FACTBOX: The Genocide Case Against Myanmar at the UN’s Highest Court

By Reuters 6 December 2019

THE HAGUE, Netherlands—State Counselor Daw Aung San Suu Kyi will head a team of lawyers to hearings at the International Court of Justice (ICJ) in The Hague next week to defend the country against accusations of genocide against the Rohingya Muslims.

Top UN Court

The ICJ, also called the World Court, is the highest United Nations legal body, established in 1945 to deal with disputes between states. It should not be confused with the treaty-based International Criminal Court, also in The Hague, which handles war crimes cases against individuals.

The ICJ’s 15-judge panel has historically dealt with border disputes. Increasingly it also hears cases brought by states accusing others of breaking obligations under UN treaties.

This case was brought against Myanmar by the tiny West African nation of Gambia, acting with the support of the 57-member Organization for Islamic Cooperation (OIC), under the 1948 Genocide Convention. Both countries are signatories.

The convention obliges the 150 signatory countries not to commit genocide, but also to prevent and punish the crime. It defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

‘Restraining order’

The hearings at the ICJ from Dec.10-12 will not, at this stage, consider whether Myanmar is guilty of genocide. They will focus on a request for so-called provisional measures against Myanmar, a sort of preliminary injunction seeking to halt any ongoing abuse or violations. The measure is similar to a restraining order, but against a state rather than a person.

Judges at the ICJ often grant such measures, which generally consist of asking a state to refrain from any action that could aggravate the legal dispute.

ICJ cases typically take years to come to a conclusion, but a decision on provisional measures could be made within weeks. Its rulings are final and without appeal, but the court has no way of enforcing them. Still a ruling against Myanmar could hurt its international reputation and set legal precedent.

Genocide at the ICJ

The court has handed down a final judgment in one other genocide case in the past, in which Bosnia accused neighboring Serbia of masterminding the genocide of Bosnian Muslims during the 1992-95 war.

In 2007, the ICJ ruled that genocide was committed in Bosnia during the 1995 massacre of some 8,000 Muslim men and boys in Srebrenica. However, the judges said there was not enough evidence that the Serbian government was directly involved in the slaughter. Nonetheless the court found Serbia guilty of violating the convention by failing to prevent genocide.

It is hard to compare the Bosnia-Serbia case to Myanmar because the former was bolstered by a string of judgments at the UN’s International Criminal Tribunal for the former Yugoslav, which had already determined the Srebrenica massacre constituted genocide under international law.

Myanmar faces a series of legal contests globally accusing it of alleged atrocities against Rohingya Muslims during a military-led crackdown two years ago, but there are no legal precedents.

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