The International Court of Justice (ICJ) has ordered Myanmar to prevent acts of genocide against the Rohingya Muslims and to stop the destruction of evidence of abuse.
The unanimous decision consolidates Myanmar’s pariah status in the eyes of the international community.
However, the ruling will only boost the National League for Democracy’s Buddhist nationalist credentials ahead of the general election, which is expected in November.
The case in The Hague was brought by the Gambia, which in November 2019 alleged that Myanmar’s armed forces committed “genocidal acts … intended to destroy the Rohingya as a group” through murder, rape and the destruction of communities.
The judges warned that the estimated 600,000 Rohingya remaining in Myanmar were “extremely vulnerable” to attacks by the authorities.
The tiny West African state said it was aware the court case could last for years. It, therefore, asked the 15-judge panel to enact provisional measures to force Myanmar to end all genocidal acts and preserve evidence that could be used in the case.
The ruling amounts to a rejection of State Counsellor Aung San Suu Kyi’s defence against accusations of human rights abuses and war crimes during a three-day hearing at the ICJ in December.
It appears Suu Kyi has traded international standing for her weak role in government. She chose to defend the country in her capacity as foreign minister but she has little influence in Rakhine State, where the alleged genocide took place.
The military-drafted 2008 constitution – which was rushed through in the wake of the devastating Cyclone Nargis – concentrates power in the hands of the generals.
The charter hands the military control of the home affairs, border security and defence ministries. It means that lieutenant generals control military operations in Myanmar’s war-torn, ethnically distinct border states. But they also control the police and legal system so they can prosecute anyone who questions their actions in the country’s most delicate zones.
The ICJ president, Abdulqawi Yusuf, said the court had ruled that Myanmar’s efforts were insufficient to protect Rohingya rights invoked by The Gambia.
“In light of these considerations, the court finds that there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia,” Yusuf told the media in the Netherlands.
The United Nations court’s orders are binding on Myanmar and create legal obligations that must be enforced. The provisional measures require the government to prevent genocidal acts and report back on its compliance within four months and every six months after that.
Kingsley Abbott of the International Commission of Jurists’ Global Accountability Initiative said Myanmar now faced legally binding obligations to protect the Rohingya under the Genocide Convention.
“It is now incumbent on the whole international community, including states, civil society and UN agencies, to urge and assist Myanmar to fulfil its obligations under the order,” Abbott said.
Earlier in the week, Kyaw Tint Swe, the minister for Suu Kyi’s Office of the State Counselor, said Myanmar would consider its options if the ICJ approved the Gambian measures.
“You don’t need to feel depressed if the measures are ruled. It doesn’t mean we have lost. We will consult with legal experts on how to handle them,” he told the state-controlled media.
Myanmar’s government-backed supposedly independent investigation commission probing alleged human rights abuses against the Rohingya released its findings. The report denied genocidal intent by security forces but admitted “war crimes, serious human rights violations and violations of domestic law took place”.
The generals and Suu Kyi’s NLD long ago realised there were no votes in Rohingya rights.
And it is hard to hope for improvements to Myanmar’s democracy.
A parliamentary committee on constitutional change this week submitted recommendations for amendments to the charter.
A vast majority of voters in the 2015 general election supported parties that were promising to push through constitutional reform. But, as the parliamentary term comes to a close, the parties’ pledges have not materialised.
There is little hope that this week’s proposed reforms will succeed.
The 2008 constitution states that amendments require more than 75 per cent of parliamentary support. The same charter allocates 25 per cent of parliamentary seats for military appointees, allowing the armed forces to veto any attempt to change their constitution.
And the supposed democracy icon, Suu Kyi, has repeatedly demonstrated that she will make any compromise to maintain the generals’ approval.
November’s general election is likely to see Suu Kyi’s NLD lose some seats in the border states but maintain its grip on the ethnically Bamar regions.
It seems likely that a weakened Suu Kyi will limp on as an apologist for the military as it plunders Myanmar’s natural gifts and brutalises its diverse population. Myanmar’s citizens deserve far better military and civilian leaders.
A major Yangon mosque. How safe are Muslims in Myanmar? Picture credit: Asean Economist