The UN’s top court will announce on Thursday if it will allow a case accusing Myanmar of genocide against Rohingya Muslims to go ahead and if it will impose emergency measures to stop further violence.
The ruling by the International Court of Justice comes days after a Myanmar commission concluded that some soldiers likely committed war crimes against the minority group but that the military was not guilty of genocide.
Myanmar’s civilian leader Aung San Suu Kyi travelled to The Hague last month to personally defend her Buddhist-majority country against the allegations over the bloody 2017 crackdown against the Rohingya.
The mainly Muslim African nation of The Gambia brought the case against Myanmar after 740,000 Rohingya fled over the border into Bangladesh, carrying accounts of widespread rape, arson and mass killings.
“The first question is whether or not the Court will declare to have jurisdiction. My guess is that that will be the case, although you never know,” Willem van Genugten, professor emeritus of international law at Tilburg University, said.
If the court approves so-called “provisional measures” sought by Gambia, those “might, next to that, entail a lot of things, from very general to very specific. That remains to be seen as well”.
The ruling on Thursday is just the first step in a legal battle that is likely to take years at the ICJ, which was set up after World War II to rule on disputes between nations.
The Gambia brought the case with the backing of the 57-nation Organisation for Islamic Cooperation. Canada and the Netherlands have since also lent their support.
At the December hearing, The Gambia alleged Myanmar had breached the 1948 UN Genocide Convention, asking for special steps to prevent the “serious and imminent risk of genocide recurring” and to stop Myanmar from destroying any evidence.
While the UN’s top judicial organ has no power to enforce orders for provisional measures, the “significance . . . shouldn’t be written off”, said Cecily Rose, assistant professor in international law at Leiden University.
“The court’s orders and judgments tend to carry relatively great authority or legitimacy. Even though the situation in Myanmar is highly political and fragile, international law still plays a role by informing decision-making among international actors,” she said.
Myanmar might for example be asked to report back regularly to the court on its compliance with the order, Rose added.
Suu Kyi is not expected to attend Wednesday’s ruling. In The Hague last month, she argued her country was capable of investigating any allegations of abuse and warned that the case could reignite the crisis.
On Monday a Myanmar-appointed “Independent Commission Of Enquiry” went the furthest that any investigation by the country has gone so far in accepting atrocities occurred.
The panel said some security personnel had used disproportionate force and committed war crimes and serious human rights violations, including the “killing of innocent villagers and destruction of their homes”.
But it ruled out genocide, saying: “There is insufficient evidence to argue, much less conclude, that the crimes committed were undertaken with the intent to destroy, in whole or in part, a national, ethnical [sic], racial or religious group.”
Myanmar has always maintained the crackdown by the armed forces, or Tatmadaw, was justified to root out Rohingya insurgents after a series of attacks left a dozen security personnel dead.