In a unanimously-ruled order issued by a panel of 17 judges, and read by presiding Judge Abdulaqawi Ahmed Yusuf, the court upheld the provisions of the 1948 Genocide Convention – saying Myanmar had “caused irreparable damage to the rights of the Rohingya”.
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According to the Statute of the ICJ, the court has the power to order provisional measures when “irreparable prejudice could be caused to rights which are the subject of judicial proceedings”. The court found that the condition of urgency had been met in this case.
In November the Gambia filed a suit against Myanmar alleging it was committing “an ongoing genocide against its minority Muslim Rohingya population” and violating the 1948 Genocide Convention.
Provisional measures are steps to take aimed at preventing further harm and comes as the first step in the legal case.
Judge Yusuf took care to emphasise the ordering of provisional measures did not “prejudge” the case. As Mike Becker, adjunct lecturer at Trinity College in Dublin and a former legal officer at the ICJ, emphasises: “This is a preliminary decision that is without prejudice to the merits of the case.”
Because of the gravity of the crimes of which Myanmar has been accused, Becker and other legal experts described the case as an “historic legal challenge“.
Urgent measures requested and ordered
In its application to the court, the Gambia requested six provisional measures requiring Myanmar to act “with immediate effect” to prevent further genocide of the Rohingya group and to take steps not to destroy or render inaccessible any evidence already described in the application.
The Gambia also urged both sides not to take any action which might aggravate the dispute or render it more difficult to resolve, and to provide a report to the court on implementing such measures.
The Gambia later also requested Myanmar cooperate with United Nations bodies that seek to investigate the alleged acts.
Judge Yusuf said the court was not constrained to ordering the measures requested by the Gambia and that it had the power to order additional measures. Yusuf further said that, in ordering provisional measures in this case, it was not necessary to decide on the question of the presence of genocidal intent, as claimed by Myanmar.
The court ordered Myanmar should take all measures within its power to prevent the commission of all acts within the scope of article two of the Genocide Convention. It particularly cited clause one – killing members of the group, clause two – causing serious bodily or mental harm to members of the group, clause three – deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part, and clause four – imposing measures intended to prevent births within the group.
Myanmar must further ensure that its military does not commit genocide or attempts to commit genocide or conspires to commit genocide. Myanmar was also ordered to prevent the destruction of evidence and to ensure the preservation of evidence related to the alleged genocide.
‘Stunning rebuke of Aung San Suu Kyi’
In its application to the court, the Gambia asked for the measures to be implemented “with immediate effect”. In an unusual decision, the court requested the Gambia report to the court within four months after the order had been made, and every six months thereafter – until the final decision is made by the court.
There is still a long way to go before this order becomes reality and we see actual improvements in the lives of the Rohingya, but today this persecuted people will have a first taste of justice.
Legal experts have applauded the court’s decision. Reed Brody, Commissioner at the International Commission of Jurists who was instrumental in the prosecution of Hissene Habre, said to Al Jazeera: “This is a great day for the hundreds of thousands of Rohingyas who have been displaced, killed and raped. The UN’s highest court has recognised their suffering.”
Brody added: “There is still a long way to go before this order becomes reality and we see actual improvements in the lives of the Rohingya, but today this persecuted people will have a first taste of justice. This is further a stunning rebuke of Aung San Suu Kyi, especially after she went personally to The Hague to defend the actions of the Myanmar military. There will now be huge pressure on the court to comply with the government’s ruling.”
According to Gleider Hernandez, professor at Catholic University of Leuven, the ICJ has made clear that it intends to supervise the implementation of the judgement. He said “Though not unprecedented, the regularity with which Myanmar had to submit reports is striking.”
The ICJ’s orders are legally binding. Brody says the fact that the decision was unanimous will give additional weight to the court’s measures.