Myanmar formally accused of genocide in court case filed at The Hague

Myanmar has repeatedly been blamed in the systematic displacement, killing and widespread sexual assault of Rohingya Muslims, but only today has it been formally accused in an international court of acts of genocide.

The case filed at the International Court of Justice at The Hague is the first attempt to work around international inertia around Myanmar's actions on its own soil, and push through the legal and political obstacles that have so far frustrated calls to exact justice for the hundreds of thousands of victims.

Since violence erupted in Rakhine state in August 2017, several investigations concluded that Myanmar security forces were behind the atrocities that razed dozens of Rohingya villages, displaced more than 700,000 civilians, and killed countless others.

In August 2018, a UN fact-finding mission declared those acts a campaign of genocide, and called for the prosecution of the military commander and generals in charge for genocide and war crimes.

Still there seemed to be little global appetite for legal action.

Last year, Canada became the first country to call the violence an act of genocide, after Parliament voted unanimously to do so. A campaign followed by senators and dozens of human rights groups — as well as a motion in the Senate — urging the Canadian government to take the genocide accusation to the International Court of Justice (ICJ), which arbitrates disputes between states.

But Canada has called on the UN Security Council to refer Myanmar to the International Criminal Court instead. The Council is the only avenue for putting the matter before the ICC because Myanmar is not a state party to the statutes that created the court, which means it's outside of its jurisdiction.

However, a reference by the Security Council was highly unlikely, at minimum due to China's opposition.

'Our moral obligation'

In a novel attempt to get around these challenges, the application Monday by a team of American, Canadian and British lawyers was filed on behalf of the African nation of The Gambia. It is accusing Myanmar of contravening the 1948 Genocide Convention, to which both The Gambia and Myanmar are state parties.

The Gambia is bringing the case forward on behalf of the Organization of Islamic Cooperation, whose leaders voted to proceed with with a legal challenge earlier this year.

"Despite our size, we believe that it is at least our moral obligation," The Gambia's justice minister, Abubacarr Tambadou, said in an interview.

A former prosecutor of genocide cases in Rwanda, Tambadou added that the treatment of Rohingya "illustrates the failure of the international community to prevent genocide."

The hope, he said, is that Canada and other countries will intervene in the case.

"This is not just a case legal case; this is about humanity, about us as human beings in this world."

Minister of Foreign Affairs Chrystia Freeland said Monday that Canada welcomes Gambia's submission and the move will help "advance accountability for the genocide, which includes acts of mass murder, systemic discrimination, hate speech and sexual and gender-based violence against the Rohingya."

In 2018, the Canadian House of Commons unanimously voted to recognize the crimes against the Rohingya as constituting a genocide, Freeland said in the statement.

"Canada is committed to addressing the root causes of the crisis and ensuring that the Rohingya are fully and meaningfully engaged in the development of these solutions. Ensuring that the perpetrators of these atrocities are held to account is imperative to provide justice to the victims and survivors while building lasting peace and reconciliation in Myanmar."

Typically, nations bringing cases to the ICJ are directly affected by the accusations at hand. That makes Monday's application an "unprecedented case" under the Genocide Convention of "altruistic litigation, where a country is not directly affected but acts on behalf of the common interest," says Canadian Payam Akhavan, a former UN prosecutor and McGill law professor, who is serving as legal counsel on the team taking the case forward.

The Gambia, he added, is showing "moral leadership" where "many other powerful nations have failed to act."

The application says actions "adopted, taken and condoned" by the government of Myanmar targeted "a distinct ethnic, racial and religious group that resides primarily in Myanmar's Rakhine State."

The acts that were "calculated to bring about physical destruction, imposing measures to prevent births, and forcible transfer, are genocidal in character because they are intended to destroy the Rohingya group in whole or in part."

Particularly troubling — and further cementing accusations of genocide — are the widespread reports of systematic and brutal sexual assault perpetrated by uniformed men and their supporters against Rohingya women.

The application quotes the UN's findings detailing reports of "gang rapes, sexually humiliating acts, sexual slavery and sexual mutilations … 'perpetrated on a massive scale.'"

The application filed Monday also includes a request for an injunction from the court ordering Myanmar to prevent any further violence.

'We feel there is a very, very strong case'

Longtime ICJ litigator Paul Reichler, whose Washington firm Foley Hoag has been retained to lead the case, says he hopes an urgent hearing on an injunction would be heard sometime in December.

"You can't really wait for the end of the lawsuit to gain the protection of the court, because you can win the case, but by that time there may be no Rohingya left," said Reichler.

There remains at least 600,000 Rohingya Muslims in Rakhine state where violence and displacement is still ongoing. Last month, the chief of the UN's fact-finding mission on Myanmar said there is a "serious risk of genocide recurring."

It could be three or four years before the ICJ rules, says Reichler.

"We feel there is a very, very strong case."

The Rakhine state has been off limits to international investigators, and visits by international politicians or media (including the CBC) are tightly controlled. However, much of the evidence comes from powerful testimony of the displaced, most of whom are now living in horrific camps across the border in Bangladesh.

"All the survivors I spoke with wanted to tell their stories to the world. They wanted some measure of justice," says Akhavan, who is also counsel to Bangladesh in a separate case against Myanmar related to the displacement of Rohingya.

"It's difficult ever to do justice for genocide. But some justice is better than none at all."