On 10 February 2022, FORSEA hosted the second part of the 2-part roundtable on the upcoming public hearings scheduled for 21-28 February in the Gambia v Myanmar, or the Rohingya genocide, at the International Court of Justice (ICJ). Two of the international legal minds who have extensively researched on Myanmar’s genocide of Rohingya people shared their thoughts.

Dr Katherine Southwick, a scholar specializing in atrocity prevention who is a contractor with the US Holocaust Memorial Museum, spoke in her independent capacity, offering a holistic view of the genocide case. She drove home the message of moral and practical imperative of paying attention to and heeding what justice means to the Rohingya themselves.

Mike Becker addressed the likely focus of the forthcoming hearing on preliminary objections, if that hearing takes place. As Mike explained, this phase of the case does not relate to The Gambia’s claims that Myanmar has violated the Genocide Convention or the discrimination and atrocities committed against the Rohingya in Myanmar. This is instead a procedural step that gives Myanmar the opportunity to challenge the ICJ’s power to hear the case.

One can only speculate about the precise objections that Myanmar will raise, but, according to Mike, Myanmar is likely to reiterate several objections to jurisdiction that it made in December 2019, when it responded to The Gambia’s request for provisional (emergency) measures. When the ICJ granted those provisional measures in January 2020, it rejected Myanmar’s jurisdictional objections. Mike reasoned that the ICJ is highly likely to respond in the same way here and that Myanmar’s efforts to have the case dismissed will fail. This will allow the case to proceed to the merits, allowing The Gambia’s claims relating to the Rohingya to be heard in full.

On the question of legal representation, Mike explained that the recent intervention by Myanmar’s Permanent Representative to the UN, who was appointed by the deposed NLD government and is still holding Myanmar’s seat, creates a new complication for the ICJ, which now squarely faces competing claims to act as the lawful representative of Myanmar in the ICJ proceedings.

One possible outcome may be that the ICJ will postpone the hearing and suspend the case until the representation issue is resolved elsewhere. This would prevent the military government from acting on Myanmar’s behalf — which many observers see as paramount — but would further delay any prospect of justice for the Rohingya through the ICJ proceedings.

Alternatively, if the ICJ allows the case to proceed with the military junta representing Myanmar (for whatever reason) it would be prudent for the ICJ, as well as civil society actors, to emphasise that this does not have any broader legal consequences in terms of recognition of the military regime by the UN, other international organizations, or individual states. To the extent that it might have political consequences, it remains within the power of civil society actors and states to shape those consequences.

Dr Katherine Southwick’s Remarks:

ICJ and the Gambia v. Myanmar: The Uncertainties and Limits, February 10, 2022

I think Mike has presented a clear picture of where the ICJ case stands, what jurisdictional questions might arise this month, as well as the uncertainties regarding whether the Gambia’s claims will succeed, the extent of relief or remedies the ICJ can provide, the prospects of compliance, and the impact of the coup.

In my statement here, I want to discuss a bit how the ICJ fits into the bigger picture here, how it matters, how various actors can leverage it to have a greater impact, and what it does not do and the risk that it diverts our attention from the core, urgent needs, including for justice.

The Bigger Picture

The bigger picture is that the Myanmar military appears to have been committing genocide against the Rohingya for many years and now, since last year’s coup, it is engaged in civil conflict with the rest of the country. When situations like this arise, the international community has a responsibility to prevent and punish mass atrocities, protect vulnerable groups, and maintain international peace and security, variably under the Genocide Convention, the Responsibility to Protect, the UN Charter, and the Universal Declaration of Human Rights.

There is no formula or prescription for meeting this responsibility as every situation is different, but that lack of specificity at the same time can lead to inaction, symbolic posturing (through meetings, statements, tweets, etc.), or other limited responses (a few sanctions), and it can be difficult to define or measure “success.”

Some of the things that are done may be very difficult to accomplish in a complex political environment and institution like the UN, and so whenever they do anything, we can claim it as a “success.” However, if we measure success according to whether atrocities were actually prevented, it can be difficult to prove a negative or that something didn’t happen because of whatever you did or said. Or, if success is defined as removing certain risk factors of atrocities, stopping violence, or compensating and restoring rights to victims, then most of the time, we find that we are quite far from success.

The ICJ case tracks this contradictory notion of success in international response. It is without question a success that the Gambia brought this case at all. For a long time, many people speculated and doubted whether any country would actually stick its neck out and do it. The fact that a country from the Global South, with no obvious connection to the Myanmar-Rohingya crisis, is making this claim is powerful in terms of actualizing or performing the norm underlying the Genocide Convention, that the crime of genocide against any protected group is a crime against all humanity, and conveying that these principles matter greatly to smaller, non-Western countries. The ICJ is an august forum that will treat the case with a great deal of care, detail, and seriousness as it creates an authoritative record of facts and considers these grave allegations under relevant law.

