On Wednesday, the International Court of Justice (ICJ) ruled that Myanmar must take effective measures to protect its Rohingya Muslims, including protecting evidence relating to allegations of genocide. It is important to note that these directions are “provisional measures” until the ICJ can finally decide if Myanmar has been committing an ongoing genocide against the Rohingya. The final verdict could take several years.
Explained: What is the case against Myanmar?
In November last year, the Republic of the Gambia moved the ICJ against Myanmar over alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide. The Gambia urged the ICJ to direct Myanmar to stop the genocide, ensure that persons committing genocide are punished, and allow the “safe and dignified return of forcibly displaced Rohingya”.
The Gambia and Myanmar are parties to the Genocide Convention that allows a party to move the ICJ for violations. According to Article 9 of the Genocide Convention, “Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute”.
The Gambia also sought six provisional measures against Myanmar including its cooperation with United Nations bodies investigating the Rohingya issue.
How did Myanmar respond?
Myanmar asked the ICJ to remove the case from its list, citing lack of jurisdiction of the court. Myanmar alleged that the proceedings before the court were instituted by the Gambia, not on its own behalf, but rather as a “proxy” and “on behalf of” the Organisation of Islamic Cooperation (OIC). Gambia is a member of the OIC, which includes 53 Muslim-majority nations. Myanmar cited the Gambia’s reliance on OIC documents to allege genocide and said the Gambia did not point to specific violations of the Genocide Convention.
The court refused to accept Myanmar’s argument and said the fact that the Gambia “may have sought and obtained the support of other States or international organizations in its endeavour” does not take away from its right to bring a case against Myanmar.
Does the ICJ ruling indict Myanmar?
Although a ruling against Myanmar dents its image internationally, the order of provisional measures does not translate into a finding against Myanmar. While granting provisional measures, the court is not required to ascertain whether Myanmar violated the Genocide Convention. The court found that it is sufficient at this stage “to establish prima facie the existence of a dispute between the Parties relating to the interpretation, application or fulfillment of the Genocide Convention”.
Myanmar leader Aung San Suu Kyi’s personal appearance before the ICJ to lead the defence of the military, however, shows the great stakes her country had in the case. In her 30-minute speech, she said the military’s action against certain local armed groups was an ‘internal conflict’; she did not use the term Rohingya to define the ethnic minority.
What happens if Mynamar does not comply with the provisional measures?
For its part, Myanmar has denied that its military or paramilitary has participated in a genocide of Rohingya and it is unlikely to alter its position.
Provisional measures are essentially a restraining order against a state when a case is pending and can be seen as, at most, a censure. Provisional orders cannot be challenged and are binding upon the state. However, limitations in enforcing decisions of the ICJ are widely acknowledged by law experts.
What are these limitations?
As per Article 94 of the Charter of the United Nations, all member states are required to comply with decisions of the ICJ. However, any action by a state can be secured only through consent of the state in international law.
When a state fails to comply, the Security Council has the power to impose sanctions against it and ensure compliance when international security and peace are at stake. So far, the Security Council has never taken a coercive measure against any country to get an ICJ ruling implemented.
Even with the stepping in of the Security Council, there are several hurdles in enforcement of ICJ decisions. Any one of the five permanent members of the Security Council with veto powers can block the enforcement of an ICJ decision against itself or its ally. For example, in Nicaragua v United States (1989) where the ICJ ruled against the US holding it responsible for illegal military and paramilitary activities in and against Nicaragua, the US refused to abide by the ruling.
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