Rohingya genocide case

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Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar)
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Court International Court of Justice
Citation(s) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar)

The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), commonly referred to as the Rohingya genocide case, [1] [2] is a case which is currently being heard by the International Court of Justice (ICJ). The case was brought forward by the Republic of The Gambia, on behalf of 57 members of the Organisation of Islamic Cooperation in 2019. [3]

Contents

Background

The Rohingya people are a Muslim Indo-Aryan [4] ethnic minority which has faced mass persecution and ethnic cleansing in Buddhist-majority Myanmar in recent years. The persecution of the Rohingya has been described as a genocide. [5] [6] [7] The government of Myanmar deems them illegal immigrants, but the Rohingya people argue they have lived in the area for generations and that the government of Myanmar's treatment of them is unfair to the Muslims of Myanmar as a whole. [8]

According to The Economist , regarding Aung San Suu Kyi's motivation for taking up the defendants' cause, "It is hard to escape the conclusion that she is exploiting the Rohingyas' misery to boost her party's prospects in elections due in 2020." [9]

Aung San Suu Kyi describes this conflict as an "internal armed conflict" that was triggered by Rohingya attacks on the government of Myanmar. The judge who is presiding over the case, Abdulqawi Ahmed Yusuf, has given Myanmar four months to implement his rulings: Myanmar must take "all measure within its power" to prevent genocide. [10]

Procedural history

On 11 November 2019, The Gambia lodged a 35-page application with the ICJ against Myanmar, initiating the case on the basis of the erga omnes character of the obligations enshrined in the Genocide Convention. [11] The application alleged that Myanmar has committed mass murder, rape and destruction of communities against the Rohingya group in Rakhine state since about October 2016 and that these actions violate the Genocide Convention. Outside counsel for The Gambia includes a team from the law firm Foley Hoag led by Paul Reichler, as well as Professors Philippe Sands of University College London and Payam Akhavan of McGill University. [12] [13] [14] On the other side, leader and State Counsellor Aung San Suu Kyi is representing Myanmar, along with a legal team. [15]

The Gambia also submitted a request for the indication of provisional measures of protection. The ICJ held a public hearing on that request for three days, 10–12 December 2019. [16] A commentator described the hearing as a "remarkable spectacle," noting that The Gambia's team provided "brutal descriptions" of atrocities, while Aung San Suu Kyi avoided using the word "Rohingya"—except in a reference to the Arakan Rohingya Salvation Army. [17]

On 23 January 2020, the ICJ issued an order on The Gambia's request for provisional measures. The order "indicated" (i.e., issued) provisional measures ordering Myanmar to prevent genocidal acts against the Rohingya Muslims during the pendency of the case, and to report regularly on its implementation of the order. [18]

The Court issued a procedural order on the same date, setting filing deadlines of 23 July 2020 for The Gambia's Memorial, and 25 January 2021 for Myanmar's responsive Counter-Memorial. [19]

On 18 May 2020, The Court issued an extension for The Gambia's memorial and set a filing deadline of 23 October 2020. Similarly, an extension was granted to Myanmar set at 23 July 2021. [20]

In November 2023, Canada, Denmark, France, Germany, the Netherlands, the United Kingdom, and the Maldives joined The Gambia’s genocide case against Myanmar. [21] [22] [23]

Analysis

Analyzing the decision in the blog of the European Journal of International Law , Marko Milanovic, a professor at the University of Nottingham School of Law, called the Court's order of provisional measures "obviously a win for The Gambia, and for the Rohingya cause more generally", but also stated that the order largely only replicated existing "state obligations under the Genocide Convention", and did not include the broader measures and statements that The Gambia had requested. [24]

See also

Related Research Articles

<span class="mw-page-title-main">Aung San Suu Kyi</span> Burmese politician and democracy activist (born 1945)

DawAung San Suu Kyi, sometimes abbreviated to Suu Kyi, is a Burmese politician, diplomat, author, and a 1991 Nobel Peace Prize laureate who served as State Counsellor of Myanmar and Minister of Foreign Affairs from 2016 to 2021. She has served as the general secretary of the National League for Democracy (NLD) since the party's founding in 1988 and was registered as its chairperson while it was a legal party from 2011 to 2023. She played a vital role in Myanmar's transition from military junta to partial democracy in the 2010s.

