Understanding Gambia's case against Myanmar in the International Court of Justice on behalf of the Rohingya.
The Plight of the Rohingya
Beginning in August 2017, widespread persecution of the Rohingya orchestrated by the military of Myanmar has driven 700,000 of their people to flee the country. Now, they live in refugee camps mostly located in Bangladesh. Unsurprisingly, living standards in the camps are poor, with overcrowded conditions, food shortages and acute vulnerability to extreme weather.
The Rohingya are one of Myanmar’s many ethnic minorities and have faced discrimination and sporadic violence throughout their history. The majority are Muslim and prior to this episode of targeted violence against them, mostly lived in Myanmar’s southwestern Rakhine state where many remain. The government of Myanmar, which is still largely controlled by military junta, does not recognise the Rohingya as citizens, instead describing them as illegal Bangladeshi immigrants. Using this logic, the Rohingya were excluded from the country’s 2014 census.[1]
In August 2017 longstanding persecution of the Rohingya mutated into widespread violence against them. After Rohingya militants known as the Arakan Rohingya Salvation Army (ARSA) attacked police outposts, the Army responded with a brutal crackdown on the population at large, burning Rohingya villages and murdering civilians, the vast majority of whom have no links, nor support the activities of ARSA. In the month that followed at least 6,700 Rohingya were killed, with at least 730 of that number being children under the age of five.[2] Since then violence against some 600,000 Rohingyas who still live in Rakhine has continued, and most are confined to living in government camps without freedom of movement. In 2018, a UN report accused the Burmese military of conducting mass killings and sexual violence, leading to calls for the nation’s top military officials to be prosecuted for genocide.[3]
The Role of the Gambia
In May 2018 Gambian Justice Minister Abubacarr Tambadou visited the refugee camps in
Cox’s Bazar, Bangladesh. The stories he heard from the Rohingya chilled him, reminding him of the stories he had heard when he was prosecuting those who conducted Rwanda’s 1994 genocide. In an interview with Reuters he recalled, “I saw genocide all over these stories”. The process of dehumanisation, industrialised murder and rape bore all the hallmarks of the genocide he had seen in Rwanda. Not only did Tambadou’s experience of prosecuting the genocidaires in Rwanda tell him that something had to be done to bring justice to the Rohingya, his experience of oppression in his own country, under former leader Yahya Jammeh, spurred him on:
“Twenty-two years of a brutal dictatorship has taught us how to use our voice.” Continuing on he said “We know too well what it feels like to be unable to tell your story to the world, to be unable to share your pain in the hope that someone out there will hear and help.” [4]
Tambadou’s past and his innate sense of justice led him to conclude that he would be the one to stand up for the Rohingya.
The Case in the ICJ
It didn’t matter that Gambia is a small country in West Africa more than 7,000 miles away from Myanmar, Abubacarr Tambadou convinced the 57 countries of the Organisation of Islamic Cooperation to back him in submitting a charge of genocide against Myanmar in the International Court of Justice. On the 11th of November 2019 Gambia initiated proceedings against Myanmar alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide. Aung San Suu Kyi, who was once an icon of peace in the country and a former Nobel Peace Laureate, now its civilian leader, denied accusations of genocide. She and the military leaders that control Myanmar instead argue that in some cases the army acted disproportionately in responding to Islamic terrorism.[5]
Gambia’s case has so far seen some success. On the 23rd of January 2020 the ICJ issued an order for Myanmar to take ‘provisional measures’ to prevent the commission of genocidal acts against the Rohingya including but not limited to, killing, bodily and mental harm, and measures intended to prevent births. [6] ICJ enforcement measures, however, are weak, and largely rely on Myanmar’s officials self-policing the actions of their military. It does, though, signal that the international community is united in considering the violence against the Rohingya genocidal, providing a platform for more concerted action and greater scrutiny in the future.
A growing cause
At the beginning of September 2020, Canada and the Netherlands announced that they would join the Gambia’s prosecution effort in the ICJ. In a joint statement Foreign Ministers Francois-Phillipe Champagne and Stef Blok said that “Canada and the Netherlands consider it our obligation to support these efforts which are of concern to all of humanity.” This development signals the start of a broad international coalition concerned with achieving justice for the Rohingya, which may see progress in the case expedited. Their involvement in the case will “pay special attention to crimes related to sexual and gender-based violence, including rape.”[7] These issues are an important part of the complex legal argument demonstrating that Myanmar’s violence against the Rohingya is genocidal. Sexual and gender-based violence are often markers of genocide as it shows intent to destroy the targeted group.
Lessons to learn
The Gambia’s efforts to prosecute Myanmar demonstrate that international organs of justice can be a great leveller, a platform on which small nations can make their voices heard as loud as any other country. In building coalitions of likeminded nations, a case can see effective justice implemented. In Abubacarr Tambadou we observe both deep personal compassion, and a fierce determination to see justice brought to those that commit genocide. His example sets a fine precedent for those that wish to use legal means to bring ‘genocidaires’ to account.
[1] https://www.nationalgeographic.com/culture/people/reference/rohingya-people/ [2] https://www.bbc.co.uk/news/world-asia-41566561 [3] https://news.un.org/en/story/2018/08/1017802 [4] https://uk.reuters.com/article/uk-myanmar-rohingya-world-court-gambia/with-memories-of-rwanda-the-gambian-minister-taking-on-suu-kyi-idUKKBN1Y91HR [5] https://www.theguardian.com/world/2019/dec/11/aung-san-suu-kyi-tells-icj-myanmar-genocide-claims-factually-misleading [6] https://www.icj-cij.org/files/case-related/178/178-20200123-PRE-01-00-EN.pdf [7] https://www.government.nl/documents/diplomatic-statements/2020/09/02/joint-statement-of-canada-and-the-kingdom-of-the-netherlands-regarding-intention-to-intervene-in-the-gambia-v.-myanmar-case-at-the-international-court-of-justice