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Dhaka’s crucial role in enforcing ICJ ruling
Kamal Ahmed
On January 23, when the President of the International Court of Justice (ICJ), Abdulqawi Ahmed Yusuf, at the onset of his deliberations pronounced that “the Court’s references in this Order to the Rohingya should be understood as references to the group that self-identifies as the Rohingya group,” some of us in the press room were elated. And then again, while establishing the link between provisional measures and the rights whose protection was sought, he said: “In the Court’s view, the Rohingya in Myanmar appear to constitute a protected group within the meaning of article II of the Genocide Convention.” Those survivors of the atrocities who were present inside the chamber and in the gallery later described their feelings as electrifying. Yasmin Ullah of the Rohingya Rights Network told a press meet that “it was a feeling of what was like to be human and equal to others.”
The ICJ order that brought joy among the persecuted Rohingyas and humanists all over the world was, however, a rude shock to Myanmar and its powerful military. And it was reflected in their first official reaction. A statement by Myanmar’s Ministry of Foreign Affairs said that “Myanmar takes note of ICJ decision. There was no genocide in Rakhine.” There was no outright rejection of the ruling. Instead, it tried to blame human rights defenders for allegedly presenting a “distorted picture” of the situation in Rakhine, and highlighted the findings of its own investigation which concluded that war crimes might have been committed, but not genocide. The statement also said “it was important for Myanmar that Court [ICJ] reaches a factually correct decision on the merits of the case.”
It was something similar to an own goal for Myanmar. The Court’s unanimous view on the level of atrocities committed against the Rohingyas was reached on the basis of two premises: one on the conclusions reached by the UN Fact-Finding Mission, and the other on the admission by the state party, Myanmar. ICJ Vice President Xue Hanqin, who had dissenting views on the reasoning, had noted that “during the oral proceedings, Myanmar acknowledged that during their military operations, there may have been excessive use of force and violations of human rights and international humanitarian law in Rakhine state.” In her view, the provisional measures indicated by the Court “would enhance the control of the situation.” Noting that “it is apparent that the Rohingya as a group remain vulnerable under the present conditions,” Justice Xue Hanqin continued: “with more than 740,000 people displaced from their homeland, the situation demands preventative measures.”
Some experts believe Myanmar will simply ignore the Court’s ruling. But it will not be that simple. Myanmar had accepted the ICJ’s authority and jurisdiction when Aung San Suu Kyi appeared before it and stated: “For materially less resourceful countries like Myanmar, the World Court is a vital refuge of international justice. We look to the Court to establish conditions conducive to respect for obligations arising from treaties and other sources of international law, one of the fundamental objectives of the United Nations Charter.” Myanmar also knows that its major backers—China and Russia—would be facing an awkward and daunting task to block any resolution at the UN Security Council on the enforcement of the ICJ’s order.
The ICJ’s unanimous ruling is also an opportunity for Suu Kyi as she can now tell her backers in the military and extremist monks that to remain part of the rule-based global system, there is no alternative but to implement the provisional measures as ordered. There is, however, a suspicion that the Myanmar government will claim it is trying as best as it can and find various excuses to delay and dither in bringing real changes. The ruling party’s reaction gives rise to such suspicions. A spokesman for the ruling National League for Democracy, Myo Nyunt, told Reuters that “the government is already doing most of the orders.” “One more thing we need to do is submit reports,” he added, referring to one of the several measures approved by the Court requiring Myanmar to submit reports on progress at regular intervals. And The New York Times quoted a spokesman for Myanmar’s military, Brig. Gen. Zaw Min Tun, that it would “cooperate with the government and we will work under the guidance of the government” in response to the ruling.
Diplomats and observers who had followed Myanmar over the years are familiar with this tactic of the current leadership of the country. In relation to the repatriation of the Rohingya refugees, Myanmar has wasted the better part of last three years in so-called verifying process and, more recently, telling the world that it is Bangladesh which is not cooperating with it to implement the process. Clearly incensed by such an accusation, after the second attempt of repatriation failed in last August, Bangladesh responded by saying that it was “baseless, ill-motivated and totally unacceptable”.
In the ICJ ruling, there are at least two points that give Bangladesh some advantage in pursuing its objective to repatriate all the refugees. Quoting the General Assembly resolution of December 27, 2019, the ICJ opined that “the Rohingya in Myanmar remain extremely vulnerable.” Rejecting the country’s claim of steps taken to facilitate the return of the Rohingya refugees present in Bangladesh, the Court noted that “Myanmar has not presented to the Court concrete measures aimed specifically at recognising and ensuring the right of the Rohingya to exist as a protected group under the Genocide Convention.” This observation by the ICJ gives Bangladesh a powerful tool to press Myanmar to resolve the citizenship issue because of which the Rohingya refugees have so far refused to go back to their country.
The second advantage for Bangladesh is the recognition of Rohingyas as a protected group under the Genocide Convention. In its reasoning for ordering provisional measures, the ICJ referred to a particular part of the UN General Assembly resolution of December 27, 2019, where it said: “in spite of the fact that Rohingya Muslims lived in Myanmar for generations prior to the independence of Myanmar, they were made stateless by the enactment of 1982 Citizenship Law and were eventually disenfranchised, in 2015, from the electoral process.” This observation certainly removes the chance for all those frivolous labelling of Rohingyas as Bengalis by the Myanmar authorities.
On the other hand, Bangladesh has so far maintained all the niceties in its endeavour to resolve the Rohingya crisis, presumably due to the strategic preference of Myanmar to the two big regional powers, namely China and India. Bangladesh’s inability or unwillingness to take a stronger position on the issue did not go unnoticed. The dissenting Justice Xue, while arguing against the Gambia’s legal standing before the Court, opined that under the rules, this right belongs to “the injured state, the one which is specifically affected by the alleged violations.”
The ICJ ruling has now provided us with a huge opportunity to pursue a forceful course of action. And it is not only for the repatriation of a million-plus refugees, but also for the sake of taking a moral position against genocide. Any nation that is not standing up against the Myanmar regime should also be advised not to be complicit in the genocide. Standing up for an oppressed people, the Rohingyas, is the right thing to do. It will also send a strong message to other nations who are systematically making religious minorities stateless.
Kamal Ahmed is a freelance journalist based in London.
In relation to the repatriation of the Rohingya refugees, Myanmar has wasted the better part of last three years in so-called verifying process and, more recently, telling the world that it is Bangladesh which is not cooperating with it to implement
the process.