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Jurisdiction of International Court of Justice (ICJ) Over the
Genocide Violations: with Special References to Rohingya Case
Yordan Gunawan1, Sonya Whisler Refisyanti2, Aliza Mufida3, Kukuh
Derajat Takarub4, Aisah Nur5
1Universitas Muhammadiyah Yogyakarta, Email: yordangunawan@umy.ac.id
2Universitas Muhammadiyah Yogyakarta, Email: sonya.whisler.law17@mail.umy.ac.id
3Universitas Muhammadiyah Yogyakarta, Email: aliza.mufida.law17@mail.umy.ac.id
4Universitas Muhammadiyah Yogyakarta, Email: kukuh.derajat.law17@mail.umy.ac.id
5Universitas Muhammadiyah Yogyakarta, Email: aisah.nur.law17@mail.umy.ac.id
Article Info
Abstract
Keywords:
International Court of Justice,
Jurisdiction of ICJ, Gambia,
Genocide Violation, Myanmar,
Rohingya.
How to cite:
Yordan Gunawan, Sonya Whisler
Refisyanti, Aliza Mufida, Kukuh
Derajat Takarub, Aisah Nur,
“Jurisdiction of International
Court of Justice (ICJ) Over the
Genocide Violations: with Special
References to Rohingya Case”,
Fiat Justisia: Jurnal Ilmu Hukum
14, no. 4 (2020): 313-336.
DOI:
10.25041/fiatjustisia.v14vno4.1900
In 2019, the Gambia, a small country located in
West Africa, sues Myanmar to the International
Court of Justice (ICJ) with alleging that Myanmar
has violated the Convention on the Prevention and
Punishment of the Crime of Genocide 1948. The
governments of Myanmar in doing the violations
intended to destroy the Rohingya Muslim as a
group, wholly or partly, followed by other
violations such as mass murder, rape, and also
damage to the villages by the fire with some people
are still locked in the house and burnt inside the
house. The government of Myanmar keeps doing so
because, based on Burma Citizenship Law 1982,
Myanmar does not recognize the existence of
Rohingya as a citizen of Myanmar. It causes
Rohingya as stateless. The study is normative legal
research with Statute Approach and Case
Approach. The study analyses the violations which
are done by Myanmar to the Rohingya Ethnic in
Rakhine. The result shows that the International
Court of Justice has jurisdiction upon the Rohingya
case under the Statute of the Court as well as the
Genocide Convention. In Article 36 (1), ICJ has
jurisdiction to all cases Convention as long as the
states are contracting parties. Article IX of the
Convention also stated that any dispute between
contracting parties must be referred to ICJ.
Volume 14 Number 4, October-December 2020: pp. 313-336.
Copyright © 2020 FIAT JUSTISIA. Faculty of Law, Universitas
Lampung, Bandar Lampung, Indonesia.
ISSN: 1978-5186 | e- ISSN:2477-6238.
http://jurnal.fh.unila.ac.id/index.php/fiat
Jurisdiction of International Court of Justice… Yordan G, Sonya WR, Aliza M, Kukuh DT, Aisah
314
A. Introduction
In 1956, Myanmar ratified the Convention on the Prevention and
Punishment of the Crime of Genocide 1948. Although Myanmar already ratified
the Convention, Myanmar was claimed by the Gambia do a crime of genocide
to Rohingya ethnic group. Rohingya are one from many ethnic groups in
Myanmar, despite that because of the establishment of Myanmar’s 1982
Citizenship law mentioned eight major ethnic groups which are divided into 135
subs-group
1
. Rohingya are not considered one of the official ethnic group
mentioned in the law. Since 1982 Myanmar has been denied Rohingya
citizenship, which makes the Rohingya people become stateless.
2
Rohingya
ethnic group lived in the Rakhine state on the western coast of Myanmar.
Rohingya is the ethnic group who are most of them are Muslim who have
resided in the majority of Buddhists in Myanmar.
According to the Amnesty International (AI) report,
3
Since 1978, Rohingya
have suffered from human rights violation committed by the military junta in
Myanmar, and many have absconded to neighbouring countries such as
Bangladesh. The tensions of Rohingya came to the public in May 2012
following the case of a Buddhist woman who raped and killed in Rakhine state,
and three Rohingya men were blamed for being responsible.
4
The Rakhine and the Rohingya both upheld the weapon against one another,
leaving at least 200 dead and many other incidents after that case.
5
An essential
factor in the violence was a Buddhist nationalist group led by monks.
6
The
group of monks is recognized by it is an anti-Muslim grudge, which many
consider genocidal.
7
The Rabid Buddhist organizations have been at the core of
inter-communal violence ever since the replication of relative democracy in
2011.
