Top UN court urged to order Myanmar to grant international investigators access to Rakhine
The International Court of Justice (ICJ) should order provisional measures to stop the ongoing and future genocide by Myanmar of the Rohingyas in Rakhine state, the panel of jurists representing The Gambia stated on Tuesday.
In the first oral observations of three-day long hearings in a genocide case against Myanmar, they said that genocide has occurred, is occurring and is likely to occur in Myanmar to destroy the ethnic group entirety or partially.
They also argued that there are compelling evidences gathered by the United Nations systems and other international investigators to support their claim.
At present, Myanmar’s genocidal intent against the Rohingyas is more strengthened and emboldened, said the Gambian panel.
The ongoing hearings are about a request of The Gambia to the World Court to order the provisional measures. Interim measures have been asked as it takes years for the cases at the ICJ to conclude.
A decision on that request is expected within weeks. The provisional measures, if ordered, would act as a kind of restraining order for the Myanmar military until the case is heard in full.
While the ICJ has no enforcement powers, its orders are binding for the member states and have significant legal weight.
Referring to ICJ’s order of provisional measures in regards to Bosnia Herzegovina in 1993, the Gambian panel said that at that time the court took five weeks to pass the order, but hopefully it will not take that long this time.
The Gambia on November 11 filed the case against Buddhist-majority Myanmar, alleging violations of the 1948 Genocide Convention through “acts adopted, taken and condoned” by Naypyidaw.
The top UN court on Tuesday was also requested to order Myanmar to allow UN and international investigators into Rakhine to investigate the genocide and human rights violations that have already taken place.
In the application, Abubacarr Marie Tambadou, the Gambian attorney general and justice minister, asked the ICJ to impose six provisional measures, as a matter of extreme urgency, to protect the Rohingyas from further harm.
The measures include: declaration that Myanmar has breached and continues to breach its obligations under the Genocide Convention; Myanmar must perform the obligations of reparation in the interest of the victims of genocidal acts, including but not limited to allowing the Rohingyas’ safe and dignified return and respect for their full citizenship and human rights and protection against discrimination, persecution, and other related acts, consistent with the obligation to prevent genocide; and must offer assurances and guarantees of non-repetition of violations of the convention.
The Gambian side is led by Tambadou, and Myanmar State Counsellor Aung San Suu Kyi is heading her side in the capacity of the foreign minister.
Suu Kyi, also the de facto head of Myanmar government, and her team are scheduled on Wedensday to repeat denials of genocide and argue that military "clearance operations" launched in August 2017 were a legitimate counterterrorism response to attacks by Rohingya militants.
In another development, the United States on Tuesday also blacklisted four Myanmar military leaders, including the commander-in-chief, in the toughest action taken yet by Washington for the alleged human rights abuses against the Rohingyas and other minorities.
‘Genocide does not occur out of blue’
Outside the court, dozens of Rohingya demonstrated to demand justice for victims on Tuesday, while thousands rallied in support of Suu Kyi in Yangon, Myanmar.
In the Cox’s Bazar refugee camps, hundreds of Rohingyas also gathered on a hilltop and chanted, “Gambia! Gambia!,” pumping their fists. Some also offered special prayers at mosques in the camps and many others were fasting.
“Our people were killed, our children were thrown into fire, our women were raped, our houses were burnt down. All we want is a fair trial,” said Nurul Amin, 30, a Rohingya refugee.
Following the initial remarks of the ICJ president and other formalities, Gambian justice minister Tambadou on Tuesday opened the arguments for The Gambia and justified the reasons behind bringing this litigation before the panel of 17 judges.
Based on his visit to Rohingya camps in Cox’s Bazar last year, he narrated the horrific statements he gathered from those who suffered extremely.
“All we ask is to stop brutalities and barbarities,” Tambadou said, noting that the Rohingya people were killed, tortured and raped because they were different from who committed those atrocities.
“Every genocide has its causes. Genocide does not occur out of blue,” he stressed, pointing out that the intention of the genocide against the Rohingyas was to destroy the whole community or part of it.
It is incumbent upon the court on which everyone relies to act to avert any further genocide, he said.
As Suu Kyi looked on impassively, the Gambian jurists then went on to narrate horrific crimes — including slaughtering of people, especially children, rapes, burning and bulldozing homes, and burning of babies — committed by the Myanmar security forces and their accomplices.
The security forces and their civilian accomplices were allowed to commit these crimes with full immunity, they told the court, relating those offences with genocide in accordance with the 1984 convention.
Detailing events at the village of Min Gyi, Gambia's lawyer Andrew Loewenstein drew on witness accounts recorded in a report by UN investigators, who estimated 750 people were killed there, including more than 100 children under the age of six.
“There were dead bodies on the floor: young boys from our village,” Loewenstein quoted from one survivor's testimony to the UN fact-finding mission.
“As we entered the house, the soldiers locked the door. One soldier raped me. He stabbed me in the back of my neck and in my abdomen. I was trying to save my baby, who was only 28 days old, but they threw him on the ground and he died.”
Referring to Suu Kyi, a Nobel Peace laureate, they said that she and Myanmar military are all responsible for these crimes as she did not or could not stop them from taking place.
The Gambian side also expressed no confidence on quite a few investigative bodies formed the Myanmar government in connection with the atrocities in Rakhine, saying not a single military person was held accountable by these bodies.
Bangladesh, which is currently sheltering more than 1.1 million Rohingyas, has no scope to directly get involved with this case, but it is helping The Gambia through providing necessary information. Canada and The Netherlands have also expressed their support for The Gambia.
However, a Bangladesh delegation, headed by Foreign Secretary Shahidul Haque, is in The Hague now to watch the court proceedings.
Additional information from Reuters