ICJ case Gambia v. Myanmar: a brief overview

In November 2019, The Republic of Gambia addressed the International Court of Justice (ICJ) accusing the Republic of the Union of Myanmar of carrying out a genocide of the Rohingya people between 2016 and 2017.

The Rohingya people represents the main ethnic minority of Myanmar with a population of approximately 650000 habitants living in the Southern Burmese State of Rakhine, which faces the Gulf of Bengal. The Rohingya people are Muslim and speak the Rohingya language, whereas the majority of Myanmar people is Buddhist and speaks Burmese.

Since 1962, where a coup d’état took place and a military regime was established in Myanmar, the Burmese authorities persecuted the Rohingya people. The new authoritarian government adopted an internal policy based on a mix of militarism, socialism and Buddhist principles in order to ensure national unity and loyalism and to eradicate the ethnic and religious identities of the different minorities living in Myanmar. These policies were (and still are) openly in contrast with Rohingya’s society and religion. After the end of the British colonial domination, the Rohingya people aspired to form an independent Islamic state in Southern Myanmar or to join Pakistan.[1] Rohingya’s opposition to the military junta brought a massive repression. The Myanmar regime deprived the Rohingya community of all political and social rights. Furthermore, the Burmese authorities prevented this ethnic minority from moving across the country and started to target it with continuous punitive expeditions. This attempt to annihilate the group spurred a long series of Rohingya insurgencies, violence and mass migrations to Bangladesh and other Muslim countries. Rohingya people do not have a right to vote, are not officially recognized as one of the 135 ethnic groups living in Myanmar and are not considered as Myanmar citizens.

In 2016 the situation dramatically worsened. The government of Naypyidaw tightened its grip on the Rohingya territory with further restrictions and incursions. In the fall of 2016, Burmese military forces started a long, systematic and massive sequence of indiscriminate attacks against the population. The escalations of violence reached its highest peak in 2017 when the atrocities resonated all across the world and could not be silenced. In this period, the United Nations, the Non-Governmental Organizations, academics and the media started referring to these operations as a genocide.

The Organization for the Islamic Cooperation (OIC) has been following the case very closely. In several summits, the head of states and government and the foreign ministers have denounced and condemned the humanitarian crisis in Myanmar and have called the Burmese government to cease the hostilities against the Muslim minority and comply with international legal obligations. The attention of the OIC to this case is necessary to understand why Gambia started a proceeding against Myanmar. The case has also piqued the curiosity of the media: many people have wondered why an African state has sued an Asian state over an issue that seems to disassociated with the Gambian interests.

Gambia is a Muslim African country and is a member of the Organization of the Islamic Cooperation. In 2018, Gambia was appointed by the OIC as head of an internal committee responsible to deal with the Rohingya crisis. Gambia started collecting evidences and legal reports and on September 2019, it was authorized to start a legal proceeding against Myanmar. The choice was justified by the necessity to select one state to activate the Court since International Organizations are not allowed to be a part in an ICJ process.[2] Furthermore, Gambia wanted to demonstrate to the world that after 22 years of dictatorship, it had returned to democracy with a focus on human rights issues. Because of the economic weakness of the African country, some members of the OIC have completely funded Gambia’s initiatives to sustain the legal expenses.

The application activating the procedure in front of the ICJ has been submitted on November 11, 2019. As previously said, the accusations of Gambia concern just the events that took place in the two-year period between 2016 and 2017. The document presented by the African state provides a full and detailed report of the alleged atrocities committed by the Burmese forces against the Rohingya community. These reports are based on numerous inquiries, investigations and interviews made by the United Nations, its agencies and several non-governmental organizations such as Amnesty International.

The report talks about systematic and massive attacks towards Rohingya population, executions of civils, forced displacements of the population, demolition of villages and religious buildings, the destruction of the harvest and the confiscation of food resources in order to provoke starvation and measures to prevent births, which is in direct violation of articles I, III, IV, V and VI of the Genocide Convention of 1948. Different reports confirm that these acts have been perpetrated along with other violent and illegal conducts such as torture, cruel treatment of children, racial propaganda, rape and forced separation of families.

In asking the Court to ascertain these acts as a genocide and to condemn Myanmar, Gambia has requested the judges of the ICJ to issue provisional measures to prevent Burmese authorities from further actions against the Rohingya. On January 23, 2020, these provisional measures were granted. The Court, recognizing the concrete and strong possibility that the Rohingya people could be subjected to a genocide practice and the vulnerability of this minority, ordered Myanmar to comply with the prescriptions of the Genocide Convention, taking all the necessary measures to protect the Rohingya minority. Myanmar was also called to ensure the integrity of the evidence regarding the alleged acts. Regrettably, the judges of the ICJ did not grant the Gambian request of ordering to Myanmar to allow UN – investigation bodies to enter its territory. In facts, the Court did not consider this provision as necessary, without justification for its decision.

The choice of the Court not to impose the entrance of observers in the South-East Asian country is highly controversial. As a matter of fact, many experts believe it is highly improbable that the Burmese government will not adopt initiatives to cover or compromise the evidences in the Rakhine region or even to aggravate the Rohingya situation, even though the provisional measures are mandatory. Though the ICJ has ordered Myanmar to report its compliance with the Court it will be up to the International Community to remain alert.

The Gambia v. Myanmar case has become very relevant also because of the implication of Aung San Suu Kyi, a human rights activist who leads the Burmese government since 2016. The Burmese politician, who has been awarded with the Nobel Prize for Peace in 1991, has been accused of inaction in front of the military persecutions of the Rohingya community.

In the democratic elections in Myanmar in 2015, San Suu Kyi became prime minister and her party obtained the majority of the Parliament. Despite this apparent return to democracy, the Burmese army still represents a strong faction in Myanmar, operating independently from the government and controlling part of the national assembly. Since the alleged facts have been carried out by the army during her term as prime minister, San Suu Kyi has been criticized for her inactivity.

Criticism against San Suu Kyi was further raised after she spoke in front of the judges of the ICJ for defending from the accusations of Gambia. San Suu Kyi was expected to take a strong position on the Rohingya case, after years of commitment for the return of the democracy in Myanmar. However, the Burmese leader denied the allegations, defining the application of Gambia as incorrect, incomplete and misleading. Many NGOs and universities have consequently revoked awards and honorary charges previously given to the Burmese politician, asking even for the revocation of her Nobel Prize.

In this context, a conviction of Myanmar for genocide would certainly have a great importance not just from a juridical and human rights point of view but also from a political perspective. An eventual eviction of Myanmar would certainly have direct consequences on the internal democratic process of the Asian country which, now more than ever, appears to be weak, incomplete and full of contradictions.

[1] The aim of the Rohingya people was to join the current Bangladesh territory that at the time was part of Pakistan until 1971.

[2] Art. 34.1 of the Statute of the International Court of Justice: “Only states may be parties in cases before the Court”.