8
1
Nehginpao Kipgen, “The Rohingya Crisis: The Centrality of Identity and Citizenship,” Journal
of Muslim Minority Affairs 39, No. 1, (2019): 61-74.
2
A. K. M. Ahsan Ullah, “Rohingya Crisis in Myanmar: Seeking Justice for the “Stateless,”
Journal of Contemporary Criminal Justice 32, No. 3, (2016): 285-301.
https://doi.org/10.1080/13602004.2019.1575019.
3
Amnesti International, “We Are at Breaking Point-Rohingya: Persecuted in Myanmar,
Neglected in Bangladesh”, Research Report, Amnesty International Ltd, (2016).
4
Ismail Suardi Wekke et al., "Muslim Minority in Myanmar: A Case Study of Myanmar
Government and Rohingya Muslims,” Walisongo: Jurnal Penelitian Social Keagamaan 25, No.
2, (2017): 303-324. https://doi.org/10.21580/ws.25.2.2317
5
Patrick Brown, Preparations for Genocide and Crimes Against Humanity Against Rohingya
Muslims in Rakhine State, Myanmar (Myanmar: Fortify Rights, 2018), 55.
6
Matthew J. Walton and Susan Hayward, “Contesting Buddhist Narratives: Democratization,
Nationalism, and Communal Violence in Myanmar”, Research Report, East-West Center, (2014).
7
Warzone Initiative, 2015, Rohingya Briefing Report, available at
https://www.equalrightstrust.org/ertdocumentbank/Rohingya%20Briefing%20Report.pdf
accessed on Friday, December 20, 2019, at 17.03.
8
Azeem Ibrahim, The Rohingyas: Inside Myanmar's Genocide (United Kingdom: C. Hurst & Co.
Publisher Ltd., 2018), 20.
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315
The government policy of Myanmar that was discriminative led to the
humanitarian tragedy against the Rohingya Muslim minority. The Myanmar
Government committed murder, or cleansing, expulsion, and seizure of
Rohingya minority properties. Although the alleged crimes of genocide or
massacre are still being debated, the bloody tragedy of the Rohingya minority
has been classified as the most severe crime of humanity.
9
In November 2019
10
, The Republic of Gambia instituted proceedings
against the Republic of the Union of Myanmar, alleging violations of the
Convention on the Prevention and Punishment of the Crime of Genocide (the
“Genocide Convention”) through “acts adopted, taken and condoned by the
Government of Myanmar against members of the Rohingya group”. Particularly
in the International Court of Justice press release, Gambia claims that the
Tatmadaw and security forces of Myanmar started the ‘clearance operations’ to
the Rohingya group since October 2016.
11
The genocide act which done by the Tatmadaw and security forces of
Myanmar was intended to destroy the Rohingya Muslim as a group, wholly or
partly, followed by other violations such as mass murder, rape, and also damage
to the villages by the fire with some people are still locked in the house and
burnt inside the house. From August 2017 until the Gambia submit the
proceedings in November 2019, that kind of violations still continuous with the
term’ clearance operations’ in a more enormous and broader geographical
scale.
12
Although the Gambia already submitted the proceedings to the
International Court of Justice against Myanmar, Myanmar still denies any
wrongdoing. The case has not met a conclusion, or the case does not end yet,
the case had just entered the second hearing on December 12, 2019.
The topic needs to be discussed because what happens to the Rohingya
ethnic is not only violence the human right but also influence many countries
especially the countries which become a destination of the refugees from
Rohingya and the case need to be discussed to supervise the development of the
Rohingya case and supervise the course of judicial action which taken by the
Gambia against Myanmar. So, what means by particular reference to the
Rohingya case is the research will explain the jurisdiction of ICJ over genocide
violation by giving the specific case of the Rohingya cause, which happens
today. In drafting the Genocide Convention in 1948, the international
community, included a submissions clause that provided for jurisdiction in the
9
Ismail Suardi Wekke et al., Loc.Cit.
10
International Court of Justice Press Release, 2019, Press Release No. 47, available at Tuesday
https://www.icj-cij.org/files/case-related/178/178-20191111-PRE-01-00-EN.pdf accessed on
December 17, 2019, at 02.22.
11
Ibid.
12
International Court of Justice, 2019, International Court of Justice Application Instituting
Proceedings and Request for Provisional Measures: Republic of the Gambia V. Republic of the
Union of Myanmar, available at https://www.icj-cij.org/files/case-related/178/178-20191111-
APP-01-00-EN.pdf accessed on Friday, December 13, 2019, at 13.33.
Jurisdiction of International Court of Justice… Yordan G, Sonya WR, Aliza M, Kukuh DT, Aisah
316
International Court of Justice (ICJ) against a state that might violate the
Convention.
