The Gambia's application for a temporary injunction is the legal equivalent to requesting a restraining order against a country
The Gambia's case at the International Court of Justice (ICJ) against Myanmar for violating the Genocide Convention will be the first judicial scrutiny of Myanmar's murder, rape, arson, and other crimes against Rohingya Muslims, the Human Rights Watch reports.
The Gambia's application for a temporary injunction is the legal equivalent to requesting a restraining order against a country.
What allegations does The Gambia make against Myanmar?
The Gambia submitted an application to the ICJ citing Myanmar has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide including: committing genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempting to commit genocide; complicity in genocide; failing to prevent genocide; failing to punish genocide; and failing to enact the necessary legislation to give effect to the provisions of the Convention.
Specifically, The Gambia alleges at paragraph 6 of its Application that "…against the backdrop of longstanding persecution and discrimination, from around October 2016 the Myanmar military (the "Tatmadaw") and other Myanmar security forces began widespread and systematic "clearance operations" – the term that Myanmar itself uses – against the Rohingya group.
The genocidal acts committed during these operations were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses. From August 2017 onwards, such genocidal acts continued with Myanmar's resumption of "clearance operations" on a more massive and wider geographical scale."
The evidence of genocide
Establishing that genocide took place under the Genocide Convention requires demonstration of genocidal intent and genocidal acts, meaning that the state intended to destroy in whole or in part a national, ethnic, racial or religious group.
In the legal briefing published by ICJ, it says that The Gambia brought the allegations against Myanmar through independent investigative efforts conducted under the auspices of the United Nations and corroborated by international human rights organizations and other credible sources.
In 2018, the Fact-Finding Mission published a comprehensive analysis of the Rohingya's status as a protected group, genocidal activities, and genocidal intent indicators and concluded that "the actions of those who orchestrated the attacks on the Rohingya read as a veritable check-list" on how to kill the target group in whole or in part.
In 2019, the Fact-Finding Mission also concluded that "the State of Myanmar breached its obligation not to commit genocide under the Genocide Convention."
The Gambia's application describes two elements of Myanmar's persecution of the Rohingya as "particularly indicative of genocidal intent": its systemic denial of Rohingya's legal rights, notably restrictions on their ability to marry and bear children, and extreme restrictions on freedom of movement, including detention camps, and its support and involvement in omnipresent hate campaigns aimed at demonizing and dehumanizing the group, reports the Human Rights Watch.
In regard to the genocidal acts, the request points to the "clearance operations" of October 2016 and August 2017, including mass executions of Rohingya men, women and children; the systematic destruction of Rohingya villages "with the intention of destroying the group in whole or in part;" the targeting of children; and the widespread commission of rape and sexual violence.
The request also addresses the ongoing genocide acts on the Rohingya, including the devastation of more than 30 villages between November 2018 and May 2019 and Rohingya's denial of access to nutrition.
Marzuki Darusman, the head of a UN fact-finding mission on Myanmar, told Al Jazeera on November that there was "a serious risk of genocide returning" against the 600,000 Rohingya still living in the country.
Also, the Myanmar government has repeatedly avoided taking meaningful steps towards justice for crimes committed by its military.
For example, the commander-in-chief of Myanmar, Sr. Gen. Min Aung Hlaing pardoned seven Tatmadaw soldiers who served only seven months of their 10-year jail sentences for their role in a Rohingya massacre in the village of Inn Din. On the other hand, two Reuters journalists spent a total of 17 months in prison.
The government's handling of the Inn Din case raises serious questions about the capacity of the military investigation court set up in March 2019 to investigate claims of human rights violations committed by its own soldiers in northern Rakhine State.
The prospects for any credible justice mechanism in Myanmar is significantly dim due to the lack of independence of Myanmar's judges, as well as the current constitutional and legal framework that prevents the civilian authorities from holding the military or its members accountable for human rights violations, Human Rights Watch reports.
Possible outcomes for The Gambia
For the time being, Gambia is merely asking the court to implement "provisional measures" to protect the Rohingya from further threats or abuse in Myanmar and elsewhere. This is going to be legally binding.
"If the court feels there is sufficient threat and it needs to step in, it can ... order Myanmar to cease and desist in terms of military operations and violence so that civilians are protected," Priya Pillai, an international lawyer with the Asia Justice Coalition told Reuters.
According to Article 94 of the UN Charter, all Member States must comply with ICJ decisions in the cases where they are a party and, in the event of non-compliance, the UN Security Council may decide on measures to be taken to put the judgment into effect.
Hence, the chances of Gambia being granted the provisional measures is likely.