Judicial process and the Rohingya situation

Published : 05 Apr 2022 10:49 PM | Updated : 16 Jun 2022 01:18 PM

Finally, it has been encouraging to see that there has been a slight change consistent with democratic norms, good governance and culpability regarding criminal actions that have been undertaken against the Rohingya population of Myanmar’s Rakhine State by the Myanmar armed forces authorities. This has led to thousands of deaths within this ethnic minority community and also to their eventual effort to find sanctuary and safety by crossing into Bangladesh- their neighboring country. Myanmar’s crackdown against the Muslim minority group, starting in 2017, left more than 25,000 dead and led to the creation of nearly a million displaced people. 

One has been witnessing criticism of Russia over Ukraine but for the first time the United States has stepped forward and acknowledged that genocide took place against the Rohingya population.

On March 21, 2022, US Secretary of State Blinken has formally indicated that genocide took place for the eighth time in the world when the Myanmar military committed their crimes against humanity against the Rohingya community within Myanmar. This was done through the Myanmar military forces targeting the Rohingya by the razing of villages, killing, rape, torture, and other horrific abuses. They demonstrate that these abuses were not isolated cases.  The attack against Rohingya was widespread and systematic, which is crucial for reaching a determination of crimes against humanity. Blinken has observed that available evidence also points to a clear intent behind these mass atrocities – the intent to destroy Rohingya, in whole or in part.  That intent has been corroborated by the accounts of soldiers who took part in the operation and later defected, such as one who said he was told by his commanding officer to, and I quote, “shoot at every sight of a person,” end quote – burn villages, rape and kill women, orders that he and his unit carried out. Intent has also been evident in the racial slurs shouted by members of the Burmese military as they attacked Rohingya, the widespread attack on mosques, the desecration of the Muslim holy book- the Koran. It has also been mentioned that one needs to recognize that for decades the Myanmar military has committed killings, rape, and other atrocities against members of other ethnic and religious minority groups- which are also well documented. 

Consequently, one needs to understand that efforts undertaken by Gambia and the OIC supported by a few other countries pertaining to receiving justice for the abused Rohingyas assumed particular significance through the fact that it is being sought through The International Court of Justice (ICJ). This is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The Court is composed of 15 judges elected for a nine-year term by the General Assembly and the Security Council of the United Nations. The seat of the Court is at the Peace Palace in The Hague (Netherlands). The Court has a twofold role: first, to settle, in accordance with international law, through judgments which have binding force and are without appeal for the parties concerned, legal disputes submitted to it by States; and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system.

However, there appears to have been a distinct avoidance by any reporting media analyst about the other critical event that has taking place in Europe at the same time. This relates to the consideration by the International Court of Justice in The Hague, Netherlands of the application made by Gambia against Myanmar pertaining to the guilty authorities of that country being punished under existing laws of the Convention on the Prevention and Punishment of the Crime of Genocide.

Molly Quell however took the opportunity to draw the attention of the media by pointing out that The International Court of Justice had finished a week of hearings on Monday, 28 February into whether it has jurisdiction to decide if Myanmar violated a 1948 treaty against genocide. 

In this context it was pointed out that the West African state of Gambia had filed a complaint before The Hague-based United Nations Court in 2019, alleging Myanmar’s treatment of the Muslim minority group violated the post-World War II Genocide Convention, but Myanmar had argued that Gambia had no right to bring the case because its nationals had not been affected. 

It may also be noted that the judicial process regarding the dispute had become more complicated because, since proceedings began the military in Myanmar had staged a coup and arrested its civilian leader, Aung San Suu Kyi who very sadly, despite being a Nobel Prize winner for Peace had come to The Hague to defend the wrong-doings of the armed forces of her country during preliminary hearings in 2019. Contrary to democratic principles she is currently in jail on charges of treason. One is tempted to observe that if you spit in the air it will, in all likelihood, fall on your face. The South Asian country is now being represented by a former Propaganda Minister, Ko Ko Hlaing. 

Activist groups have also been calling for the ICJ to refuse to hear the case in an effort to isolate the military junta. 

In her opening remarks during this latest session, ICJ President Joan Donoghue addressed the matter. It was observed that “The parties to the case are States, not particular Governments."

Myanmar, it may be noted, has, on the other hand, been arguing that Gambia should not be able to file the complaint because Gambians have not been impacted by its actions. "Humanitarian considerations themselves cannot generate legal interest,” Myanmar's lawyer Stefan Talmon said during his opening statements during this latest session of hearings.