13
The problem is what happens in Rohingya can be categories into
the genocide case, and the violation of genocide, as stated in the genocide
convention, is under the jurisdiction of ICJ. Besides ICJ, there is a court name
International Criminal Court (ICC), and Genocide violations are categories as a
criminal act. But why Gambia is suing Myanmar through ICJ? Does the ICJ
have jurisdiction upon the genocide case which happens in Myanmar? That
question will be answered in the research.
The type of research is normative legal research with the international law
approach through the regulations and conventions related to the Rohingya. The
research use statute approach would inform some regulations such as the
Convention on the Prevention and Punishment of the Crime of Genocide 1948
and Myanmar Citizenship Law. The research would as well use case approach
because the research aims to study the International Court of Justice decision
and other regulations in practice related to the Rohingya’s case. The data were
analyzed systematically through the qualitative juridical approach, consistently
through evaluative, where the data was taken relating to the issues to be
researched.
14
B. Discussion
1. Historical of Rohingya Ethnic
Myanmar, also known as Burma, gained its independence from Britain in
1948 and was ruled by the military junta from 1962 until it was dissolved after
the election in 2010.
15
Broadly speaking, Rohingya is an ethnic-patterned
Muslim group that originated from northern Rakhine, the western part of
Myanmar that was once called Arakan, one of the poorest regions of the
country,
16
are considered among the most mistreated, helpless, and burdened
minorities in the world. 59.7% of the 3.8 million populations in Rakhine are
Buddhist, the other 35.6% are Rohingya Muslim, and the rest are from another
ethnic or religious group.
17
The Rohingya Muslims are a mixture of diverse
ethnic groups, such as Arabs, Moghuls, and Bengalis.
18
13
John Quigley, “International Court of Justice as a Forum for Genocide Cases”, Case Western
Reserve University: Journal of International Law 40, No. 1, (2007): 243.
https://doi.org/10.2139/ssrn.1017825.
14
Johnny Ibrahim, Teori dan Metodologi Penelitian Hukum Normative, Second Edition (Malang:
Bayu Media, 2006), 303.
15
Ismail Suardi Wekke et al., Loc.Cit.
16
Haradhan Kumar Mohajan, “History of Rakhine State and the Origin of the Rohingya
Muslims”, Premier University, Chittagong, Bangladesh: The Indonesian Journal of Southeast
Asian Studies, 2, No. 1, (2018): 19-46. https://doi.org/10.22146/ikat.v2i1.37391
17
Ibid.
18
Imtiaz Ahmed, The Plight of the Stateless Rohingyas: Responses of the State, Society & the
International Community (Dhaka: The University Press Ltd, 2010), 59.
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Rakhine state is located on the border with Bangladesh.
19
That’s why
Burmese hatred and fear of “foreigners” in their midst turned against the
Rohingya, whom considered as “illegal immigrants” or classified as
Bangladeshi because Rohingya Muslims are alike Bangladeshi in cultural and
physical characteristics. Rohingya’s were targeted not only because perceived
as “foreigners” but also due to the fact that Rohingya were Muslims in an
overwhelmingly Buddhist country.
20
In short, it can be concluded that Rohingya
is the minority group in Myanmar.
Myanmar’s military junta promulgated the Citizenship Law 1982 that
effectively stripped the Rohingya of their citizenship.
21
The impact of the law, it
makes the ethnic Rohingya Muslims, classified as stateless citizens. They have
been treated as illegal immigrants in Myanmar and denied the group recognition
as one of the ethnic of the country, which Myanmar is the country with 135
ethnic groups.
22
The military junta strongly suspected the Rohingya people as new people
coming from Bangladesh.
23
Meanwhile, other tribes in Myanmar, such as
Karen, Shan, Dagu, Kachin, and Mon, were given excellent treatment; even
their needs were all well-organized.
24
This indicates that the government of
Myanmar has not paid much attention to Rohingya Muslims because their tribe
is still confusing, rather than other tribes that have been organized by the
government of Myanmar.
25
According to some historians,
26
Rohingya does not belong to Myanmar.
Meanwhile, others believe Rohingya has lived there for hundreds of years. The
polemics surrounding Rohingya’s origins are the result of a political struggle, a
misguided notion of national identity, intolerance, and discrimination. The truth
is that in general, Rohingya Muslims have lived in western Myanmar before the
British occupation of the province.
27
Some of the factors that are historical, legal, and socio-economic can
explain why the Rohingya Muslim minority has no citizenship status and
19
Haradhan Kumar Mohajan, Loc.Cit.
20
Emilie Biver, “Religious nationalism: Myanmar and the role of Buddhism in anti-Muslim
narratives”, Lund University (Master of Science and Department of Political Science), (2014).
21
Ghazala Parveen, “Recent Trends in South Asian Politics: Rohingya Crisis to Nrc and
Citizenship Bill in India”, Kazi Nazrul University, Asansol: International Journal of Innovative
Research and Advanced Studies (IJIRAS) 5, No. 10, (2018).
