ICJ to rule on Myanmar objections to Rohingya genocide case

The International Court of Justice (ICJ) is set to rule on Myanmar’s preliminary objections to a genocide case brought over the military’s brutal 2017 crackdown on the mostly Muslim Rohingya.

The court heard arguments on the objections in February, and ICJ President Judge Joan E Donoghue will read out its decision on Friday at 3pm (13:00 GMT).

Akila Radhakrishnan, president of the Global Justice Center (GJC) in New York, says it is “reasonably likely” that the ICJ will reject the objections, allowing the court to move to the next stage of the process — the merits phase — when it will consider the factual evidence against Myanmar.

“These objections were nothing more than a delaying tactic and it is disappointing that the ICJ has taken a year and a half to make its decision,” Tun Khin, president of the Burmese Rohingya Organisation UK (BROUK), told Al Jazeera. “The genocide is ongoing and it is vital that the court doesn’t allow any further delays.”

Here are some more details about the lawsuits Myanmar and its military are facing, and what is at stake.

What is the ICJ case?

The Gambia took the case against Myanmar to the ICJ in November 2019, with the backing of the 57-member Organisation for Islamic Cooperation, after a brutal military crackdown in the northwestern state of Rakhine forced hundreds of thousands of Rohingya to flee into neighbouring Bangladesh.

Myanmar is accused of breaching the Convention on the Prevention and Punishment of the Crime of Genocide(PDF).

The ICJ has already ordered Myanmar to take urgent measures to protect the Rohingya, with the judges saying it had “caused irreparable damage” to the group’s rights.

A United Nations investigation found in 2018 that the crackdown had been carried out with “genocidal intent” and recommended that Senior General Min Aung Hlaing and five generals be prosecuted.

The UN mission’s chairman Marzuki Darusman said the victim accounts were among “the most shocking human rights violations” he had come across and would “leave a mark on all of us for the rest of our lives”.

In March this year, the United States determined the Myanmar military’s actions against the Rohingya amounted to genocide.

Myanmar has denied genocide and says the crackdown in 2017 targeted Rohingya rebels who had attacked police posts.

The military, which staged a coup in February 2021, has now taken control of the case, replacing elected leader Aung San Suu Kyi, who initially defended Myanmar at the court in The Hague. She has not been seen in public since the coup and is on trial in secret military courts on dozens of charges.

Some rights groups and activists have raised concerns about the ICJ dealing with the military’s representatives.

They note that Myanmar’s United Nations ambassador remains Kyaw Moe Tun, who was appointed by Aung San Suu Kyi’s National League for Democracy and is now aligned with the National Unity Government established by politicians who were overthrown.

What are Myanmar’s objections?

The objections, filed a month before the military coup, have not been revealed publicly.

But court proceedings indicate Myanmar is contesting The Gambia’s right to bring the case and whether the ICJ has the necessary jurisdiction.

Myanmar ratified the Genocide Convention in 1956 and The Gambia in 1978.

Why is Friday’s decision important?

Rights groups say the ICJ case offers an “unprecedented opportunity” to scrutinise the Myanmar military’s abuses against the Rohingya, as well as the similarly brutal tactics it has deployed more recently — against other ethnic groups and those opposed to the coup.

Indeed, some of the military units accused of perpetrating the 2017 Rohingya crackdown have been at the forefront of the suppression of the anti-coup movement, renewed conflict with ethnic armed groups and violence against protesters.

If the objections are rejected, the court can begin to assess the strength of the charges against Myanmar in what is known as the merits phase.

At this point, it will consider the factual evidence of the genocide charges – committing genocide, complicity in genocide, failure to prevent genocide and failure to punish genocide.

The Gambia has already filed what is known as a memorial, detailing its case in relation to the genocide charges. Myanmar will have to submit a counter-memorial as a response.

GJC’s Radhakrishnan says that based on previous cases, the merits phase is likely to take six months with a right to reply taking an additional six months. Only after that will the court move to oral arguments, which is when the filings by The Gambia and Myanmar will be made public and each side will put forward their key arguments.

