Myanmar’s Compliance with the ICJ Provisional Measures Order & the Road Ahead

3 September 2020 by

In this article, Prachiti Venkatraman and Ashley Jordana of Global Rights Compliance analyse the case before the International Court of Justice relating to the persecution of the Rohingya people by the Myanmar authorities.

Readers are encouraged to read the previous articles about this topic published on the blog here and 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.

Rohingya refugees entering Bangladesh in 2017. Image: Wikipedia

The perilous situation of the Rohingya in Myanmar continues – the recent UN policy brief on Covid-19 in South-East Asia highlighted the compounded effects of the nation’s weak healthcare system and an ongoing armed conflict that targets ethnic communities.

On 11 November 2019, The Gambia filed an Application to commence proceedings against Myanmar before the International Court of Justice (‘the Court’). The Application alleged that Myanmar had violated its obligations under the Genocide Convention by committing acts intended to destroy in whole or in part the Rohingya community, as well as attempting and conspiring to commit genocide, inciting genocide, being complicit in its commission, and failing to prevent and punish genocide. To demonstrate the validity of these allegations, The Gambia relied on the actions of the Burmese military (‘the Tatmadaw’) and individuals connected to the State of Myanmar during the ‘clearance operations’ in 2016 and 2017 which led to the mass murder, sexual violence, and destruction of Rohingya villages in Rakhine state.

In its Application, The Gambia requested the Court impose provisional measures to protect certain rights in the interim to the final judgment, namely: the rights of the Rohingya to be protected from genocidal acts and intent; and the right of The Gambia (as a party to the Genocide Convention) to ensure Myanmar’s compliance with its erga omnes obligations under the Genocide Convention.

On 23 January 2020, the Court issued a provisional measures Order against Myanmar to, in sum:

  1. Take all measures to prevent the commission of genocide;
  2. Ensure that the military, irregular armed units, and other organisations and persons under its control do not commit, conspire or attempt to commit, or incite genocide, or be complicit in its commission;
  3. Take effective measures to prevent the destruction, and ensure the preservation, of evidence related to allegations of genocidal acts; and
  4. Submit a report to the Court on all measures taken to give effect to its Order within four months of the date of the Order, and thereafter to submit further reports every six months until the final judgment is rendered.

Assessing Myanmar’s Compliance with the Court Order

Myanmar filed its first report (‘the Report’) in May 2020, although its contents have not been made public and are unlikely to ever be so.  The non-disclosure of the Report’s contents follows an (informal) precedent at the Court. For example, in Costa Rica v. Nicaragua, the Court also ordered a reporting requirement as a provisional measure and similarly, the contents of the reports were not disclosed.

It is unlikely that Myanmar itself will publish the Report as officials are treating it as confidential. The Burmese state officials are generally reluctant to publicize any information of their dealings in Rakhine state. For example, the government-established Independent Commission of Enquiry (‘ICOE’), mandated to investigate the 2017 clearance operations and surrounding events in Rakhine state, have to date only released an executive summary providing an overview of its findings. It concluded that while war crimes and serious human rights violations had occurred during the clearance operations, along with the use of disproportionate force by the Burmese military, there was no genocidal intent on the part of the military. The ICOE called on the Myanmar government and military to continue investigations. The full report has not yet been made public.

Notwithstanding the above, there are some indications as to what might have been included. It is likely that the Report focuses on the three directives issued by the Office of the President of Myanmar in April 2020: (i) Directive 1/2020 prohibiting acts contrary to the Genocide Convention; (ii) Directive 2/2020 ordering the preservation of evidence and property in Northern Rakhine; and (iii) Directive 3/2020 prohibiting hate speech and incitement to violence. These directives are certainly steps in the right direction. That being said, it is unclear how they are to be implemented or overseen, or what the exact consequences for their violation are. While all three directives include a general reporting requirement to provide information to the President’s Office, only directive 2/2020 specifies criminal law consequences for a violation of the directive.

In addition to the directives, criminal investigations have been launched by the Union Attorney General and the Military Court of Inquiry of Myanmar, to investigate the atrocities committed in Rakhine State in 2017. However, past proclamations of investigations and trials (see here and here) have not yielded any substantive outcomes. While three soldiers were recently convicted for crimes against the Rohingya, questions have been raised regarding the transparency and legitimacy of the trial due to the secrecy surrounding the details of their crimes and sentences. In another similar case, Tatmadaw soldiers were convicted but pardoned by the military commander-in-chief after serving only 7 months of a 10-year sentence. This demonstrable reluctance of the Burmese authorities, particularly the military, to pursue meaningful accountability for the crimes committed against the Rohingya undermines the veracity of the newly initiated investigations.

