Decoding The ICJ Order On Rohingya Genocide In Myanmar

As I have previously written about the application, as well as days 1, 2 and 3 of the hearings held in December 2019, I will not recap the arguments raised but instead address the substance of the order.

Provisional Measures of 23 January 2020

The Court has issued an order unanimously, with four distinct components. The operative paragraph 86 is as follows:

"THE COURT,
Indicates the following provisional measures:

• Unanimously,

The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:

(a) killing members of the group;

(b) causing serious bodily or mental harm to the members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and

(d) imposing measures intended to prevent births within the group;

(2) Unanimously,

The Republic of the Union of Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide;

(3) Unanimously,

The Republic of the Union of Myanmar shall 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 on the Prevention and Punishment of the Crime of Genocide;

(4) Unanimously,

The Republic of the Union of Myanmar shall submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court."

The Gambia in its application asked for five provisional measures (p. 45), and an additional sixth at the hearings on 10 December (p. 66 – 67, verbatim record). The Court prefaced its decision referring to Article 75 (2) of the Statute of the ICJ which enables the court to make orders other than those requested. (para. 77 – 78, 23 January Order) The two requests not reflected in the order of the court relate to access to Myanmar by UN fact-finding teams and the standard pro-forma "non-aggravation of dispute" provision.

While the former is significant in its absence, it would always have been difficult for the court to grant and so this omission was not unexpected. However, the cursory dismissal and lack of reasoning of the court in ignoring this request is problematic (para. 62, 23 January Order). The "non-aggravation" provision is a template used in most provisional measures orders and while this references maintenance of peace and security, it may – as the court suggests – be considered subsumed within the more specific strictures (especially the continuous reporting requirements imposed by the court). A valid question however is whether this departure could have an impact in other cases where the provision is left out, but without the accompanying strict considerations on implementation?

The third and fourth measures ordered by the court are quite unusual, in the detail and active role of the court. On the preservation of evidence, while there will continue to be concerns relating to access particularly for the Independent Investigative Mechanism for Myanmar (IIMM) and the International Criminal Court case, this order places an explicit legal obligation on Myanmar. The erosion of evidence is also being recorded by rights organizations using new technology and is tracked more effectively now. The court has also taken on a monitoring function which is rarely seen – and perhaps reflects concerns arising from the Bosnia and Herzegovina v Serbia and Montenegro case relating to the genocide convention at the ICJ – where a provisional measures order of April 1993 had to be followed by another in September 1993 – and both were of no avail, as the Srebrenica genocide attests to.

Implications of the Order

While clear, it does bear repeating – this is an initial decision of the court, and there are now many steps ahead for the case to progress. Having said that, this is still a very significant decision in legal terms, for the rights of the Rohingya and in the fight against impunity.

A first points relates to the standing of The Gambia to institute proceedings, and the affirmation by the court that the standing of a state that may not be "directly affected" is valid. Clearly, while this does not have to be established "definitively" at this stage of the proceedings, it is nonetheless a significant point that has been accepted. The notion that another state – however small and far from the atrocities as The Gambia is – has the ability to pursue legal action on the basis of not just being a state party to the Genocide Convention but also as part of the community of states, is very significant.

Relying on the Belgium v Senegal case at the ICJ (where the Convention Against Torture was the source of obligations), in the words of the court, "It follows that any State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end." (para. 41, 23 January Order)

Another point relates to the status of the Rohingya as a protected group. Key to Myanmar's dismissal of the allegations under the Genocide convention is the non-recognition of the Rohingya themselves, witnessed by the steadfast refusal to even use the word "Rohingya" in the submissions to the court. This has also been reflected in Myanmar's International Commission of Enquiry executive summary, just released on 20 January 2020. However, yesterday, in the words of the ICJ, "the Rohingya appear to constitute a protected group within the meaning of Article II of the Genocide Convention" (para. 52, 23 January Order)

An aspect that stood out in the provisional measures order was the frequent reference and reliance on UN General Assembly resolutions. There seem to have been few other provisional measures orders that have placed reliance on such resolutions.

In assessing the risk of irreparable prejudice and injury to the Rohingya – a component of the test to assess the need for provisional measures of protection – the court make a telling observation, referring to the continued vulnerability of the Rohingya. It refers to UN General Assembly resolution 74/246 of 27 December 2019, reiterating,

"its grave concern that, in spite of the fact that Rohingya Muslims lived in Myanmar for generations prior to the independence of Myanmar, they were made stateless by the enactment of the 1982 Citizenship Law and were eventually disenfranchised, in 2015, from the electoral process" (United Nations, doc. A/RES/74/246, 27 December 2019, preambular para. 14)."(para 72, 73 January order).

It is pertinent to heed the observations of this court and the atrocities against the Rohingya as a cautionary tale, particularly in those countries enacting discriminatory citizenship laws, such as in India.

Next steps

The case now continues at the ICJ. This will take time and will be a more arduous path ahead. The phases ahead could include preliminary objections, admissibility and jurisdiction arguments, and then eventually addressing the merits of the case.

But this important first positive order reiterates the legal obligations of Myanmar under the Genocide Convention and puts in place a rigorous compliance schedule, which the court has taken upon itself to monitor. In being proactive, the court is also providing a measure of reassurance to the survivors that they are not forgotten.

(Priya Pillai is an international lawyer and head of the Asia Justice Coalition secretariat. The author tweets @PillaiPriy )

(A version of this post is up on the international law blog OpinioJuris.)