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". (news, 2020). A report published by UN investigators in August 2018 accused Myanmar's military of carrying out mass killings and rapes with "genocidal intent".

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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