“After this, pending any other procedural issues that may arise, the Court will rule on the case,” Radhakrishnan told Al Jazeera. “Optimistically, this could be within about 2 to 2.5 years from now.”

There is also the possibility that the court could accept Myanmar’s objections and dismiss the case.

What is happening with the Rohingya now?

It has been nearly five years since the crackdown that forced the Rohingya to flee, but the minority had long suffered abuse in their homeland.

Effectively made stateless under the 1982 Citizenship Law, the Rohingya were portrayed as interlopers who were not from Myanmar but Bangladesh.

Officials referred to the group derisively as ‘Bengali’ and did nothing to curb anti-Muslim sentiment and hate speech.

In 2012, ethnic violence in Rakhine led to many Rohingya being forced from their villages and into camps, which were soon fenced off. Checkpoints were set up and Rohingya were forced to seek permission to travel outside the camps and beyond the state.

About 135,000 Rohingya continue to live in the camps, with restrictions on their movement affecting their ability to get work, medical assistance and even access humanitarian support.

“The Myanmar junta’s unyielding oppression of the Rohingya people is the foreseeable result of the military facing no consequences for its decade of ethnic cleansing and system of apartheid,” Shayna Bauchner, Asia researcher at Human Rights Watch, said in a statement last month.

The coup has also created new vulnerabilities for the Rohingya in Rakhine state, who are caught between the military and the Arakan Army, an ethnic Rakhine armed group.

For the Rohingya living as refugees in Bangladesh, the situation remains difficult and some continue to attempt risky sea journeys to Malaysia and Indonesia.

In December, the first Rohingya were moved to the remote and previously uninhabited island of Bhasan Char in Bangladesh, amid overcrowding and concerns about violence at the sprawling camps around Cox’s Bazar.

Prominent community leader Mohib Ullah, who was in his late 40s, was shot dead last September.

Ullah’s family has blamed his death on the Arakan Rohingya Salvation Army, an armed group in Myanmar’s western state of Rakhine that has been accused of dealing drugs, murdering political opponents and instilling a climate of fear in the refugee camps. Last month, Bangladesh brought charges against 29 Rohingya over the killing.

Is the Myanmar military facing any other legal action?

While the ICJ case has attracted the most attention, Myanmar is also the target of a number of lawsuits over alleged human rights abuses.

Also in 2019, BROUK took its genocide case to court in Argentina using the legal principle of universal jurisdiction, which allows courts to prosecute alleged breaches of international law committed anywhere in the world.

BROUK’s Tun Khin gave evidence to the court in December and says the case is “going in the right direction”. He is hopeful that survivors will get to testify in a few months.

The International Criminal Court (ICC) also said in 2019 that it had begun an investigation into Rohingya persecution. Unlike the ICJ, which is a civil court and only hears cases between states, the ICC is a criminal court and prosecutes individuals.

Its efforts have been hampered by the coronavirus pandemic, but in February, Prosecutor Karim Khan made his first visit to Bangladesh and assured the Rohingya refugees, as well as Bangladesh officials, that the investigation would be a priority during his term in office.

Khan took office in June 2021 and will serve a nine-year term.

“We are here to work with you to build the foundations of justice,” Khan said during the visit. “The road to accountability will not be simple, but it is a goal we can only achieve by working together, as a partnership between us.”

In June, a court in Turkey announced it would accept a case filed by the Myanmar Accountability Project and focusing on alleged torture at an interrogation centre used by the military regime.

The UN Human Rights Council has also established the Independent Investigative Mechanism for Myanmar (IIMM) to collect evidence of abuses and help prepare files for prosecution. Its officers were in Bangladesh last month.

“We want to assure victims that the mechanism is working to contribute to proceedings, including at the International Criminal Court and International Court of Justice, to ensure justice and accountability for the crimes that were committed against them,” IIMM head Nicholas Koumjian said during the visit.

“We also want to listen to their concerns and to let them know that their safety and security are of paramount importance to us.”