The Gambia v Myanmar: contemporary genocide?

In the wake of widely reported human rights abuses against Myanmar’s Rohingya minority, a hearing has begun before the International Court of Justice. The case, brought by The Gambia, concerns whether Myanmar is in breach of its obligations under the Genocide Convention. 

 The Rohingya are a minority ethnic group in Myanmar, residing mainly in Rakhine state and making up a population of around 1.1 million. The Rohingya speak their own language and are Muslims, descendants of Arab and Persian traders. Since August 2017 there has been intense violence in the region after a Rohingya militia attacked government forces prompting a brutal backlash killing at least 1000 Rohingya and forcing over 600 000 out of the country. 

 The application alleging genocide was filed by The Gambia on the 11th November 2019, with a 3-day hearing before the ICJ which began on 10th December 2019. The legal basis of the claim made by The Gambia is Myanmar’s alleged breach of its commitments under the Genocide Convention to which it has issued no reservations. The Gambia also notes in its application that the prevention of genocide is a jus cogens norm thus the obligation arises in relation to the international community at large regardless of whether they are a party to the Convention. In presenting its case, The Gambia used evidence collected by the UN’s 2018 fact-finding mission, arguing that the Rohingya faced systematic mistreatment and abuse. This includes the fact that the Rohingya are unable to access key public services, that their ability to move freely is severely restricted by the government and that Myanmar does not recognise the ethnic status Rohingya. This is accompanied by the use of killings, systematic rape and arson against the Rohingya throughout the clearance operations. 

 Two elements of the case as it appears before the ICJ are particularly noteworthy. This is the first time that a country with no direct connection to alleged atrocities has brought a case against another member of the Genocide Convention. Such state to state litigation is largely unprecedented. In this instance, The Gambia’s case is supported by all 57 members of the Organisation of Islamic Cooperation as well as a range of other interest groups. In addition, State Counsellor (de facto head of government) Aung San Suu Kyi is personally defending Myanmar in her capacity as foreign affairs minister. Suu Kyi is one of very few world leaders to personally defend their country before the ICJ and has previously been notably silent in relation to the Rohingya crisis. However, her decision to appear before the court is perhaps politically motivated and an aim to increase her popularity by defending her country in the international arena ahead of national elections in 2020. 

With the conclusion of the hearing in mid-December The Gambia, the Rohingya people and the international community await the ICJ’s much anticipated decision in the upcoming weeks. 

Sources:

https://www.theguardian.com/world/2019/dec/12/myanmar-military-incapable-of-looking-into-abuses-court-told

http://opiniojuris.org/2019/11/13/the-gambia-v-myanmar-at-the-international-court-of-justice-points-of-interest-in-the-application/

https://www.theguardian.com/world/2019/dec/11/aung-san-suu-kyi-tells-icj-myanmar-genocide-claims-factually-misleading

https://www.hrw.org/news/2019/12/05/questions-and-answers-gambias-genocide-case-against-myanmar-international-court