22
Amnesty International, 2004, Myanmar, The Rohingya Minority: Fundamental Rights Denied,
available at https://www.amnesty.org/download/Documents/92000/asa160052004en.pdf accessed
on Thursday, December 19, 2019, at 23.04.
23
Simon Knuters, “Political Buddhism and the Exclusion of Rohingya in Myanmar”, Uppsala
Universitet (Department of Theology), (2018).
24
Imtiaz Ahmed, Op.Cit., 89.
25
Simon Knuters, Loc.Cit.
26
Ismail Suardi Wekke et al., Loc.Cit.
27
T. V. Paul and John A. Hall, International Order and the Future of World Politics (Cambridge:
Cambridge University Press, 1999), 133.
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become a victim of the malignancy of some of the Burmese authorities.
28
Rohingyas are originally immigrants who came to Burma a few centuries ago.
29
Some argue that Rohingyas originated in Arabic Rahama (affectionate) and
originated from the sultanate in Bengal.
30
From posture and language, Rohingya
tend to have a standard physical and linguistic look with the Bangladesh
people.
31
Their language use is related to the Chitagonian language used by
most people in the southern border region of Bangladesh
32
. Geographically, the
Arakan region (Rakhine) most of them live in the borders between Bangladesh
and Arakan of West Burma (Myanmar).
33
Recent violence in Myanmar’s northern Rakhine state has displaced around
700,000 Rohingyas to neighbouring Bangladesh and several hundred thousand
within Myanmar.
34
The violations which are done by the Tatmadaw and other
security force was started from October 2016 and August 2017, with the actions
in so-called ‘clearance operations’ to Rohingya Muslim, a distinct Muslim
ethnic minority, in Rakhine State, Myanmar.
35
The violations which started in
the second phase, August 2017, were categorized as the most severe and brutal
violations and also against the human rights in the massive number of the
victim
36
. Survivors report indiscriminate killings, rape and sexual violence,
arbitrary detention, torture, beatings, and forced displacement.
37
Also, in August 2017, Arakan Rohingya Salvation Army (ARSA) members
and local Rohingya supporters reportedly attacked thirty security facilities,
including border outposts and one military base, killing over a dozen Burmese
Security Personnel.
38
ARSA fights against the Tatmadaw.
39
In Independence
Day of Myanmar, January 4, 2019, the Arakan Army launched coordinated
28
Warzone Initiative, Loc.Cit.
29
Samuel C. Y. Ku and Kristina Kironska, Migration in East and Southeast Asia, Singapore:
World Scientific Publishing Co. Pte. Ltd (2017), p. 221.
30
M.A. Tahir Ba Tha, A Short History of Rohingya and Kaman's of Burma (Burmese: Institute of
Arakan Studies, 1963), 17.
31
Ismail Suardi Wekke et al., Loc.Cit.
32
Braj B. Kachru, et al., Language in Southeast Asia (Cambridge: Cambridge University Press,
2008), 37.
33
Kawse Ahmed and Helal Mohiuddin, The Rohingya Crisis: Analyses, Responses, and
Peacebuilding Avenues (London: The Rowman & Littlefield Publishing Group, Inc, 2020), xviii.
34
UNHCR, 2019, Rohingya Emergency, available at https://www.unhcr.org/rohingya-
emergency.html accessed on Monday, December 23, 2019, at 09.18.
35
Zoltan Barany, “The Rohingya Predicament: Why Myanmar’s Army Gets Away with Ethnic
Cleansing”, Istitutio Affari Internazional, (2019).
36
John P. J. Dussich, “The Ongoing Genocidal Crisis of the Rohingya Minority in Myanmar”,
University Delhi: Journal of Victimology and Victim Justice 1, No. 1, (2018).
https://doi.org/10.1177/2516606918764998.
37
Zoltan Barany, Loc.Cit.
38
Ghazala Parveen, Loc.Cit.
39
Aneela Aziz and Anila Kamal, “Final Proceedings of ICHRCP 2018”, Conference Paper,
Quaid: Azam University, (2019).
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319
attacks on four border police outposts in northern Buthidaung Township,
Rakhine State, and killed 13 police officers.
40
2. ICJ: Role and Jurisdiction
Established in 1945, the International Court of Justice, which seat in The
Hague, is one of the six principal organs of the United Nations. ICJ is still the
most relevant International Tribunal.
41
The ICJ”s has two principal roles. First,
the court can settle the international legal disputes between states (contentious
jurisdiction), or in other words, is to settle peacefully international or bilateral
disputes between States submitted to it within the confines of its jurisdiction
and in accordance with international law.
