posted on Mon 3 Feb 2020 6:57 PM
Briefing on Myanmar following the ICJ Order Indicating Provisional Measures

Tomorrow (4 February), the Security Council is expected to meet in consultations for a briefing on Myanmar from Mohamed Khaled Khiari, Assistant Secretary-General for the Middle East, Asia and the Pacific. It seems that there was interest in also having the Office of Legal Affairs participate but there was resistance from a couple of members. The meeting was requested by Belgium, Estonia, France, Germany, the UK and the US, and was triggered by the Secretary-General’s 24 January letter conveying the notice of the International Court of Justice (ICJ) order indicating provisional measures in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar).

The Gambia filed a case at the ICJ in November 2019, alleging that Myanmar’s atrocities against the Rohingya in Rakhine State violated provisions of the 1948 Genocide Convention. In its application for instituting proceedings and request for provisional measures, The Gambia cited independent investigative efforts conducted under the auspices of the UN that underscored the genocidal intent of the crimes committed from around October 2016 in Myanmar.  These investigations included those of the Special Rapporteur on the situation of human rights in Myanmar, the UN Special Advisor on the Prevention of Genocide and the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar. Based on these findings, it argued that Myanmar had committed and continues to commit genocidal acts against members of the Rohingya group. The provisional measures requested are meant to preserve, pending the Court’s final decision, the Gambia’s rights under the Convention, claimed in order to protect the Rohingya.  Following widespread violence against the Rohingya, over 750,000 Rohingya fled to Bangladesh, joining the almost 200,000 refugees already in camps in Bangladesh from earlier waves of displacement. Six hundred thousand Rohingya remain in Myanmar.

On 23 January, the ICJ ruled that Myanmar was to “take all measures within in its power” to prevent the killing of Rohingya or causing bodily or mental harm to members of the group, including by the military or “any irregular armed units”. The ICJ also ruled that Myanmar must “prevent the destruction and ensure the preservation of any evidence related to” allegations of genocide. In addition, it said Myanmar must submit a report on the implementation of its ruling within four months, with additional reports due every six months “until a final decision on the case is rendered by the Court.”  The first report would be due on 23 May.  Members may be interested in hearing from Khairi what the Myanmar authorities would need to do in order to show that they have taken the necessary measures.

On 23 January, Secretary-General António Guterres welcomed the ICJ ruling, noting the unanimous decision ordering Myanmar to protect its Rohingya population and for the authorities to prevent the destruction of evidence related to the genocide allegations. He stressed his strong support for the use of peaceful means to settle international disputes. The Secretary-General further recalled that, “pursuant to the Charter and to the Statute of the Court, decisions of the Court are binding and [he] trusts that Myanmar will duly comply with the Order from the Court”. In accordance with Article 41(2) of the ICJ Statute, which states that the notices of provisional measures ordered by the ICJ, pending the final decision, are to be given to the Security Council, the Secretary-General transmitted a notice about the provisional measures to the Council the day after the order was issued. Although it may take several years for the ICJ to come to a final verdict, this ruling is legally binding, and under Article 94 (1) of the UN Charter, all member countries must comply with ICJ decisions.

In a press statement following the ICJ decision, Myanmar stressed that it was important that the ICJ reach a factually correct decision.  It said that the “unsubstantiated condemnation of Myanmar by some human rights actors has presented a distorted picture of the situation in Rakhine”.  In an op-ed in the Financial Times on the same day as the ruling, Myanmar State Counsellor Aung San Suu Kyi suggested that The Gambia’s case against Myanmar was overly dependent on accounts by refugees in the Bangladesh camps. She also said that the findings and recommendations of the Independent Commission of Enquiry (ICOE), Myanmar’s nationally-led investigative mechanism, should be used to inform discussions on accountability for human rights violations and that Myanmar’s domestic justice system should be given time complete its investigations. The ICOE report, released two days before the ICJ decision, found that genocide did not take place in Rakhine state, but it said that war crimes had been committed, and were being investigated and prosecuted by Myanmar’s national criminal justice system.

The members who called for this meeting appear to want to show that the Council is following these developments closely in order to put pressure on Myanmar to comply with the reporting requirements set up by the ICJ’s order of provisional measures. They are likely to welcome the ICJ ruling and stress the need for full implementation of the decision. Tunisia and Niger, both members of the Organisation of Islamic Cooperation, which had supported The Gambia’s decision to file the case, are also likely to welcome the decision and call on Myanmar to comply.

It seems that China and Russia were not keen to hold this meeting and may voice their objections during the consultations.  Although the request for the meeting was made last week, it appears that ASEAN members of the Council, Indonesia and Vietnam, preferred not to have the meeting take place the same week as the briefing on ASEAN.

Besides the focus on the ICJ ruling, the meeting is expected to cover other developments in Myanmar, including updates on what is being done to ensure the safe, voluntary and dignified return of Rohingya refugees as well as the UN’s access in Rakhine State.