GAMBIA, A SAVIOUR FOR ROHINGYAS? A CASE STUDY

Introduction

On November 11, 2019, The Gambia submitted a 46-page application to the International Court of Justice (ICJ) accusing The Republic of Myanmar of violating the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. The application requesting the provisional measures was in accordance with Article 41 of the Statute of the Court, and Articles 73, 74 and 75 of the Rules of Court. While there remain years of hearings and written submissions to decide the matter finally, the court as a matter of urgency decided on having the “prima facie Jurisdiction” and ordered provisional measures.

Background

The ICJ located in The Hague, Netherlands was established in 1945 by Article XIV of the UN Charter. Popularly known as the World Court, it was created with an object to settle disputes between states and to give advisory views on International legal issues. The Gambia is a small country on Africa’s mainland with a population of about 2 million. The Republic of Myanmar is a country in Southeast Asia with an ongoing Rohingya conflict in the Rakhine state of its Northern part. Rohingya’s are the ethnic and religious minority population of the country who have been denied even the basic citizenship rights. The Rohingyas have faced years of discrimination and persecution in their own country. They have been subject to various activities of inhuman nature such as killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births, rapes, burning down villages, and forcible transfers. Such acts are genocidal because they are leading towards the destruction of the Rohingya group in whole or in part.

As per article 36 of the ICJ statute, matters can be brought in the ICJ by mainly three ways i.e. – by a prior declaration of consent, cases by case referral, or through treaty-based consent. The present matter falls in the last category. The Gambia and The Republic of Myanmar both have ratified the Convention on Prevention and Punishment of the Crime of Genocide, 1948. By being party to the convention, it is the responsibility of the states to prevent and punish all activities related to genocide. Also the Article IX of the ICJ statute states that any dispute arising between the states who agreed to the convention shall be resolved by the ICJ.

PROVISIONAL MEASURES

As per the ICJ Provisional measures are nearly equivalent to an interim order or injunction. As per the Article 74 of the Rules of ICJ requests for provisional measures are given priority over other cases due to their urgent nature. As the ICJ matters take too long to get settled, it is necessary for the court to order provisional measures to prevent further harm while the case is pending. The Gambia requested the following five pointer provisional measures as a matter of extreme urgency-

1. That The Republic of Myanmar shall immediately take all the measures in accordance with the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, to prevent all acts against the members of the Rohingya group that will lead to the crime of genocide.

2. That The Republic of Myanmar shall ensure that any military, paramilitary, or irregular armed units in the state shall not commit or engage in any activity that will lead to the commission of the genocide.

3. That The Republic of Myanmar shall conserve and not destroy any evidence concerning to the genocide act.

4. That both The Republic of Myanmar and The Gambia shall not engage in activity that may further aggravate the existing dispute.

5. That both The Republic of Myanmar and The Gambia shall present a report of the measures taken in accordance with the order, to the court within four months of issuance.

THE COURTS ORDER

After assessing the submission from both the states, on 23^rd January 2020 the court first established the “prima facie jurisdiction” over the matter after this ordered the provisional measures. It is necessary to establish “prima facie jurisdiction” to order provisional measures.

The court while ordering the provisional measures observed that “the Rohingya in the Republic of Myanmar have been subjected to acts which are capable of affecting their right of existence as a protected group under the Genocide Convention, such as mass killings, widespread rape and other forms of sexual violence, as well as beatings, the destruction of villages and homes, denial of access to food, shelter and other essentials of life.”

The Court through the Fact-Finding Mission concluded in September 2019 held that the “Rohingya in The Republic of Myanmar remain extremely vulnerable and remained at serious risk of genocide.” The court unanimously ordered the following provisional measures-

1. That The Republic of Myanmar shall take all measures within its power to prevent the commission of acts such as killing members of the group; causing serious bodily or mental harm to the members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and imposing measures intended to prevent births within the group;

2. That the Republic of Myanmar shall ensure that its military, as well as any irregular armed units, do not conspire, incite, attempt or commit any act in furtherance of the genocide.

3. That the Republic of Myanmar shall take all measure to ensure the preservation of evidence related to the alleged crime in accordance with Article II of the Convention on the Prevention and Punishment of the Crime of Genocide;

4. That the Republic of Myanmar shall submit a report stating all measures taken to in accordance with the order to the court within four months from the order.

ANALYSIS

The Rohingas have suffered in their own country. It is the responsibility of every state to ensure that their citizens are not deprived of the human rights. In the international domain it is the collective duty of all the states to stand up against any form of human rights violation. This case will be marked in history. This case in international domain served as an example to hold a state accountable for an alleged act of genocide and also it was the first time in 70 years a nation without any nexus with the said crime brought the matter before the ICJ. As stated by Dr. Ismaila Ceesay, senior lecturer in political science at the University of The Gambia- “The ICJ ruling sends a very strong message that even small countries can use international instruments as leverage to promote human rights, not only in the continent but globally.”

The Gambia as a nation had its struggle in the past under the brutal dictatorship of Yahya Jammeh for twenty-two years. The fact that The Gambia which is the smallest country of mainland Africa which 7,000 miles away from The Republic of Myanmar brought the case to the World Court, shows that it is the responsibility of every state to protect and promote Human rights. Even the smallest countries can play a major part in the International justice system.

ABOUT THE COURT

Megha Kamboj is a law student at Maharashtra National Law University, Mumbai. Her areas of interest include International law, space law and Intellectual property law.  

In content picture credits: theaseanpost.com