In a highly unusual move, the West African nation of The Gambia on Monday filed a lawsuit against Myanmar, accusing it of perpetrating a genocide on ethnic Rohingya Muslims which forced hundreds of thousands to flee the Asian nation.
The Gambia, with the full support of the 57-member Organization for Islamic Cooperation (OIC), filed the case at the International Court of Justice (ICJ), the United Nations’ leading court in dealing with disputes between nations.
“The Gambia hopes by this case, and the OIC hopes by this case, to obtain a judgment from the International Court of Justice – the highest legal authority in the international community, that Myanmar is guilty of the crime of genocide against the Rohingya people,” said Paul Reichler, a Washington, D.C.-based lawyer who is leading the Gambian legal team.
Such a ruling could take years. In the interim, the lawyers are seeking what is known as “provisional measures” – an order demanding Myanmar stop harming the Rohingyas while the court considers the full case.
The judges at The Hague-based court could rule on that as early as next month.
“We are hopeful to get that kind of protection for the Rohingya people very early in the case as a provisional measure so that the genocidal activities that we are seeking to end do not continue during the lawsuit,” Reichler told VOA.
Starting in August 2017, more than 700,000 Rohingya Muslims fled a scorched-earth campaign unleashed by the Myanmar military in response to attacks by Rohingya militants in Rakhine state that killed a dozen police officers. Survivors crossed the border into Bangladesh where they gave accounts of massacres, rape, murder and villages burned to the ground.
The U.N. has called the atrocities “a textbook case” of ethnic cleansing. The head of a U.N. fact-finding mission said last year that estimates of 10,000 Rohingya deaths are “conservative.”
The Myanmar government strongly disputes accusations of genocide and has established its own Commission of Inquiry.
“This is clearly a politically motivated international pressure tactic against Myanmar on the issue of Rakhine state,” Myanmar’s U.N. Ambassador Hau Do Suan told VOA in an email. “Gambia has nothing to do with Myanmar’s problem. The OIC and Gambia should try to put their backyard in order first, before trying to interfere in the affairs of a faraway country which is trying its best to find a sustainable and peaceful means to solve its own problem.”
He said Myanmar is implementing “in good faith” recommendations issued in 2017 from an international advisory commission on addressing root causes of the crisis and would not “surrender to this kind of unfair, intimidating, political and religious-based pressure.”
The International Court of Justice will now have to decide whether it has the jurisdiction to take up the case. Under Article 9 of the Genocide Convention, which was adopted in 1948 in the aftermath of the Holocaust, any state party to the treaty may bring a claim against another state party if it feels it failed to uphold its obligations in preventing and punishing the crime of genocide.
“What is so extraordinary here, is that The Gambia, a very small country in West Africa – a half a world away from Myanmar – had only recently freed itself from the grips of a decades-long brutal dictatorship,” said Richard Dicker, the director of the International Justice program at Human Rights Watch. “It’s inspiring.”
‘Great hope for accountability’
The Global Centre for the Responsibility to Protect has been working with The Gambia over the past year to bring the case to the ICJ.
“It is really a great hope for accountability, for responsibility in the case of Myanmar, particularly because the (U.N.) Security Council is not doing anything,” said Nadira Khudayberbieva, Myanmar expert at the center.
While the Security Council has been engaged on the issue both in its chamber and traveling last year to the sprawling refugee camp at Cox’s Bazar in Bangladesh and flying over Rakhine state, it has not taken action, such as imposing economic sanctions or an arms embargo on the Myanmar military. This has been primarily because of opposition from China – a veto-wielding member of the 15-nation council and ally of the Myanmar government.
“I think politically it makes it more uncomfortable, more difficult, for Beijing to smile on the practice of their clients in Myanmar,” Dicker said of the genocide suit.
The only other successful prosecution of a genocide case under the Genocide Convention at the ICJ was brought by Bosnia and Herzegovina against Serbia in 1993. It took four years for the court to issue its decision largely in favor of Bosnia.
“That had a very damning effect in the realm of public opinion and perception in regard to what Serbia’s responsibility was for crimes it had committed in Bosnia,” Dicker noted.