[Gambia, on behalf of Rohingya Muslims, opens
an international dispute with Myanmar in an effort to have the country’s leadership
tried for genocide.]
By Marlise Simons
 |
|
Rohingya refugees from
Myanmar after crossing into Bangladesh in September 2017.
Credit Adam Dean for The
New York Times
|
PARIS
— An arsenal of
international laws has failed to confront the impunity of Myanmar’s government
and security forces for their deadly purge of the country’s Rohingya Muslim
minority, forcing hundreds of thousands to flee a campaign of rape, arson and
killing.
But on Monday, Gambia filed a lawsuit
accusing Myanmar of genocide, summoning the case before the United Nations’
highest court in an effort to open a legal path against the country’s
authorities.
In the suit, filed at the International Court
of Justice in The Hague, Gambia requested that the court condemn Myanmar for
violating the Genocide Convention with its campaign of ethnic cleansing.
Gambia, a small West African country with a
largely Muslim population, was chosen to file the suit on behalf of the
57-nation Organization of Islamic Cooperation, which is also paying for the
team of top international law experts handling the case.
The filing amounts to a last-ditch effort to
impose an international ruling against Myanmar: Despite a wide outcry over
cruelty to the Rohingya, no other court has jurisdiction to pursue a genocide
case against the country.
Gambia also requested that the International
Court of Justice issue an urgent temporary injunction ordering Myanmar to halt
all actions that could aggravate or expand the existing situation. That could
mean a demand to stop further extrajudicial killings, rape, hate speech, or
leveling of the homes where Rohingya once lived in Rakhine State.
“It is clear that Myanmar has no intention of
ending these genocidal acts and continues to pursue the destruction of the
group within its territory,” the lawsuit said, adding that the government “is
deliberately destroying evidence of its wrongdoings to cover up the crimes.’’
The court’s 15 judges rarely deal with
genocide. Based in the stately Peace Palace in The Hague, the Court of Justice
was set up by the United Nations to rule on disputes between nations. It acts
more like a court of appeal, focusing on questions of international law, such
as disputes over borders or disagreements over international conventions.
But that can also include disputes arising
from the Convention for the Punishment and Prevention of Genocide, established
in an earlier case when Bosnia sued Serbia for genocide. The convention covers
“acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such.’’
In its suit, Gambia claims that applies to
Myanmar. The novelty in this case, though, is that Gambia is not at war with
Myanmar, as Bosnia and Serbia were. But the Genocide Convention treaty does
establish a mandate for member nations to act against genocide, wherever they
are.
Experts say that if the court accepts the
case, whatever the outcome, it will draw renewed attention to the immense
suffering of the Rohingya people, most of whom fled to Bangladesh and now live
in refugee camps there.
It is not clear how Myanmar, which has always
denied accusations of ethnic cleansing and genocide and argues that it was
defending itself against an insurgency, will respond to the case.
“Myanmar will ignore this at its peril,’’
said John Packer, a professor of law at the University of Ottawa who has long
studied the Rohingya’s plight. If the court hears the case, he said, “there
will be a sort of public truth-finding exercise. Myanmar’s simple denials will
not stand up to scrutiny.’’
A different body, the International Criminal
Court, was specifically created to prosecute genocide and other atrocities. But
that court has no jurisdiction over cases in Myanmar because the country has
not signed on to the court’s treaty. (Neither have the United States, China,
India, Israel and several other countries.)
But the I.C.C. did set itself up to at least
partly take up the case against Myanmar last year, when it ruled that it could
prosecute for “deportation” and associated crimes against Rohingya who fled to
Bangladesh, which is a court member. But judges have not yet approved a
criminal investigation by the court’s prosecutor.
Gambia’s lawsuit against Myanmar was born out
of a series of meetings of the Organization of Islamic Cooperation at which the
country’s attorney general, Abubacarr M. Tambadou, assumed a position of
leadership because of his special expertise. He had worked more than a decade
as a lawyer at the United Nations tribunal dealing with the 1994 genocide in
Rwanda.
In a telephone interview, Mr. Tambadou said
he had been very moved by his visit to the Rohingya refugee camps in
Bangladesh.
“The world failed Rwanda when the
international community did not prevent the genocide while it was unfolding,’’
he said. “The treatment of the Rohingya is illustrative of the international
community’s failure to prevent genocide in Myanmar. I thought this was not
right. The world cannot stand by and do nothing.’’
The resulting lawsuit, seen by The New York
Times, leans heavily on reports by United Nations fact-finding missions and
what it calls other credible sources.
Multiple United Nations investigations have
underscored what they called a genocidal intent behind the campaign against the
Rohingya.
It says that all members of the Rohingya
group in Myanmar are presently in grave danger of further genocidal acts
because of Myanmar’s deliberate and intentional efforts to destroy them as a
group. It also stresses that the remaining Rohingya communities and individuals
in Myanmar continue to face daily threats of death, torture, rape, starvation
and other deliberate actions aimed at their collective destruction, in whole or
in part.
The lawsuit notes that Rohingya Muslims have
been subjected to persecution for decades in Myanmar, which denies that the
Rohingya even exist as an established ethnic minority, despite hundreds of
years of history in the country.
But pressure increased greatly in late 2016,
according to the lawsuit. It cites examples of “attacks in which homes were set
ablaze by security forces, in many cases with people trapped inside, and entire
villages razed to the ground.”
One investigator documented cases where
parents saw their young children being thrown into fires. The suit cites
incidents of Myanmar’s “security forces calling families out of their homes,
separating men and boys to be executed in front of their families or taken
away.” It cites testimony about women and girls being raped and then killed.
The suit says that so-called “clearance
operations’’ were genocidal acts, “intended to destroy the Rohingya as a group,
in whole or in part, by the use of mass murder, rape and other forms of sexual
violence, as well as the systematic destruction by fire of their villages,
often with inhabitants locked inside burning houses.”
It said that from August 2017 onward, such
“clearance operations’’ intensified.
Paul Reichler, the lead lawyer on the Gambia
team, said he hoped that the court would issue an injunction against Myanmar as
soon as possible.
“We are confident that genocide has been
committed in this case, and we are very confident in the fairness of the
court.’’
