Gambia, on behalf of Rohingya Muslims, opens an international dispute with Myanmar in an effort to have the country’s leadership tried for genocide.
Rohingya refugees from Myanmar after crossing into Bangladesh in September 2017. Credit...Adam Dean for The New York Times
PARIS — An arsenal of international laws has failed to confront the impunity of Myanmar’s government and security forces for their deadly purge of the country’s Rohingya Muslim minority, forcing hundreds of thousands to flee a campaign of rape, arson and killing.
But on Monday, Gambia filed a lawsuit accusing Myanmar of genocide, summoning the case before the United Nations’ highest court in an effort to open a legal path against the country’s authorities.
In the suit, filed at the International Court of Justice in The Hague, Gambia requested that the court condemn Myanmar for violating the Genocide Convention with its campaign of “ethnic cleansing.” [Genocide Watch rejects the non-legal term “ethnic cleansing,” which is a euphemism for the crime against humanity of “forced deportation.”]
Gambia, a small West African country with a largely Muslim population, was chosen to file the suit on behalf of the 57-nation Organization of Islamic Cooperation, which is also paying for the team of top international law experts handling the case.
The filing amounts to a last-ditch effort to impose an international ruling against Myanmar: Despite a wide outcry over cruelty to the Rohingya, no other court has jurisdiction to pursue a genocide case against the country.
Gambia also requested that the International Court of Justice issue an urgent temporary injunction ordering Myanmar to halt all actions that could aggravate or expand the existing situation. That could mean a demand to stop further extrajudicial killings, rape, hate speech, or leveling of the homes where Rohingya once lived in Rakhine State.
“It is clear that Myanmar has no intention of ending these genocidal acts and continues to pursue the destruction of the group within its territory,” the lawsuit said, adding that the government “is deliberately destroying evidence of its wrongdoings to cover up the crimes.’’
The court’s 15 judges rarely deal with genocide. Based in the stately Peace Palace in The Hague, the Court of Justice was set up by the United Nations to rule on disputes between nations. It acts more like a court of appeal, focusing on questions of international law, such as disputes over borders or disagreements over international conventions.
But that can also include disputes arising from the Convention for the Punishment and Prevention of Genocide, established in an earlier case when Bosnia sued Serbia for genocide. The convention covers “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’’
In its suit, Gambia claims that applies to Myanmar. The novelty in this case, though, is that Gambia is not at war with Myanmar, as Bosnia and Serbia were. But the Genocide Convention treaty does establish a mandate for member nations to act against genocide, wherever they are.
Experts say that if the court accepts the case, whatever the outcome, it will draw renewed attention to the immense suffering of the Rohingya people, most of whom fled to Bangladesh and now live in refugee camps there.
It is not clear how Myanmar, which has always denied accusations of “ethnic cleansing” [“forced deportation”] and genocide and argues that it was defending itself against an insurgency, will respond to the case.
“Myanmar will ignore this at its peril,’’ said John Packer, a professor of law at the University of Ottawa who has long studied the Rohingya’s plight. If the court hears the case, he said, “there will be a sort of public truth-finding exercise. Myanmar’s simple denials will not stand up to scrutiny.’’
A different body, the International Criminal Court, was specifically created to prosecute genocide and other atrocities. But that court has no jurisdiction over cases in Myanmar because the country has not signed on to the court’s treaty. (Neither have the United States, China, India, Israel and several other countries.)
But the I.C.C. did set itself up to at least partly take up the case against Myanmar last year, when it ruled that it could prosecute for “deportation” and associated crimes against Rohingya who fled to Bangladesh, which is a court member. But judges have not yet approved a criminal investigation by the court’s prosecutor.
Gambia’s lawsuit against Myanmar was born out of a series of meetings of the Organization of Islamic Cooperation (OIC) at which the country’s attorney general, Abubacarr M. Tambadou, assumed a position of leadership because of his special expertise. He had worked more than a decade as a lawyer at the United Nations tribunal dealing with the 1994 genocide in Rwanda.
In a telephone interview, Mr. Tambadou said he had been very moved by his visit to the Rohingya refugee camps in Bangladesh.“The world failed Rwanda when the international community did not prevent the genocide while it was unfolding,’’ he said. “The treatment of the Rohingya is illustrative of the international community’s failure to prevent genocide in Myanmar. I thought this was not right. The world cannot stand by and do nothing.’’
The resulting lawsuit, seen by The New York Times, leans heavily on reports by United Nations fact-finding missions and what it calls other credible sources.
Multiple United Nations investigations have underscored what they called a genocidal intent behind the campaign against the Rohingya.
It says that all members of the Rohingya group in Myanmar are presently in grave danger of further genocidal acts because of Myanmar’s deliberate and intentional efforts to destroy them as a group. It also stresses that the remaining Rohingya communities and individuals in Myanmar continue to face daily threats of death, torture, rape, starvation and other deliberate actions aimed at their collective destruction, in whole or in part.
The lawsuit notes that Rohingya Muslims have been subjected to persecution for decades in Myanmar, which denies that the Rohingya even exist as an established ethnic minority, despite hundreds of years of history in the country.
But pressure increased greatly in late 2016, according to the lawsuit. It cites examples of “attacks in which homes were set ablaze by security forces, in many cases with people trapped inside, and entire villages razed to the ground.”
One investigator documented cases where parents saw their young children being thrown into fires. The suit cites incidents of Myanmar’s “security forces calling families out of their homes, separating men and boys to be executed in front of their families or taken away.”
It cites testimony about women and girls being raped and then killed.The suit says that so-called “clearance operations’’ were genocidal acts, “intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses.”
It said that from August 2017 onward, such “clearance operations’’ intensified, and over 750,000 Rohingya refugees fled to neighboring Bangladesh.
The case was promoted by Arselan Suleman, US State Department Representative to the OIC, now with the Washington, DC law firm, Foley Hoag.
Paul Reichler, the lead lawyer on Foley Hoag’s Gambia team, said he hoped that the court would issue an injunction against Myanmar as soon as possible.
“We are confident that genocide has been committed in this case, and we are very confident in the fairness of the court.’’
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Gambia's Application to the International Court of Justice in its case against Myanmar may be read at: