Why Gambia’s case against genocide in Myanmar is so significant

There are three significant events in the life of Abubakr Tambadou. He studied in the best law schools of England. For around a decade he worked with the tribunal against the genocide in Rwanda. Last year he visited the Rohingya camps in Bangladesh to listen to the plight of the refugees and the brutality from which they have fled. He is now the minister of justice and the attorney general of Gambia.

It came as no great surprise, then, when on 11 November this year Gambia filed charges against Myanmar at the International Court of Justice. He was the one to initiate this historic move.

This case is both remarkable and important. Two more cases against Myanmar are underway. One is with the International Criminal Court and the other is at a local Argentine court. The full-fledged inquiry is being carried out in the first case. If it reaches the court of justice, the propagators of genocide in Myanmar may be punished. The second case is directed against Myanmar’s leader Aung Sun Suu Kyi.

Gambia’s case is the more important among these for several reasons. It is being conducted at the most important international court and has a solid legal base. Bangladesh must keep a sharp watch on this case.

Gambia is the smallest country in mainland Africa, with a population of around 2 million. It is a poor country with hardly any international significance. It is impressive that while no big country claiming to be the guru of ‘human rights’ bothered to take any tangible action, it is this small Gambia that has actually gone ahead to file the case with the international court in accordance to the genocide convention.

The genocide convention was adopted after World War II, spurred on by the brutal and widespread genocide carried out by the German Nazi regime. The United Nations General Assembly in 1947 recognised genocide as an international crime. In 1948 the convention was adopted for the prevention and punishment of the crime of genocide. This places an obligation on the member countries to try any genocide that takes place within their respective territories.

According to Article 9 of this convention, if this convention is violated in any way, any country can file charges against the country accused in this regard. In 1949 while becoming party to the agreement, Myanmar expressed its reservation regarding two clauses of the convention, but had no reservation regarding Article 9.

Sixteen states had initially expressed reservations regarding this article, but later 11 withdrew their reservations. Strangely, Bangladesh is among the five remaining countries that have retained their reservations. In 1998 when it became party to the convention, Bangladesh stated that to take any matter of conflict to the international court, the approval of all parties involved would be required. Gambia became party to the convention in 1978 with no reservations whatsoever. That is why it had no obstacles in filing the case against Gambia.

The charges brought against Myanmar about the 2017 atrocities against the Rohingya community in Rakhine, include genocide, rape and their systemic displacement. Gambia has called for the punishment of those responsible for the crimes and also for compensation of the victims. They have also called for an immediate halt to the repression of the Rohingyas. The hearing of case begins in December.

There is all possibility of Myanmar being proven guilty in this case at the ICJ. Firstly, various inquiry commissions of the UN have gathered adequate evidence of genocide so far. Such evidence appears in the reports of the UN Human Rights Commission and other international human rights organisations.

Secondly, though the genocide was initiated almost three years ago, Myanmar took no step to bring the matter to justice. If the state does not take any action itself, any other country can filed charges with the international court against these crimes. Myanmar does not have the scope to challenge the ICJ in this regard.

Thirdly, Gambia will have no problem in funds for the case as it is backed by the 56-member OIC. And in the meantime, 10 international human rights organisations including the International Federation of Human Rights and the Human Rights Watch have announced their support for this initiative. Certain eminent lawyers including Philippe Sands have joined in the case.

ICJ has finally settled a genocide case in 2007. In this case filed in 1999, ICJ first directed Serbia to halt the genocide there. When no heed was paid to this directive, finally in 2007 Serbia was found to be guilty of not preventing the genocide and not heeding the orders in this regard. ICJ ordered that the guilty persons be handed over to the International Criminal Tribunal of Yugoslavia.

This case will serve as a precedent in the case filed by Gambia. It will play a significant role in the trial.

The ICJ basically deals with the responsibility of a state. The International Criminal Court (ICC) was formed in 2002 by means of the Rome Statute to determine the responsibility of individuals in genocide. In various investigations of this court and the UN, so far six top ranking military officers of Myanmar have been named as responsible for the genocide there.

It has not been possible to try these individuals for genocide so far for two reasons. One, Myanmar is not party to the Rome Statute. Two, approval of the UN Security Council is required to try any individual of a non-member country and this has not been possible due to China’s stance in favour of Myanmar.

ICC has thus taken steps to put on trial the accused not for genocide, but for forceful displacement, a crime against human rights. The prosecutor states that the crime of forced displacement took place from Myanmar to Bangladesh. As Bangladesh is a party to the Rome Statue, ICC can take up this trial as a crime which has taken place in Bangladesh. ICC took the decision for a full investigation into the matter on 14 November. This crime is somewhat less severe than genocide and its trial depends on the success of the investigations.

On 13 November another case regarding Myanmar was filed with an Argentine court by human rights and Rohingya groups. The charges have been filed against Aung Sun Suu Kyi by a number of senior military officials. If extradition of Suu Kyi is demanded in this case, her international movements will be restricted. She will be transformed from Asia’s Mandela to an international fugitive.

These cases will undoubtedly create huge diplomatic and psychological pressure on Myanmar’s rulers and military. It may take some years for these cases to be settled, particularly those in the international courts. In the meantime, the question of the human rights and security of the 400,000 Rohingyas living in virtual imprisonment in Myanmar and the 1 million Rohingya refugees in Bangladesh must not be forgotten.

The solution lies in creating a safe zone for the Rohingyas to stay in Myanmar. The cases which have been filed against Myanmar give scope to accelerate diplomatic efforts to this end. And Bangladesh must grab this opportunity.

* Asif Nazrul is a professor of law at Dhaka University. This column appeared in the print edition of Prothom Alo and has been rewritten in English by Ayesha Kabir