Where are we with the Myanmar case at the ICJ?

A few weeks ago, the International Criminal Court's arrest warrant against Vladimir Putin made global headlines. President Putin and Russia's Commissioner for Children's Rights, Lvova-Belova, were indicted for 'unlawful deportation and transfer of children during the Russian invasion of Ukraine.'

Often blamed for the overall global economic crisis, Russia's invasion of Ukraine was also one of the factors that drove global attention away from the Rohingya crisis.

Following the ICC indictment of Vladimir Putin over the Ukraine invasion, which came relatively fast, the question of what happened to the Rohingya case at the International Court of Justice (ICJ) filed by The Gambia, arises naturally. 

The case at the ICJ created hope among the Rohingya refugees sheltered in Cox's Bazaar as a doorway to justice. For host Bangladesh, a positive global involvement in the refugee crisis could help speed up the Rohingya repatriation process. So where does The Gambia vs Myanmar case stand now?

The case chronology 

The Gambia, with the backing of the OIC, filed the case, The Gambia v. Myanmar, before the ICJ in November 2019 for the Myanmar authorities' atrocities against the Rohingyas in Rakhine State. The case alleged that the Myanmar authorities violated various provisions of the genocide convention. 

In November 2019, the court heard The Gambia's request for temporary protection for the remaining Rohingyas in Myanmar. It was unanimously adopted in 2020. In 2021, Aung San Suu Kyi filed preliminary objections challenging the court's jurisdiction and The Gambia's standing to file the case. Suu Kyi would soon be overthrown when the country's military junta, Min Aung Hlaing, staged a coup. And in July 2022, the ICJ rejected Myanmar's preliminary objections. This was the last we heard about the ICJ case against Myanmar.

So what is next? 

According to foreign ministry sources, Myanmar will have to submit a counter memorial by April 24 this year. The main argument in the case will be held afterwards. And according to the sources, the court might get a verdict by the end of 2024. 

If the Myanmar authorities are found guilty of the allegations of atrocities filed against them, then the court may send directions against the authorities to implement specific measures and ask the UN Security Council to execute its directives. And Myanmar being a member of the UN, the authority will have to comply with the measures instructed by the court.

However, unlike the ICC, the ICJ doesn't issue individual arrest warrants, which happened in Putin's case. But proving the leadership's guilt in ethnic cleansing would eventually open the door for justice. 

Now, will this bring a positive push to the current stalemate that we have in terms of Rohingya repatriation? Well, that depends on a lot of contributing factors. But before delving into that discussion, where are we in the repatriation process?

Stalemate in repatriation

Earlier this month, a 17-member Myanmar delegation visited Bangladesh and started the verification process of the Rohingyas in person, after a long pause in the repatriation process. Since the massive influx of 715,000 Rohingyas in Bangladesh in 2017, at least two attempts at repatriation have been made. The Chinese officials were involved in the process under a tripartite arrangement among Bangladesh, Myanmar and China.

The process involves Bangladesh sending a list of refugees to Myanmar, and then they verify their identities before starting the repatriation process.
According to foreign ministry sources that TBS talked with, so far, the government has sent a list of 8.82 lakh Rohingyas, but Myanmar authorities verified only around 70,000 Rohingyas.

Over a million Rohingya refugees were sheltered in Cox's Bazar. But not a single refugee was repatriated to Myanmar, as the refugees refused to return to the unsafe conditions that prevail in Myanmar and their main demand of guaranteeing citizenship remained unmet.

No significant progress soon 

The new talks have begun in the background of global pressure on Myanmar. But according to the sources, the possibility of significant progress in repatriation is still slim. It was evident from the beginning that the Myanmar authorities were not sincere in repatriating their citizens time and time again. They kept torturing the remaining Rohingya.

Ever since the military coup, Myanmar has been in a civil war, spreading all across the nation. The junta doesn't effectively control every part of the country as rebels intensify their efforts to get rid of the military regime. Moreover, China, their largest backer, is reportedly maintaining distance from the Junta without effectively siding with the National Unity Government, Suu Kyi's NLD-led opposition coalition. So, Myanmar is in serious turmoil. 

The latest efforts by the military regime could thus be suspected as the regime's effort to ease up some global pressure, instead of really taking the Rohingyas back.
Also, without Myanmar ensuring a secure environment for the Rohingyas in Rakhine, it is not practical to believe that the refugees will agree to return to the hostility they escaped.

Bangladesh, for its part, has provided shelter, and the massive number of refugees is a big concern for the country. So repatriation of the refugees back to Myanmar has been the highest priority for several years.
So strategically, Bangladesh didn't want to create enmity with Myanmar by involving itself directly in the ICJ case. But sources said the country has provided the ICJ with information whenever required, and many of its officials are involved in the procedure—especially those who were at the camp in the early days to share their experiences.

"It will not be the right move to create a tense, warlike situation with Myanmar... that may lead to cutting off all contacts," sources told TBS.

However, Bangladesh's approach to the stalemate is not without criticism. The analysts point out that since the junta regime is losing more and more control and forces like the Arakan Army are solidifying their control in Rakhine and other provinces, Dhaka should engage with alternate stakeholders in the escalating scenario.

Also, since the military regime is not serious about repatriation, instead of short-term bilateral discussions that might only benefit the regime by buying more time and easing pressure, analysts insist on continuing efforts to engage more stakeholders in such initiatives.

Along with seeking diplomatic solutions, the experts also emphasise creating sustained security leverage over Myanmar, as any diplomatic solution that Bangladesh seeks right now remains unlikely.