The UN Security Council could play an important role in enforcing the International Court of Justice (ICJ) order against Myanmar, but because of China's veto power this is unlikely, said British jurist Sir Geoffrey Nice QC.
He made the remark in reference to the recent ICJ order on a Rohingya genocide case.
During an email interview with The Business Standard's Masum Billah, Sir Geoffrey found the ICJ directions against Myanmar "encouraging."
Following the court directions, the "governments could use their diplomatic leverage with Myanmar to improve the Rohingya's situation," said the British jurist.
But he also fears that as long as there are "other economic interests to serve," there is "no guarantee that countries – such as the UK – will really put pressure on Myanmar."
Sir Geoffrey was a prosecutor at the International Criminal Court. He has also been involved with the International Criminal Tribunal for the Former Yugoslavia (ICTY).
He was a deputy prosecutor at the trial of Slobodan Milošević in The Hague and initiated the prosecution's initial case of linking atrocities committed in the former Yugoslavia to Milosevic.
We have published the interview ad verbatim.
The Business Standard: International Court of Justice has ordered Myanmar to take emergency measures to prevent genocide of the Rohingya. The court has ordered "provisional measures" against Myanmar in the Rohingya genocide case. How do you observe and evaluate the court order?
Sir Geoffrey Nice: There is no simple answer to this question. It is encouraging to those interested in seeing the international law being effective that the court, sometimes thought of as vulnerable to political pressure, has been willing to deal with this highly sensitive issue on the merits as revealed by evidence.
TBS: The ICJ provisional measures directed 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 order resolve the debate on genocide being committed?
Sir Geoffrey: No. This is provisional only. All central issues remain for final determination, which will be made on all evidence and arguments that all sides will present, possibly assisted by arguments from other parties acting as friends of the court (amici curiae). This final resolution may be years away.
TBS: The court has 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?
Sir Geoffrey: They should be afforded proper protection from unlawful acts of all kinds by the government or by those whom government forces can control. The reported killing of two people last Saturday may reveal that the interim measures may not be completely effective.
TBS: Human Rights Watch's Param-Preet Singh – immediately after the court order – 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 to comply with the provisional measures?
Sir Geoffrey: I can hardly improve on what Param-Preet Singh suggested. Governments could use their diplomatic leverage with Myanmar to improve the Rohingya's situation.
The UN Human Rights Council and the UN General Assembly could send a strong message to Myanmar to abide by the court's order. The Security Council could play an important role in enforcing the order, but because of China's veto power this is unlikely.
The court requirement that Myanmar report regularly on its implementation of the order – every six months – makes clear that the court is taking the matter very seriously and its scrutiny could go a long way to help protect the Rohingya remaining in Myanmar.
But reality – including what was revealed by the reported loss of two lives as recently as last Saturday – demonstrate the need for caution.
There is no guarantee that countries – such as the UK – will really put pressure on Myanmar when there are other economic interests to serve.
It would be encouraging to see Western tourists say they will not visit unless satisfied that the country is doing all it can to abide by the ICJ ruling. But tourists have no collective voice and are probably not inclined to put an issue such as this ahead of their desire for a holiday.
Similarly with business people benefiting from contracts in Myanmar.
The power of the people – not just politicians and governments – should be harnessed and that can possibly be done by ensuring this issue is never allowed to be overlooked or forgotten. Press and activist groups must maintain their efforts to keep the issue before the public and the world's various forums, in the way Gambia did so effectively by bringing this case to the ICJ.
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?
Sir Geoffrey: Yes, but it is subjected to the facts stated above.