Starting on December 10, lawyers pressing a case against Myanmar for alleged genocide against its Muslim Rohingya minority will ask the 16-member panel of U.N. judges of the International Court of Justice (ICJ) to order immediate action to protect them from further violence.
During the three-day hearing at the Peace Palace in The Hague, they will ask the judges to impose “provisional measures” to protect the Rohingya before the case can be heard in full.
This is after Gambia, a tiny, mainly Muslim West African country, filed a lawsuit in November accusing Myanmar of genocide, the most serious international crime.
More than 730,000 Rohingya Muslims have fled Myanmar to neighbouring Bangladesh since a 2017 military crackdown, which U.N. investigators found in August to have been carried out with “genocidal intent”. Myanmar vehemently denies allegations of genocide.
The office of Myanmar’s civilian leader Aung San SuuKyi, a Nobel peace prize laureate, has said she will lead her country’s defence personally. Myanmar’s legal team is expected to argue that genocide did not occur, that the top U.N. court lacks jurisdiction and that the case fails to meet a requirement that a dispute exists between Myanmar and Gambia.
Gambia’s request for a provisional injunction is the legal equivalent of seeking a restraining order against a country.
“If the court feels there is sufficient threat and it needs to step in, it can … order Myanmar to cease and desist in terms of military operations and violence so that civilians are protected,” said Priya Pillai, an international lawyer with the Asia Justice Coalition, an NGO.
A decision on provisional measures is expected within weeks. Hearings dealing with the core allegation of genocide could begin in 2020, but cases at the ICJ, the leading U.N. court for disputes between states, often take years.
The legal threshold for a finding of genocide is high. Just three cases have been recognised under international law since World War Two: Cambodia in the late 1970s; Rwanda in 1994; and Srebrenica, Bosnia, in 1995.
“Proving genocide has been difficult because of the high bar set by its ‘intent requirement’ – that is showing the genocidal acts, say killings, were carried out with the specific intent to eliminate a people on the basis of their ethnicity,” said Richard Dicker, head of the international justice programme at New York-based Human Rights Watch.
Myanmar has previously denied almost all allegations made by refugees against its troops, including of mass rape, killings and arson. It says the army was engaged in a legitimate counterterrorism operation against Rohingya militants.
The U.N. investigators concluded that sexual violence committed by Myanmar troops against Rohingya women and girls in 2017 indicated the military intended to destroy the mainly Muslim ethnic minority. (Source: Thomson Reuters Foundation)