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The U.N.’s top court ordered Myanmar to protect the Rohingya. Here’s how that could matter.

The ruling was a significant defeat for Aung San Suu Kyi, Myanmar’s president and a former human rights icon

- February 9, 2020

Recently, the United Nations’ top court ordered Myanmar to take urgent measures to protect Rohingya Muslims from genocide. In a unanimous decision, the International Court of Justice (ICJ) ruled that without such measures, the vulnerable Rohingya minority could suffer “irreparable harm.” This legally binding decision has been hailed by human rights advocates as a “first taste of justice” for the Rohingya. However, whether it actually protects the Rohingya will depend on the diplomacy that comes next.

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Calls for justice for the Rohingya have intensified

The Rohingya have long suffered from discrimination and political exclusion in Myanmar. In recent years, government forces have led a campaign of violent attacks against them, leading nearly 1 million to flee to neighboring Bangladesh since mid-2017. Former U.N. human rights chief Zeid al-Hussein has called the campaign “a textbook example of ethnic cleansing,” and U.N. special rapporteur Yanghee Lee has said it bore “the hallmarks of genocide.”

The U.S. government has called for accountability and leveled targeted sanctions. Rights groups have demanded justice. So has the Organization of Islamic Cooperation (OIC), a forum largely of Muslim-majority states where outrage over the Rohingya crisis runs deep. Gambia took the lead within the OIC and brought a case to the ICJ in November, accusing Myanmar of genocide. Although Gambia has not suffered direct harm, it could file the case because international law treats genocide prevention as an obligation of the entire international community.

The decision has legal significance

The case may take years to adjudicate. Proving genocide will be difficult, because that requires evidence of the Myanmar government’s intent, not just its actions. Last week’s judicial order amounted to a preliminary injunction, not a decision on the merits. Nevertheless, it has important legal implications and could help protect the Rohingya ⁠ — if it catalyzes stronger diplomatic pressure on Myanmar.

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Although Myanmar insisted that it has taken steps to prevent harm to the Rohingya, the ICJ was unconvinced. Its order requires Myanmar to “take all measures within its power” to prevent genocidal acts against the Rohingya, including preventing its military and affiliated irregular units from committing, conspiring to commit or inciting genocide. This latter point is key, because Myanmar’s civilian leaders have sometimes claimed that they lack control over the country’s powerful military apparatus.

The ICJ order also requires Myanmar to preserve evidence related to the genocide allegations, such as documents and physical remains, and to file regular reports about what it is doing to prevent genocide against the Rohingya and the destruction of evidence. The first report is due in May. The United Nations and other countries will be watching to see whether Myanmar meets these international legal obligations.

The order has subtler legal implications, too. The ICJ found that the Rohingya “appear to be a protected group” under the 1948 Genocide Convention. This is important, because Myanmar has long denied the Rohingya legal status, treating them as illegal Bengali migrants rather than members of a distinct ethnic group. Even the ICJ’s use of the term “Rohingya” was noteworthy, given Myanmar leaders’ refusal to utter the term.

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Nevertheless, the order’s reach is limited

It’s important not to overstate the order’s legal significance. In many respects, it simply reaffirmed Myanmar’s obligations as a signatory to the 1948 Genocide Convention and related international criminal law. In addition, the ICJ opted not to require Myanmar to admit a team of U.N. investigators, which had been Gambia’s boldest request. Gambia, which is prosecuting the case, will therefore have to rely on information obtained by U.N. fact finders, journalists and civil society groups operating largely outside of Myanmar.

If Myanmar flouts its obligations, Gambia has little recourse. The U.N. Security Council has the power to enforce ICJ decisions, but China and Russia, two of the Security Council’s permanent members, are likely to veto any effort to act against Myanmar. China already has blocked a European proposal for a Security Council statement urging Myanmar to comply with the ICJ ruling. Protection for the Rohingya will have to come through other diplomatic channels.

What other diplomatic efforts can achieve

To date, international pressure on Myanmar hasn’t had much effect. For decades, the government, the military and intolerant Buddhist monks have spread bigotry against the Rohingya. Radical Muslim groups in Myanmar’s Rakhine state have occasionally launched attacks, and the government argues that it has been fighting terrorism, not committing genocide. Most Burmese accept that narrative, giving the ruling National League for Democracy (NLD) and its leader, Aung San Suu Kyi, political incentives to deny atrocities against the Rohingya. The NLD has not wanted to alienate the country’s growing number of Buddhist nationalists. It began sharing power with Myanmar’s military only nine years ago, and its grip is tenuous.

Although Western nations have imposed sanctions on Myanmar for its attacks on the Rohingya, China and other immediate neighbors continue to trade and invest. The Association of Southeast Asian Nations (ASEAN) also offers some political cover, referring antiseptically to the “situation in Rakhine state” without condemning the atrocities there.

Still, the recent ICJ ruling could prompt renewed international diplomatic pressure and a shift in Myanmar’s behavior. The ruling was a significant defeat for Aung San Suu Kyi, the former human rights icon who argued Myanmar’s case in The Hague. She has been widely criticized for denying and defending her country’s systematic persecution of the Rohingya, and her mere presence showed that Myanmar cares about the legal process. Adding to the sting was the court’s unanimous ruling, relatively rare at the ICJ. Even the judge appointed by Myanmar sided against it.

With the ICJ case underway and the International Criminal Court opening its own proceedings against Myanmar and starting to gather evidence, the country’s leaders have begun backtracking. Myanmar’s investigatory commission, widely considered a government tool, issued a report in late January acknowledging possible war crimes against the Rohingya. Aung San Suu Kyi admitted in The Hague to the possibility of “disproportionate force.”

Although these admissions may be tactical efforts to deflect genocide charges, they show that Myanmar is taking international pressure seriously. Myanmar’s leaders fear further U.S. and European sanctions, which would leave them more dependent on China for trade and investment — something they want to avoid. That gives Western governments leverage. If they use it, the ICJ ruling and Gambia’s case may well bring some relief, and perhaps even some justice, for the Rohingya.

John D. Ciorciari is an associate professor and director of the Weiser Diplomacy Center and International Policy Center at the Gerald R. Ford School of Public Policy at the University of Michigan.