The International Court of Justice (ICJ) on Thursday ordered Myanmar to take urgent measures to protect its Muslim Rohingya population from persecution and atrocities, and preserve evidence of alleged crimes against them.
In a victory for Gambia, which filed the case accusing Myanmar of genocide, the panel of 17 judges unanimously supported imposing measures on Myanmar to protect any evidence of crimes that could be used by the court in later hearings.
The Rohingya remain "at serious risk of genocide," the court found, ordering Myanmar to report back within four months on the steps it had taken to comply with its decision.
The decision comes despite de facto leader Aun San Suu Kyi defending her country against the accusations in person last month.
In a ruling today, ICJ says Myanmar must report to the court on all measures taken for the Rohingya, within four months.
Thursday's ruling dealt only with Gambia's request for so-called preliminary measures, the equivalent of a restraining order for states. It gave no indication of the court's final decision, which could take years to reach.
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The ICJ, the principal judicial organ of the United Nations, delivered its order on the request for the indication of provisional measures made by The Gambia in the case concerning the Genocide Convention against Myanmar.
A public sitting started at 10am at the Peace Palace in The Hague, during which Judge Abdulqawi Ahmed Yusuf, President of the Court, read out the Court's order.
In its first Genocide Convention case, the ICJ imposed provisional measures against Serbia in 1993 and eventually found that Serbia had violated its duty to prevent and punish genocide in Bosnia-Herzegovina, according to Human Rights Watch (HRW).
Canada, Bangladesh, Nigeria, Turkey, and France have asserted that Myanmar committed genocide against the Rohingya.
The Organization of Islamic Cooperation (OIC) encouraged its 57 members to bring Myanmar before the court.
Rohingya genocide Case against Myanmar:
With the backing of the 57 members of OIC, Gambia has filed a case under article 9 of the Genocide Convention before the International Court of Justice (ICJ), alleging that Myanmar's atrocities against the Rohingya minorities in Rakhine State violate various provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
However, all member states of the Genocide Convention have a duty to prevent and to punish genocide, of which Myanmar has been a party since 14 March 1956.
The Republic of The Gambia instituted a 46-page application last year in November, with the International Court of Justice (ICJ), proceedings against the Republic of the Union of Myanmar that allegedly carried out mass murder, rape and destruction of communities in Rakhine state.
In its Application, The Gambia respectfully requested the court to adjudge and declare five points in regard with violations of the Convention on the Prevention and Punishment of the Crime of Genocide.
The five points Gambia had made are listed below:
Myanmar has breached and continues to breach its obligations under the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b),
III (c), III (d), III (e), IV, V and VI;
Myanmar must cease forthwith any such ongoing internationally wrongful act and fully respect its obligations under the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI.
Myanmar must ensure that persons committing genocide are punished by a competent tribunal, including before an international penal tribunal, as required by Articles I and VI.
Myanmar must perform the obligations of reparation in the interest of the victims of genocidal acts who are members of the Rohingya group, including but not limited to allowing the safe and dignified return of forcibly displaced Rohingya and respect for their full citizenship and human rights and protection against discrimination, persecution, and other related acts, consistent with the obligation to prevent genocide under Article I.
Myanmar must offer assurances and guarantees of non-repetition of violations of the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI."
The Application also contains a request for the indication of provisional measures, seeking to protect the rights of the Rohingya group and those of The Gambia under the Genocide Convention and to prevent the aggravation or extension of the dispute pending the final judgment of the Court.
Therefore, Gambia indicated the following provisional measures:
"Myanmar shall immediately, in pursuance of its undertaking in the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, take all measures within its power to prevent all acts that amount to or contribute to the crime of genocide, including taking all measures within its power to prevent the following acts from being committed against members of the Rohingya group.
- Extrajudicial killings or physical abuse
- Rape or other forms of sexual violence
- Burning of homes or villages
- Destruction of lands and livestock
- Deprivation of food and other necessities of life
- Or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or in part.
Myanmar shall, in particular, ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, do not commit any act of genocide, of conspiracy to commit genocide, or direct and public incitement to commit genocide, or of complicity in genocide, against the Rohingya group.
Myanmar shall not destroy or render inaccessible any evidence related to the events described in the Application, including without limitation by destroying or rendering inaccessible the remains of any member of the Rohingya group who is a victim of alleged genocidal acts, or altering the physical locations where such acts are alleged to have occurred in such a manner as to render the evidence of such acts, if any, inaccessible.
Moreover, Myanmar and The Gambia shall not take any action and shall assure that no action is taken which may aggravate or extend the existing dispute that is the subject of this Application, or render it more difficult of resolution. Myanmar and The Gambia shall also each provide a report to the Court on all measures taken to give effect to this Order for provisional measures, no later than four months from its issuance."
"In October 2016, the Myanmar military (the 'Tatmadaw') and other Myanmar security forces began widespread and systematic 'clearance operations' termed by Myanmar itself, against the Rohingya group, in whole or in part, by the means of mass killings and destruction.
From August 2017 onwards, such genocidal acts continued with Myanmar's resumption of 'clearance operations' on a more massive and wider geographical scale."
More than 740,000 Rohingya fled Myanmar after a military-led crackdown in 2017 and were forced into squalid camps across the border in Bangladesh.
The total registered refugees in Bangladesh are 1,141,000 and 318,000 of them are malnourished. Among them 39,841 are orphan and 34,338 are pregnant women.
Since the military rule began in Myanmar in 1962 some 200,000 people fled refugee camps in Bangladesh.
In 1982, Myanmar's new citizenship law identified 135 national ethnic groups excluding the Rohingya effectively rendering them stateless, followed by a military crackdown from 1989 to 1991 that saw another 250,000 refugees fled to Bangladesh .
Another religious violence in Rakhaine made 100,000 people fled to Malaysia in 2012.
In Myanmar's first census in 30 years on 2014, Rohingya is still not included as an ethnic group and that prompted a military crackdown and about 87,000 people fled to Bangladesh.
The Bangladesh and Myanmar governments agreed to repatriate refugees in 1992 when hundreds of thousands of people returned to Myanmar over the period of several years.
Earlier after the mass influx in 2017, two attempts of repatriations were taken, one on 15 November 2018 and another on August 22 last year, but both eventually failed to succeed.
Under the current situation, the data of 479,000 refugees have been collected till date since June 2019.
However, two repatriation centres have been constructed in Teknaf's Kerontoli and Naikhangchhari's Ghumghum, and two others are waiting to be constructed.