The Gambia v. Myanmar, Rohingya Genocide case study
The Gambia v. Myanmar, Rohingya Genocide
Principle:
This is a
very important case between Gambia and Myanmar. On 11 November 2019, the
Republic of The Gambia filed suit against the Republic of the Union of Myanmar
in the International Court of Justice (“ICJ”) for violating the Genocide Convention
because in October 2016 and then again in August 2017, where Myanmar security
forces engaged in so-called “clearance operations” against the Rohingya, a
distinct Muslim ethnic minority, in Rakhine State. Survivors
report indiscriminate killings, rape and sexual violence, arbitrary detention,
torture, beatings, and forced displacement. As a result, an estimated 745,000
people – mostly ethnic Rohingya – were forced to flee to Bangladesh.
Fact:
The “clearance operations” followed
decades of institutionalized discrimination and systematic persecution of the
Rohingya, including the passage of laws that stripped the Rohingya of their
citizenship, restricted their religious freedoms, as well as reproductive and
marital rights. Rohingya were forced to flee to
Bangladesh to saved their life . In August 2017, a deadly crackdown by
Myanmar's army on Rohingya Muslims. At least 6,700 Rohingya, including at least
730 children under the age of five, were killed in the month after the violence
broke out. Nearly 24,000 Rohingyas were
killed, according to a report by the Ontario International Development Agency.
They risked everything to escape by sea or on foot a military offensive which
the United Nations later described as a "textbook example of ethnic
cleansing".
The ICJ
case, lodged by the small Muslim-majority nation of The Gambia, in West Africa,
on behalf of dozens of other Muslim countries, called for emergency measures to
be taken against the Myanmar military, known as Tatmadaw, until a fuller
investigation could be launched.
Aung San
Suu Kyi rejected allegations of genocide when she appeared at the court in
December 2019.
Issue:
The
Gambia, on behalf of the Organisation of Islamic Conference, filed the case in
November 2019, alleging that Myanmar's atrocities against the Rohingyas in the
Rakhine state violate the Convention on the Prevention and Punishment of the
Crime of Genocide. Myanmar has ratified the Genocide
Convention which, under its Article IX, provides that “[d]isputes between the
Contracting Parties relating to the interpretation, application or fulfilment
of the present Convention, including those relating to the responsibility of a
State for genocide or for any of the other acts enumerated in article III,
shall be submitted to the International Court of Justice at the request of any of
the parties to the dispute.” Importantly, while Myanmar has made
a reservation to Articles VI and VIII of the Genocide Convention (meaning it
has unilaterally attempted to exclude or modify the legal effect of those
articles), it has not reserved to Article IX. As a result, any Contracting
Party to the Convention that has not itself made a reservation to Article IX
may bring a case against Myanmar. the Gambia, which meets both of
these criteria, filed a lawsuit against Myanmar for violating the Genocide Convention
on 11 November 2019. In its 23 January 2020 provisional measures order, the ICJ
affirmed that The Gambia met prima facie the Court’s jurisdictional standards
for a case under the Genocide Convention. The Gambia asserted that Myanmar
committed the following acts against members of the Rohingya group listed under
Article II of the Genocide Convention: “killing, causing serious bodily and
mental harm, inflicting conditions that are
calculated
to bring about physical destruction, imposing measures to prevent births, and
forcible transfers.” Additionally, The Gambia asserted
that Myanmar has violated other fundamental obligations under the Genocide
Convention, including “attempting to commit genocide; conspiring to commit
genocide; inciting genocide; complicity in genocide; failing to prevent and
punish genocide,” and failing to pass legislation giving effect to the Genocide
Convention (Articles I, III and V).
Decision:
Although the case is still pending,In a landmark interim verdict
early this year, the highest court ruled that it has the authority to consider
a genocide case against Myanmar and approved emergency “provisional measures”
compelling Myanmar to halt persecution against Rohingya, including killing,
raping, and destroying homes and villages.the ICJ in January 2020 issued
provisional measures, requiring Myanmar to take certain actions to protect the
Rohingya including preventing genocidal acts, ensuring that military, policy
and other forces within its control do not commit genocidal acts, and preserve
all evidence of genocidal acts.
The ICJ
also asked Myanmar to report every six months to the Court on the steps it has
taken to comply with the measures. In September last year, Canada and the Netherlands
also announced formally joining The Gambia's legal bid to hold Myanmar
accountable over allegations of Rohingya genocide.
Reasoning:
There are
two major pathways to justice and accountability for the crimes committed
against the Rohingya: (1) Myanmar’s responsibility as a state; and (2)
individual criminal responsibility of those who planned, participated in, or
sanctioned crimes. Reasoning beside why this case is still pending and giving
provisional measure because While a genocide case from start to finish can take
a long time (for example, it took nearly 15 years from when Bosnia first filed
a case against Serbia in 1993 to the issuance of the final judgement on the
merits in 2007), the Court has stated that it finds the case at hand to be of exceptional
gravity in justifying a shorter schedule than that requested by the parties for
the initial case filings. In addition, the case has already
made a tangible impact. Through a procedure that allows the ICJ to issue what
are known as provisional measures, the Court provided what is essentially a
legal injunction against Myanmar, ordering it to immediately take certain
measures related to the Rohingya’s and the Gambia’s rights under the
Convention. The
Gambia requested the ICJ to issue provisional measures in order “to protect
against further, irreparable harm to the rights of the Rohingya group under the
Genocide Convention , that’s why ICJ approved those provisional measure
Personal opinion:
In my opinion gambia vs rohingya
case was really necessary. rohingas were suffering from a conflict over whether
the Rohingya could return to their country . The Rohingyas
would never have dreamed of returning to their homeland if this case were not issued. Myanmar
has to be held accountable, at least for torturing the Rohingya. The ICJ
already approved emergency “provisional measures” compelling Myanmar to halt
persecution against Rohingya, including killing, raping, and destroying homes
and villages, that’s at least good for
the people who are living in Myanmar . The ICAG
cannot punish any state but if Gambia win the case , at least Myanmar has to
made arrangements for the Rohingya to be repatriated and have to bear the cost
. Bangladesh has benefited a lot from this case, Bangladesh did
not have to engage in any kind of conflict with Myanmar ,This did not cause any
rift between Bangladesh and Myanmar and also It also requires a lot of money to
sue a case in ICJ .but luckily Bangladesh
didn’t have to spend any money .
All kinds of expenses are borne by OIC. If
Gambia wins the case, Bangladesh will benefit in every way. So I think the case
of Gambia and Myanmar is a lot of beneficial and for Bangladesh .
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