'Historic day for international justice': UN Rohingya ruling brings glimmer of hope

The International Court of Justice's public rebuke of Myanmar for its treatment of Rohingya Muslims may be a turning point turn for the moribund international justice  system.

UN's top court heard the case that was blocked from reaching the International Criminal Court

Canadian Rohingya activist Yasmin Ullah attended the proceedings at the International Court of Justice in The Hague, which on Thursday ordered Myanmar to protect its minority Rohingya Muslim population from further violence. (Eva Plevier/Reuters)

Is it possible for a court to stop ongoing violence aimed at genocide?

A group of international lawyers believes it is, and that in persuading the UN's top court to act, they may have saved thousands of lives.

The genocide accusation brought forward by Gambia against Myanmar is still far from settled. But on Thursday, the International Court of Justice in The Hague ordered Myanmar and its leader, Aung San Suu Kyi, to do everything possible to protect Rohingya Muslims remaining in the country until the bigger question is settled.

To Myanmar's many critics, the unanimous court decision is a flicker of the official rebuke the country has long deserved for its treatment of Rohingya people.

It's an embarrassment for Suu Kyi. But in the ICJ's public takedown of her best arguments against accusations of genocide, lawyers and advocates also see another glimmer: a possible turn for the moribund international justice  system.

"Today is a historic day for international justice," says Payam Akhavan, a Canadian professor at Montreal's McGill University and a lawyer with the team representing Gambia.

"To their credit, the judges rose to the occasion … and if [Thursday's] order can buy a measure of protection for the 600,000 Rohingya that remain in that country and prevent further atrocities against them, I think this effort will have been very well worth all the trouble that it has taken."

Rare unanimous decision

The ICJ, which resolves disputes between states, isn't used to hearing about accusations of systematic sexual assault and murder and alleged attempts to destroy a people. Nor is it accustomed to the kind of spectacle unleashed when Suu Kyi decided to come, in the flesh, to the hearing back in December to defend her country against such accusations.

Hundreds of thousands of Rohingya fled Myanmar after a military-led crackdown in 2017 that Human Rights Watch characterized as a "campaign of ethnic cleansing." UN investigators concluded that the military campaign had been executed with "genocidal intent."

Six weeks after hearing Gambia's argument for "provisional measures" to protect Rohingya still in Myanmar, the court was of the opinion that they do "remain extremely vulnerable."

The judgment, read by court president Abdulqawi Ahmed Yusuf, poked holes in Suu Kyi's repeated argument that the violence in Rakhine state amounted to an internal conflict with an armed Rohingya group.

A Rohingya Muslim man looks out from inside a police vehicle, after he and others attended a court hearing on charges of illegally travelling without proper documents, in Pathein, Ayeyarwady, Myanmar, in December. (Ann Wang/Reuters)

"Irrespective of the situation that the Myanmar government is facing in Rakhine state," the court noted, "Myanmar remains under the obligation incumbent upon it as a state party to the Genocide Convention."

All 17 judges unanimously agreed Myanmar must protect Rohingya Muslims against genocidal acts, and exceeded Gambia's requests by requiring a check-in report from Myanmar every six months until the case is resolved.

Such unanimity is exceedingly rare. Such decisions by an international court even more so.

"More recently, international justice has suffered a few setbacks," Gambia's justice minister, Abubacarr Tambadou, said following the ruling. "I think [the decision] is a huge boost for international law and international justice."

'Moral courage, vision and leadership'

The order is legally binding, but the court has no way to enforce the decision, short of reporting its decision to the Security Council. But the top UN body has failed to act on Myanmar in the past.

Advocates still believe that Suu Kyi and her government, keen on international investment, will seek to comply.

A UN fact-finding mission concluded that Myanmar's military acted with "genocidal intent" in Rakhine state, and the UN General Assembly passed a resolution late last month condemning Myanmar for human rights abuses.

Myanmar's leader Aung San Suu Kyi, once a human rights icon, has vehemently defended her country's treatment of Rohingya people. (Yves Herman/Reuters)

Yet Myanmar has largely avoided international action thanks in part to China, which opposed referring the case to the International Criminal Court (ICC).

The presentation of the case to the ICJ was an attempt to work around the inertia — though the ICC has now opened an investigation into the matter.

Thursday's decision quoted extensively from both the UN assembly resolution and the UN fact-finding mission report, which was also heartening to international justice advocates.

"The international justice road ahead is long," said Pam Singh, a Canadian with the international justice program at Human Rights Watch. For now, she adds, the order "offers a much-needed reminder of what international justice can deliver when a country like Gambia shows moral courage, vision and leadership."

Canada urges Myanmar to comply

Myanmar has always denied persecuting Rohingya or committing anything resembling genocide.

Suu Kyi, once a human rights icon, has been roundly criticized for failing to stand up for Rohingya people. Among other things, the Nobel laureate was stripped of her honorary Canadian citizenship. Canada's Parliament was the first to declare what happened in Rakhine state a "genocide."

Suu Kyi published a letter in the Financial Times on Thursday quoting her own government's investigation, which concluded there was no evidence of genocide. It did, however, indicate there is some evidence of possible war crimes.

She also cautioned against the international court's reliance on the UN fact-finding mission, which in turn relied on testimony from refugees which her government's investigation says may be "inaccurate."

She said Myanmar has been condemned "on unproven statements without the due process of criminal investigation."

Myanmar can only deal with any violations "if adequate time is given for domestic justice to run its course," she added.

A release from Myanmar's foreign ministry was more blunt, blaming Myanmar's accusers for presenting a "distorted picture of the situation in Rakhine, and [affecting] Myanmar's bilateral relations with several countries."

François-Philippe Champagne, Canada's foreign affairs minister, urged Myanmar to comply with the court's ruling. As did Tambadou, who said the decision presented an opportunity to Myanmar for a change in course.

For the more than 700,000 Rohingya displaced over the border in Bangladesh, the ruling changes nothing. Many of them nonetheless tuned in on radios and phones to hear the proceedings. Among the most persecuted people in the world, there were many who took heart.

"It has been a very, very painful journey for us to get here," said Yasmin Ullah, a Canadian Rohingya activist who was in the court at The Hague. Despite the failings of the international justice system, she added, "we got here — and that says something about the resilience of our people."


Nahlah Ayed

Host of CBC Ideas

Nahlah Ayed is the host of the nightly CBC Radio program Ideas. A veteran of foreign reportage, she's spent nearly a decade covering major world events from London, and another decade covering upheaval across the Middle East. Ayed was previously a parliamentary reporter for The Canadian Press.