The recent case lodged by The Gambia with the International Court of Justice against Myanmar’s persecution of the Rohingya is the first time that rape will be prosecuted as genocide at the court, which is based in The Hague. The case has the potential to enhance feminist international law, while reinforcing the need to carry out the global women, peace and security agenda.
Aung San Suu Kyi, the state counsellor and minister for foreign affairs, will lead Myanmar’s delegation to the International Court of Justice for the first hearings in the case, filed in November. Suu Kyi’s decision to lead the delegation, though reasonable given her position in the government, is nevertheless shocking, given both her previous stature as a woman of peace and the worldwide criticism over the treatment of the Rohingya. More than half of the population of the Muslim ethnic group fled to neighboring Bangladesh amid deadly military operations against them more than two years ago.
Because Myanmar is not a state party to the International Criminal Court, also in The Hague, and the United Nations Security Council has been unable to refer the matter of the Rohingya to the ICC, justice for these crimes has remained elusive — until, perhaps, now.
The International Court of Justice case is based on breaches of the Convention on the Prevention and Punishment of the Crime of Genocide 1948. The convention contains a clause giving the court jurisdiction to resolve disputes over the implementation of the convention. Myanmar continues to deny that a genocide occurred, as well as any wrongdoing by its security forces or widespread sexual violence.
The hearings, scheduled for Dec. 10-12, are to decide if the court will order provisional measures to stop potentially genocidal acts by any government forces or related organizations or the destruction of any possible evidence.
More than two years have passed since the security forces of Myanmar carried out what was called “clearance operations,” forcing more than 740,000 Rohingya to flee from Rakhine State. China and Russia have stopped any action on the Rohingya crisis by the Security Council. The Human Rights Council has published detailed reports on the actions of the security forces, showing they amount to war crimes, crimes against humanity and genocide.
The Gambia’s case asserts that acts of genocide committed by Myanmar “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 the villages, often with inhabitants locked inside burning houses.”
Sexual and gender-based violence has been central to the genocide and must be placed at the heart of the case, for state accountability.
Early media reports from August 2017 showed the Myanmar security forces were using sexual violence against women during the “clearance operations.” The proportion of pregnant women and new mothers arriving in the refugee camps in Bangladesh was consistent with the aftermath of the genocide in Rwanda, providing more evidence of the systemic use of sexual violence as a tool of genocide.
Women’s rights groups in Myanmar had been reporting that the security forces behaved this way toward minorities for decades. A Rohingya women’s rights advocate, Razia Sultana, told the Security Council last year that the international community had failed to heed the warning signs of the pending Rohingya crisis.
In August this year, the UN Independent International Fact-Finding Mission on Myanmar released a report showing that the armed forces of Myanmar had not just used sexual violence against women and girls, but against men and boys and transgender people as well.
Marzuki Darusman, chairman of the fact-finding mission, said, “The international community must hold the Myanmar military to account for the tremendous pain and suffering it has inflicted on persons of all genders across the country.”
The Gambia’s case is supported by the Organization of Islamic Cooperation. However, the organization has a tendency toward patriarchy, so civil society advocacy efforts have been extended to countries that promote gender equality to also support The Gambia’s case.
Sultana has reiterated calls for other UN member states not just to applaud and give press conferences about the move by The Gambia, but to also join the court case to ensure accountability for the rape perpetrated by the security forces.
Over the last year, major efforts were also made to convince the Canadian government to bring a case before the International Court of Justice, focusing on the gendered issues of the genocide. Since The Gambia announced it would be proceeding the case, Ireland, Sweden, Belgium, Germany and the Netherlands have been mentioned as countries with resources and gender policies to help support the case.
But no other country has so far joined The Gambia as co-applicant.
Significantly, The Gambia has appointed renowned South African jurist and women’s rights advocate Navi Pillay as ad hoc judge for the case. Pillay was the UN high commissioner for human rights and formerly the president of the International Criminal Tribunal for Rwanda, where she played a critical role in the tribunal’s ground-breaking jurisprudence on rape as genocide.
Much of The Gambia’s court application relies on thorough UN reporting not just by the fact-finding mission but also by the Committee on the Elimination of All Forms of Discrimination Against Women. Given that the court can make decisions based only on the evidence before it, these sources could give the case a gender perspective.
The court will also invite other members to provide formal interventions in the case, so additional information on gender and sexual violence could strengthen the case.
Cases in this court can take years to resolve, but it is possible that this one could provide some personal relief for the survivors. Indeed, the court has the power to award reparations. If The Gambia directs a portion of such reparations through an initiative like the Global Survivors Fund, recently launched by Nobel laureate Dr. Denis Mukwege, this case could provide survivors access to much-needed financial relief, as they continue to live in refugee camps in Bangladesh, unwilling to return home to unsafe conditions.
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Susan Hutchinson is a specialist in the women, peace and security agenda with professional experience in the military, government and NGO sectors. She is currently a Ph.D. scholar at the Australian National University’s Coral Bell School of Asia Pacific Affairs. She is also the architect of the “prosecute; don’t perpetrate campaign” to end impunity for conflict-related sexual violence.