11/14/2019 Case filed by the Gambia against Myanmar before the ICJ for the genocide of Rohingya MuslimsRead NowAn arsenal of international laws has failed to confront the impunity of Myanmar’s government and its security forces for their deadly purge of the country’s Rohingya Muslim minority, forcing hundreds of thousands to flee a campaign of rape, arson, and killing.
However, in a last-ditch effort to impose an international ruling against Myanmar, the Gambia, a small West African country, took an unprecedented step in the realm of international justice by filing a suit on behalf of the 57-nation Organization of Islamic Cooperation in the International Court of Justice seeking justice for Rohingya’s. This channel is important in the case of Myanmar since Article 9 of the UN Genocide Convention confers jurisdiction on the ICJ to determine the responsibility of governments for the crime of genocide, including their failure to prevent or punish perpetrators. The Gambia, ipso facto by being a member of the United Nations, is a party to the Statute of the International Court of Justice and has a prerogative under the Genocide Convention to prevent and suppress acts of genocide by reaching out to the Principal Judicial Organ of the United Nations and seek justice for the victims. It has also requested the ICJ to issue an urgent temporary injunction ordering Myanmar to halt all actions that could aggravate or expand the existing situation. As both Myanmar and Gambia are parties to the Genocide Convention as well as members of the United Nations, they are therefore bound by the Statute of the Court, including Article 36(1), which provides that the Court’s jurisdiction “comprises … all matters specially provided for … in treaties and conventions in force” and that the Gambia has, in particular, made clear to Myanmar that its actions constitute a clear violation of its obligations under the Genocide Convention. To substantiate its stand, the Gambia in its application before the court has referred to independent investigations conducted under the auspices of the United Nations, corroborated by international human rights organizations and other credible sources, which point towards serious genocidal intent in the conduct of Myanmar’s security forces. An alternative solution to the situation could have been the UN Security Council exercising its powers under the Rome Statute making a referral of the situation in Myanmar to the International Criminal Court. Unfortunately, the referral is unlikely as China and Russia are not State Parties to the Rome Statute and consistently oppose the possible jurisdiction of the International Criminal Court over a non-State Party. Earlier, International Criminal Court, specifically set up to deal with genocide and other atrocities, did set itself up to at least partly take up the case against Myanmar; when it ruled that it could prosecute for “deportation” and associated crimes against Rohingya who fled to Bangladesh which is a court member because it cannot directly assume jurisdiction over the crimes committed on the territory of Myanmar as it not a party to the Rome Statute. It is not clear how Myanmar, which has always denied accusations of ethnic cleansing and genocide, and argues that it was defending itself against an insurgency, will respond to the case.
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