OPINION: Courts' decisions must reflect Rohingya genocide survivors

Coordinated or coincidental, Rohingya activists and international actors justice-seekers this week made historic moves to activate available global justice mechanisms to hold Myanmar accountable for its international state crimes, specifically against Rohingya people.

The three specific mechanisms of criminal accountability are the International Court of Justice, the International Criminal Court and the principle of Universal Jurisdictions in Argentina, where the national judiciary recognizes and honors the principle.

On Nov. 11, the small African nation of Gambia, officially filed a legal challenge to the International Court of Justice, which is not a criminal court, but a dispute mechanism among UN member states, against Myanmar on the grounds the Southeast Asian pariah state has violated its obligations to observe the terms of the Convention on the Prevention and Punishment of the Crime of Genocide.

Gambia is fully backed financially and politically by the 57 nations of the Organization of Islamic Cooperation (OIC) although in the actual legal proceedings such backing will not have any material impact beyond their political declaration and messaging.

Gambia alleges Myanmar, a fellow signatory state, is in clear breach of the 1948 Genocide Convention in multiple ways. Myanmar and Gambia are among the more than 140 member states of the United Nations which ratified the interstate treaty in 1956 and 1978, respectively. As “state parties,” both are legally bound to prevent the crime of genocide and punish perpetrators. Besides, as a state party, Myanmar is legally bound to streamline its national laws in accord with the Genocide Convention, something which Myanmar has not failed to do since it ratified the Convention on March 14, 1956, in direct contravention of its treaty obligations.

As a matter of fact, Gambia is acting on this specific treaty obligation as a responsible state party, although Myanmar’s genocidal policies and practices have no discernible impact on the state of Gambia.

In addition, in instituting Gambia vs. the Union of the Republic of Myanmar, Gambia asks the court to rule, in due course, definitively on whether Myanmar has commissioned the crime of genocide, that is, the intentional destruction – not simply mass killings – of Rohingya people as a distinct ethnic and religious group, in whole or in part.

Earlier this week Philippe Sands, one of the world’s leading experts on the international courts and genocide and crimes against humanity at the University College London, told the Guardian, “The international court of justice is the ultimate guardian of genocide convention, conceived seven decades ago, on the initiative of Raphael Lemkin [the lawyer who devised the convention], to prevent and punish the horrors of the kind that have occurred – and are continuing to occur – in Myanmar.”

One of the greatest potentials that the ICJ has is its power to issue immediate measures to counter Myanmar’s continuing violations of its treaty obligations pertaining to the Genocide Convention. The Gambia is seeking to the court’s ‘immediate’ interventions to protect the remaining Rohingya population – estimated by the UN at 600,000 – which are trapped inside the barbed-wired Internally Displaced Camps and in “vast open prisons” in Western Myanmar.

Additionally, it seeks to stop Myanmar from destroying physical evidence of its genocidal crimes, including mass graves, charred or bulldozed villages and human remains. Based on satellite imagery, the UN Fact-Finding Mission established that Myanmar destroyed thousands of residential, religious and commercial buildings in nearly 400 villages while having violently driven nearly 900,000 women, infants, children, men and elderly Rohingyas in one of the two largest exoduses of Myanmar in peace time in 2016 and 2017. Subsequently, Myanmar has bulldozed many of the burned villages, erected new buildings such as army and police barracks, while re-claiming all abandoned Rohingya land and villages as “state properties.”

Myanmar State Counselor Aung San Suu Kyi has invited foreign investors from around the world to come and develop Rohingya lands into lucrative agri-businesses under the banner of “Rakhine Development.”

While the Gambia vs Myanmar case may take a decade or longer before the ICJ reaches its final ruling, the Court is expected to consider and grant Gambia’s request for “provisional measures” designed to protect the remaining 600,000 from any future violent genocidal attacks by Myanmar.

The well-documented criminal misdeeds of both civilian line ministries such as Health, Immigration, Agriculture, Education, Foreign Affairs, Religious Affairs, etc. which Suu Kyi ultimately controls as the de facto leader of the NLD government, and the security sector organizations such as the armed forces, police, border guards, etc. are all attributable to the state of Myanmar. For they are all integral organs of the state, which signed and ratified the treaty, the Genocide Convention.

The ICJ will therefore be “trying” Myanmar as a state party in alleged violations of the Genocide Convention.

Suu Kyi’s supporters, though dwindling in numbers, have continued to offer the excuse that it is unfair to single her out for her failures to reign in the main perpetrator, Myanmar’s military.

However, such excuses are immaterial and irrelevant in the ICJ’s proceedings: unlike the International Criminal Court (ICC) whose jurisdictions Myanmar does not recognize or accept, as it is not a signatory, the ICJ deals, inter alia, with disputes among “states” that have ratified the Genocide Convention. Suu Kyi nor military leaders nor hate-preaching “Buddhist” monks will come up.

Unfortunately for Suu Kyi and her military partners in the NLD-military coalition government, their individual responsibilities as civilian and military leaders at whose desks the bug stops, the ICC has officially granted the prosecutor’s request to open a full investigation into Myanmar’s crimes under international law, which it may, since 2010, have committed against Rohingya people.

The ICC’s official statement, dated Nov.14, on Myanmar’s alleged crimes declares the criminal court’s authorization to begin “investigation in relation to any crime, including any future crime, as long as: a) it is within the jurisdiction of the Court, b) it is allegedly committed at least in part on the territory of Bangladesh, or on the territory of any other State Party or State accepting the ICC jurisdiction, c) it is sufficiently linked to the situation as described in the present decision, and d) it was allegedly committed on or after the date of entry into force of the Rome Statute for Bangladesh or other relevant State Party.”

Indeed, the global wheel of justice begins to move for Rohingyas, Myanmar’s victims of genocide. However technical, all these legal proceedings must not loose sight of the fact that justice and accountability are first and foremost about the victims, not the victimizers nor the lawyers.

As such, Rohingyas’ concerns, priorities and voices one hears on television or read in courtroom documents must reflect those of one million Rohingya survivors, now languishing in subhuman conditions in Bangladesh and Malaysia, or 600,000 trapped Rohingyas inside Myanmar.