Myanmar, the Rohingya people and genocide: Inside the International Court of Justice

UPDATE: The International Court of Justice unanimously agreed that provisional measures against Myanmar are "necessary" pending its final decision on genocide to protect Rohingya people. The court ruled Myanmar must take all measures within its power to prevent acts of genocide, ensure its military or any other groups do not commit such acts, and prevent destruction of evidence. 

It's been a long road to justice for the Rohingya people, a Muslim minority in Myanmar.

On Thursday, in a monumental decision, the International Court of Justice (ICJ) will announce whether there is enough evidence to order what are called "provisional measures" — effectively a restraining order to protect Rohingya people who are still in Myanmar from further violence, while a larger case makes its way through the court.

Gambia has accused Myanmar of genocide against Rohingya people in a case that could take years to resolve.

In the meantime, the short-term goal is to stop the violence.

IDEAS has been following this story closely. Producer Philip Coulter was in the courtroom in December last year to hear the evidence presented in this case — and host Nahlah Ayed is currently in The Hague for the ICJ's crucial announcement on Thursday.

Striving for a Buddhist state

Since the foundation of Myanmar as an independent nation in 1948, Buddhist nationalists have strived to create not a multi-ethnic state, but a Buddhist state. But not everyone in Myanmar is Buddhist.

The Rohingya, a minority Muslim people who settled in what was then Burma during the British Raj in the 19th century, have long considered this part of the world their home. Since 1948, successive Myanmar governments, both civilian and military, have increasingly been in conflict with the Rohingya people, denying them citizenship and education, burning villages and engaging in various levels of assault, with the alleged goal of forcing the Rohingya to leave the country. Much of this activity was carried out by the military, also known as the Tatmadaw. 

Many people — investigators including a United Nations fact-finding mission report — say the military's actions against Rohingya people after Aug. 25, 2017, have "genocidal intent." Myanmar denies the accusations and says its military was involved in "clearance operations," targeting armed Rohingya militants who had killed security personnel.

A team of international advocates presented evidence on behalf of Gambia in speaking for the Rohingya people. Attorney General of Gambia Abubacarr Tambadou, Canadian professor and lawyer Payam Akhavan and Andrew Loewenstein, among others, made statements in court to highlight different aspects of the evidence collected by the United Nations.

Lawyers for Myanmar also presented arguments against the request for "provisional measures" during subsequent sessions of the hearing. Our future coverage will reflect the various arguments of this case.

Here are some excerpts from court testimony delivered on Dec. 12, 2019.

Gambia Justice Minister Abubacarr Tambadou

Mr. President, honourable judges, as Attorney General of the Republic of The Gambia, I stand before you today as agent in a dispute with the state of Myanmar, but not a conventional one that this court is accustomed to. I stand before you to awaken the conscience of the world, and to arouse the voice of the international community.

In the words of Edmund Burke: "The only thing necessary for the triumph of evil is that good men do nothing." Every genocide that has occurred in history has had its own causes, unique to its historical and political context.

But one thing is certain, genocide does not call in a vacuum. It does not suddenly spring up or appear overnight out of the blue; it is preceded by a history of suspicion, mistrust and hateful propaganda that dehumanizes the other, and then crystallizes into a frenzy of mass violence in which one group seeks the destruction, in whole or in part, of another.

But when we dehumanize others, we dehumanize ourselves as human beings.

For any genocide to occur, two things must be present: a dehumanization of the other and the indifference of the international community. It is indeed sad for our generation that 75 years after humankind committed itself to the words "never again," another genocide is unfolding right before our eyes, even as I make this statement to you today. Yet we do nothing to stop it.

This is a stain on our collective conscience and it will be irresponsible for any of us to simply look the other way and pretend that it is not our business because it is our business. We signed up to make it our business when we, as civilized nations, committed ourselves to a pact under the 1948 Genocide Convention.

Payam Akhavan 

Payam Akhavan is a former United Nations prosecutor and professor of law at McGill University. He was also the 2017 CBC Massey Lecturer.

In the UN Independent International Fact-Finding Mission on Myanmar ("UN Mission") report of 16 September 2019, it found "a serious risk of genocide actions recurring", and that "Myanmar is failing in its obligation to prevent genocide."

The UN mission found that in Myanmar there was a "notable pattern" of "mass gang rape, involving multiple perpetrators and multiple victims in the same incident." These crimes were committed "in open public spaces, in front of family and neighbours, within forested areas near the village; in large houses within the village; and during detention in military and police compounds."

A survivor who had been gang-raped with her sister testified how a Tatmadaw [Armed Forces of Myanmar] soldier told them: "We are going to kill Rohingya. We will rape you. This is not your country."

The mission also "verified a pattern" of "people, including babies and children being pushed or thrown into burning houses by [Tatmadaw] soldiers."

The mission found that Rohingya children were specifically targeted. A woman described how, at Kyein Chaung village — to give but one example — soldiers beat her youngest child: "He was one and a half years old," she testified. "He died as a result of the beating."

Some 600,000 Rohingya remain in Myanmar; they are in urgent need of protection. As the fact-finding mission concluded just a few weeks ago, they "remain under serious risk of genocide."

Andrew Loewenstein

Andrew Lowenstein was a member of legal counsel for Gambia who presented evidence of Myanmar's intent to commit.

Myanmar's genocidal intent is rooted in its long-standing policy — that the Rohingya, by dint of their ethnic and religious differences — constitute an existential threat to Myanmar's racial and religious purity, and to the country's well-being.

As the UN mission documented, Myanmar is saturated with anti-Rohingya writings that evoke the supposed threat to Myanmar's demographic balance, bearing titles like Fear of Extinction of the Race. They warn that unless pre-emptive action is taken "the whole country will be swallowed by the Muslim Kalar," a racial slur used to describe those with dark skin and foreign ancestry.

Mr. President, dehumanizing language is prevalent. The Rohingya are described as a "Black tsunami." They are likened to "poisonous plants." They are compared to "African catfish" — an invasive species — that must not be "allowed into the country to breed." Myanmar's law codifies this ideology. Anyone who does not belong to a "national race" —  and that is the term used in these laws — is denied even basic rights.

The fact-finding mission also concluded that Myanmar's genocidal intent is evident in its lack of remorse — or even acknowledgement — of any wrongdoing. Instead, the Tatmadaw's actions are glorified; the review of state media showed that Myanmar presents the situation as "the Tatmadaw gallantly defending the nation's sovereignty from Muslim terrorists."

Myanmar denies responsibility for its crimes against the Rohingya even when confronted with evidence of genocidal acts at specific locations.

* This episode was produced by Philip Coulter. Court testimony has been edited for length and clarity.