Rohingya case may face delay at The Hague

A final decision at the UN’s top court in the legal battle against Myanmar for the alleged genocide of Rohingya Muslims could be delayed, as the International Court of Justice (ICJ) is first set to rule on objections filed by Myanmar.

A legal summary prepared by the New York-based Global Justice Center, shared with Anadolu Agency, stated that Myanmar has raised objections over whether the western African country of Gambia was eligible to file the November 2019 case alleging that Myanmar’s atrocities against the Rohingya in Rakhine state violate the Convention on the Prevention and Punishment of the Crime of Genocide.

“The ICJ’s final ruling on whether Myanmar violated the Genocide Convention, and what reparations are therefore necessary, will be delayed by the time it takes for the court to hear arguments and decide on the preliminary objections, a delay of likely at least a year,” the center said.

- Myanmar files preliminary objections

Myanmar filed a preliminary challenge to the case brought by Gambia to the ICJ in November 2019, alleging violations of the Genocide Convention.

The contents of Myanmar's objections are not yet public, but the Global Justice Center examined the concerns raised by the state accused of genocide, during the provisional measures' hearings held last December.

“The objections challenge The Gambia’s ability to bring its genocide suit against the state of Myanmar,” the group explained.

But last January, the court issued provisional measures requiring Myanmar to take certain actions to protect the Rohingya, including prevent genocidal acts, ensure that the military and other forces within its control do not commit genocidal acts, and preserve all evidence of genocidal acts.

It also asked Myanmar to report to the court every six months on the steps it has taken to comply with the measures.

Myanmar has so far submitted two reports, last May and November, and the next such report is due this May.

Only Gambia can receive and review the report and provide comments to the court.

The Global Justice Center reported that Myanmar was due to file its counter arguments in the case this July. However, the filing of preliminary objections would “now suspend merits proceedings in the case until the issues now raised by Myanmar are adjudicated by the ICJ.”

Gambia filed the arguments in its case against Myanmar last October.

- Preliminary objection could delay final decision

“Preliminary objections are used at the ICJ to raise issues, largely procedural, that a respondent [Myanmar] believes should be resolved prior to the merits of a case,” the justice center said.

“Such objections are often raised because it’s possible that the resolution of such objections may result in the court declining to rule on the substantive issues of a case,” it added.

The Global Justice Center said the preliminary objections “generally challenge either the ICJ’s jurisdiction to hear a case or the admissibility of an application, but can also include other preliminary matters.”

In general, the ICJ requires a decision on certain objections before ruling on the merits of the case.

In its provisional measures hearing last December, Myanmar claimed that Gambia “did not file the suit on its own behalf as a party to the Genocide Convention, but rather as a proxy for the Organization of Islamic Cooperation.”

Only member states can file cases at the ICJ and not any international organization.

However, the ICJ found that Gambia had filed the case on its own behalf over its own dispute with Myanmar over the convention, and “that its seeking support from other states or international organizations does not preclude The Gambia’s individual standing to pursue a case.”

- Any state party can invoke ‘failure of Geneva Convention’

Myanmar also argued that there is no genuine dispute between Myanmar and Gambia regarding the provisions of the Genocide Convention.

“The court disagreed and found that in fact statements and documents in multilateral fora support the finding of the existence of a dispute,” the Global Justice Center said.

Myanmar argued that Gambia “does not have the standing to bring a case because it is not specifically affected by Myanmar’s alleged breach of the Convention.”

“The appropriate State to bring such an action would be Bangladesh because it is specifically affected. However, Bangladesh has a reservation to Article IX [of Geneva Convention] and cannot bring a suit at the ICJ,” Myanmar added.

However, the ICJ said any state party, not just a directly affected state, can invoke the responsibility of another state for failing to comply with those obligations.

- Persecuted people

The Rohingya, described by the UN as the world's most persecuted people, have faced heightened fears of attack since dozens were killed in communal violence in 2012.

According to Amnesty International, more than 750,000 Rohingya refugees, mostly women and children, fled Myanmar and crossed into Bangladesh after Myanmar forces launched a crackdown on the minority Muslim community in August 2017, pushing the number of persecuted people in Bangladesh above 1.2 million.

Since Aug. 25, 2017, nearly 24,000 Rohingya Muslims have been killed by Myanmar’s state forces, according to a report by the Ontario International Development Agency (OIDA).

More than 34,000 Rohingya were also thrown into fires, while over 114,000 others were beaten, said the OIDA report titled Forced Migration of Rohingya: The Untold Experience.

As many as 18,000 Rohingya women and girls were raped by Myanmar’s army and police and over 115,000 Rohingya homes burned down while 113,000 others vandalized, it added.