Why Is This Small African Nation Taking Myanmar To The ICJ And Where Is The Rest Of The World?

The small West African nation of the Gambia, has filed a charge to take Myanmar to the International Court of Justice (ICJ) to face charges for the crime of Genocide.

The Gambia has its own recent history of serious human rights violations. The former Jammeh regime was characterized by extrajudicial killings and torture of perceived ‘opponents’ perpetrated by state and armed forces. In 2005, 56 Nigerian and other West African migrants were summarily executed by a “death squad” tied closely to the former president. Gambia’s Truth Reconciliation and Reparations Committee, investigating human rights abuses during the Jammeh era is currently still underway. The commission is being led by Attorney General and Minister for Justice Abubacarr Marie Tambadou, who has previously worked as a lawyer for the International Criminal Tribunal for Rwanda and is responsible for filing the case against Myanmar.

At a conclave on “Justice and Accountability for the Rohingya” recently conducted at the Hague, Tambadou announced, “I can confirm that on October 4th, I instructed our lawyers to file the case at the International Court of Justice”. Remarking on the worlds largest refugee camp in Bangladesh, currently holding 101 million Rohingya refugees, he said,

 “I could smell the stench of genocide from miles away when I visited the Rohingya refugee camp in Cox’s Bazar. It was all too familiar for me, after a decade of interacting with the victims of the Rwandan mass rapes, killings, and genocide.”

It is over two years since alleged human rights violations, including claims of genocide, commenced against the predominantly Muslim, Rohingya population. Since the “clearance operations” in August 2017, over 700,000 Rohingya have been displaced to neighbouring Bangladesh. However, little has been done to redress the violence or bring perpetrators to account.

What has been done so far?

Despite international condemnation, Myanmar has failed to take action to investigate the crimes and has denied claims of the UNHCR led Independent Fact-Finding Mission to Myanmar. According to UN News, Yanghee Lee in a Special Rapporteur on the situation of human rights in Myanmar said that Myanmar had “done nothing to dismantle the system of violence and persecution”, and that the Rohingya continue to live in the “same dire circumstances that they did prior to August 2017″.

The Gambia is the first country to take the lead in filing a case against Myanmar. The Vice President announced that “(we are) a small country with a big voice on matters of human rights on the continent and beyond”. They are calling on other nations to support the motion going forward.

What does this mean?

The International Court of Justice is responsible for solving legal disputes between states. Myanmar is a signatory to the Genocide Convention, meaning that any other state can invoke a claim to take them to court for the crime of Genocide.

What other avenues are there for pursuing justice?

The International Criminal Court (ICC) is responsible for trialing war crimes, crimes against humanity, crimes of genocide and crimes of aggression. Unlike the ICJ which prosecutes crimes at the state level, the ICC holds individual perpetrators to account. Given that Myanmar is not a party to the Rome Statute, the ICC cannot prosecute crimes committed in Myanmar. However, as a UN member, the United Nations Security Council (UNSC) could take responsibility to refer Myanmar to the ICC.  This is unlikely to happen given that China and Russia have been successful in ensuring that the UNSC remains silent on the issue, by repeatedly blocking all motions to launch an investigation. As an alternative pathway, a pre-trial chamber decision was made in January 2018 enabling the ICC to launch an investigation based on the argument that part of the crime of forced displacement was conducted in Bangladesh. They were also able to investigate “any other crimes which are significantly linked to this event”, including violence that prompted the deportation.  However, importantly,  no claims to investigate the crime of genocide have been made to date.

A combination of both the ICC and ICJ would provide a promising legal avenue to bring both the state and individual perpetrators into account. The Gambia has taken a big step forward in helping achieve this aim. It is now up to the rest of the international community to step up and demand justice for the crimes perpetrated against the Rohingya by launching similar motions.