ICJ PROVISIONAL MEASURES ORDER: A blessing in disguise or gearing for more confrontation? 

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The much awaited International Court of Justice (ICJ) ruling on January 23 in The Hague, Netherlands, disappointed the Myanmar or Burma government, while the Rohingya people, international rights groups and many local civil society organizations are clearly satisfied for acknowledging the intensity and urgency of the controversial human rights issue, in Arakan (Rakhine) State.

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https://news.un.org/ | ICJ-CIJ/Wendy van Bree
Judges at the International Court of Justice in The Hague consider the case against Myanmar.

It was even hailed by a Facebook user as “Myanmar: 0, Gambia: 4” using the metaphor of a football match, which is quite an appropriate way of portraying the scenario.

The Gambia on 12 December 2019, during the conclusion of the public hearings on the request for the indication of provisional measures submitted by the Republic of the Gambia, in the 

application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), tabled six-point proposal, but only four were accepted by the ICJ.

The left out two points were: “Myanmar and The Gambia shall not take any action and shall assure that no action is taken which may aggravate or extend the existing dispute that is the subject of this Application, or render it more difficult of resolution;” and “Myanmar shall grant access to,and cooperate with, all United Nations fact-finding bodies that are engaged in investigating alleged genocidal acts against the Rohingya, including the conditions to which the Rohingya are subjected.”

And thus, on January 23, The Court (ICJ) indicates provisional measures in order to preserve certain rights claimed by The Gambia for the protection of the Rohingya in Myanmar as below.

THE COURT, Indicates the following provisional measures: 

(1) Unanimously, 

The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: 

(a) killing members of the group; 

(b) causing serious bodily or mental harm to the members of the group;

(c) 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) Unanimously,

The Republic of the Union of Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide; 

(3) Unanimously, 

The Republic of the Union of Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide; 

(4) Unanimously, 

The Republic of the Union of Myanmar shall submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court.

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Myanmar State Counselor Aung San Suu Kyi (C-R) and Abubacarr Tambadou (3-L), minister of justice of The Gambia, appear before the International Court of Justice (ICJ) at the Peace Palace in The Hague, Netherlands, 10 December. Photo: EPA

The Gambia and Myanmar released statements simultaneously after the the Court orders.

“The Republic of Gambia welcomes today’s unanimous decision by the International Court of Justice in The Hague to order provisional measures to prevent further acts of genocide from occurring in Myanmar,” the Justice Ministry said in a statement following the ICJ verdict. 

It also said Gambia fully expects Myanmar to comply with the provisional measures which are binding under international law. 

Gambia also “called on the UN Security Council to fulfill its role in ensuring compliance with the court’s order.” 

Myanmar, on the other hand, issued statement with mixed signal.

The top-line of the statements wrote: “Myanmar Takes Note of ICJ Decision” but followed by “There Was No Genocide in Rakhine”.

It emphasized the point writing: “As concluded by the Independent Commission of Enquiry (ICOE) in its recent report, there has been no genocide in Rakhine. The Commission found that war crimes had occurred, and those are now being investigated and prosecuted by Myanmar’s national criminal justice system.”

Moreover, it heaped accusation on human rights groups emphasizing: “It is important for Myanmar that the Court reaches a factually correct decision on the merits of the case. The unsubstantiated condemnation of Myanmar by some human rights actors has presented a distorted picture of the situation in Rakhine and affected Myanmar’s bilateral relations with several countries. This has hampered Myanmar’s ability to lay the foundation for sustainable development in Rakhine.”

While it is still an open question whether the Myanmar government will adhere to the ICJ ruling, the military or Tatmadaw, which is the main actor or perpetrator regarding the Rohingya issue, said that it will only abide by the government’s decision and not the ICJ.

“We are not concerned about the ICJ’s provisional measures decision,” said Major General Thaung Naing, the military’s deputy Judge Advocate General, responding to questions from the media during a press briefing in Naypyidaw. “We are following orders from the government,” according to the recent RFA report.

The worry now is what will happen if the Myanmar government refused to comply with the ICJ ruling.

“Under article 41(2) of the ICJ Statute, the court’s provisional measures orders are automatically sent to the UN Security Council. Such an order will increase pressure on the council to take concrete action in Myanmar, including through a binding resolution to address some of the indicators of genocidal intent outlined in the comprehensive 2018 report of the international fact-finding mission,” wrote the recent report of Human Rights Watch.

The report further added: “For example, the Security Council could pass a resolution directing Myanmar to lift restrictions on Rohingya’s freedom of movement, eliminate unnecessary restrictions on humanitarian access to Rakhine State, repeal discriminatory laws, and ban practices that limit Rohingya access to education, health care, and livelihoods. Thus far, the Security Council has not taken significant action on Myanmar, in part because of Russia and China’s apparent willingness to use their vetoes to shield Myanmar’s government and military.”

Kyaw Tint Swe, who headed the Myanmar delegation, said prior to leaving for the Netherlands that the country would consider its response to a ruling ordering provisional measures, according to the RFA report.

“Whatever decision the ICJ makes, we will face it, and I can say we have the capacity to face the case,” he told a televised panel discussion in Myanmar.

”If they [the ICJ] decide to order provisional measures, we would think carefully about how to respond to these issues,” he said. “We would consult with highly skilled legal experts.”

To sum up, nobody is quite sure whether the Myanmar government will comply to the ICJ ruling. It is still an open question, if it will tone down or insist to go it alone with its civil and military justice system, rejecting the ICJ ruling, in which case it will have to be decided by the UN Security Council. And even if China will be able to block any decision-making with its veto power in UN Security Council and the case will drag on for sometimes, the fall out, in terms of the country’s dignity, reputation and the over all development, including political reconciliation, will suffer, whether Myanmar decision-makers like it or not.

Thus, a pragmatic approach will be to give in to the ICJ ruling by embracing universal human rights norm and cooperate with various international bodies to reach reconciliation and accommodation not only with the Rohingya, but on a country-wide basis with other non-Bamar ethnic nationalities in most ethnic states, which the government has been in conflict without end for decades.

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