This is the first instance of a transcontinental application to the ICJ based on violations of the Convention on the Prevention and Punishment of the Crime of Genocide
The Gambia, a majority-Muslim West African nation, and the smallest country on mainland Africa, took an enormous step this Monday on behalf of their fellow Muslims, the Rohingya people, when it filed a lawsuit against Myanmar for the crime of genocide — the destruction in whole or in part, of a national, ethnical, racial or religious group — at the International Court of Justice (ICJ).
The Rohingya are a Muslim ethnic minority in majority-Buddhist Myanmar who are concentrated in Rakhine state, which borders Bangladesh. They have lived in Myanmar for generations, but the Rohingya have always been treated like outsiders and systematically discriminated against by the government. In August 2017, following small-scale attacks by Rohingya militants against Myanmar police posts, Myanmar security forces responded with widespread, indiscriminate murders and gang-rapes, as well as the burning of entire villages. Thousands of Rohingya were killed, and an estimated 745,000 Rohingya fled as refugees to neighboring Bangladesh, including 400,000 children.
They joined around 200,000 Rohingya refugees already living in Cox’s Bazar, Bangladesh, which is now home to the world’s largest refugee camp. Over 900,000 stateless, deeply traumatized Rohingya are living in precarious shelters, vulnerable to monsoons and dependent on humanitarian aid.
Witnesses to the genocide tell horrifying stories. Reuters reported that on September 2, 2017, 10 Rohingya men were bound together while Buddhist villagers dug a shallow grave, before hacking to death two of the men and shooting the rest:
“One grave for 10 people,” said Soe Chay, 55, a retired soldier from Inn Din’s Rakhine Buddhist community who said he helped dig the pit and saw the killings. The soldiers shot each man two or three times, he said. “When they were being buried, some were still making noises. Others were already dead.”
Myanmar describes its actions as a “clearance operation.” It jailed and then ultimately released two of the Reuters journalists who investigated the story, and continues to deny vehemently that it committed genocide.
The United Nations independent fact-finding mission issued a report last year, which named senior generals of the Myanmar military who they recommended be investigated and prosecuted in an international criminal tribunal for genocide, crimes against humanity and war crimes. The mission further found that the Rohingya who remain in Myanmar are at risk of further genocidal violence, and that repatriation has been practically impossible.
The case is unprecedented for a number of reasons. The Gambia is located over 7,000 miles from Myanmar — this is the first instance of a transcontinental application to the ICJ based on violations of the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948, to which both Myanmar and The Gambia are signatories.
The Gambia’s lawsuit is supported by the Organisation of Islamic Cooperation, which calls itself the “collective voice of the Islamic world,” and represents 57 member states, including Bangladesh, which has borne the brunt of the Rohingya refugee crisis.
The Gambia is seeking an injunction to prevent Myanmar from inflicting further violence upon the Rohingya population, and accountability for atrocities already committed. Prosecution of war crimes and crimes against humanity normally falls under the jurisdiction of the International Criminal Court (ICC), but Myanmar is not a signatory to the Rome Statute and so no charges have been filed.
At a time when wealthy nations are increasingly turning their backs on enforcing human rights law, it’s heartening to see smaller nations (with access to deep pockets) holding power to account at the Hague. Gambia’s efforts on behalf of the Rohingya began after its attorney general and justice minister, Abubacarr Tambadou, read the UN report on the atrocities, and flew to Bangladesh to meet refugees and hear their stories.
Tambadou, who worked for years as a lawyer at the International Criminal Tribunal for Rwanda (ICTR), told the Washington Post: “As I listened to the horrific stories — of killings, of rape, of torture, of burning people alive in their homes — it brought back memories of the Rwandan genocide. The world failed to help in 1994, and the world is failing to protect vulnerable people 25 years later.” The Gambia recently began hearings for its own Truth, Reconciliation and Reparations Commission to address human rights abuses committed by former dictator Yahya Jammeh.