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In the right direction

International Court of Justice’s provisional ruling against Myanmar is the first of many solid steps needed to protect the Rohingya community from further genocide and displacement

In the right direction

The Rohingya community in Myanmar has been subjected to state-led discrimination, brutalities, massacre, gang-rape, starvation and other hardships, including forced labour, for over 42 years.

In 1978, Myanmar (then Burma) military launched its first campaign of mass expulsion and terror against the Rohingya community. It has been 38 years since the Rohingya were stripped of their citizenship despite being recognised as indigenous to Myanmar by Prime Minister U Nu in 1948. It has also been 32 years since the military drew-up the plan to supplant Muslim majority Rohingya community in northern Rakhine state with model villages for Buddhist settlers.

Also, it has been over seven years since the mass caging of the Rohingya in detention camps and five years since the promulgation of 'Race and Religion Protection Laws' restricting them from marrying and having children.

Buddhist majority Myanmar has long considered the Rohingya to be "Bengalis" from Bangladesh even though their families have lived in the country for generations. Nearly all of them have been denied citizenship since 1982, effectively rendering them stateless. They are also denied freedom of movement and other basic rights.

In 2017, more than 730,000 Rohingya fled Myanmar after a military-led crackdown under the umbrella of 'Operation Clean' and were forced into squalid camps across the border in Bangladesh. The military was accused of committing mass rapes, killings and burning thousands of houses belonging to the community in Rakhine.

UN investigators had concluded that the military campaign was executed with "genocidal intent." Described by the UN as the most persecuted minority in the world, the Rohingya experienced a glimmer of hope recently, after years of delay and virtual indifference by the international community, when the International Court of Justice (ICJ) at Hague ordered Myanmar to take urgent measures to protect its Rohingya population from genocide.

The ruling is the first major legal victory for the community. It came after a lawsuit filed by the African nation of Gambia, accusing Myanmar of genocide against the Rohingya in violation of the 1948 convention.

Gambia had moved the ICJ in November last year against Myanmar over alleged violations of 'The Convention on the Prevention and Punishment of the Crime of Genocide'. It urged the ICJ to direct Myanmar to stop the genocide, ensure that persons committing genocide are punished and allow the "safe and dignified return of forcibly displaced Rohingya".

The unanimous ruling by the 17-judge panel has only now taken provisional measures against Myanmar. The final verdict will take several years. Myanmar "must take all measures within its powers to prevent all acts prohibited under the 1948 Genocide Convention and report back within four months", the court said. It also asked Myanmar to protect evidence relating to the allegation of genocide.

It is important to note that the directions are provisional measures until the ICJ can finally decide if Myanmar has been committing genocide against the Rohingya. Provisional measures are essentially a restraining order against a state when a case is pending and can be seen as, at most, a censure. Provisional orders cannot be challenged and are binding upon the state. However, experts have widely acknowledged limitations in enforcing decisions of the ICJ.

The court also explicitly recognised the ethnic minority as a protected group under the Convention. Majority Buddhist Myanmar generally refuses to describe the Muslim Rohingya as an ethnic group and refers to them as Bangladeshi migrants.

During the hearings, the accusers used maps, satellite images and graphic photos to detail what they called a campaign of murder, rape and destruction amounting to genocide perpetrated by Myanmar's military against the ethnic minority.

While denying the charges, Myanmar demonstrated the same callousness, cynicism and chutzpah that characterises the output of its genocide propaganda machine. It maintained that the Rohingya set their own houses on fire and that their confinement in camps is for their own protection. Dismissing the accounts of widespread military sexual violence, it said these were inconceivable because the Rohingya women are too "dirty" to rape.

Aung San Suu Kyi, long-time pro-democracy icon and Nobel Peace Prize laureate who currently heads the civilian government as Myanmar's State Counselor, herself appeared before the court to defend the campaign by the military that once held her under house arrest for 15 years and still controls most of the reins of power in the country.

Suu Kyi's personal appearance shows the great stakes her country has in the case. However, the political calculation that led her to appear before the court to defend the military action seems to have backfired.

Her contention that the brutal state violence inflicted upon the Rohingya is nothing more than a legitimate "counter-terrorism" response to Muslims linked to "Afghan and Pakistani militants" is shocking and goes against principles of democracy for which she fought for decades. She did not use the term Rohingya to define the ethnic minority.

There is no doubt that the ruling dents Myanmar's image internationally but the order of provisional measures does not translate into a finding against the country. The ICJ in this case only has jurisdiction over genocide, a restriction exploited by Myanmar in its submissions, which proffered the extraordinary defence that its actions may have constituted "war crimes" or "crimes against humanity" but not genocide and therefore, lie beyond the court's jurisdiction.

The court found that it is sufficient at this stage "to establish prima facie the existence of a dispute between the parties relating to the interpretation, application or fulfilment of the Genocide Convention".

It is to be seen if Myanmar implements ICJ directions. As per Article 94 of the UN Charter, all member states are required to comply with ICJ decisions. The provisional measures ordered by the ICJ are supposed to be legally binding. When a state fails to comply with an ICJ order, the UN Security Council has the power to impose sanctions against the said state and ensure compliance when international security and peace are at stake. So far, the Security Council has not taken any coercive measure against any country to get an ICJ ruling implemented.

The Security Council will be the required enforcement of the ICJ order if Myanmar fails to comply with the verdict. In fact, earlier this month, the Security Council discussed the ICJ order but failed to agree on a statement following an objection by China, an ally of Myanmar, as well as Vietnam, which is a member of the regional Association of Southeast Nations (ASEAN) along with Myanmar.

However, the European Union members of the Council in a statement urged Myanmar to comply with the measures ordered by the ICJ, stressing that they are "compulsory under international law".

So far there is no indication from Myanmar that it is going to comply with the ICJ directions. The extent to which the ruling will affect the life of the Rohingya, those who still remain in Myanmar and those who have crossed over to Bangladesh, will depend on the response of the international community.

The fact that the Rohingya case has made it to the ICJ is a testament to their enduring and determined resistance.

The writer is a former Editor of PTI and served as West Asia correspondent for PTI. Views expressed are strictly personal

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