It is most heartening to note that the International Court of Justice (ICJ) most recently on 23 January, 2020 in The Gambia v. Myanmar in General List No. 178 has clearly and categorically directed Myanmar to take measures to prevent Rohingya suicide as they are committing suicide in large numbers. The ICJ found that there was prima facie evidence to believe that the estimated 600,000 Rohingya remaining in Myanmar are 'extremely vulnerable” to violence at the hands of the military. No doubt, this is a matter of grave concern and even the ICJ has taken a serious note of it!
In no uncertain terms, the ICJ has clearly and convincingly observed that it has prima facie jurisdiction to adjudicate on the allegations of acts of genocide committed against Rohingya Muslims in Myanmar. It deserves to be mentioned here that the ICJ said so in this case that was brought by The Gambia against Myanmar invoking the 1948 Genocide Convention. The ICJ made it clear that any State party can invoke the jurisdiction under the Convention even though it is not specially affected by alleged genocidal acts. This is because of ‘erga omnes' (universal) nature of obligations under the Genocide Convention.
Gently put, it is observed right at the outset of this latest, landmark and extremely laudable judgment of ICJ authored by President Abdulqawi Ahmed Yusuf and others that, 'The International Court of Justice, Composed as above, After deliberation, Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court makes the following order” and consequent to this then points out in para 1 that, 'On 11 November 2019, the Republic of The Gambia (hereinafter 'The Gambia”) filed in the Registry of the Court an Application instituting proceedings against the Republic of the Union of Myanmar (hereinafter 'Myanmar”) concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the 'Genocide Convention” or 'the Convention”).”
Without mincing any words, the ICJ seeks to make its point absolutely clear on the provisional measures requested by The Gambia in para 78 by stating unambiguously that, 'In the present case, having considered the terms of the provisional measures requested by The Gambia and the circumstances of the case, the Court finds that the measures to be indicated need not be identical to those requested.”
While reminding Myanmar of its obligations, it is then enjoined upon in para 79 that, 'Bearing in mind Myanmar's duty to comply with its obligations under the Genocide Convention, the Court considers that, with regard to the situation described above, Myanmar must, in accordance with its obligations under the Convention 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 the 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.”
To be sure, the ICJ then further embarks in calling upon Myanmar to do what is mentioned explicitly in para 80 that, 'Myanmar must also, 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 acts of genocide, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide.”
Not stopping here, it is then further held in para 81 that, 'The Court is also of the view that Myanmar must take effective measures to prevent the destruction and ensure the preservation of any evidence related to allegations of acts within the scope of Article II of the Genocide Convention.”
While fortifying the impact of its order, the ICJ then holds in para 84 that, 'The Court reaffirms that its 'orders on provisional measures under Article 41 [of the Statute] have binding effect” (La Grand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para 109) and thus create international legal obligations for any party to whom the provisional measures are addressed.”
Going forward, it is then envisaged in para 85 that, 'The Court further reaffirms that the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves. It leaves unaffected the right of the Government of The Gambia and Myanmar to submit arguments and evidence in respect of those questions.”
Finally and most importantly, the sum and substance of this landmark ruling is then encapsulated in para 86 which envisages that, 'For these reasons,
THE COURT,
Indicates the following provisional measures:
(1) 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 every six months, until a final decision on this case is rendered by the Court.”
It certainly goes without saying that Myanmar must abide and adhere to what has been held by the ICJ in this noteworthy case so elegantly and explicitly! No doubt, the Court has very rightly ruled that there was prima facie evidence to believe that the estimated 600,000 Rohingya remaining in Myanmar are 'extremely vulnerable” to violence at the hands of the military. It also very rightly ruled that a fit case was made out for ordering provisional measures to avoid 'irreparable prejudice” to Rohingyas who continue to be vulnerable. It also made it absolutely clear that these are provisional measures and that the same cannot be regarded as final opinion on the merits of the case! Very rightly so!
