Seeing through Myanmar’s fog: ICJ instigates provisional measures

31 January 2020 by Guest Contributor

In this article, Uzay Yasar Aysev and Wayne Jordash QC of Global Rights Compliance analyse the two cases which have been brought in the international courts relating to the persecution of the Rohingya people by the Myanmar authorities.

Readers may want to read the first article about this topic published on the Blog here.

To read more about Global Rights Compliance’s work with the Rohingya, please see: https://www.globalrightscompliance.com/en/projects/the-rohingya-accountability-project.

On 11 November 2019, Republic of The Gambia initiated a case against Myanmar before the International Court of Justice (‘ICJ’ or the ‘Court’), alleging that the atrocities committed against the Rohingya people during “clearance operations” from around October 2016 violated the Genocide Convention (‘Convention’).

In its application, The Gambia requested the Court to instate six provisional measures. Provisional measures are ordered to safeguard the relevant, plausible rights of the Parties that risk being extinguished before the Court determines the merits of the case (LaGrand Case, para. 102). The Gambia contended that the Rohingya were facing threats to their existence and had to be protected from Myanmar’s genocidal intent.

On 23 January 2020, the Court issued an Order granting four of the six provisional measures requested. Myanmar was ordered to:

1. Take all measures within its power to prevent the commission of genocide against the Rohingya;
2. Ensure that its military, any irregular armed units which may be directed or supported by it, any organizations and persons which may be subject to its control direction or influence, do not commit, attempt or conspire to commit genocide, or incite or be complicit in the commission of genocide against the Rohingya;
3. Take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of genocide; and
4. Submit a report to the Court on all measures taken to give effect to the provisional measures order within four months and thereafter every six months, until the Court renders a final decision.

In recognising that the rights of the Rohingya to be protected from genocide and the rights of The Gambia to seek compliance with the Convention were plausible, (paras. 56, 70), the ICJ saw through Myanmar’s transparently beside-the-point submissions.

Myanmar had attempted to shift the threshold criteria, arguing that the Court could only order provisional measures if it was satisfied that “the claims put forward by The Gambia, based on facts alleged in its Application, are plausible”, (para. 47). In other words, Myanmar argued that it had to be established, even at this preliminary stage, that genocide was the only reasonable conclusion for the Court to instate provisional measures.

The Court rejected these submissions and found these measures to be necessary to preserve The Gambia’s right to have Myanmar comply with its obligations under the Convention to prevent and punish genocidal acts (para, 61).

Crucially, the ICJ also saw through the legal and factual fog that Myanmar sought to create that to deny even the protected status of the Rohingya as a distinct ethnic group. Of course, it was always going to be a difficult balance; to argue against provisional measures to protect the Rohingya from genocide, whilst simultaneously declining to accept their identity as a distinct ethnic group with their own language and culture and longstanding connection to Rakhine State (para. 14). Aung San Syu Kii’s unwillingness to even utter the name “Rohingya” in Court, whilst maintaining that Myanmar was willing and able to protect them, was a circle that was never likely to be squared.

On the other hand, the Court refused to grant two of the measures requested by The Gambia (para. 12), namely that:

1. Myanmar shall grant access to, and cooperate with, all UN fact-finding bodies that are investigating allegations of genocide against the Rohingya; and
2. Myanmar and The Gambia shall not take any action which may aggravate or extend the existing dispute, or render it more difficult of resolution.

The Court found these to be “unnecessary” in light of the measures already ordered and “the circumstances of the case” (paras. 62, 83). Unfortunately, the Court did not explain why this was so. Considering Myanmar’s history of denying responsibility for any harm to the Rohingya, a position defended by refusing access to UN’s Fact-Finding Missions (see here, here and here) and concealing evidence (2019 UN FFM Report, paras. 226, 233), the first of the rejected measures could have leveraged better behaviour going forward. It certainly would have helped the Gambia, the IIMM, the ICC and associated CSOs in their on-going efforts to identify State and/or individual responsibility for thousands of terrible crimes.

