An unprecedented court ruling leaves Myanmar and Aung San Suu Kyi in a tight spot
The International Court of Justice (ICJ) ruled on Thursday that Myanmar is to undertake a set of provisional measures to prevent further attempts at genocide against the roughly 600,000 members of the Rohingya Muslim minority remaining in Myanmar. The decision comes after more than two years of so-called clearing operations waged against the Rohingya by the military of Myanmar.
This was the first time that a genocide case has been brought before the ICJ by a signatory county. The case was brought on behalf of the Rohingya not by Myanmar's neighbors like Bangladesh but by the government of the African country of Gambia—a majority-Muslim nation, operating with the help of the Organization of Islamic Cooperation to protect fellow Muslims.
It was the first time that the 17 judges of the ICJ have unanimously mandated such provisional measures—less than two months after the case started. That's not only a powerful rebuke to the Myanmar government but also a strong precedent for future cases.
To be clear, this is not yet a ruling on whether the military or the broader state of Myanmar are guilty of the crime of genocide under international law. Those kinds of rulings take years, and the standard of evidence required is very high: so high in fact that even the Bosnian and Croatian genocides in the 1990s were found to fall short of it, and the final verdict was war crimes and crimes against humanity.
This was a judgment that the Rohingya yet remaining in Myanmar are, on the weight of the evidence before the court, currently facing a credible threat of genocide. To use an imperfect analogy, this is like a restraining order and a caution on the government of Myanmar.
The measures were that Myanmar will be expected to:
1. actively seek to prevent genocide against the Rohingya, under all definitions of genocide;
2. prevent the military and paramilitary groups from carrying out, conspiring to carry out, or inciting genocide;
3. preserve all evidence related to the allegations of human rights abuses in the affected region; and
4. report on the situation every six months through the proceedings of the ICJ.
This is not the harshest of rulings, but it's about as proactive as can be expected at this early stage in the legal process.
Nevertheless, the ruling is remarkable for its clarity and for its evaluation of the clear and present danger facing the Rohingya remaining in Myanmar. This is particularly the case against the background of how conservative the court tends to be, as seen in previous cases, and how careful it tends to be around any issue that might infringe on claims of national sovereignty.
This case took an unexpected turn in November 2019, when Aung San Suu Kyi, the longtime pro-democracy icon and Nobel Peace Prize laureate, and currently the most powerful person in the civilian government in Myanmar, announced that she would defend her country against the charges of genocide in person before the court at The Hague.
The 2015 general election that brought Aung San Suu Kyi to government should have been the turning point for Myanmar in its long and fraught transition to democracy.
Instead, it marked what seems even now to be the beginning of the end of the Rohingya people in Myanmar, as the military stepped up its crackdown on the minority group. The army eventually began a coordinated campaign of so-called clearing operations that led some 800,000 to 1 million Rohingya to flee across the border to Bangladesh, where they still languish in the refugee camps around Cox's Bazar.
For a while, Aung San Suu Kyi's former friends and allies in the international community sought to make sense of what was happening to the Rohingya by casting her as a prisoner of fate to the military establishment that still controls most of the reins of power in the country. But as she became an increasingly prominent apologist for the army, even adopting the language of those clamoring for the genocide by denying the very identity of the Rohingya and casting them as foreign "Bengalis," there is little doubt about her culpability remaining.
All possible doubt was finally dispelled when she appeared before the ICJ, casually admitting that war crimes had taken place but that what had happened could not be a genocide because there was no genocidal intent. She made this case while still refusing to utter the word "Rohingya" and insisting that she was talking about "Bengalis"—an "Other" she should not be expected to be responsible for.
Whatever the political calculation that brought her before the court in The Hague was, it has backfired. She stood before the court, yielding to its jurisdiction and its right to pass judgment on her government's handling of the Rohingya situation—and it has found her government responsible for preventing further atrocity, if not yet guilty of past offenses.
The extent to which this ruling will affect life on the ground for the Rohingya, either those who still remain in Myanmar or those who have crossed the border to Bangladesh, will now depend on the response of the international community.
Normally, judgments passed by the ICJ compel the United Nations Security Council to get involved in mitigating a situation like this where there is a live threat of genocide in a region. The Western members of the Security Council have long been critical of the actions of the state of Myanmar toward the Rohingya, but any formal censure or UN intervention has been vetoed by Russia and China, which are both working to construct closer ties to Myanmar. China in particular sees Myanmar as a pivotal protectorate in Southeast Asia. Beijing lost ground there during the switch to democracy but is reclaiming it through offering a shield of protection over the Rohingya issue. Both Russia and China also seek to avoid setting a precedent of strong enforcement of human rights laws by international bodies, given their own activities in contentious places such as Syria and Xinjiang.
That said, however, some kind of action from the UN Security Council might now be unavoidable. The provisional measures ordered by the court are supposed to be legally binding. If Myanmar fails to meet the demands of the court, they will require enforcement—and it's more than likely the country will fail to do so.
If that comes to pass, the UN Charter calls for the UN Security Council to carry out the required enforcement. If even at that point Russia or China flat-out vetoes any proposal for enforcement as required by the law and Charter of the UN, their situation will seem at the least hypocritical— if not in outright violation of international law themselves. There are lots of ways this could go, but in the meantime this remains an important step for international law—and a rare beacon of hope for the Rohingya.
The author is a research professor at the Strategic Studies Institute at the US Army War College and a director at the Center for Global Policy in Washington.