However, Gambia very correctly disagreed, arguing anyone can initiate proceedings under the U.N. Convention. "We made it our business when we, as civilized nations, committed ourselves to the Genocide Convention,” Gambian Minister of Justice Dawda Jallow said in his opening statement. 

According to Myanmar lawyers sponsored by their armed forces, Gambia is serving as a proxy for the Organisation of Islamic Cooperation, an intergovernmental organization representing countries with large Muslim populations.

However, it should be noted here that while it is true the OIC is supporting Gambia in its efforts, so are a number of other countries, including Canada and The Netherlands.

Gambia's lawyer Paul Reichler has called these allegations “an affront to state sovereignty and an insult to the Gambia.” He also narrated to the ICJ during this latest session that the most poignant moment in his 37-year career before the ICJ was watching a video of the Rohingya refugees- which has now crossed the million mark in Bangladesh-chanting “Gambia Gambia” in a refugee camp after the case was opened last year. 

It may be recalled that in 2021 the ICJ granted preliminary measures and ordered the Buddhist-majority government in Myanmar to stop acts of violence against Rohingya and protect evidence of any crimes as well as regularly reporting the status of the situation to the court. It has been reported by human rights activists both from within Myanmar and from abroad that this is not happening, The possibility of the repatriation of these Rohingya refugees from Bangladesh to Myanmar- with the assurance that they can live with dignity and safety is also not being followed up.

The history of the proceedings can be found in the ICJ press releases   Nos. 2019/47, 2019/49, 2019/54, 2020/3, 2020/4, 2020/14 and 2022/1, and is also available on the Court’s website. Attention has however been drawn to the fact that the Court’s press releases are prepared by its Registry for information purposes only and do not constitute official documents. The complete verbatim records of the hearings held from 21 to 28 February will be published later on the Court’s website- (

The Human Rights Watch has reported that while the representation of Myanmar at the court by junta officials had raised concerns, some Rohingya activists had welcomed their presence as they were representing armed forces officials in the hearing considered responsible for the atrocities in northern Rakhine State.

Rohingya activist Yasmin Ullah has commented that watching the perpetrators of mass violence face the Court has even been cathartic as “we have not heard once from the military in a legal court as they have always acted by proxy.”

Such a presence from Myanmar authorities has also been noted by other human rights activists. They believe that the momentum to hold Myanmar’s military accountable is gradually building, with a universal jurisdiction case underway not only in Argentina but also through the emphasis that there is need for an investigation at the International Criminal Court pertaining to the forced deportation of Rohingya to neighboring Bangladesh.

Achieving justice for the Rohingya has far-reaching consequences for all those who have suffered at the hands of Myanmar’s military. Abuses against the Rohingya have now echoed throughout Myanmar, as the commanders who oversaw the atrocities against the Rohingya and led a military coup more than a year ago are now carrying out apparent human rights abuse and crimes against humanity with regard to other ethnic groups across Myanmar.

In its summing up and closing statements, Gambia argued that Myanmar’s objections to the genocide case were merely a delaying tactic, and that any further delay in the proceedings may risk further atrocities against the Rohingya.

If the case proceeds, Myanmar will need to respond to Gambia’s factual allegations that its security forces took part in a genocidal campaign against the Rohingya, an opportunity that many victims and their families have long been waiting for. 

On February 28, the hearings on Myanmar’s preliminary objections to Gambia’s case on the alleged genocide against Rohingya Muslims in Myanmar came to a close. Yet legal analysts have remarked that the Court could take a year before it decides on whether the case can proceed. In the meantime, the Court’s 2020 Order to protect the 600,000 Rohingya remaining in Myanmar is still in place, providing a measure of protection. However Human Rights Watch feels that if the case proceeds, it would take several years before the Court reaches a judgment.

That, one feels, is too long a time, particularly for those unfortunate Rohingyas who fled to Bangladesh and are now waiting for repatriation to their homeland in Myanmar with dignity, safety and equal rights.

The United States needs to play a more proactive role with regard to facilitating quick repatriation of the Rohingya refugees back to their homeland. In this context necessary pressure needs to be exerted on the ASEAN.

Muhammad Zamir, a former Ambassador, is an analyst specialized in foreign affairs, right to information and good governance