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Dereliction of Duty Burmese Rohingya Organisation UK - Briefing Nov 2020 International Inaction over Myanmar’s Noncompliance with ICJ Provisional Measures Executive Summary Introduction The key to preventing history from repeating itself is This second briefing follows BROUK’s first biannual report ensuring justice and accountability for the gross human published in May, on Myanmar’s compliance with the rights violations amounting to atrocity crimes perpetrated provisional measures ordered by the International Court against the Rohingya in Myanmar. The International of Justice in the Gambia’s genocide case against Myanmar. Court of Justice’s recognition of their identity and right Both reports coincide with Myanmar’s own reporting on to exist as a protected group in the preliminary hearings its compliance to the Court, which to date has not been in The Gambia v. Myanmar genocide case was a first step made public. The information compiled in this report is towards justice for the Rohingya. On 23 January 2020, the based on primary data collected and verified by BROUK in ICJ issued a relatively rare unanimous order on provisional October and November 2020, as well as secondary sources measures - the equivalent of a legal injunction or court order from other human rights organisations and reputable prior to a final ruling on the case. The Court described the news outlets. With this briefing, BROUK aims to bring Rohingya remaining in Myanmar as ‘extremely vulnerable’ the world’s attention to the dire situation on the ground and ordered Myanmar to ‘take all measures within its in Rakhine State affecting the estimated 600,000 Rohingya power’ to prevent irreparable harm against the Rohingya. remaining there and the urgent need for increased legal protection of the Rohingya. Instead, Myanmar has repeated refused to repeal the 1982 Citizenship Law or restore full citizenship to Background to the Gambia v. Myanmar genocide case at members of the Rohingya group. The government of the ICJ Myanmar disenfranchised the vast majority of Rohingya in the November 2020 elections and denied their right In 2016 and 2017, BROUK and many other human rights to participate in public affairs. Myanmar has thereby organisations documented gross human rights violations continued to deny the existence of the Rohingya and to perpetrated by the Myanmar military (known as the subject them to exclusionary laws, policies, and practices, Tatmadaw) and its proxies during ‘clearance operations’ putting them at risk of further genocidal acts. in Myanmar’s Rakhine State, resulting in significant loss of life among the Rohingya. These included mass rape of BROUK has painstakingly documented human rights Rohingya women, children burned alive, machete attacks, violations – in many cases amounting to atrocity crimes - shooting at fleeing villagers, the use of rocket launchers to perpetrated against the Rohingya by the government and raze entire Rohingya villages to the ground, coordinated military since 23 January 2020. These include killings as well massacres, as well as landmines laid at the border to target as systemic violations of the right to freedom of movement those fleeing the violence.1 and restrictions on access to livelihoods and healthcare for Rohingya, which constitute imposing conditions of In March 2017, the UN-backed Independent International life intended to bring about the destruction of the group, Fact-Finding Mission on Myanmar (FFM) was established in whole or in part. BROUK’s analysis demonstrates by the Human Rights Council with a mandate to ‘establish that genocidal acts continue to be commissioned and the facts and circumstances of the alleged recent human perpetrated against the Rohingya, with intent to destroy rights violations by military and security forces…in the group in whole or in part. Myanmar’s abject failure Myanmar, in particular in Rakhine State...with a view to to comply with the ICJ’s provisional measures calls into ensuring full accountability for perpetrators and justice for question their effectiveness, given their protective function. victims.’2 It published two seminal reports of its detailed Urgent action is needed by the International Court of findings in 2018 and 2019.3 Justice and the international community to strengthen the measures, prevent further suffering and loss of life for the The FFM found that Myanmar had committed four out Rohingya, and to take concrete steps towards justice and of the five underlying acts of genocide enumerated in accountability for the atrocity crimes they have faced. the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), namely killings members of the Rohingya group, causing 1 serious bodily or mental harm to members of the group, designed to achieve the collective demonisation and deliberately inflicting conditions of life calculated to bring dehumanisation of the Rohingya.8 about its physical destruction in whole or in part, and imposing measures intended to prevent births within The ICJ is the principal judicial organ of the United Nations, the group.4 It further