ICJ Ruling Shows Rohingya Crisis Rights and Wrongs

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ICJ Ruling Shows Rohingya Crisis Rights and Wrongs
By BERTIL LINTNER is a Swedish journalist, author and strategic consultant  > JANUARY 24, 2020

Given the persistent global publicity and intense lobbying on behalf of persecuted Rohingya refugees, a provisional decision handed down on January 23 against Myanmar by the International Court of Justice (ICJ) in The Hague came as no surprise.

The ICJ, the United Nations’ principal judicial organ, ordered Myanmar to take measures to stop killing and harming Rohingyas and to implement “all measures within its power to prevent genocide.”

The ruling, likened in reports to a “restraining order”, said Myanmar’s government must further ensure that its military does not “attempt to commit genocide or conspire to commit genocide.” At the same time, ICJ judges underlined in dry legalese that the initial ruling would in no way prejudice the court’s dealing with the “merits of the case”, meaning it has not yet decided whether or not genocide was committed.

The court did go further than requested by Gambia, the country which has brought the case to the ICJ on behalf of the Organization of Islamic Cooperation (OIC), by ordering Myanmar to report on measures taken to comply with the ruling in four months and thereafter every six months.

The initial ruling will add more international pressure on Myanmar to hold those responsible for alleged crimes against humanity to account, but will also likely cause the nation’s leaders to more deeply entrench their position of denial. It will also likely influence already skeptical public perceptions in Myanmar about the impartiality and credibility of UN investigators and bodies. That skepticism has been influenced by various flawed UN assessments and pronouncements related to the Rohingya.

Myanmar’s foreign ministry, for its part, responded to the ruling in a January 23 statement that referred to its own Independent Commission of Enquiry (ICOE), headed by former Philippine foreign minister Rosario Manalo. Its report, which was made public on January 21, acknowledges that many civilians had been killed by the Myanmar army during its 2017 “area clearance” operations in Rakhine state, but that there was no “genocidal intent.”

The foreign ministry statement also admitted that “war crimes” had been committed, but that “those are now being investigated and prosecuted by Myanmar’s national criminal system.” The ICOE’s report and the foreign ministry’s statement thus stand in sharp contrast to findings by the UN’s Independent International Fact-Finding Mission on Myanmar (IIFFMM), which claims there is a “continued threat of genocide” against the Rohingya.

Almost alone in the international community, Japan’s foreign ministry said in a statement on January 22 that it welcomed the Myanmar-appointed enquiry commission’s findings and that Japan sees the Myanmar government’s positive response to it “as significant progress in Myanmar’s own efforts to ensure accountability.”

Significantly, the ICJ has no mandate to enforce its instructions and verdicts. That is left to the UN’s Security Council, where two of its five permanent members, Russia and China, will almost certainly veto any UN move to take direct punitive action, including impose sanctions, against Myanmar. As such, the ICJ’s preliminary ruling may prove to be an empty gesture. Meanwhile, the credibility of the UN’s investigators and their assessments is in growing doubt, including among critical journalists and nongovernmental organizations (NGOs) in Myanmar.

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