42
Second, it provides advisory
opinions on questions of international law to specific UN organs and specialized
agencies (advisory jurisdiction).
43
The ICJ does not hear contentious cases
brought by individuals or groups against a state — only states can bring cases
against other states.
44
Furthermore, for the role of ICJ, under Article 65 of the
ICJ Statute, the international organization may ask the ICJ for an advisory
opinion, ‘on any legal question’. Under the Article 96 UN Charter, the Security
Council and the General Assembly are empowered to do so, and other
organizations may do so as well, provided they are authorized to do so by the
General Assembly.
In general, jurisdiction is the power of a State ‘to make its law applicable to
the activities, relations, or status of persons, or the interests of persons in things,
whether by legislation, by executive act or order, by administrative rule or
regulation, or by determination by a court’.
45
In the research, what mean by
jurisdiction by the researchers which related to the issue is a term that refers to
whether a court has the power to hear a given case. Jurisdiction is relevant
because it limits the power of a court to hear certain cases. If courts did not
exercise appropriate jurisdiction, every court could conceivably hear every case
brought to them, which would lead to confusing and contradictory results. The
general jurisdiction of ICJ: it can, in principle, adjudicate claims on all sorts of
topics, ranging from maritime delimitation to violation of the law of armed
40
Md Ziaur Rahman et al., “Rohingya Crisis: Identity of Rohingya Muslim in Myanmar”,
International Community Science Association: International Research Journal of Social Science
7, No. 12, (2018): 13.
41
Jan Klabbers, International Law 2nd Edition (Cambridge: Cambridge University Press, 2017),
158.
42
Martin Dixon et al., Cases and Materials on International Law (New York: Oxford University
Press, 2011), 634.
43
Ibid.
44
International Commission of Jurist, 2014, ICJ Welcomes Chance to Review ASEAN Human
Rights Commission’s TOR, available at https://www.icj.org/icj-welcomes-chance-to-review-
asean-human-rights-commissions-tor/ accessed on Tuesday, December 24, 2019, at 22.21.
45
John B. Houck, “Restatement of the Foreign Relations Law of the United States (Revised):
Issues and Resolutions”, The International Lawyer, 20 (4), (1986), pp. 1361-1390.
Jurisdiction of International Court of Justice… Yordan G, Sonya WR, Aliza M, Kukuh DT, Aisah
320
conflict, and ranging from environmental claims to claims involving financial
issues.
46
The Jurisdictions of the Court are listed in Article 36 of the ICJ Statute,
the jurisdiction of the court comprises all cases which the parties refer to it all
matters specially provided for in the Charter of the United Nations of in the
treaties and conventions in force.
47
By virtue of Article 92 of the Charter in
‘principal judicial organ of the United Nations’ and also Judge Lachs, the ICJ is
the guardian of legality for the international community as a whole, both within
and without the United Nations.
48
The court had noted that although the political aspects maybe arise in any
legal dispute brought before it, the court only had jurisdiction in establishing if
there was a question on legal dispute ‘in the sense of a dispute capable of being
settle by the application of principle and rules of international law’.
49
The fact
that other elements are present cannot detract from the characterization of a
dispute as a legal dispute.
50
The court has also referred to the assessment of the legality of the possible
action of the states with regard to international legal obligations as an
‘essentially judicial task’.
51
Accordingly, ‘the task of the court must be to
respond, on the basis of international law, to the particular legal dispute brought
before it. As it interprets and applies the law, it will be mindful of context, but
its task cannot go beyond that’.
52
3. The Role and Jurisdiction of ICJ Over Rohingya
The Convention on the Prevention and Punishment of the Crime of
Genocide 1948 ratified by Myanmar in 1956
53
. Article 2 of the Genocide
Convention stated about what means by genocide
54
. From that definition of
46
Jan Klabbers, Op.Cit., 158.
47
Susan Park, International Organisations, and Global Problems: Theories and Explanations
(Cambridge: Cambridge University Press, 2018), 37.
48
Malcolm N. Shaw, International Law (Cambridge: Cambridge University Press, 2017), 808.
49
Bartram S. Brown, “Primacy or Complementarity: Reconciling the Jurisdiction of National
Courts and International Criminal Tribunals,” The Yale Journal of International Law 23, No. 383,
(1998).
50
Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions (England: Thomson
Reuters Ltd, 2009), 38-39.
51
Advisory opinion of the International Court of Justice, Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, available at
https://www.un.org/unispal/document/auto-insert-178825/ accessed on Tuesday, December 24,
2019, at 13.55.
52
Malcolm N. Shaw, Op.Cit, 809.
53
United Nations Treaty Collection, Chapter IV: Human Rights, Sub Chapter: Convention On the
Prevention and Punishment of the Crime of Genocide, available at
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
1&chapter=4&clang=_en accessed on Friday, December 20, 2019, at 22.16.