Some might find that there is a measure of justice in reaching this point, regardless of the outcome, as there is, I believe, with all the other justice-seeking efforts that have been launched in an avalanche in the last 3-4 years, such as the:

    • Independent International Fact-Finding Mission for Myanmar (IIFFMM) and its 440-page report (released in September 2018),
    • People’s Tribunal of Myanmar (September 2018)
    • Independent Investigative Mechanism for Myanmar (September 2018)
    • International Criminal Court (investigation launched in November 2019)
    • Burmese Rohingya Organization’s universal jurisdiction case in Argentina (November 2019)
    • ICJ (November 2019)
    • Travel bans, asset freezes, and sanctions from the US and the EU
    • Corporate actions to withdraw operations, most recently of Total and Chevron in response to the coup
    • Lawsuit against Facebook

Now, all of this is a testament to the coordinated advocacy of Rohingya and Burmese activist networks and other organizations. The breadth and variety of legal responses signals that atrocity prevention and accountability norms are stronger than they were twenty years ago.

At the same time, as many have pointed out, and precisely because the ICJ takes these claims seriously, the ICJ case (as well as other judicial processes) will take a long time and the outcome and impact is uncertain. So, in that sense, it is difficult to say whether the ICJ case ultimately will be a success for the Gambia, and the Rohingya by extension.

These processes apply pressure on the military regime, and the National Unity Government (NUG) can pledge its willingness to cooperate with them to strengthen its own claims to legitimacy and to help actualize crucially fundamental norms of equality for all. Also, if alleged perpetrators are ever actually arrested and convicted at the ICC, that will be meaningful to some.

But, these processes do not automatically improve humanitarian responses, amend the Myanmar Constitution, eliminate discriminatory laws, support restorative justice among divided communities, or directly build rule of law in Myanmar. They are complementary to and not a substitute for long-term solutions. That essential work of social and political change is happening in Myanmar through the Nwe Oo (Spring) Revolution and the ongoing work that you, Zarni, and other activists, including Rohingya refugees, have done to promote inclusion and pluralism inside the country.

Enforcing international law does not only happen in a court. It also happens through our behavior. If we (international community) are effectively living up to or enforcing obligations or commitments to prevent and protect populations from mass atrocities, we allies should continue to focus on the needs of vulnerable populations, grounded in their own understanding of what justice means and what they truly want from us. Doreen Chen, attorney who served at the Khmer Rouge Tribunal, has written about this. Their voices and say over what happens are too often missing from these discussions and decisions, and I would suggest that we collectively develop a more systematic, deliberative approach to engaging Rohingya perspectives in Bangladesh, Rakhine, and elsewhere so as to more effectively emancipate the voices of the marginalized, or as Spivak might say, to let the subaltern speak.

In May 2020, after Myanmar submitted its first report to the ICJ, two Rohingya youth leaders – Zahidullah Shohid and Abdullah Zubair – published an op-ed on the ICJ and justice. Here is part of what they wrote:

Since we arrived in Bangladesh, hundreds of international delegations have come to speak to us at the camps. They have promised us that, through these international courts, they will work towards justice for the Rohingya people.

Maybe they stopped listening when we explained what justice means to us.

For us, justice means going home as soon as possible. It means being given rights and citizenship in Myanmar. It means security, and the ability to call ourselves “Rohingya.”

We do not need an international court to tell us that what happened to us was a genocide. We know it was genocide. The world knows it was genocide. The world has already heard our story and knows our pain.

If the ICJ is going to take five or 10 years, then we ask the international community:

What are you going to do about the abuses and injustices that are happening today?

What action will you take to help us go home?

How can we expected to wait for five or 10 years without education or livelihoods?

Perhaps the international community thinks that justice is something that happens in a court in Europe. The fact is that Rohingya need justice in Myanmar and Bangladesh.

We want to go home, we want to go to school, we want to work, and we want to be safe. That is what justice means to us.

Relevant readings:

Leveraging International Justice for Lasting Peace in Myanmar, Katherine Southwick, Just Security, 4 August 2022.

Straining to Prevent the Rohingya Genocide: A Sociology of Law Perspective, Katherine Southwick, Justice and Prevention of Genocide, V. 12, Issue 3. Article 13, 12-2018. https://digitalcommons.usf.edu/cgi/viewcontent.cgi?article=1572&context=gsp

The Challenges for the ICJ in the Reliance on UN Fact-Finding Reports in the Case against Myanmar, Michael A Becker, EJIL: Talk!, 14 December 2019. https://www.ejiltalk.org/the-challenges-for-the-icj-in-the-reliance-on-un-fact-finding-reports-in-the-case-against-myanmar/

The Gambia v Facebook: Obtaining Evidence for Use at the International Court of Justice (Part I), Michael A Becker, EJIL: Talk!, 5 October 2021. https://www.ejiltalk.org/the-gambia-v-facebook-obtaining-evidence-for-use-at-the-international-court-of-justice-part-i/

The Plight of the Rohingya: Genocide Allegations and the Provisional Measures at the International Court of Justice, Michael A. Becker, Melbourne Journal of International Law, V.21, 2020, pp.1-22. https://law.unimelb.edu.au/__data/assets/pdf_file/0010/3910654/08Becker-unpaginated.pdf

We, the Rohingya, can’t wait for justice from faraway courts | Frontier Myanmar. https://www.frontiermyanmar.net/en/we-the-rohingya-cant-wait-for-justice-from-faraway-courts/

Watch the full discussion


Posted by FORSEA