Monday, January 27, 2020

Reflecting on International Holocaust Remembrance Day

By Rajika Shah, Deputy Director, Center for the Study of Law & Genocide

Today, on International Holocaust Remembrance Day, we remember and honor all the victims and survivors of the Holocaust. We particularly mourn those who lost their lives at the Auschwitz concentration camp, which was liberated 75 years ago today.

We also celebrate an important step in the modern struggle to end genocide. Last Thursday, January 23, 2020, the International Court of Justice unanimously indicated binding provisional measures designed to preserve the rights protected by the 1948 Genocide Convention. Those rights were asserted by The Gambia against Myanmar and arose out of the egregious human rights abuses committed from October 2016 onwards against members of the Rohingya ethnic and religious minority group, hundreds of thousands of whom were forced to flee their homes in Myanmar’s northern Rakhine state amid conditions of abject terror. The Gambia claimed protections for all members of the Rohingya who remain in the territory of Myanmar, as members of a protected group under the Genocide Convention. The Gambia also asserted its own rights under the Genocide Convention to seek compliance by Myanmar with its obligations as a signatory state to prevent genocide, to punish perpetrators, and of course to refrain from committing genocide itself.

Specifically, the Court ordered Myanmar to (1) take all measures within its power to prevent the commission of acts of genocide within the scope of Article II of the Convention in relation to members of the Rohingya within its territory; (2) ensure that the Myanmar military, including any irregular armed units directed or supported by it and any organizations or persons subject to its control, direction, or influence, do not commit any acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, or complicity in genocide, in relation to members of the Rohingya within its territory; and (3) take effective measures to preserve evidence relating to allegations of genocidal acts within the scope of the Genocide Convention. Within four months, Myanmar must report to the Court on the measures taken to give effect to the order.
Last Thursday’s order is a major step forward for the Rohingya in finally holding Myanmar—and its noted leader Aung San Suu Kyi—to account for the atrocities that even Myanmar does not deny occurred there in recent years. The Court quoted extensively from reports of the UN’s Independent International Fact-Finding Mission on Myanmar, which concluded there were reasonable grounds to believe that “serious crimes under international law” had been committed against the Rohingya, including the crime of genocide. Those acts included the systematic stripping of human rights, dehumanizing narratives and rhetoric, methodical planning, mass killing, mass displacement, mass fear, overwhelming levels of brutality, and physical destruction of the Rohingya’s homelands.

The provisional measures order, like injunctive relief in the United States, is meant to protect the respective rights of the parties pending a final decision on the merits. In issuing provisional measures against Myanmar, the Court found that there was a real and imminent risk that irreparable prejudice would be caused before a final decision can be issued. The judges also reiterated their deep concern for the fundamental human values protected in the Genocide Convention, the extreme vulnerability of the Rohingya population, and the exceptional gravity of the allegations brought by The Gambia.

We will continue to monitor this landmark case and bring you further updates. In the meantime, for more on the Rohingya crisis, see:
  • Video of the panel discussion on the Rohingya at the Center’s October 2018 symposium, New Challenges to Justice: Genocide in the 21st Century
  • Deputy Director Rajika Shah’s article in the Loyola International and Comparative Law Review offering an early assessment of whether international crimes had been committed against the Rohingya

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