54
United Nations Treaty Series, No. 1021 Convention On the Prevention and Punishment of the
Crime of Genocide, adopted by The General Assembly of the United Nations On December 9
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321
genocide, the Genocide Convention 1948 defines genocide as a number of
actions, including killing or causing severe physical or mental damage.
However, it will define as genocide if there are an “intent to destroy”, in whole
or in part, national, ethnic, racial, or religious groups. Indeed, the existence of
this particular intention, “intent to destroy”, that distinguishes genocide from
other heinous crimes. The particular intention is fundamental because there is a
difficulty in proving genocidal intentions in the courtroom. In the absence of
direct conclusive evidence, the ICJ will deduce genocidal intentions from
certain circumstances, such as the pattern of actions carried out against targeted
group members
55
. That is only if the situation indicates the existence of that
intention.
On November 11, 2019, Gambia submitted institutes proceedings against
Myanmar. It asked ICJ to indicate provisional measures concerning the
genocide that cause damage for Rohingya Muslims
56
. the Gambia stated that
Myanmar had committed “real” violations of the Genocide Convention through
its military actions, and continued to do so. These actions, according to
testimony in the trial, included “extrajudicial killings, rape, or other forms of
sexual violence, arson, and destruction of livestock, which are calculated to
cause damage to the Rohingya group in whole or in part”.
57
Which means,
Myanmar has violated the Genocide Convention 1948.
The way how the government of Myanmar does the genocide is through the
Military of Myanmar (as known as ‘The Tatmadaw’) and other Myanmar
security forces, they have started the genocide violation (clearance operation –
the term that uses by Myanmar) to the Rohingya people. The case of genocide
to Rohingya people is happening in two-phase.
58
The first phase was started
from October 2016 until the end of January 2017. The second phase started in
August 2017 until November 2019. Around 3,000 people were killed on the
phase which happens between August 25, 2017, until September 11, 2017
59
. On
September 22, 2017, the villages of Rohingya were being burned from the point
of view of the satellite images.
60
As a result of the event, around 700,000
1948, available at https://treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-
english.pdf accessed on Saturday, December 21, 2019, at 09.12.
55
Claus Kreb, “The International Court of Justice and the Elements of the Crime of Genocide”,
European Journal of International Law 18, No. 4, (2007): 619-629.
https://doi.org/10.1093/ejil/chm039.
56
International Court of Justice, 2019, International Court of Justice Application Instituting
Proceedings and Request for Provisional Measures: Republic of the Gambia V. Republic of the
Union of Myanmar, Loc.Cit.
57
Ibid.
58
John P. J. Dussich, Loc.Cit.
59
United States Holocaust Memorial Museum, “They Tried to Kill Us All: Atrocity Crimes
against Rohingya Muslims in Rakhine State, Myanmar”, Fortify Rights: Bearing Witness Report,
(2017).
60
Amnesty International UK, 2017, Myanmar: 'Damning' Video and Satellite Evidence Shows
New Fires in Rohingya Villages, available at https://www.amnesty.org.uk/press-
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322
Rohingya people were move (becoming refugees) to Bangladesh (as the
neighboring country) since August 25, 2017.
61
After all of this, the study
estimated that around 18,000 Muslim women and girls were raped in Rohingya,
around 116,000 Rohingya people were beaten, and around 36,000 Rohingya
people were thrown into the fire.
62
In the Myanmar, genocide trial, which began on Tuesday (10/12) at the ICJ
in The Hague, Myanmar Chancellor Aung San Suu Kyi was passive and did not
react much.
63
The failure of the world to act on the Myanmar genocide is a
“blemish in our common conscience,”
64
According to the Attorney General and
Gambian Justice Minister, Abubacarr Marie Tambadou, who is demanding the
case. Aung San Suu Kyi only sat quietly during a report read out about the mass
killings and rape and genocide of Myanmar, at the beginning of a three-day trial
of alleged genocide in Myanmar in ICJ, the highest court of the United
Nations.
65
The decision of the ICJ will depend on the votes of the judges. If 17 judges
lead the case, at least nine judges must agree on the Gambia accusations or
Myanmar’s defence.
66
Dr Myint Zan also claims that Myanmar can easily deny
the case, just like other countries that have been tried at ICJ, that ICJ does not
have jurisdiction to judge Myanmar and fight at the point that Gambia is not in
the right position to accuse Myanmar in ICJ.
67
The trial taking place at the ICJ
will not decide whether the Myanmar government is responsible for genocide
charges, but the government to provide clarification on the current status.
68
According to Myint Zan, if an official explanation regarding Myanmar is
not accepted, it will be Myanmar’s victory in the legal battle. If the case is
accepted, then it will take at least three years if the ICJ decides to continue the
releases/myanmar-damning-video-and-satellite-evidence-shows-new-fires-rohingya-villages
accessed on Monday, December 23, 2019, at 10.36.
