On the 23rd of January when the President of The
International Court of Justice (ICJ), AbdulQwai Ahmed Yusuf at the onset of his
deliberations clearly pronounced that “the court’s references in this Order to
the Rohingya should be understood as references to the group that
self-identifies as the Rohingya group”, some of us in the Press Room got
elated. And, then again while establishing the link between provisional
measures and the rights whose protection was sought he said: “In the Court’s
view, the Rohingya in Myanmar appear to constitute a protected group within the
meaning of article II of the Genocide Convention.” Those survivors of the
atrocities who were present inside the chamber and in the gallery later
described their feelings as electrifying. Yasmin Ullah of Rohingya Rights
Network told a press meet later that ‘it was feeling of what was like to be
human and equal to others’.
The court order that brought joy among the persecuted
Rohingya community and humanists all over the world however was undoubtedly a
big shock for Myanmar and its powerful military. And, it was reflected in their
first official reaction. The Foreign Ministry statement said “Myanmar takes
note of ICJ decision. There was no genocide in Rakhine". There was no
outright rejection of the ruling. Instead, it tried to blame human rights
defenders for allegedly presenting distorted picture of the situation in
Rakhaine and highlighted the findings of its own investigation which concluded
that war crimes might have been committed, but not genocide. It also said that
“it was important for
Myanmar that Court [ICJ] reaches a factually correct decision on the merits of
the case".
It was something similar to an own goal for Myanmar. The
court’s unanimous view on the level of atrocities committed against Rohingyas
was reached on the basis of two premises: one on the conclusions reached by the
UN Fact-Finding Mission and the other the admission by the state party,
Myanmar. The Vice President of the court, Xue Hanqin who had dissenting views
on the reasoning had noted: ”during the oral proceedings, Myanmar acknowledged
that during their military operations, there may have been excessive use of
force and violations of human rights and international humanitarian law in
Rakhaine state”. In her view, the provisional measures indicated by the court
‘would enhance the control of the situation’. Noting ‘it is apparent that the
Rohingya as a group remain vulnerable under the present conditions’ Justice Xue
continued ‘with more than 740000 people displaced from their homeland, the
situation demands preventative measures.’
Some experts believe Myanmar will simply ignore the Court’s
ruling. But, it will not be that simple. Myanmar had accepted the ICC’s
authority and jurisdiction when Aung San Suu Kyi appeared before it and stated:
“For materially less resourceful countries like Myanmar, the World Court is a
vital refuge of international justice. We look to the Court to establish
conditions conducive to respect for obligations arising from treaties and other
sources of international law, one of the fundamental objectives of the United
Nations Charter.” Myanmar also knows that its major backers - China and Russia
would be facing an awkward and daunting task to block any resolution at the
Security Council on the enforcement of the ICC’s order.
The ICC’s unanimous ruling, therefore, is an opportunity for Suu
Kyi too as she can now tell her powerful backers in the military and extremist monks
that to remain as a part of the rule based global system, there is no
alternative, but to implement provisional measures as ordered. Suspicion,
however, is that the Myanmar government will claim that it is trying as best as
it can and find various excuses to delay and dither in bringing real changes.
The ruling party’s reaction gives rise to such suspicion. A spokesman for the
ruling National League for Democracy, Myo Nyunt, told Reuters, "the
government is already doing most of the orders." "One more thing we
need to do is submit reports," he said, referring to one of several
measures approved by the court requiring Myanmar to write regular summaries of
its progress. And the New York Times quoted a spokesman for Myanmar’s military,
Brig. Gen. Zaw Min Tun, that it would “cooperate with the government and we
will work under the guidance of the government” in response to the ruling.
Diplomats and observers who had followed Myanmar for quite some
time were familiar with this tactics of the current leadership of that country.
In relation to the repatriation of the Rohingya refugees, Myanmar has wasted
best part of last three years in so-called verifying process and more recently
been telling the world that it is Bangladesh which is not cooperating in implementing
the process. Clearly incensed by such blame after the second attempt of
repatriation failed in last August, Bangladesh responded by saying ‘’that the
accusation was “baseless, ill-motivated and totally unacceptable”.
In the ICJ ruling there are at least two points which provide
Bangladesh some advantage in pursuing its objective to repatriate all the
refugees. Quoting the UN General Assembly resolution of 27 December 2019 the
ICJ opined that ‘the Rohingya in Myanmar remain extremely vulnerable’.
Rejecting Myanmar’s claim of steps taken to facilitate the return of Rohingya
refugees present in Bangladesh, the Court noted that “Myanmar has not presented
to the Court concrete measures aimed specifically at recognising and ensuring
the right of the Rohingya to exist as a protected group under the Genocide
Convention”. This observation by the ICJ gives Bangladesh a very powerful tool
to press Myanmar to resolve the citizenship issue because of which the Rohingya
refugees have so far refused to go back to their country.
The second advantage for Bangladesh is the recognition of
Rohingyas as a protected group under the Genocide Convention. In its reasoning
for ordering provisional measures the ICJ referred to a particular part of the
UN General assembly resolution of 27 December 2019, where it said: that, in
spite of the fact that Rohingya Muslims lived in Myanmar for generations prior
to the independence of Myanmar, they were made stateless by the enactment of
1982 Citizenship Law and were eventually disenfranchised, in 2015, from the
electoral process.” This observation certainly removes all those frivolous
labelling of Rohingyas as Bengalis by the Myanmar authorities.
On the other hand, Bangladesh so far has maintained all the
niceties in its endeavour to resolve the Rohingya crisis, presumably, due to
strategic preference of Myanmar to the two big regional powers, namely China
and India. Bangladesh’s inability or unwillingness to take a stronger course on
the issue did not remain unnoticed. The dissenting justice Xue while arguing
against the Gambia’s legal standing before the Court opined that under the
rules, this right belongs to ‘the injured state, the one which is specifically
affected by the alleged violations’.
The ICJ ruling has now provided us a huge opportunity to
pursue a forceful course of actions. And
those are not only for the repatriation of a million plus refugees, but also a
moral position against genocide. Any nation that is not standing up against the
Myanmar regime should also be advised not to be a complicit in the genocide.
Standing up for an oppressed nation, the Rohingyas, is the right thing to do.
It will also send a strong message to other nations who are systematically
making religious minorities stateless.
(Published in the Daily Star on January 31, 2020)
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