By Alivya Sahay and Raj Krishna
INTRODUCTION
On 23rd January 2020, the International Court of Justice in a landmark ruling has directed the state of Myanmar to cease all atrocities and human rights violations against the Rohingya Muslims. It is interesting to note that for the very first time the ICJ has heard a genocide case wherein the party instituting the suit is not the neighbour of the accused state. Further, it is also pertinent to note that ICJ has investigated this genocide claim all on its own, without relying upon the findings of any tribunal.
BACKGROUND OF THE CASE
The state of Gambia instituted this suit before the International Court of Justice (ICJ) in November 2019. The state of Gambia contended before the ICJ that the state of Myanmar has committed the offence of genocide against the Rohingya Muslims. Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as “an act committed with an intention to destroy, in whole or in part, a national, ethnical, racial or religious group.”
On the other hand, the state of Myanmar denied the happening of any sort of genocide within its national boundary. The state of Myanmar even questioned Gambia’s standing to bring the suit because there was no such bilateral dispute between the two states. However, Myanmar has admitted the fact that certain war crimes have occurred, and are therefore being investigated and prosecuted by Myanmar’s national criminal justice system.
It is pertinent to note that the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar had found Myanmarese military responsible for the offence of genocide against the Rohignyas. As per the report in these attacks, thousands of Rohingyas have already lost their lives and another thousand Rohingya women and girls have been subjected to rape, including mass gang rapes. The Rohingyas in Myanmar have been subjected to majoritarian attacks and have also been denied of their basic amenities, which has forced more than 723,000 of them to flee their country and seek refuge in the neighbouring countries.
JUDGMENT OF THE COURT
The panel of 17 judges at the International Court of Justice (ICJ) in its judgment has held that Myanmar’s Rohingya population is at risk of genocide, and therefore the state of Myanmar must take “all measures within its power” to prevent genocidal violence against its Rohingya Muslim minority and preserve evidence of past crimes. The Presiding judge named Abdulqawi Ahmed Yusuf has further directed the state of Myanmar to report back to ICJ within four months on how it has implemented their ruling. The ICJ in its ruling has imposed “provisional measures” under Article 41 against Myanmar and has ordered Myanmar to comply with the obligations of the Convention on the Prevention and Punishment of the Crime of Genocide.
The ICJ in its judgment has identified sexual violence as constitutive of genocide. The Court, in this case, has held that rape and other forms of sexual violence violate the Rohingya’s very right to existence.
Rape as a form of genocide was for the first recognized in the 1998 Akayesu ruling wherein it was held that sexual violence [Rape and Sexual Mutilation] do constitute genocide. However, the Akayesu ruling has been criticized for failing to consider sexual violence against men and boys to be genocidal.
WAY FORWARD
This judgment of the ICJ has been applauded by Human Rights Group all over the world. Tun Khin, president of the Burmese Rohingya Organisation UK has tweeted that, “Today’s ruling by the ICJ is a crucial moment for Rohingya justice and vindication for those of us who have lived through this genocide for decades”. However, Myanmar’s Foreign Ministry has accused the Human Rights Group of presenting the Court with a distorted image of the existing situation. The Ministry has further defended the army’s action as a legitimate response to violations of law by the insurgent Arakan Rohingya Salvation Army.
The ICJ ruling is a unique ruling because it has identified sexual violence as constitutive of genocide. However, the Court has not specified against whom sexual violence must be perpetrated in order to constitute genocide. The 2018 UN report states that sexual violence has been committed even against men, boys and transgender. So it remains to be seen if in future the ICJ rulings will highlight sexual violence ag.ainst men, boys, and transgender people as constitutive of genocide.
The ICJ ruling will definitely halt the ongoing violence, however, the impact and trauma of sexual violence will lie within the victims. As a result, the ICJ’s potential for offering support to survivors of sexual violence via redress or reparations measures needs to be further explored. While the ICJ ruling is a landmark ruling because it has taken a positive step towards addressing the issue of genocide of the Rohingyas, the full ICJ trial will take more time. While the ICJ ruling represents positive progress, the on-the-ground impact of such international efforts particularly for survivors of sexual violence remains to be seen.
[The co-authors are third-year and fifth-year students at Chanakya National Law University, Patna, respectively.]
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