MUSLIMS UNDER SIEGE
Myanmar Faces Genocide Action What are the implications of the International Court of Justice’s ruling on the Rohingya? BY AZEEM IBRAHIM
T
he Rohingya will mark Jan. 23 as a significant day, for that was the day on which the International Court of Justice (ICJ; https://www.icj-cij.org/ en) unanimously ruled that Myanmar must undertake a set of Provisional Measures to prevent the genocide of its roughly 600,000 remaining Rohingya in the wake of the “clearing operations” executed by the Myanmar military against them during the past couple of years. This legal development sets up a confrontation in the UN Security Council between the self-described pro-human rights West and the anti-human rights China and Russia, one that may greatly diminish the role of international law in global geopolitics in the coming years. China, or perhaps even Russia, may choose to exploit the situation to fatally undermine the entire UN regime and its underpinning legal and humanitarian presumptions. The West may yet have to give unilateral force to the letter of international law if those two countries choose to sabotage the Security Council’s duty and mandate to enforce ICJ rulings.
THE RULING The ICJ demanded that Myanmar must (1) actively seek to prevent genocide against the 54 ISLAMIC HORIZONS MAY/JUNE 2020
Rohingya, under all definitions of genocide; (2) prevent the military and paramilitary groups from carrying out, conspiring to carry out or inciting genocide; (3) preserve all evidence related to the allegations of human rights abuses in the affected region; and (4) report on the situation every six months through the proceedings of the ICJ.
JURISDICTION The ruling’s first important aspect is establishing the precedent that the ICJ and, by extension, the UN enforcement apparatus via the Security Council, have jurisdiction in this case. This was established not merely by legal fiat in the Court, but politically, when Myanmar’s civilian leader Aung San Suu Kyi unexpectedly volunteered to represent her country before the court. Notably, she did so with the blessing of the military establishment, the principal party accused of genocide. While Suu Kyi confessed that war crimes had been committed in the conflict between Myanmar’s army and the Rohingya, she denied that its actions amounted to genocide. The Court will likely take years to adjudicate the respective claims of The Gambia, which brought the legal action, and of Myanmar. But by her appearance, Suu Kyi recognized the Court’s standing to
pass judgment on that question. It subsequently took the Court only two months to conclude that there is an ongoing acute risk of genocide being committed in Myanmar’s northwestern Rakhine state against the Rohingya before getting to the question of whether what has happened so far amounts to genocide. It is quite difficult to ascertain what calculation Suu Kyi had made before deciding to appear before the ICJ. It is even quite plausible that she genuinely believes that her country has acted properly and will be exonerated. The military leadership is likely stalling for time to mollify the international response, while also letting the civilian government’s leader take the fall. Whatever the case may be, her decision to appear before the Court has backfired spectacularly. On the plus side, this could have come with a huge upside for global human rights. At first blush, the mere fact that this precedent on jurisdiction has now been set might be taken to signal a strengthening of the moral force of international law and the global standing of the Universal Declaration of Human Rights.
ENFORCEMENT The major question, however, is that of enforcement. The responsibility for enforcing the ICJ order on the Provisional Measures falls upon the Security Council, as a matter of law and of the UN Charter. As expected, Myanmar’s first response to the order was to assert that it is already meeting these requirements. The first real test of this claim will only come when the country is due to deliver its first report on the developing situation, in accordance with measure 4 above. For now, the Security Council has decided to take no further action on the order at this point — mainly as a result of the veto by China, which is backing Myanmar. This was also expected. At this point, and until Myanmar is found to be in flagrant breach of the order, the situation is just about tenable, as China is just about within its rights to call on the Security Council to allow Myanmar time to comply with the order. The question is what happens if and when Myanmar falls foul of the requirements of the Court order in the coming months. If the Security Council’s history is any guide, nothing will happen. The Permanent Members, in this case China and also possibly Russia, will likely continue to wield their