This conclusion is supported by the fact that far from conducting genuine investigations and implementing the directives effectively, the Myanmar authorities continue to facilitate a situation in which crimes are committed against the Rohingya. As explained in the reports released by the US-based anti-Islamophobia non-profit Justice for All, that has been tracking the situation in Myanmar since the January Order (see here, here, here, and here), violence and systemic targeting of the Rohingya by both the Burmese military and civilians continues. Furthermore, the reports suggest that the ongoing internet blackout in Rakhine (although internet restrictions were recently partially-eased, internet access is still almost non-existent) is being used as an opportunity to undermine the preservation of evidence as well as to obscure potential human rights abuses committed by the Burmese authorities.

In sum, the practical effect of the measures adopted by Burma is questionable. While Myanmar may have respected the letter of the Order, it has certainly not respected its spirit.  

Looking Ahead

Myanmar’s (likely) less than satisfactory compliance with the Order raises the question: what next? While it is well established that a provisional measures order creates binding international legal obligations for states (see Costa Rica v. Nicaragua, para. 57), there is no clear mechanism to enforce these orders, as highlighted in our previous article in this series. The Court’s Statute (‘the Statute’) and the Rules of the Court (‘the Rules’) do not explicitly address the Court’s authority to enforce provisional measures orders or state parties’ ability to seek enforcement of the same. The oversight role envisioned for the Security Council under Article 41(2) of the Statute and Article 77 of the Rules, which requires that the UNSC be informed of any ordered provisional measures, does not include the authority to enforce the Court’s orders.

In the absence of a structured enforcement mechanism, there is little to hold Myanmar accountable for its obligations under the January Order; the nation’s lacklustre response to the Order and the continued crimes against the Rohingya stand as proof of this. The burden then falls on the international community to use its political will and exercise diplomatic and coercive action against Myanmar to compel the nation to take more positive steps towards protecting the Rohingya and preventing genocide.

Notwithstanding the lack of its (codified) enforcement authority, the Court does have a role to play in assessing compliance with provisional measures, albeit posthumously. In the Costa Rica v. Nicaragua judgment (para. 126) the Court confirmed that the issue of compliance with provisional measures is most appropriately dealt with in the final decision on merits. Since the Court may only adjudicate upon the questions posed in the parties’ submissions (see Congo v. Belgium, para. 43), it will only consider Myanmar’s non-compliance with the provisional measures to the extent raised by The Gambia. As a party to the proceedings, The Gambia would have access to the Report and will, therefore, be able to highlight Myanmar’s shortcomings in implementing the Court’s Order and propose remedies thereto in its substantive submissions at the merits phase of the case.

There is also the issue of the gaps in the current Order. In submitting the Report, implementing the aforementioned directives, and launching criminal investigations, the Burmese government has shown that it is not willing to completely disregard the Court’s Order. However, the broad scope of the ordered measures allows Myanmar a degree of flexibility in implementation and makes it difficult to pin-point violations and non-compliance. This has resulted in a situation where Myanmar has been able to take superficial and ineffective steps that might technically meet its obligations under the January Order. Further provisional measures, that allow less flexibility and wiggle room, would go towards compelling a more justiciable response from Myanmar. Under Article 75(1) of the Rules, the Court may examine proprio motu (i.e. of its own volition) whether the circumstances of the case call for the application of provisional measures. Accordingly, depending on Myanmar’s level of compliance with the provisional measures in place, the Court may instate further provisional measures that instruct more specific obligations. Alternatively, pursuant to the recently amended Article 76, the Court may at the request of a party or on its own initiative revoke or modify the provisional measures it has ordered, based on a change in the circumstances and after allowing the parties to present their observations.

In Costa Rica v Nicaragua (paras 30-38), the Court confirmed that requests for revocation or modification under Article 76 would be granted where there is an urgent need due to a real and imminent risk of irreparable prejudice to the rights in dispute, based on the changes in the situation and new facts that have arisen since the Court issued its original order. Differing from the procedure followed in issuing provisional measures under Article 74, the institution of further measures under Articles 75(1) and 76 can be done more expeditiously since there is no requirement to first convene an oral hearing.

