambia, as the former should resolve this issue themselves.
Bob Rae, returning as Canada’s special envoy for the lawsuit, predicted prospective legal challenges it would face, should a prosecution proceed against Myanmar’s leaders for crimes against humanity. Mainly, “creating a credible and independent tribunal that could hear the case” will prove difficult, as was done with special tribunals were set up to prosecute war crimes in Rwanda, Cambodia, and former Yugoslavia. Furthermore, while Myanmar is a party to the 1948 Geneva Convention in which the ICJ can rule on potential violations, “it doesn’t tie the conclusion to the responsibility of particular individuals.” Although it does “provide for the ability to search and seek some remedies,” the impact or result of the court’s findings will not be “immediately clear.” However, Rae acknowledges the lawsuit as a stepping stone in international legal circles.
However, nations and intergovernmental associations – particularly the ASEAN – must not overlook the contribution that negotiation and mediation could make towards the aversion of this crisis. Rohingya’s long-lasting issue of statelessness, rooted in long-lasting discrimination and persecution, must be addressed with collaborative political persistence to reach a long-lasting solution. Myanmar must acknowledge its own ethnic and religious diversity to ensure that the Rohingya will thrive when they return. More immediately, the Myanmar government must remove the blockade of aid into the IDP camps and grant humanitarian agencies safe access. Myanmar must move towards a positive policy transformation that respects diversity and accepts the Rohingya’s social and legal rights.
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