61
Ibid.
62
Ghazala Parveen, Loc.Cit.
63
Public Sitting of International Court of Justice, 2019, Public Sitting: In the case concerning
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), available at https://www.icj-cij.org/files/case-related/178/178-20191211-
ORA-01-00-BI.pdf accessed on Wednesday, December 11, 2019, at 10.57.
64
Clarinda Rae Solberg, “Genocide in Rwanda: Recurrence Risk Model Using Two Early
Warning Models”, University of North Dakota: A Thesis, (2012).
65
Public Sitting of International Court of Justice, Loc.Cit.
66
Ibid.
67
International Court of Justice, 2019, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (The Gambia v. Myanmar), available at https://www.icj-
cij.org/en/case/178 accessed on Wednesday, December 25, 2019, at 19.17.
68
Susana SáCouto, “Reflections on the Judgment of the International Court of Justice in Bosnia’s
Genocide Case against Serbia and Montenegro”, American University Washington College of
Law: Human Rights Brief 15, No. 1, (2007).
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323
case and temporarily ignore Myanmar’s rebuttal.
69
At present, Myanmar is not
in a position to take a deadly legal blow, despite some damage to Myanmar’s
reputation in the international community
70
. The date for a decision on
provisional measures has not set by the court, but it could come in January.
71
The decisions of the court are binding, and the case can not bring to appeal,
though it has no means of enforcement and countries have occasionally ignored
them or failed to adhere adequately
72
. After the decision of the court release, the
process may continue until it met the final judgment, and it may be in a year.
a. The Role of ICJ Over Rohingya
In the Rohingya case, ICJ plays the first role of settles international legal
disputes between states. The dispute is between Gambia and Myanmar, which
Gambia asked the ICJ to ask Myanmar to stop the ongoing atrocities against the
Rohingya.
73
The primary function of ICJ is to decide in accordance with
international law such cases are submitted to it by the state as referred to Article
38 Statute international court of justice, which stated that function of the court
is to decide in accordance with international law such disputes as are submitted
to it, shall apply international conventions, international custom, the general
principles of law recognized by civilized nations; etc. In relation to Article 38,
the Genocide Convention is classified as the customary international law
without a doubt.
74
b. Jurisdiction of ICJ Over Rohingya
ICJ has jurisdiction over the Rohingya’s case. The first reason why the
international court of justice has jurisdiction upon genocide case is that the
statue of the international court of justice constitutes a first part of the United
Nations Charter. The international court of justice is one of the six principal
organs of the United Nations. It is the principal judicial organs of the United
69
James Bowen, 2015, Refugee Crisis Tests Limits of Southeast Asian Cooperation, available at
https://theglobalobservatory.org/2015/05/asean-rohingya-refugees-myanmar/ accessed on
Tuesday, December 31, 2019, at 10.17.
70
Andrew Selth, Myanmar's Armed Forces, and the Rohingya Crisis (United States Institute of
Peace: Peaceworks, 2018), 23.
71
Order On Provisional Measures of International Court of Justice, 2020, Application of the
Convention On the Prevention and Punishment of the Crime of Genocide (The Gambia V.
Myanmar), available at https://www.icj-cij.org/files/case-related/178/178-20200123-ORD-01-00-
EN.pdf accessed on Wednesday, April 29, 2019, at 05.22.
72
Aloysius P. Llamzon, “Jurisdiction and Compliance in Recent Decisions of the International
Court of Justice”, European Journal of International Law 18, No. 5, (2007): 815–852.
https://doi.org/10.1093/ejil/chm047.
73
International Court of Justice, 2019, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (The Gambia v. Myanmar), Loc.Cit.
74
Agnieszka Szpak, “National, Ethnic, Racial, and Religious Groups Protected against Genocide
in the Jurisprudence of the ad hoc International Criminal Tribunals”, The European Journal of
International Law 23, No. 1, (2012): 155-173. https://doi.org/10.1093/ejil/chs002.
Jurisdiction of International Court of Justice… Yordan G, Sonya WR, Aliza M, Kukuh DT, Aisah
324
Nations, and it is not integrated into the hierarchical structure of the other five
principal organs. States that became members of the United Nations by signing
and ratifying the UN Charter are ipso facto, parties to the Statute
75
. While the
international criminal court is to be established by the treaty, these institutions
will not become organs of the United Nations.
76
The second reasons are the jurisdiction of the international court of justice
depends on the consent of states. Article 36 (1) of the statute of the international
court of justice provides it. The jurisdiction of the court covers all cases which
the parties refer to it and all matters specially provided for in the Charter of the
United Nations or in treaties and conventions in force. This word implies that
all the parties to a dispute must agree that the case should be referred to the
court.
