The International Court of Justice’s Thursday ruling against Myanmar is a legal triumph. It may also prove to be a cautionary tale about trying to prevent human rights atrocities solely through the use of legal instruments. In a unanimous 17-0 ruling, the ICJ rejected Myanmar’s claim that the deaths of 10,000 Rohingya and the displacement of 700,000 others were due to an “internal military conflict”, and it called on the state to prevent a genocide against the Rohingya and ensure that evidence of the recent attacks was not destroyed.
The ICJ found that the Rohingya within Myanmar remain “extremely vulnerable” and instructed the state to protect them. The decision is legally binding and although the court has no power to enforce its demands, the ruling nevertheless offers a measure of hope that Myanmar’s ethnic cleansing will finally end. The ICJ’s final decision on whether Myanmar’s actions in 2016 and 2017 amounted to a genocide will likely take years, but the current decision sends a clear message to halt further violence.
In the years before the Rohingya case was brought to the ICJ – by Gambia, acting as a representative of the Organization of Islamic Co-operation – there was ample evidence that Myanmar had violated the 1948 Genocide Convention. Human Rights Watch and other independent monitors provided extensive proof that attacks on the Rohingya were coordinated with local police and that the state was complicit in ethnically cleansing the group from Rakhine state.
Unable to intervene directly, the international community placed its trust in the leadership of the now-disgraced Aung San Suu Kyi. Hence the need to seek justice in a UN court several years later. In 1993 similar impediments in the former Yugoslavia led to an ICJ order that Serbia take “all measures within its power” to prevent a genocide in Bosnia-Herzegovina. Yet the Srebrenica massacre which claimed the lives of 8,000 Bosnian Muslims took place just two years later.
Perhaps mindful of such outcomes the ICJ noted that “Myanmar has not presented to the court concrete measures aimed specifically at recognizing and ensuring the right of the Rohingya to exist as a protected group,” and it instructed the state to “take all measures within its power” to stop violence against the Rohingya by its military “as well as any irregular armed units which may be directed or supported by it.” Yet just a day later the Global New Light of Myanmar, a state-run newspaper, carried a front page story with the headline: “Myanmar takes note of ICJ decision. There was no genocide in Rakhine.” Elsewhere commentators pointed out that in her appearance at the ICJ, Aung San Suu Kyi had declined to use the proper term for the Rohingya and referred instead to “Muslim residents of Rakhine” – effectively reinforcing an ethnic slur (within Myanmar the Rohingya are often mocked as “ Bengalis” despite having lived in the country for centuries.) At the very least, therefore, careful monitoring will be needed to ensure Myanmar’s compliance with the ICJ’s demands.
What happens next will depend largely on the international community’s determination to prevent further atrocities. For the Rohingya, anything resembling adequate justice remains a distant prospect Many of those displaced in the ethnic cleansing had both their homes and identity papers destroyed in the attacks so their right of return remains uncertain. Furthermore, within Myanmar pervasive racism against the group has, if anything, only been heightened by the misinformation produced during the recent violence. So although the ICJ ruling offers a glimmer of hope for a besieged community, only years of further international pressure can turn this legal milestone into something truly meaningful.
