UN court clears way for Myanmar genocide case to proceed

The top United Nations court has thrown out all objections by Myanmar to a case alleging genocide by its military against its Muslim Rohingya minority – clearing the way for the landmark legal action to be heard in full.

In a ruling in The Hague that lasted just 50 minutes on Friday afternoon, three of Myanmar’s objections to the jurisdiction of the International Court of Justice (ICJ), and to Gambia’s entitlement to bring the case, were rejected unanimously by the 16 judges. A fourth was rejected by 15 to one.

Gambia, backed by the 57-nation Organisation for Islamic Co-operation (OIC), filed the genocide case in 2019 and that December, Aung San Suu Kyi, then the country’s civilian leader, flew to the Netherlands and joined the military to petition the ICJ to dismiss the case.

However, when the military staged a coup in February 2021, brief alliances were rapidly forgotten. Ms Suu Kyi was arrested and has been imprisoned since on corruption charges condemned by the US, the UN and bulk of the international community as politically motivated.

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A key objection by Myanmar to the ICJ proceedings was that Gambia was acting as “an agent or proxy” for the OIC, and that because only states could be party to proceedings before the court, Gambia’s application was therefore inadmissible.

However, ICJ president Judge Joan E Donoghue said, in the court’s judgment, membership of the OIC did not detract from Gambia’s legitimate standing as the applicant in the case.

“Gambia, as a state party to the 1948 Genocide Convention, has standing,“ she said.

This also led inescapably to the conclusion, she added, that there had been no abuse of process by Gambia in taking the action, as alleged by Myanmar.

In relation to Myanmar’s contention that there had been no dispute between the parties at the time the proceedings were instigated, the judge said senior representatives of Gambia had made clear at the UN general assembly and elsewhere that they intended to champion the plight of the Rohingya as described by UN investigators.

She said Myanmar “could not have been unaware” of the fact that Gambia had declared publicly that it intended to seek “an accountability mechanism” for the Rohingya. In any case, the argument of the need for “mutual awareness” had “no basis in law”.

As regards Myanmar’s argument that only “injured states” had standing under the Genocide Convention, the judge said there was fundamentally “a common interest” among member states in ensuring compliance with the convention.

A UN fact-finding mission concluded that a 2017 campaign of “clearances” by the Myanmar military in Rakhine province, which drove some 730,000 Rohingya into neighbouring Bangladesh, included “genocidal acts”.