Moreover, the Court’s divergence from its approach in the Bosnia v. Serbia case (para 52(B)) in refusing to order the “aggravation” measure should have been explained and justified. On the face of it, this proposed measure could have served as a ‘belts and braces’ measure, creating further space to address issues of importance to the safety of the Rohingya, including the vexed questions of humanitarian access and repatriation. In light of the inventiveness of the crimes perpetrated on the Rohingya (see here) and Myanmar’s absurd explanations for them, a measure such as this ought not to be assumed to be otiose. It may have been capable of saving or improving countless lives in the interim.

It is noteworthy that by the time of the ICJ hearing, Myanmar’s previous denials of criminal involvement in the “clearance operations’ (see here, here and here) had morphed into selective admissions of excessive force by a rogue few. Of course, considering the findings of the UN Fact-Finding Mission on Myanmar (regarding the existence of an ongoing risk of genocide against the Rohingya) and the UN General Assembly (highlighting the statelessness of the Rohingya and the lack of improvement in Rakhine State (paras. 72-73)), Myanmar’s factual claims were patently absurd. In light of these, the Court had little choice but to find that the acts allegedly perpetrated by Myanmar were capable of falling within the provisions of the Convention and, therefore, it had prima facie jurisdiction to adjudicate the case (paras. 30, 37).

Of course, a determination of prima facie jurisdiction is a long way from a definitive finding on whether the ICJ has jurisdiction to hear the case or whether Myanmar has violated its obligations under the Convention. This is for later. The challenge for now is to ensure that Myanmar complies with the provisional measures.

Pursuant to Article 94 of the UN Charter, the Order is binding on Myanmar. Under Article 94(2), The Gambia may be able to refer the matter to the UN Security Council, which in turn may, if it deems necessary, can make recommendations or decide upon measures to be taken to give effect to the Order. However, putting aside the dysfunction of the Security Council (and the inevitable stalling by China, Myanmar’s patron), Article 94(2) may only allow a referral to the UN Security Council in case of non-compliance in relation to “judgments”, not “orders”, such as those on provisional measures. Whilst there is some hope that Article 41(2) of the ICJ Statute and Article 77 of the Rules of the Court (requiring the Security Council to be notified of any provisional measures instated by the ICJ) may be read to provide authority for the monitoring of provisional measures, this is far from settled law (see here, paras. 13, 25 referring to the Anglo-Iranian Oil Company Case).

Relying upon the ICJ to ‘police’ its own order for provisional measures is no more certain. In the Bosnia v. Serbia case, the Court determined that Serbia had violated two provisional measures, namely to take all measures within its power to prevent the commission of genocide and to ensure that any organisation or persons subject to its influence did not commit genocide (para. 456). Rather than treating non-compliance with the ordered provisional measures as a violation in itself which merited reparation independently, the Court considered the violations to be “an aspect of, or merge[d] with, its breaches of the substantive obligations of prevention and punishment… under the Convention” and refused to grant Bosnia symbolic compensation (paras. 469). By doing so, the Court limited itself to merely declaring that Serbia failed to abide by the ordered provisional measures (paras. 462, 469) – a declaration that was cold comfort for the thousands of victims of the subsequent genocide at Srebrenica.

In other words, there is little time to celebrate. In light of Myanmar’s conduct to date, it would be naïve to be optimistic in relation to Myanmar’s future compliance with the Order. Despite the courage of The Gambia in stepping into the fray and carving out an accountability path, there is much to do. The Gambia, the ICC, the IIMM, national jurisdictions, international observers and civil society must be ready for an almighty battle with a (likely) genocidal State that shows no interest in changing its ways and every interest in ridding itself of the Rohingya once and for all. The reality is that Myanmar is in denial and its domestic politics do not allow for a change in this approach: enforcement will be entirely self-serving at best, wholly inadequate or absent at worst.

The pressure must be unrelenting and focused. As argued by Shannon Raj Singh, “The Gambia has raised the standards for third States, showing that even those “completely unaffected” by a situation of genocide have the right, and perhaps the duty, to enforce the obligation to prevent and punish atrocity crimes”.

There must therefore be a collective effort to ensure monitoring, documentation, advocacy and efficient accountability processes consistent with international standards (see GRC’s Basic Investigative Standards app) and aimed at real prevention. At the very least, this means that States should, alone or together, hold Myanmar to its obligation to adhere to the provisional measures and inform the Court on its compliance on a six-monthly basis — a coercive measure absent in the Bosnia v. Serbia case.

The lives of the Rohingya really do depend upon it.