Myanmar at the International Court of Justice: What it implies for the region
An exclusive interview of Quazi MH Supan, associate professor and director, Master of Laws (General and Specialised) Programme of the Department of Law at the University of Dhaka, about different aspects of the trial and overall Rohingya crisis from the regional perspective
As the plight of Myanmar's Rohingya people continues for more than two years in a row, The Gambia, a small western African country, has taken Myanmar to the International Court of Justice (ICJ) for its involvement in genocide. According to very conservative estimates by the human rights organizations, at least 7,000 have been killed and more than 7,00,000 refugees have fled to Bangladesh since Myanmar's brutal crackdown on Rohingyas that began on August 25, 2017. As Myanmar stands accused of genocide and ethnic cleansing at the ICJ, Masum Billah of The Business Standard has spoken to Quazi MH Supan, associate professor and director, Master of Laws (General and Specialised) Programme of the Department of Law at the University of Dhaka, about different aspects of the trial and overall Rohingya crisis from the regional perspective.
TBS: When most other influential countries had failed to take any decisive action against Myanmar over the treatment of Rohingyas, The Gambia, a small West African country, takes the case to the ICJ. Though as a country The Gambia has not been affected, how do you see its role at the ICJ?
Quazi MH Supan: Since the 1990s, the genocide lawsuit against Myanmar by The Gambia is the first genocide case at the ICJ and the case has been filed with the backing of the Organisation of Islamic Countries (OIC), formed with 57 countries. The Gambia has designated Abubacarr Marie Tambadou, Attorney General and Minister of Justice as its agent in the court. Tambadou was involved in filing the 1994 Rwandan genocide cases for over a decade. Also, he was a part of the OIC delegation that visited the refugee camps in Cox's Bazar. Both The Gambia and Myanmar became parties to the Genocide Convention in 1978 and 1956 respectively. The Gambia is alleging that Tatmadaw atrocities violate various provisions of the Genocide Convention and brought the case under article 9 of the convention, which allows for disputes between parties "relating to the responsibility of a State for genocide" and related acts to be submitted to the ICJ by any party. Involvement of a third state in filing a genocide case has already been confirmed by the World Court (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, ICJ Reports 1996, p. 595).
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TBS: As we know that an ICJ verdict requires a long time to process, could we expect any immediate action for the protection of the persecuted Rohingya's following the appeal of The Gambia?
Quazi MH Supan: Pending its determination of the case on the merits, The Gambia has requested the Court "as a matter of extreme urgency" to indicate a few provisional measures: Firstly, Myanmar shall immediately take all measures within its power to prevent all acts that amount to or contribute to the crime of genocide including extrajudicial killings or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life. Secondly, Myanmar shall, in particular, ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organisations and persons which may be subject to its control, direction or influence, do not commit any act of genocide, or conspiracy to commit genocide, or direct and public incitement to commit genocide, or of complicity in genocide, against the Rohingya group, including other atrocities. Thirdly, Myanmar shall not destroy or render inaccessible any evidence related to the events described in the Application. (Para. 132). If the ICJ delivers in favour of asked measures, those directions will be legally binding. The Court may indicate provisional measures within weeks. Beyond the provisional measures, it may take years to get the final verdict. Before that there are at least two difficult hurdles. Firstly, the applicant must settle the question of jurisdiction – a question that will obviously be raised by Myanmar and secondly, the applicant will have to prove successfully that Myanmar acted "with intent to destroy in whole or in part" the Rohingya minority.
TBS: Considering the gravity of the crimes and available evidence in support of the genocide, the United Nations described the atrocities perpetrated by Myanmar on its Rohingya population as ethnic cleansing. Why do you feel Aung Sung Suu Kyi has defended Myanmar in the face of such grave accusations?
Quazi MH Supan: Ms Suu Kyi has been the de facto leader of Myanmar since April 2016, before the alleged genocide began. Currently she is enjoying considerably high level of public backing in Myanmar. By defending the military in the court she is establishing herself as a patriotic leader that is likely to cement her desired outcome in the upcoming election. It is a completely win-win situation for her. She does not have control over the army but her complicity in the military atrocities and her later service as a defence counsel will leave long-lasting impact on voters' hearts and minds.
TBS: Bangladesh, Canada and Netherlands have decided to cooperate with The Gambia in its efforts at the ICJ. In what extent Bangladesh assisted Gambia effectively in its effort at the ICJ?
Quazi MH Supan: Bangladesh played a significant role in opening the case against Myanmar. As evidence The Gambia will be heavily relying on the UN fact finding reports. Bangladesh can effectively help Gambia by providing all the evidence that currently she has in possession and by acquiring further intelligence and data on the atrocities.
TBS: Despite much international outcry over Myanmar's maltreatment of the Rohingyas, why is India unwilling to be party to the ongoing problem, and China giving it a cold shoulder, how far do you think Bangladesh would fare in garnering international support?
Quazi MH Supan: Both India and China have ongoing rivalries on various issues, their stance regarding Rohingya issue is almost identical – both countries have sympathetic concerns at different extents towards Myanmar government. Both these countries have heavily invested in the Rakhine state and other parts of Myanmar and both are eyeing on the precious natural resources of Myanmar. Among other huge infrastructure projects in Myanmar, India is funding Kaladan multi-modal project that will allow a sea-river-land link to its remote northeast area. On the other hand, China is funding Kyauk Phyu port – starting point of an oil-gas pipeline and railroad link to Yunnan in China. It seems that Myanmar has become a place of silent battle of dominance for both India and China. To add to that, India thinks that Jihadist element from Rakhine state may infiltrate eastern Indian states though it remains unclear how that could take place. China is not a democratic country and any opposition is brutally silenced there. India's stance regarding Rohingya issue is being heavily criticised inside the country as well.
TBS: With the case at the ICJ, do you see any hope in further global mobilisation of opinions in favour of the Rohingya people? Do you feel the case at the ICJ would contribute to the Rohingya repatriation anytime soon?
Quazi MH Supan: Even if The Gambia succeeds getting a ruling from ICJ, the Court does not have any way of enforcing a ruling against Myanmar. Neither Aung San Suu Kyi nor the generals can be arrested and put on trial. The world court does not have its own enforcement mechanism. Under Article. 94 (1) of the UN Charter "each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party." The next clause in the same Article says that "if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment." If Myanmar does not pay heed to the ICJ ruling, it is highly likely that any Security Council initiative will be vetoed by China.
Nevertheless, such ruling will definitely act as a catalyst and leverage to tighten political pressure and economic sanctions on Myanmar and to further international humanitarian and political support for Rohingya minority and as well as Bangladesh. It is not the ICJ judgment itself that may end Rohingya crisis, rather the increased political and economic pressure fuelled by any ICJ judgment that may end the crisis and that too is not going happen within a reasonably foreseeable time.
