The ICJ can never give the Rohingya justice

Josephine Skorupski 3 February 2020
Image Credit: Wikipedia

Last week, the International Court of Justice (ICJ) ordered Myanmar to prevent genocidal violence against its Rohingya Muslim minority. In a unanimous decision, Aung San Suu Kyi’s government was instructed to respect the requirements laid out in the 1948 Genocide Convention. While this is a success for the hundreds of thousands of displaced Rohingya, there is still little hope of them returning to their homeland.


The Rohingya are one of the most persecuted minorities in the world. More than 700,000 fled the country following an army crackdown in 2017. Thousands were killed, beaten, and subjected to sexual violence. The measures followed decades of discrimination and long-denied citizenship rights. The estimated 600,000 Rohingya who remain in Myanmar today are still deemed at risk of genocide. The situation remains dire with the population facing persecution at home, instability, exploitation and unsafe conditions as refugees abroad.


The ICJ can only hear actions between states (in this ruling – the Gambia and Myanmar) and does not issue arrest warrants. However, their orders are binding on Myanmar’s government who now face legal obligations. The provisional measures imposed by the court require the prevention of genocidal acts and the preservation of evidence of such acts. Myanmar must report back on its compliance in four months. But any justice for those who have suffered atrocities and war crimes seems a long way off.


The Rohingya are the indigenous people of Arakan, which was renamed Rakhine State in 1989 at the same time as Burma was renamed Myanmar. Even before the onslaught of violence in 2017, which triggered the largest human exodus in Asia since the Vietnam War, generations of Rohingya have faced persecution and discriminatory laws rendering them effectively stateless. Sectarian violence in Rhakine State in the last decade, particularly 2012 and 2016, has already saw tens of thousands of Rohingya flee their homes.


Myanmar’s de facto leader, Aung San Suu Kyi, denied any claims of genocidal intent from her military in a three-day hearing at the ICJ last December. The ruling further diminished the international reputation of the former Noble Peace Prize winner. Yet even this mounting pressure appears unlikely to curb the threat of further violence or increase the chances of safe repatriation and the granting of full citizenship rights.


In the coming months we will see how international law fares when it comes to upholding the rights of the Rohingya. The simple fact remains, the court cannot enforce its jurisdiction, and Suu Kyi’s tarnished international reputation may not affect her domestic status in a country where prejudice towards the Rohingya remains entrenched. Currently citizenship – as per the 1982 Citizenship Act – only gives full citizenship to those of the ‘national races’. Meanwhile, Myanmar’s surge of Buddhist nationalism and the many decades of conflict and resentment towards its Rohingya minority demonstrate that there is not an easy solution.


The prospect for the remaining 600,000 Rohingya in Myanmar appears bleak. A United Nations report described the conditions as ‘deplorable’, stating the country is “denying wrongdoing, destroying evidence, refusing to conduct effective investigations and clearing, razing, confiscating and building on land from which it displaced Rohingya”.

Despite the establishment of an Independent Commission of Enquiry that admitted evidence of human-rights violation or even war crimes, the government still denies genocidal intent, preferring to pursue a narrative that the violence is part of an internal armed conflict – measures of counterterrorism – and so will be investigated internally without impartiality.

The nearly one million Rohingya who left Myanmar now live in Bangladesh’s Cox’s Bazar, the world’s largest refugee settlement, in increasingly overcrowded conditions. Aside from malnutrition and disease, their future prospects are also unpromising due to their perpetual condition of statelessness. Hundreds of thousands of children are growing up without an education, while limited security leaves them at serious risk of human trafficking.

While the ICJ ruling is undoubtedly a step in the right direction, the Rohingya are still unable to return home and those who remain with forcibly restricted rights are unlikely to see any change at ground-level. It remains imperative for the international community, including the UK, to draw attention to the plight of the Rohingya. Although the ICJ has limited power to enforce compliance from Myanmar’s government, the concept of international law as a force to uphold human rights worldwide is nonetheless something that can be built upon. The process will be a lengthy one, with the long-term ambition of justice and citizenship for the Rohingya a distant hope.