The Rohingya people are a Muslim Indo-Aryan ethnic minority in Buddhist majority Myanmar who, in recent years, have faced mass persecution and ethnic cleansing that has been described as a genocide. The state government deems them illegal immigrants, but the Rohingya people argue that they have lived in the area for generations and that this treatment is unfair to the Muslims. According to The Economist, regarding Aung San Suu Kyi's motivation for taking up the defendants' cause, "It is hard to escape the conclusion that she is exploiting the Rohingyas' misery to boost her party's prospects in elections due in 2020." Aung San Suu Kyi describes this conflict as "internal armed conflict" that were triggered by Rohingya attacks on the government of Myanmar. The judge presiding the case, Abdulqawi Ahmed Yusuf, has given Myanmar four months to implement his rulings: Myanmar must take "all measure within its power" to prevent genocide.
Procedural history
On 11 November 2019, The Gambia lodged a 45-page application with the ICJ against Myanmar, initiating the case. The application alleged that Myanmar has committed mass murder, rape and destruction of communities against the Rohingya group in Rakhine state since about October 2016 and that these actions violate the Genocide Convention. Outside counsel for The Gambia includes a team from the law firmFoley Hoag led by Paul Reichler, as well as Professors Philippe Sands of University College London and Payam Akhavan of McGill University. On the other side, leader and State CounsellorAung SanSuu Kyi is representing Myanmar, along with a legal team. The Gambia also submitted a request for the indication of provisional measures of protection. The ICJ held a public hearing on that request for three days, 10-12 December 2019. A commentator described the hearing as a "remarkable spectacle," noting that The Gambia's team provided "brutal descriptions" of atrocities, while Aung San Suu Kyi avoided using the word “Rohingya”—except in a reference to the Arakan Rohingya Salvation Army. On 23 January 2020, the ICJ issued an order on The Gambia's request for provisional measures. The order "indicated" provisional measures ordering Myanmar to prevent genocidal acts against the Rohingya Muslims during the pendency of the case, and to report regularly on its implementation of the order. The Court issued a procedural order on the same date, setting filing deadlines of 23 July 2020 for The Gambia's Memorial, and 25 January 2021 for Myanmar's responsive Counter-Memorial.
Analyses
Analyzing the decision in the blog of the European Journal of International Law, Dr. Marko Milanovic, a professor at the University of NottinghamSchool of Law, called the Court's order "obviously a win for The Gambia, and for the Rohingya cause more generally," but also noted that the order largely only replicated existing "state obligations under the Genocide Convention," and did not include the broader measures and statements that The Gambia had requested.