The Court has been reluctant to exercise its authority under Article 75(1). In La Grand the Court stressed that it would exercise its authority under this provision, to instate provisional measures of its own volition, only in cases of extreme urgency where there is no time to hold an oral hearing (paras 21, 26). Given the novelty of the Article 76 procedure, it is unclear whether the Court will construe similar limitations on the use of its powers to modify provisional measures of its own accord. If so, it would be advisable for The Gambia to take the lead on monitoring Myanmar’s compliance and request the Court to make the necessary modifications to ensure that the Order is respected. Regardless, as explained below, the extreme urgency of the situation in Myanmar provides credible grounds for the Court to modify the ordered provisional measures or implement new ones, on its own initiative.

The situation on the ground in Rakhine state has certainly evolved since the January Order. As highlighted in the Justice for All reports, restrictions on movement and humanitarian aid in Rakhine (which have exacerbated food insecurity) as well as those on access to medical care undermine the survival of the Rohingya and increase their vulnerability to the coronavirus. Muslims have also been disproportionately targeted for Covid-19 communal-gathering violations. This feeds into concerns that the Burmese authorities have been using the ongoing coronavirus pandemic as an opportunity to take further repressive actions, such as harassing and extorting Rohingya individuals for failing to wear face masks and restricting them to camps where they are unable to access adequate medical care and Covid-19 testing. Adding fuel to the fire is the internet ban, which undermines access to information about coronavirus and protocols aimed at managing and preventing it (see here and here).  Additionally, minority communities continue to be targeted: Rakhine state authorities revoked an order that would have allowed the Rohingya to reclaim their former homes and independent and ethnic news websites have been blocked by the Myanmar Transport and Communications Ministry under the guise of curbing ‘fake news’. Violence and internal displacement of civilians continue; in light of the Covid-19 pandemic the Tatmadaw announced a ceasefire in May 2020, however, it excluded Rakhine state. There have also been reports (see here and here) of potential new ‘clearance operations’ in Rakhine and thousands have been newly displaced due to the ongoing fighting and increased presence of security forces, as highlighted by OCHA here and here.

The facts speak for themselves. The threats faced by the Rohingya have been compounded by increased targeting, an escalating armed conflict, and a deadly pandemic. The threat of prolonged armed clashes and military operations is particularly ominous, feasibly facilitating the type of mass atrocities that occurred in 2016 and 2017. There is a real risk of irreparable harm occurring through the (further) genocide of the Rohingya. Urgent action is required to quell an already intense situation.

With the spectre of genocide and the failure of the provisional measures regime in preventing the massacre at Srebrenica hanging over the Court, the plight of the Rohingya must be regarded seriously. These new facts call for a re-thinking of the ordered provisional measures. The Court can, and should, either on The Gambia’s request or of its own volition, exercise its authority under Articles 75(1) or 76.

Conclusion: Proposed Additional Provisional Measures

In considering what type of further measures should be ordered, it is worth noting that merely re-affirming the already-ordered provisional measures, as in the Bosnia v. Yugoslavia case (paras 59, 61), will not be sufficient. This tactic has already failed to prevent further genocide during the Bosnian war. At the very least, the Court must explicitly order non-aggression and place an obligation on Myanmar to not undertake any action that might aggravate the situation.

It might also be worth revisiting The Gambia’s request that Myanmar be ordered to cooperate with UN fact-finding bodies, which the Court deemed unnecessary in its January Order (para. 62), in order to ensure that action purportedly taken by the Burmese authorities in compliance with the Order is in line with international standards. Access to Myanmar is currently limited due to legitimate restrictions placed by the government to control the spread of Covid-19 but historically, the government has not cooperated with the investigative endeavours of the UN Special Rapporteur and the Fact-Finding Mission and has also restricted humanitarian access to conflict-affected areas since January 2019. The impact of the internet blackout on the gathering and dissemination of information further undermines investigative efforts. In a recent resolution, the Human Rights Council called on the Burmese government to better cooperate and provide unfettered access to UN human rights mechanisms, including the Special Rapporteur and the FFM’s successor, the Independent Investigative Mechanism for Myanmar. However, this resolution is not binding and in light of the historical precedent, a binding obligation (such as a provisional measure) would be a more effective means by which to secure Myanmar’s cooperation.

The clock is ticking for the Rohingya and proactive action is required from the Court if it is to not repeat past mistakes and ensure the effectiveness and legitimacy of the provisional measures regime. It is not enough to order states to file reports on the measures taken. The measures must themselves have proper enforcement mechanisms behind them.

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