International law in spotlight following Myanmar genocide verdict

International law in spotlight following Myanmar genocide verdict

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The Rohingya, who have been described by the UN as the most persecuted minority in the world, experienced a glimmer of hope last week, when the International Court of Justice (ICJ) delivered a remarkable ruling that those members of the community remaining in Myanmar currently face a credible threat of genocide. This was the first time that a genocide case has been brought before the ICJ by a signatory county — in this case, The Gambia.
The case before the ICJ took an unexpected turn in November, when Aung San Suu Kyi, the long-time pro-democracy icon and Nobel Peace Prize laureate, and currently the most powerful person in the civilian government in Myanmar, announced that she would defend Myanmar against the charges of genocide in person before the court in The Hague.
For a while, Suu Kyi’s former friends and allies in the international community sought to make sense of what was happening to the Rohingya by casting her as a prisoner of fate to the military establishment, which still controls most of the reins of power in the country. But as Suu Kyi became an increasingly prominent apologist for the army, and even adopted the language of those clamoring for the genocide by denying the very identity of the Rohingya and casting them as foreign “Bengalis,” we have increasingly run out of doubt to give her the benefit of. 
All possible doubt was finally dispelled when she appeared before the ICJ, casually admitting that war crimes had taken place, but that what had happened could not be genocide because there was no genocidal intent. She made this case while still refusing to utter the word “Rohingya” and insisting that she was talking about “Bengalis” — an “other” she should not be expected to be responsible for. 
Whatever the political calculation that brought Suu Kyi before the court in The Hague was, it now seems to have backfired. She stood before the court, yielding to its jurisdiction and its right to pass judgment on her government’s handling of the Rohingya situation, and now it has ruled that, as things stand, it expects the state of Myanmar to be able and likely to engage in genocide — even before a verdict on the events of the past two years has been reached. Suu Kyi is thus no longer in a position to undermine the authority of the court’s ruling. 

Whatever the political calculation that brought Suu Kyi before the court in The Hague was, it now seems to have backfired.

Dr. Azeem Ibrahim

The extent to which this ruling will affect life on the ground for the Rohingya, either those who still remain in Myanmar or those who have crossed the border to Bangladesh, will now depend on the response of the international community. 
Normally, judgments passed by the ICJ compel the UN Security Council to get involved in mitigating a situation like this, where there is a live threat of genocide. The Western members of the Security Council have long been critical of the actions of the state of Myanmar toward the Rohingya, but any formal censure or UN intervention has been vetoed by Russia and China, who are both working to construct closer ties to Myanmar. China in particular increasingly sees Myanmar as a pivotal protectorate in Southeast Asia. And this says nothing of the fact that the leaders of either of these two countries might want to avoid setting a precedent of strong enforcement of human rights laws by international bodies, given their own activities in contentious territories like Syria or Xinjiang.
However, some kind of action from the UN Security Council might now be unavoidable. The provisional measures ordered by the court are supposed to be legally binding. If Myanmar fails to meet the demands of the court, the measures will require enforcement. And Myanmar failing to do so seems well within the realms of possibility. If that comes to pass, the UN Charter calls for the Security Council to carry out the required enforcement. If, even at that point, Russia or China flat out vetoes any proposal for enforcement as required by the law and charter of the UN, they themselves would be pitting themselves against the UN and international law. 
Such a scenario could go in a number of different directions, and it would be virtually impossible to anticipate exactly how things are likely to shape up. But what is becoming entirely too possible is that the ground rules upon which geopolitics is currently played may well be upended and, with them, the entire edifice of international law. 

  • Dr. Azeem Ibrahim is a Director at the Center for Global Policy and author of “The Rohingyas: Inside Myanmar’s Genocide” (Hurst, 2017). Twitter: @AzeemIbrahim​
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