The Hague-based International Court of Justice (ICJ) has ordered Myanmar to take emergency measures to prevent genocide of Rohingyas. Considering the significance of the ICJ orders, The Business Standard's Masum Billah has interviewed Dr M Rafiqul Islam, professor and director of Higher Degree Research at Law School, Macquarie University, Australia
The Business Standard: International Court of Justice has ordered "provisional measures" against Myanmar in the Rohingya genocide case. How do you observe and evaluate the court orders?
Professor Rafiqul Islam: This order for "provisional measures" is the usual practice of the ICJ, which uses it as an injunction on a party or parties at fault until the case is decided on its "merit."
The "provisional measures" are ordained (a) to prevent the party at fault from taking any action that would worsen the situation, and (b) to require the said party to adopt necessary measures immediately to redress its wrongdoing.
While this ICJ order is binding, the court has no means of enforcing it on Myanmar. Non-compliance by Myanmar would automatically go to the UN Security Council for enforcement pursuant to the Genocide Convention (Article 41).
However, the inherently polarised political culture and China – a staunch ally of Myanmar with veto power in the UN Security Council – is stopping me from getting too optimistic.
However, the ICJ decision has a very strong political and diplomatic influence in boosting international public opinion with heightened sympathy for Bangladesh, and antipathy for Myanmar and its leadership counting up further cost to its reputation, if anything still left.
TBS: The court unanimously ordered Myanmar to fulfill its obligation to provide all forms of protection to the Rohingya people under Article 2 of the Genocide Charter. But Myanmar has long been denying the charges of genocide. Do you think the court orders resolve the debate?
Rafiqul: Yes, it was unanimous – all 17 Judges including the Chinese Judge and Myanmar's ad hoc Judge concurred with the finding. But I do not think this unanimous finding alone will bring the crisis to a happy ending.
Following this ICJ decision, the Myanmar government has issued a statement disagreeing with the finding. It has categorically reiterated that there was no evidence of commission of genocide in Rakhine and as such rejected such a claim.
It has admitted that there might have been the commission of war crimes, which are under investigation and the personnel responsible for such crimes will be brought to justice. This means that Myanmar rejects the very basis of the ICJ 'provisional measures,' that is the crime of genocide perpetrated on the Rohingyas.
Myanmar has not mentioned the word "Rohingya" in its statement at all quite consistently with the pleading of Aung San Suu Kyi before the ICJ. This clearly shows that Myanmar officially does not recognise the presence of Rohingyas in its Rakhine state.
There is no reason to think that the debate is resolved. Albeit this interim ruling is likely to take the debate to a new height and direction militating in favour of Bangladesh.
TBS: The court has unanimously directed Myanmar to take four interim measures. What changes, in your opinion, these interim measures may carry for the remaining Rohingyas in the Rakhine State?
Rafiqul: The ICJ order will influence the internal administration of Rakhine and as a result, the remaining Rohingyas may not face further persecution and genocidal acts at least in the short term.
In this sense, the court order will be a safety-valve, giving those Rohingyas some relief and breathing space. On the face of this order, advice from friends and allies of Myanmar not to aggravate the situation further is likely to be heeded by Myanmar.
This order may ease the Rohingyas' marginalisation and persecution.
TBS: Human Rights Watch's Param-Preet Singh – immediately after the court orders – said that "Concerned governments and UN bodies should now weigh in to ensure that the order is enforced as the genocide case moves forward." How could the global community ensure maximum pressure on Myanmar so that the country complies with the provisional measures?
Rafiqul: Calling upon "concerned governments and UN bodies" to ensure enforcement of the court order is one thing and heeding to such a call is another. We live in an imperfect international community dominated by nations always pursuing cut-throat diplomacy to serve their own interest.
The international community members (state and non-state alike) have an all too familiar habit of displaying their rhetorical reaction – "never again" – at the aftermath of every genocide in history, which is hardly matched by decisive action.
Recalcitrant states have taken the full advantage of this reactive, not active, international community and its forum the UN. Serious pressure from the global community and sanctions by the UN Security Council can make a difference in the implementation of the prescribed ICJ measures, but the question is – will such pressure and sanction eventuate, given the presence of Myanmar's staunch ally in the Security Council?
TBS: What about a million displaced Rohingyas in Bangladesh? Could this order play a role in the repatriation of the Rohingyas back to their country?
Rafiqul: Yes, the ICJ order will give Bangladesh, other states and UN bodies concerned an additional ammunition on the negotiating table. Political and diplomatic pressures for repatriation may be brought on Myanmar, which may facilitate a negotiated repatriation arrangement.
Much would be dependent on how much Bangladesh succeeds in capitalising this favourable ICJ ruling and good will of Myanmar, which has not been encouraging so far.
TBS: How could Bangladesh – being the biggest victim as far as carrying the burden of Rohingya refugees is concerned – monitor Myanmar's compliance with the court order?
Rafiqul: Being the prime victim of Myanmar's genocidal aggression against the Rohingyas, Bangladesh will have to be very vigilant about Myanmar's compliance with the prescribed ICJ measures and steps taken to de-escalate further Rohingya migration to Bangladesh.
Bangladesh should monitor developments in Rakhine and report back to the UN Security Council, and other concerned and interested corners.
The Chinese President, during his recent visit of Myanmar, expressed his willingness to assist in the process of peaceful repatriation of Rohingya refugees from Bangladesh. The importance of Chinese diplomacy involved in the repatriation negotiations may not be gainsaid.
Bangladesh would be better off establishing a diplomatic link particularly for the Rohingya repatriation.
TBS: How do you evaluate the role of Gambia? How could the role they are playing add new dimension in Bangladesh-Gambia bilateral relations?
Rafiqul: Gambia took a courageous step to restore the rights and status of Rohingyas in Myanmar and succeeded in its legal venture. Obviously, Gambia has become a friend of Bangladesh in need, which should generate a positive spin in the bilateral relationship.
It is this friendship that will be a catalyst in resolving the crisis before the progressing of the case to its merit hearing stage. This desirable goal is achievable should the goodwill to comply with the ICJ verdict and good neighbourliness prevail in Myanmar.