The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), or the Genocide Convention, is an international treaty that criminalizes genocide and obligates state parties to pursue the enforcement of its prohibition. It was the first legal instrument to codify genocide as a crime, and the first human rights treaty unanimously adopted by the United Nations General Assembly, on 9 December 1948, during the third session of the United Nations General Assembly. The Convention entered into force on 12 January 1951 and has 152 state parties as of 2022.

In legal terminology, erga omnes rights or obligations are owed toward all. Erga omnes is a Latin phrase which means "towards all" or "towards everyone". For instance, a property right is an erga omnes entitlement and therefore enforceable against anybody infringing that right.

<span class="mw-page-title-main">Rohingya people</span> Indo-Aryan ethnic group of western Myanmar

The Rohingya people are a stateless Indo-Aryan ethnic group who predominantly follow Islam and reside in Rakhine State, Myanmar. Before the Rohingya genocide in 2017, when over 740,000 fled to Bangladesh, an estimated 1.4 million Rohingya lived in Myanmar. Described by journalists and news outlets as one of the most persecuted minorities in the world, the Rohingya are denied citizenship under the 1982 Myanmar nationality law. There are also restrictions on their freedom of movement, access to state education and civil service jobs. The legal conditions faced by the Rohingya in Myanmar have been compared to apartheid by some academics, analysts and political figures, including Nobel laureate Bishop Desmond Tutu, a South African anti-apartheid activist. The most recent mass displacement of Rohingya in 2017 led the International Criminal Court to investigate crimes against humanity, and the International Court of Justice to investigate genocide.

There is a history of persecution of Muslims in Myanmar that continues to the present day. Myanmar is a Buddhist majority country, with significant Christian and Muslim minorities. While Muslims served in the government of Prime Minister U Nu (1948–63), the situation changed with the 1962 Burmese coup d'état. While a few continued to serve, most Christians and Muslims were excluded from positions in the government and army. In 1982, the government introduced regulations that denied citizenship to anyone who could not prove Burmese ancestry from before 1823. This disenfranchised many Muslims in Myanmar, even though they had lived in Myanmar for several generations.

A provisional measure of protection is the term that the International Court of Justice uses to describe a procedure "roughly equivalent" to an interim order in national legal systems. The order has also been termed in the press as preliminary measures. The carrying out of the procedure is termed indicating the provisional measure of protection. Requests for the indication of provisional measures of protection take priority over all other cases before the ICJ due to their urgency.

<span class="mw-page-title-main">Rohingya genocide</span> Ongoing ethnic cleansing in Myanmar

The Rohingya genocide is a series of ongoing persecutions and killings of the Muslim Rohingya people by the military of Myanmar. The genocide has consisted of two phases to date: the first was a military crackdown that occurred from October 2016 to January 2017, and the second has been occurring since August 2017. The crisis forced over a million Rohingya to flee to other countries. Most fled to Bangladesh, resulting in the creation of the world's largest refugee camp, while others escaped to India, Thailand, Malaysia, and other parts of South and Southeast Asia, where they continue to face persecution. Many other countries consider these events ethnic cleansing.

The Advisory Commission on Rakhine State was an international advisory commission headed by former UN Secretary-General Kofi Annan to ensure the social & economical well-being of both the Buddhist and the Rohingya communities of Myanmar's conflict-ravaged Rakhine State. The decision to establish the commission was made on 23 August 2016. The commission was an institution of Myanmar, established in cooperation with the Kofi Annan Foundation, and most members were Myanmar citizens. It became widely known and referred to as the "Annan commission" or the "Rakhine commission."

<span class="mw-page-title-main">International reactions to the Rohingya genocide</span>

The Rohingya genocide is a term applied to the persecution—including mass killings, mass rapes, village-burnings, deprivations, ethnic cleansing, and internments—of the Rohingya people of western Myanmar.

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Truth and reconciliation in Myanmar refers to the examination of human rights abuses in Myanmar, particularly involving those suffered by the Rohingya people. From a coup d’état in 1962 to a general election in 2010, Myanmar was controlled by a military regime. The junta was officially dissolved in 2011 into a civilian government, but there are lasting effects from the decades of military rule. Currently, the income gap in Myanmar is one of the largest in the world, and there are claims that many members of the previous regime continue to hold positions of power. In 2012, U.N. Special Rapporteur Tomas Ojea Quintana called on the creation of a truth commission by Myanmar to look into the human rights abuses committed by the previous government's rule. Quintana also called for an "independent and credible investigation" into the conflict between the Rakhine Buddhists and the Rohingya Muslim minority. In 2015, the Network for Human Rights Documentation Burma (ND-Burma) came out with a report that called for the acknowledgement and reparation for both crimes committed under the military junta, and the abuses currently ongoing.

