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Top UN court rejects Myanmar objections in Rohingya genocide trial

The International Court of Justice clears way for the Gambian case to move to evidence against Myanmar.

By RFA Burmese, with additional reporting by Abdur Rahman for BenarNews. 2022.07.22 -- The International Court of Justice (ICJ) rejected on Friday all of Myanmar's objections to a case brought against it by Gambia that accuses the Southeast Asian country of genocide against the mainly Muslim Rohingya minority.

Myanmar's military regime had lodged four preliminary objections claiming the Hague-based court does not have jurisdiction and that the West African country of Gambia did not have the standing to bring the case over mass killing and forced expulsions of Rohingya in 2016 and 2017.

The ruling delivered at the Peace Palace in the Dutch city of The Hague by ICJ President, Judge Joan E. Donoghue, clears the way for the court to move on to the merits phase of the process and consider the factual evidence against Myanmar, a process that could take years.

Donoghue said the court found that all members of the 1948 Genocide Convention can and are obliged act to prevent genocide, and that through its statements before the U.N. General Assembly in 2018 and 2019, Gambia had made clear to Myanmar its intention to bring a case to the ICJ based on the conclusion of a UN fact-finding mission into the allegations of genocide.

"Myanmar could not have been unaware of the fact that The Gambia had expressed the view that it would champion an accountability mechanism for the alleged crimes against the Rohingya," the judge said.

The military junta that overthrew Myanmar's elected government in February 2021 is now embroiled in fighting with prodemocracy paramilitaries across wide swathes of the country, and multiple reports have emerged of troops torturing, raping and killing civilians.

In the initial hearing of the case in 2019, Gambia said that "from around October 2016 the Myanmar military and other Myanmar security forces began widespread and systematic 'clearance operations' ... against the Rohingya group."

"The genocidal acts committed during these operations were 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. From August 2017 onwards, such genocidal acts continued with Myanmar's resumption of 'clearance operations' on a more massive and wider geographical scale."

Thousands died in the raids in August 2017, when the military cleared and burned Rohingya communities in western Myanmar, killing, torturing and raping locals. The violent campaign forced more than 740,000 people to flee to squalid refugee camps in neighboring Bangladesh. That exodus followed a 2016 crackdown that drove out more than 90,000 Rohingya from Rakhine.

Gambia has called on Myanmar to stop persecuting the Rohingya, punish those responsible for the genocide, offer reparations to the victims and provide guarantees that there would be no repeat of the crimes against the Rohingya.

The Myanmar junta's delegation protested at a hearing on Feb. 25 this year, saying the ICJ has no right to hear the case. It lodged four objections, all of which were rejected by the ICJ on Friday.

Reactions to ruling

Tun Khin, president of the U.K.-based Burma Rohingya Organization, who attended Friday's court proceeding, called the ICJ ruling "good news for all citizens of Myanmar."

"The ICJ court proceeding will continue and justice will be served for all Rohingya, who have been victims of a genocide," he said.

"I believe the forthcoming court hearings will verify that the military has intentionally committed crimes against the Rohingya population, with genocidal intent."

In a post on Twitter, Gambia's Ministry of Justice welcomed the ruling, calling it "a major win for The Gambia in its fight for Justice for the Rohyinga."

In Bangladesh, the decision was greeted with joy by the displaced Rohingya community.

Khin Mong, founder of the Rohingya Youth Association and a resident of the Unchiprang refugee camp in Cox's Bazar, told the RFA-affiliated BenarNews that the ICJ's ruling would benefit "all oppressed ethnic groups in Myanmar, not just the Rohingya."

"Insha'Allah, the Rohingyas will one day receive justice. I believe the international court's final decision will also be in our favor," he said.

BenarNews also spoke to Abul Kalam, a Rohinyga refugee living at Camp Majhi in Jadimura, Teknaf.

"Until death, every Rohingya will seek justice for this genocide," he said. "The Gambia has prepared the path for a fair trial for us. We are now more optimistic about it."

Attempts by RFA Burmese to reach junta Deputy Minister of Information Maj. Gen. Zaw Min Tun for comment on the ruling went unanswered Friday.

When asked earlier this month about the case, he told RFA that he hoped the ICJ would make a fair decision in its ruling.

"Myanmar will maintain its legal stance," he said at the time. "As the ICJ is an organization that mainly deals with international law and legal procedures, Myanmar hopes that justice will be done in accordance with international laws."

Friday's ruling was also welcomed by the international human rights community.

"The ICJ decision opens the door toward an overdue reckoning with the Myanmar military's murderous campaign against the Rohingya population," said Elaine Pearson, acting Asia director at Human Rights Watch.

"By holding the military to account for its atrocities against the Rohingya, the World Court could provide the impetus for greater international action toward justice for all victims of the Myanmar security forces' crimes."

Matthew Smith, chief executive officer at Fortify Rights, called the ruling "momentous."

"Jurisdiction in this case is settled," he said. "The international community should immediately get behind The Gambia in this case and support other efforts across mechanisms to hold the Myanmar military to account for its horrific crimes against the people of Myanmar."

Ongoing oppression

The ICJ is the principal judicial organ of the United Nations and was established in 1945 to settle disputes in accordance with international law through binding judgments with no right of appeal.

The U.S. has also accused Myanmar of genocide against the Rohingya. Secretary of State Antony Blinken ruled in March this year that "Burma's military committed genocide and crimes against humanity with the intent to destroy predominantly Muslim Rohingya in 2017."

The State Department said the military junta continues to oppress the Rohingya, putting 144,000 in internal displacement camps in Rakhine state by the end of last year. A State Department report last month noted that Rohingya also face travel restrictions within the country and the junta has made no effort to bring refugees back from Bangladesh.

Myanmar, a country of 54 million people about the size of France, recognizes 135 official ethnic groups, with Burmans accounting for about 68 percent of the population.

The Rohingya, whose ethnicity is not recognized by the government, have faced decades of discrimination in Myanmar and are effectively stateless, denied citizenship. Myanmar administrations have refused to call them "Rohingya" and instead use the term "Bengali."

The atrocities against the Rohingya were committed during the tenure of the civilian government of Aung San Suu Kyi, who in December 2019 defended the military against allegations of genocide at the ICJ. The Nobel Peace Prize winner and one-time democracy icon now languishes in prison — toppled by the same military in last year's coup.

In February, the National Unity Government (NUG), formed by former Myanmar lawmakers who operate as a shadow government in opposition to the military junta, said they accept the authority of the ICJ to decide if the 2016-17 campaign against Rohingya constituted a genocide, and would withdraw all preliminary objections in the case.

NUG Human Rights Minister Aung Myo Min called Friday's ruling "in line" with the shadow government's approach to the Rohingya issue.

"Today's ruling will bring up more hearings, credible evidence and testimonies. It will bring an effective ruling in the end, and we welcome all of that," he said.

Aung Htoo, a Myanmar human rights lawyer and the principal at the country's Federal Legal Academy, said that while the decision marks a significant step forward in the case, it remains unclear how long it could take for the court to reach a final verdict.

"Most likely it could take several years, even a decade," he said.

Translated by Kyaw Min Htun. Written in English by Paul Eckert.

UPDATED with reactions to ruling.

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