On 11 November 2019, The Gambia brought a historic action against Myanmar alleging genocide against Rohingya Muslims as well a state practice of mass murder, rape, and destruction of communities in Rakhine state.

On 11 December 2019, a day after The Gambia delivered scathing arguments regarding atrocities committed against the Rohingya, Myanmar presented its case before the International Court of Justice (ICJ). These hearings will decide whether the ICJ issues provisional measures while the case continues to move forward. Daw Aung San Suu Kyi, Myanmar’s foreign minister, presented Myanmar’s case. Suu Kyi, a controversial Nobel Peace Prize Laureate, has also become the face of Myanmar’s defence and arguable defiance of its legal obligations to prevent genocide.

THE FORCIBLE EXPULSION OF ROHINGYA FROM MYANMAR

It has been over two years since Myanmar security forces drove over 700,000 Rohingya across the border to neighbouring Bangladesh during operations that the United Nations described as a "textbook example of ethnic cleansing". A 2018 Human Rights Council report outlined serious violations of international humanitarian and human rights law by Myanmar security forces, including killing, rape, torture, arson, and forced displacement. A further report, published in August 2019 by the Council’s Fact-Finding Mission on Myanmar, alleged that the Myanmar government as a whole should be held accountable for these breaches that “amount to war crimes, crimes against humanity and acts of genocide”.

PROVISIONAL HEARINGS AT THE ICJ

Hearings for provisional measures mean that, at this stage, it is not the aim of the ICJ or the parties to assess the substance of the case. Rather, the question is whether the requirements have been met that would allow the ICJ to issue interim measures of protection while the substantive matter proceeds.

These threshold requirements are: the ICJ must have jurisdiction, certain rights must be at stake, and the matter must be so urgent that the Court’s failure to implement provisional measures may lead to irreparable harm.

MYANMAR’S ARGUMENT

The defence, presented by Aung San Suu Kyi in her capacity as Myanmar’s state counsellor and Union Minister for Foreign Affairs, is essentially one of denial. Her presentation was evidently an attempt to reframe the ongoing narrative. Suu Kyi argued that Myanmar has a complex history that has been misunderstood by outsiders. She claimed that the state instituted the operations, which underlie the basis of the genocide allegations at issue, in response to an internal armed conflict and acts of domestic terrorism. Myanmar also presented a technical defence with respect to the provisional measures The Gambia seeks. Myanmar argued that the ICJ should not take this case, as The Gambia does not have standing since it is not directly affected by the Rohingya exodus.

MYANMAR’S DEFENCE IN THE CONTEXT OF INTERNATIONAL LAW

Under international law, Myanmar’s arguments are tenuous. The first defence—that Myanmar has been essentially misunderstood—does not change the underlying facts that make up the allegations of genocide or other crimes. Internal civil disobedience is not a legal defence to genocide.

While Myanmar also raised the issue of standing, the international crime of genocide is a serious-enough allegation to warrant concern from any and all members of the international community. It is unclear how the ICJ will rule on standing at this time.

With respect to whether irreparable harm is imminent—a prerequisite to the issuance of provisional measures—Myanmar’s arguments appear to be even more dubious. Myanmar essentially argued that while other crimes may have taken place, genocide did not. Myanmar also claimed that the Rohingya in various displacement camps were being “looked after,” and so the matter lacked sufficient urgency to warrant ICJ measures.

The Court will hear from The Gambia and Myanmar once again before outlining its own conclusions.

Human Rights Pulse core team member, Vaughn is passionate about sustainability and human rights, his scholarship and writing focuses on international law, climate change and transitional justice.

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