Events of 2019 in Myanmar xxx

The Special Envoy of the Secretary-General on Myanmar is a special Representative of the Secretary-General of the United Nations created in 2018 to respond to the Rohingya genocide starting in August 2017 and its effects in Myanmar. According to the mandate established by the UN General Assembly in its resolution 72/248 in 2017, the Special Envoy "works in close partnership with all stakeholders including local communities and civil society, and regional partners, notably the Government of Bangladesh and the Association of Southeast Asian Nations (ASEAN), regional countries, and the broader membership of the United Nations."

<span class="mw-page-title-main">2020 Myanmar general election</span>

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<span class="mw-page-title-main">Genocide justification</span> Attempts to claim genocide is a moral action

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<span class="mw-page-title-main">Myanmar–United Kingdom relations</span> Bilateral relations

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References

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  2. Solomon, Niharika Mandhana and Feliz (10 December 2019). "Rohingya Genocide Case Against Myanmar Opens Before U.N. Court". Wall Street Journal. Retrieved 10 December 2019.
  3. "Aung San Suu Kyi defends Myanmar from accusations of genocide, at top UN court". UN News. 11 December 2019. Retrieved 8 February 2022.
  4. Haque, Md Mahbubul (2 October 2017). "Rohingya Ethnic Muslim Minority and the 1982 Citizenship Law in Burma". Journal of Muslim Minority Affairs. 37 (4): 454–469. doi:10.1080/13602004.2017.1399600. ISSN   1360-2004. S2CID   148935720.
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  6. "Factbox: Myanmar on trial for Rohingya genocide – the legal cases". Reuters. 21 November 2019. Retrieved 7 December 2019 via www.reuters.com.
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  9. "Aung San Suu Kyi has gone from hero to villain". The Economist . 11 December 2019.
  10. "World court acts to prevent Rohingya genocide". BBC News. 23 January 2020. Retrieved 30 May 2020.
  11. Application instituting proceedings and Request for the indication of provisional measures. International Court of Justice. 11 November 2019.
  12. "Foley Hoag Leads the Gambia's Legal Team in Historic Case to Stop Myanmar's Genocide Against the Rohingya | Foley Hoag". foleyhoag.com. Retrieved 25 January 2020.
  13. Bowcott, Owen (11 November 2019). "Gambia files Rohingya genocide case against Myanmar at UN court". The Guardian. ISSN   0261-3077 . Retrieved 7 December 2019 via www.theguardian.com.
  14. "The Republic of The Gambia institutes proceedings against the Republic of the Union of Myanmar and asks the Court to indicate provisional measures (press release)" (PDF) (Press release). International Court of Justice. 11 November 2019. Retrieved 7 December 2019.
  15. John, Tara (20 November 2019). "Aung San Suu Kyi to defend Myanmar in genocide case". CNN. Retrieved 10 December 2019.
  16. "Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) - Request for the indication of provisional measures - The Court to hold public hearings from Tuesday 10 to Thursday 12 December 2019" (PDF). International Court of Justice . Retrieved 24 August 2016.
  17. Becker, Michael (14 December 2019). "The Challenges for the ICJ in the Reliance on UN Fact-Finding Reports in the Case against Myanmar". EJIL: Talk!. Retrieved 19 December 2019.
  18. Paddock, Richard C. (23 January 2020). "U.N. Court Orders Myanmar to Protect Rohingya Muslims". The New York Times. Retrieved 23 January 2020.
  19. "Order" (PDF). International Court of Justice. Retrieved 22 March 2020.
  20. "Order" (PDF). International Court of Justice. Retrieved 7 October 2020.
  21. "Canada, Britain and main EU countries join Myanmar genocide case". Reuters. 17 November 2023.
  22. "Canada is being hypocritical by failing to support South Africa's genocide case against Israel". The Conversation. 11 January 2024.
  23. "Press Release: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) - Canada, Denmark, France, Germany, the Netherlands, the United Kingdom (jointly) and the Maldives file declarations of intervention in the proceedings under Article 63 of the Statute" (PDF). International Court of Justice.
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