ICJ order on Rohingya upholds majesty of law
Bharat H Desai
Professor of International Law, JNU
The International Court of Justice (ICJ) has finally pronounced provisional measures following the public hearing in the case brought by The Gambia against Myanmar. The ICJ has emphatically ordered that Myanmar shall “take all measures within its power to prevent the commission of all acts…in relation to the members of the Rohingya group in its territory.”
The order covers a list of acts “in accordance with its (Myanmar) obligations” listed in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (1948), such as killing members of the group, causing serious bodily or mental harm, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part and imposing measures intended to prevent births within the group.
The court has called upon Myanmar to ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organisations and persons which may be subject to its control, direction or influence, do not commit any acts “in relation to the members of the Rohingya group in its territory” or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide.
The Rohingya crisis arose in August 2017 following a deadly crackdown by Myanmar’s army on Rohingya Muslims that sent hundreds of thousands fleeing across the border into Bangladesh. The Myanmar army has claimed they have been fighting the militants and denied targeting the civilians.
The Rohingya are one of Myanmar’s many ethnic minorities who have been described by UN Secretary-General Antonio Guterres as “one of, if not the, most discriminated people in the world”. They represent the largest percentage of Muslims in Myanmar, with the majority living in Rakhine state. A predominantly Buddhist country, Myanmar denies the Rohingya citizenship. They were, in fact, excluded from the 2014 census and are considered as illegal immigrants from Bangladesh.
Invoking the jurisdiction of the ICJ is a ticklish matter since a country can take a case against another only if both have conferred jurisdiction. However, Article 36 (1) of the ICJ Statute enables the court to take cognisance wherein an issue pertains to matters “specially provided for in the Charter of the United Nations or in treaties and convention in force”. It is this provision that was invoked by The Gambia, on behalf of the Organisation of Islamic States (OIC), against Myanmar, arguing that its actions constitute ‘genocide’ as defined by the 1948 Genocide Convention.
Interestingly, there is a rise in the number of cases being taken to the ICJ by invoking special treaties and conventions. For instance, India sought legal remedy available under Article 1 of the Optional Protocol Concerning the Compulsory Settlement of Disputes (1963) to the Vienna Convention on Consular Relations (1963). Similarly, Ukraine took the Russian Federation to the ICJ for breach of Convention for the Suppression of the Financing of Terrorism (1999) and the Convention on Elimination of all Forms of Racial Discrimination (1965). Qatar has also filed a case against the United Arab Emirates under the 1965 Convention.
The power of the ICJ to indicate the provisional measures springs from Article 41(1) of its Statute. Article 41(1) is the foundation of its power that provides the purpose of any provisional measures is “to preserve the respective rights of either party.” The objective as envisaged in Article 41 is formalistic in character and has become only a legal fiction in the practice of the ICJ. As soon as the ICJ indicates the provisional measures, these have to be communicated to the Secretary-General of the United Nations for notification to the Security Council in pursuance of Article 41(2) of the Statute. Thus, the Statute and the Rules provide direct, textual and treaty basis for indication of the provisional measures by the ICJ.
In the Jadhav case, the Indian petition asked the court to indicate forthwith provisional measures motu proprio. Thus, ICJ president Rony Abraham issued an order on May 9, 2017, asking the Pakistani Prime Minister to “act in such a way so as to enable the court to enforce any decision it takes on the Indian plea.” Similarly, the ICJ ordered on April 19, 2017 the provisional measures against Russia, indicating that it must refrain from imposing limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis, and ensure the availability of education in the Ukrainian language. The court, however, rejected on June 14, 2019 the request submitted by the United Arab Emirates against Qatar.
In many of the disputes, it becomes difficult to measure as to what extent the respondent states have complied with provisional measures. In the Rohingya case, the ICJ has ordered Myanmar to “take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention” as well as “submit a report to the court on all measures taken to give effect to this order within four months” and thereafter every six months, until the ICJ finally decides the case on merit.
The ICJ provisional order has not only upheld application of Article II of the Genocide Convention in the matter but also asked the Myanmar army and any irregular armed units controlled by it to refrain from those actions along with preservation of evidence and reporting obligation. Notwithstanding some reservations by the Chinese Judge Xue, the provisional order is a unanimous landmark order wherein apart from all 15 judges, even two ad hoc judges, Pillay and Kress, have joined them. It remains to be seen as to how and to what extent Myanmar complies with this ICJ order that underscores the majesty of international law, especially since the case was filed by a state that is neither a neighbour nor directly affected.
India has chosen to steer clear of the Rohingya crisis by not adopting any position on Myanmar’s military operations and by officially not allowing them any refuse. The Citizenship (Amendment) Act 2019 does not allow any scope for the Rohingya as the Act covers neither Myanmar nor Muslims.
In fact, the India-Myanmar Joint Statement of December 13, 2018, after the visit of President Kovind, expressed its “support for the agreements reached between Myanmar and Bangladesh for the repatriation of the verified displaced persons from Rakhine State and underlined its readiness to continue to assist in addressing this complex issue.” Thus, India will need to adopt an appropriate legal position in consonance with established principles of the UN Charter and relevant human rights instruments under international law.
