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ICJ hearing fails to break impasse on violence against the Rohingya

The three-day ICJ hearing offered few surprises: Similar arguments had been made at multiple forums in the past. On such occasions, Myanmar has denied the charge of genocidal intent.

Written by Luv Puri | Updated: December 18, 2019 9:22:25 am
Myanmar’s leader Aung San Suu Kyi. (AP/File)

From December 10 to 12, Nobel laureate and Myanmar’s State Counsellor and de-facto foreign minister, Aung Sung Suu Kyi, appeared before the International Court of Justice (ICJ) to defend her country against charges of committing genocide.

The case at ICJ revolves around proving genocidal intent and commission of actual genocide by Myanmar in October 2016 and August 2017, when more than 80,000 and 7,40,000 members of the Rohingya community left Myanmar’s Rakhine state for Cox’s Bazar in Bangladesh. Apart from alleged cases of sexual violence against women, surveys conducted by Médecins Sans Frontières in Bangladeshi refugee camps estimated that at least 9,000 Rohingya died in Rakhine state, between August 25 and September 24, 2017.

The three-day ICJ hearing offered few surprises: Similar arguments had been made at multiple forums in the past. On such occasions, Myanmar has denied the charge of genocidal intent and Bangladesh, a country where Rohingya fled to in 2016 and 2017, has charged Myanmar of continuing with the “decades-long state practice of deprivation, disenfranchisement and atrocities”.

At the ICJ, as expected, Suu Kyi disputed the allegations of genocide and called it an “incomplete and misleading factual picture of the situation in Rakhine state in Myanmar”. Repeating the military’s position, Suu Kyi stated it was the Arakan Rohingya Salvation Army (ARSA), an extremist group of some members of Rohingya community, that first carried out attacks on military posts. Aware of the domestic sensitivities, she didn’t use the term “Rohingyas” but addressed them as “Muslims”. In Myanmar, the usage of the term is an indicator on which side of the debate one stands. The Rohingya are officially called Bengalis by the authorities whereas Rohingya have repeatedly asserted their right to self-identify.

In her defence at the ICJ, Suu Kyi admitted that “it cannot be ruled out that disproportionate force was used by members of the defence services in some cases in disregard of international humanitarian law, or that they did not distinguish clearly enough between ARSA fighters and civilians”. She also expressed unhappiness over the military’s pardon of four officers and three soldiers who were sentenced to 10 years in prison with hard labour for executing 10 Rohingyas in Inn Din village.

Parallel to the ICJ case, the International Investigative Mechanism (IIM) established on September 27, 2018 by the Geneva-based UN Human Rights Council is gathering prosecutorial evidence, making use of the information handed over to it by the Fact Finding Mission established in March 2017. At the UN, Myanmar has mentioned there were at least seven mechanisms at the UN “with a focus on Myanmar with a total spending of more than $35 million from the precarious regular budget resources (of the UN)”. It has stated that it will not engage with the IIM because “the country does not accept double standards and, selective and discriminatory application of human rights”.

At the ICJ, only “provisional measures” to protect the Rohingya can be imposed before the case can potentially be heard in full. The Security Council has struggled to come out with a united response for several weeks. Ultimately, there was a consensus on a non-binding presidential statement that was issued on November 6, 2017, where it called on “Myanmar to end excessive military force, inter-communal violence in Rakhine State”. By then, only around half a million Rohingyas were left in Rakhine; the rest had crossed over to Bangladesh. Therefore, the provisional measures being demanded carry less weight. The approximate number of Rohingya living in Bangladesh, Saudi Arabia, Pakistan, India, the UAE and Malaysia are as follows: 9,47,000, 5,00,000, 3,50,000, 40,000, 50,000 and 1,50,000. Those living outside Myanmar are scared to return and several efforts involving Myanmar and Bangladesh for repatriation of refugees have failed.

This article first appeared in the print edition on December 18, 2019 under the title ‘Sound and fury’. The writer was a member of UN Secretary-General’s Good offices on Myanmar.

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