On May 3, 2024, Bangladeshi Minister of Foreign Affairs Hasan Mahmud held a meeting with Gambian Minister of Justice and Attorney General Dawda Jallow in the Gambian capital of Banjul. Both expressed their hope for a speedy resolution of the Rohingya genocide case. Almost four-and-a-half years ago on November 11, 2019, the Gambia, on behalf of the Organization of Islamic Cooperation (OIC), the Gambia filed a case at the International Court of Justice (ICJ), accusing Myanmar of abetting genocide against the Rohingya ethnic group. The ICJ is yet to deliver a verdict on the case.
The Genocide Against the Rohingya
The international law on genocide is primarily based on the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). According to Article 1 of the Genocide Convention, genocide is a punishable crime under international law. Article 2 of the convention defines genocide as a set of acts aimed at destroying a national, ethnic, racial, or religious group; these acts include killing, causing serious physical and psychological damage, and deliberately creating conditions for their physical destruction. Article 3 of the convention lists genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide as punishable acts under international law, while Article 4 stipulates that responsible rulers, public officials, and private individuals who are complicit in genocide shall be subjected to punishment. Moreover, Article 9 of the convention states that disputes between the signatories with regard to the interpretation, application, and fulfillment of the convention can be submitted to the ICJ.
The Rohingya people, concentrated primarily in the northern Rakhine State of Myanmar, have been subjected to institutionalized discrimination, state-sponsored violence, and campaigns of ethnic cleansing for decades. In August 2017, the Myanmar government initiated “clearance operations” against the Rohingya in response to an attack on Myanmar forces by a shadowy insurgent group, the Arakan Rohingya Salvation Army (ARSA).
The “clearance operations” in fact constituted a genocidal campaign to root out the Rohingya from their homelands. During the operations, around 24,800 Rohingya were killed, approximately 18,500 Rohingya women and girls were subjected to sexual violence, an estimated 42,000 Rohingya received gunshot wounds, about 35,000 Rohingya were thrown into fires, and some 115,000 Rohingya were subjected to beatings. As a result of the operations, more than 850,000 Rohingya were forced to flee to neighboring Bangladesh, Thailand, and India. Moreover, around 130,000 Rohingya have become internally displaced persons (IDPs) inside Rakhine State, while an estimated 600,000 Rohingya continue to reside in the villages of northern Rakhine without basic civic, political, economic, and cultural rights, and have basically no freedom of movement.
In accordance with the definition of genocide enshrined in the Genocide Convention, the Myanmar government’s actions against the Rohingya clearly constitute a genocide. The Myanmar government failed to protect the Rohingya from genocide, instead actively facilitated its perpetration. Accordingly, the Myanmar government, which abetted genocide against the Rohingya, and the Tatmadaw (the Myanmar armed forces), the Myanmar law enforcement agencies, and local militias, which perpetrated acts of genocide against the Rohingya, are subject to punishment under international law.
The Case at the ICJ
On November 11, 2019, the Gambia initiated proceedings against Myanmar at the ICJ on the grounds that the latter had blatantly violated the provisions of the Genocide Convention. This was the first step in the long road to ensure justice for the victims of the genocide.
In December 2019, Myanmar expressed its objections on the grounds that the ICJ had no prima facie jurisdiction to deal with the case. On January 23, 2020, the court directed Myanmar to prevent its military and security forces from committing acts of genocide against the Rohingyas. Two and a half years later on July 22, 2022, the ICJ rejected Myanmar’s objections to the case and declared that the court has jurisdiction over the matter. Accordingly, Myanmar had to defend itself before the court by presenting arguments in its favor.
On November 10, 2023, the Maldives declared its intervention in the case, while the United Kingdom, France, Germany, Canada, the Netherlands and Denmark declared their joint intervention in the case on November 15. At present, the Gambia is expected to present its reply to Myanmar’s arguments by May 16 2024, and Myanmar is expected to submit its counter-arguments by December 16, 2024. Myanmar is currently embroiled in a massive civil war that began when its military rulers ousted the elected government in February 1, 2021.
The case has dragged on for more than four years, and is likely to take several more years to resolve. The OIC is supposed to bankroll the Gambia in pursuing the case at the ICJ, but the allocation of funds has been marred by irregularities and insufficiency, creating further complications. Meanwhile, the Rohingya refugees in Bangladesh, Thailand, and India face uncertainty over their future with no prospects for a safe, voluntary, and sustainable repatriation on the horizon. The host countries, particularly Bangladesh, which hosts more than 1 million Rohingya refugees, continue to struggle in managing the refugees with increasingly scarce funds.
All the while, the perpetrators and enablers of the genocide continue to elude justice, while the international community continues to lose interest in the Rohingya crisis with the outbreak of new crises throughout the world.
What Is to Be Done?
The genocide against the Rohingya has been a gross violation of international law, and if the international community is willing to preserve a law-based international order, it should ensure justice for the victims of genocide. In doing so, they can undertake several measures.
First, the genocide case at the ICJ should be fast-tracked and receive top priority. While Myanmar has the right under international law to defend itself, the genocide against the Rohingya has been well-documented, and there is no dearth of evidence for prosecuting Myanmar nationals for the crime of genocide. Hence, the proceedings at the ICJ should be conducted more rapidly.
Second, in spite of having no significant links, geographical or otherwise, with Myanmar, the Gambia is fulfilling its duty as a member of the international community and pursuing the case at the ICJ. But the country is impoverished and does not have the capacity to finance the case on its own. The OIC and the intervening countries should help the Gambia in pursuing the case by providing financial, legal, and other types of necessary assistance.
Third, the genocide case should not be viewed through the lens of political consideration but strictly as a legal issue. The ICJ should determine whether the crime of genocide has been committed, and if it finds that genocide has indeed been committed, it should punish the perpetrators. Accordingly, the case should be kept free from great power politics and geopolitical competitions.
Finally, it should be kept in mind that the enforcement of justice is as necessary as the promulgation of verdicts. So, while the international community should strive to ensure a speedy resolution of the case, it should also prepare to apprehend and punish the perpetrators of genocide.
The legal maxim “justice delayed is justice denied” has been in circulation for centuries, but the phrase is as relevant today as when it was first uttered. The victims of the genocide against the Rohingya deserve justice, but the process is dragging on. If the international community wishes to uphold international law and ensure that justice is not denied to the Rohingya, they should ensure rapid resolution of the Rohingya genocide case at the ICJ and the strict enforcement of its verdicts.