UN court’s emergency measures in Rohingya case

The International Court of Justice on Thursday unanimously ordered Myanmar to implement four “provisional measures” to prevent the genocide of Rohingya Muslims.

The court imposed the measures at the request of Muslim-majority African state of The Gambia, which said a 2017 military crackdown by mainly-Buddhist Myanmar breached the 1948 UN Genocide Convention.

The measures effectively work as an injunction pending a wider case that could take years. Orders issued by the court, the UN’s top judicial body, are binding but it has no real way of enforcing them.

1. Prevent acts of genocide

Myanmar must “take all measures within its power” to prevent acts of genocide against the Rohingya, particularly killings or causing bodily or mental harm, the judges said.

It must also not impose conditions to bring about the Rohingya’s physical destruction “in whole or in part” — a key definition of genocide under the UN convention — or measures to prevent births within the group.

“This measure is not a surprise… and is sweeping per the language of the Genocide Convention,” Geoff Gordon and Dimitri van den Meerssche of the Hague-based Asser Institute said in an email to AFP.

They pointed out however that the ICJ order did little to “add specificity or teeth to the general prohibition”.

2. Control the military

Myanmar must “ensure that its military, as well as any irregular armed units” do not breach any of the conditions barring genocidal violence, the court said.

This could be seen as a slap on the wrist of Myanmar ordering it to control its military, said Cecily Rose, assistant professor in international law at Leiden University in the Netherlands.

She pointed out that the ICJ’s judges had shown “a high level of awareness” of an explosive 2018 report by a UN Fact-Finding Mission that said Myanmar’s top generals must be investigated and prosecuted for genocide.

But she said it “remains to be seen what the court will do” with that report when it comes to a full genocide case.

3. Preserve evidence

Myanmar must take “effective measures” to preserve evidence relating to alleged acts of genocide, the court ordered.

“This is not a typical provisional measure,” said Rose. “There is persuasive evidence put forward by The Gambia, probably based on the Fact-Finding Mission’s report, that evidence has been destroyed.”

4. Report back

One of the most unusual orders was that Myanmar must report within four months on what measures it has taken to comply with the ICJ’s order, and thereafter every six months until a final decision is given by the court.

“This is a new development for the ICJ,” said Rose, adding that it was a “much-needed development because in the past there has been problems with compliance to provisional measures orders”.

The order to report back “makes it just a little more difficult for Myanmar to carried out similar operations in the future”, she said. “It increases the level of scrutiny on Myanmar.”