concluded that genocidal intent to otherwise known as the World Court. It deals with disputes destroy the Rohingya people in whole or in part could be between States, not the individual criminal responsibility inferred from the State’s pattern of conduct.5 According to of particular perpetrators. Disputes between States relating the FFM, to the Genocide Convention are rare. In 2007, the ICJ ruled that a genocide took place in Srebrenica in the Bosnia v. The Tatmadaw and other security Serbia case. However, it found that Serbia violated its duty forces (often in concert with civilians) to prevent and punish this genocide, rather than holding intentionally and unlawfully killed it responsible for committing genocide or complicity in Rohingya men, women and children genocide.9 throughout the period under review, that is, since 2011, but particularly since The Gambia’s case against Myanmar marks the first time 25 August 2017. These deaths were a that a State without a direct connection to the alleged direct or indirect result of the severe crime of genocide has brought a case before the ICJ under and systemic oppressive measures the Genocide Convention.10 In doing so, the Gambia has imposed on the Rohingya and the emphasised the importance of the legal concept of erga “clearance operations” in 2016 and omnes – an obligation owed to everyone. Due to the gravity 2017 in which they culminated of the crime of genocide and the fundamental nature of the [emphasis added].6 duty to prevent and punish it, Myanmar has an obligation to the international community as a whole.11 The Gambia’s Against this background, on 11 November 2019 the Gambia right to bring the case despite not suffering particular harm filed a case against Myanmar at the International Court was upheld by the ICJ in its provisional measures order, of Justice (ICJ) alleging that Myanmar has committed on the basis of the erga omnes nature of the obligations genocide against the Rohingya people. The legal basis relating to genocide. for the case is the Genocide Convention, to which both States are a party. The Gambia has also accused Myanmar The ICJ’s provisional measures order of continuing to commit genocidal acts and of violating its other obligations under the Convention by failing to Provisional measures are the equivalent of a legal injunction prevent and punish genocide. or court order, instructing a State to immediately take certain steps to fulfil its obligations under international law Establishing that genocide has taken place under the prior to a final ruling on the case.12 As part of its case filing, Genocide Convention requires demonstrating both the the Gambia included an urgent request for the Court to commission of genocidal acts and genocidal intent – order provisional measures in light of ‘the ongoing, severe namely the intent to destroy a national, ethnic, racial, or and irreparable harm being suffered by members of the religious group in whole or in part. Rohingya group.’13 The Gambia’s initial filing primarily focused on the first three On 23 January 2020, the ICJ issued a relatively rare genocidal acts enumerated in the Convention perpetrated unanimous order on provisional measures. The Court by the Myanmar military and other State actors with the described the Rohingya remaining in Myanmar as intent to destroy the Rohingya in whole or in part: killing ‘extremely vulnerable’. The order recalls that the purpose members of the group, including through mass executions of the Genocide Convention is to ‘safeguard the very of men and boys, the deliberate targeting of children and existence of certain human groups’ and offers recognition infants, and the burning down of entire villages, often with of the Rohingya as a protected group under the meaning women and children trapped inside their homes; causing of the Genocide Convention.14 As part of its rationale for serious bodily or mental harm to members of the group by issuing the order, the ICJ made it clear that, ‘Myanmar committing sexual violence against Rohingya women and has not presented to the Court concrete measures aimed girls on a massive scale and subjecting men, women and specifically at recognizing and ensuring the right of the children to torture and other forms of cruel treatment on Rohingya to exist as a protected group [emphasis added] the sole basis of their identity as Rohingya; and deliberately under the Genocide Convention.’15 In short, the provisional inflicting on the group conditions of life calculated to measures order recognises that Myanmar’s actions prior to bring about its physical destruction in whole or in part by the order were wholly inadequate to protect the Rohingya. destroying or otherwise denying access to food, shelter and It creates an expectation that Myanmar must take concrete 7 other essentials of life. measures in order to meet its obligations under the Genocide Convention.16 The Gambia noted that elements of Myanmar’s persecution of the Rohingya are ‘particularly indicative of genocidal At the heart of this case there are two key legal issues.

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