How likely are the Rohingyas to get justice?

Made stateless by Myanmar in 1982, the Rohingyas have been left vulnerable to waves of violence at the hands of the Burmese army as part of a "clearing" programme that began in the 1970s. The latest of these waves forced more than 700,000 Rohingyas to flee to Bangladesh since 2017. In its report published in September 2018, an Independent International Fact-Finding Mission on Myanmar revealed that "perpetrators have killed Rohingya, caused serious bodily and mental harm... [and] deliberately inflicted conditions of life calculated to bring about the physical destruction of Rohingya."

This led the Gambia to accuse Myanmar of violating the 1948 Genocide Convention, asking the International Court of Justice (ICJ) of the United Nations to order Myanmar to cease continuing its "genocidal acts" against the Rohingyas and to bring those responsible to justice. The 46-page application submitted to the ICJ said: "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."

This ground-breaking case could potentially be very important in terms of preventing further injustice, as according to another report published by a UN-appointed International Fact-Finding Mission in September 2019, "hundreds of thousands of ethnic Rohingya who remain in Myanmar may face greater threat of genocide than ever, amid government attempts to erase their identity and remove them from the country." As such, the Gambia's Attorney General and Justice Minister Abubacarr Marie Tambadou, also a former prosecutor at the tribunal into Rwanda's 1994 genocide, appealed to the court during the ICJ hearing (which began on December 10 and is set to end today) to "tell Myanmar to stop these senseless killings... these acts of barbarity that continue to shock our collective conscience."

Whether Myanmar will take heed of any such warning, should the court provide it, is another story. The main complications in regard to the ICJ hearing are: i) It may take years for the final judgement to be delivered; and ii) An individual cannot sue or be sued at the ICJ, and the court can only determine whether a state breached a law. According to Ilias Bantekas, a professor of law at Hamad bin Khalifa University, "The best the victims can claim from this is an acknowledgement of the type of mass crime committed and an authoritative record of events" (Al-Jazeera). The court could further direct Myanmar to issue "a formal apology to the victims", alongside "some form of collective compensation."

Most regrettably, Myanmar continues to deny committing any serious crimes against the Rohingyas. In her response at the ICJ yesterday, State Counsellor of Myanmar, Aung San Suu Kyi, said that "the Gambia has placed before the court an incomplete and misleading factual picture of the situation in Rakhine State in Myanmar." Sticking to Myanmar's old tune of blaming the Arakan Rohingya Salvation Army for all the violence, Suu Kyi tactfully evaded the countless allegations of grave human rights violation directed against Myanmar by various human rights groups and UN missions. (A more detailed examination of her speech will be published tomorrow.)

Despite that, lawyer Priya Pillay believes that the case represents "a significant step in the quest for accountability." And Richard Dicker, head of the international justice programme at the Human Rights Watch, says, "It's difficult to overstate the importance of what is unfolding at the ICJ."

Besides, the loopholes that exist at the ICJ could be made up for in a separate investigation that was opened by the International Criminal Court (ICC), after a UN Fact-Finding Mission last year called for six of Myanmar's top generals to be tried for genocide, crimes against humanity and war crimes. Unlike the ICJ, the ICC investigates individuals rather than states. Put together, the ICC and the ICJ will be investigating both the state of Myanmar and those individuals alleged to be responsible for the persecution of Rohingyas, which is good news.

Even though Myanmar has not signed up to the ICC, the court launched its preliminary investigations on the basis that Bangladesh—where the Rohingyas are refugees—is a member. According to government data, between August 2017 and November 3 this year, Bangladesh has had to directly spend Tk 2,308 crore for the management of the crisis, as well as bear a number of other visible and invisible costs. The investigation could ultimately lead to arrest warrants being issued for Myanmar's generals, although the process itself is lengthy and may require Myanmar to hand over the suspects, which is unlikely.

There is also a third case that Myanmar must worry about. A case filed in Argentina—under the principle of "universal jurisdiction" similar to the one in the ICJ—by Argentinian lawyer Tomas Ojea, once a UN Special Rapporteur on Human Rights in Myanmar between 2008 and 2014. Ojea is a first-hand witness to the sufferings of the Rohingyas and his lawsuit is being supported by two Argentine human rights groups.

The procedures of all three lawsuits are long and complex. And what each court decides is anyone's guess, even though evidence gathered by the UN and others does lend sufficient weight against Myanmar. However, there is another aspect here that is equally important—that of politics.

Thus far, the international community has not taken enough significant steps, nor put sufficient pressure on Myanmar, to substantially influence the condition of the crisis. The UN Security Council has failed to pass any meaningful resolution, mainly due to the opposition of Russia and China, both of whom have good relations with Myanmar. Other countries that could have played a big role in mitigating the crisis have also refrained from doing so, perhaps believing that silence will best serve their own interests.

If nothing else, these cases will raise the political cost of supporting Myanmar for all countries, which could mean that countries that previously supported Myanmar can no longer afford to do so. Simultaneously, it increases the viability of countries that have so far remained on the fence to join the ranks of countries that are speaking up for the rights of the Rohingyas—and against genocide.

This could potentially make it easier for the international community to come to a consensus, and to finally take actions needed to put enough pressure on Myanmar to stop its violent campaign against the Rohingyas.

As far as holding those responsible for the crimes that have been committed are concerned, that seems more difficult. But it's not impossible. Should the ICJ rule against Myanmar, and the two other courts find those named in the additional cases guilty, and the international community puts enough pressure on Myanmar to comply with the court rulings, something like that could happen.

For now, that seems like a long shot. But the heat on Myanmar has certainly been turned up. And the Myanmar authorities, who have shown absolute contempt for all of its critics so far, should definitely think twice about how they should proceed from this point on.

Eresh Omar Jamal is a member of the editorial team at The Daily Star.

His Twitter handle is: @EreshOmarJamal