Myanmar is to face accusations of genocide at the UN’s highest court over its treatment of Rohingya Muslims.
A 46-page application has been submitted to the international court of justice by the Gambia, alleging Myanmar has carried out mass murder, rape and destruction of communities in Rakhine state.
If the ICJ takes up the case, it will be the first time the court in The Hague has investigated genocide claims on its own without relying on the findings of other tribunals, such as the international criminal tribunal for the former Yugoslavia, which it consulted for claims against Serbia and Croatia.
Under the rules of the ICJ, the application argues, member states can bring actions against other member states over disputes alleging breaches of international law – in this case the 1948 convention on the prevention and punishment of the crime of genocide.
The Gambia, a member of the Organisation of Islamic Cooperation, has taken the legal lead in drafting the claim against Myanmar. It is being supported by other Muslim states. An initial hearing is expected at the ICJ in December.
In the application, the vice-president of the Gambia, Isatou Touray, describes her state as “a small country with a big voice on matters of human rights on the continent and beyond”.
In October 2016, Myanmar’s military began what it described as “clearance operations” against the Rohingya, according to the submission. “The genocidal acts committed during these operations were intended to destroy the Rohingya as a group … by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses,” it says.
A “pervasive campaign of dehumanisation” had preceded the attacks, including demands from the local Rakhine Nationalities Development party for a “final solution” to deal with the Rohingya, the application notes.
Described as the world’s most persecuted people, 1.1 million Rohingya people live in Myanmar. They live predominately in Rakhine state, where they have co-existed uneasily alongside Buddhists for decades.
Rohingya people say they are descendants of Muslims, perhaps Persian and Arab traders, who came to Myanmar generations ago. Unlike the Buddhist community, they speak a language similar to the Bengali dialect of Chittagong in Bangladesh.
The Rohingya are reviled by many in Myanmar as illegal immigrants and suffer from systematic discrimination. The Myanmar government treats them as stateless people, denying them citizenship. Stringent restrictions have been placed on Rohingya people’s freedom of movement, access to medical assistance, education and other basic services.
Violence broke out in northern Rakhine state in August 2017, when militants attacked government forces. In response, security forces supported by Buddhist militia launched a “clearance operation” that ultimately killed at least 1,000 people and forced more than 600,000 to flee their homes. The UN’s top human rights official said the military’s response was "clearly disproportionate” to insurgent attacks and warned that Myanmar’s treatment of its Rohingya minority appears to be a "textbook example” of ethnic cleansing.
When Aung San Suu Kyi rose to power there were high hopes that the Nobel peace prize winner would help heal Myanmar's entrenched ethnic divides. But she has been accused of standing by while violence is committed against the Rohingya.
In 2019, judges at the international criminal court authorised a full-scale investigation into the allegations of mass persecution and crimes against humanity. On 10 December 2019, the international court of justice in The Hague opened a case alleging genocide brought by the Gambia.
Members of Myanmar’s military were the “prime operatives” behind a “systematic campaign on Facebook” that targeted the Rohingya, the submission says.
The submission records that “in the early hours of 9 October 2016, a small number of Rohingya, armed mainly with sticks, knives and a few firearms, reacting to Myanmar’s persecution of the group, attacked three border guard police posts in northern Rakhine state”.
Shortly afterwards, Myanmar’s military forces began “clearance operations”. During these operations, the Gambian submission says, troops “systematically shot, killed, forcibly disappeared, raped, gang-raped, sexually assaulted, detained, beat and tortured Rohingya civilians, and burned down and destroyed Rohingya homes, mosques, madrassas, shops and Qur’ans”.
There were mass killings of Rohingya men and boys, the application states. “The UN fact-finding mission reported that at the village of Dar Gyi Zar, soldiers captured a group of up to 200 men, women and children, and took them to a paddy field, where they were told to kneel,” it says. The men and boys were separated.
Women and children were taken to a house where they “heard repeated gunfire and the screams of the men and boys outside”. When they emerged, the women saw bodies of men and boys who had been piled up and burned using hay, harvested rice and shirts removed from the victims. Some were tied to trees and burned alive, it is alleged. Others had their throats cut with long knives.
The 600,000 Rohingya who remain in Myanmar are said to be in “real and significant danger” of further genocidal acts. The Gambia is calling for punishment for those responsible, compensation for the victims and an immediate end to attacks.
About 95% of the Gambia’s population is Muslim, and its role was welcomed by human rights groups. Its attorney general, Abubacarr Marie Tambadou, previously served as a special assistant to the prosecutor at the international criminal tribunal for Rwanda. He was instrumental in encouraging the Organisation of Islamic Cooperation to support the case against Myanmar.
Tambadou, who qualified as a barrister in the UK, said he wanted to “send a clear message to Myanmar and to the rest of the international community that the world must not stand by and do nothing in the face of terrible atrocities that are occurring around us. It is a shame for our generation that we do nothing while genocide is unfolding right before our own eyes.”
The application has been drafted with the help of Prof Philippe Sands QC, who has written a book tracing the origins of the genocide convention.
Sands, who is counsel for the Gambia, said: “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.
“The court will be acutely aware of its responsibilities, [and] will surely wish to live up to them in ensuring the fullest possible protection of individuals and groups.”
The prosecutor of the international criminal court (ICC), also in The Hague, has already opened a preliminary investigation against Myanmar. Because the country has not signed up to the court, however, the claim relies on more complex legal basis that the alleged crime of deportation of hundreds of thousands of Rohingya refugees partially took place inside neighbouring Bangladesh, which is a member of the ICC.