The third reasons are the first concerns the Convention on the Prevention
and Punishment of the Crime of Genocide. Article IX of the Genocide
Convention 1948 stipulated that “Disputes between the Contracting Parties
concerning to the interpretation, application or fulfilment of the present
Convention, including those relating to the responsibility of a State for genocide
or for any of the other acts enumerated in article III, shall be succumbed to the
International Court of Justice at the request of any of the parties to the dispute.
77
Means that the disputes of Rohingya’s case are disputes between the contracting
parties relating to the interpretation, applications, or fulfilment of the
Convention, including those relating to the responsibility of a state for genocide
will be submitted to the international court of justice at the request of any of the
parties to the dispute.
In addition, Judge Elihu Lauterpacht of the ICJ stated that “the duty to
‘prevent’ genocide ….. Rests upon all parties” and is furthermore a duty which
all parties owe to each other.
78
Before the Rohingya’s case arises, international
court of justice had previously resolved the disputes over genocide case in the
case of “application of the Convention on the prevention and punishment of the
crime of genocide (Bosnia and Herzegovina v. Serbia and Montenegro)”
79
.
From this case, ICJ decided that the Genocide Convention gave the ICJ
jurisdiction over a suit alleging a state’s perpetration of genocide.
80
75
Charter of the United Nations, Chapter XIV — The International Court of Justice, Article 93.
76
International Criminal Court, Understanding the International Criminal Court, available at
https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf accessed on Sunday, December
15, 2019, at 14.23.
77
Machteld Boot, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege
and the Subject Matter Jurisdiction of the International Criminal Court (Belgium: Intersentia
Publishers, 2002): 62-65.
78
Judge Elihu Lauterpacht, as stated by Jordan J. Paust in Jordan J. Paust, “Applicability of
International Criminal Laws to Events in the Former Yugoslavia”, American University
International Law Review 9, No. 2\, (1994): 499-523.
79
Public Sitting of International Court of Justice, Loc.Cit.
80
John Quigley, Loc.Cit.
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In addition, about the case,
81
In 1993, the ICJ heard its first case regarding
genocide, brought by Bosnia and Herzegovenia v. Yugoslavia. In its application,
Bosnia claimed that the Serbia effort to create a “Greater Serbia” resulted in the
organized bombing of Bosnian cities and the intentional targeting of its Muslim
citizens.
82
The Bosnian application also contends that the Serb policy of driving out
innocent civilians of a different ethnic or religious group from their homes, so-
called “ethnic cleansing,” was practised by Yugoslav/Serbian forces in Bosnia
on a measure that dwarfs anything seen in Europe since Nazi times.
83
The
application declared that the evidence indicates a prima facie case of genocide
against Bosnia, and requested that the court take all appropriate actions in
accordance with the principles of the Genocide Convention.
84
In its 1994 ruling,
85
The court did not issue a finding on whether genocide
was being committed in Bosnia; however, it did ask the government of the
Federal Republic of Yugoslavia to: ensure that any military, paramilitary or
irregular armed units which may be directed or reinforced by it do not commit
any acts of genocide, of conspiracy to commit genocide, of direct and public
incitement to commit genocide, or of complicity in genocide, whether directed
against the Muslim population of Bosnia and Herzegovina or any other national,
ethnical, racial or religious group.
So, from that case, it can be concluded that the case between Gambia v.
Myanmar is similar to the case between Bosnia and Herzegovina v. Yugoslavia.
The terms also use similar term use in Gambia v. Myanmar case is “clearance
operations,” while the term used in Bosnia and Herzegovina v. Yugoslavia case
is “ethnic cleansing”. Like what already stated before, the most critical element
in the genocide crime is to prove whether there is any “intent to destroy” from
Myanmar. Because Rohingya is stateless, Myanmar doesn’t recognize Myanmar
as their citizen, and Myanmar also has no obligation to protect them. Myanmar
thinks that Rohingya as one of a group that will cause damage to Myanmar.
It is hard to prove “intent to destroy” because the intention is the evidence
that can not be in the hard form, this element just can be proof by the honest
81
Jeffrey S. Morton, “The International Legal Adjudication of the Crime of Genocide”, ILSA
Journal of International & Comparative Law 7, (2001), 329.
82
Martin Mennecke and Christian J. Tams, “The Genocide Case Before the International Court of
Justice”, Security and Peace 25, No. 2, (2007): 71-76. https://doi.org/10.5771/0175-274x-2007-2-
71.
83
Reports of Judgments, Advisory Opinions and Orders of International Court of Justice, 2007,
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina V. Serbia and Montenegro), available at https://www.icj-
cij.org/files/case-related/91/091-20070226-JUD-01-00-EN.pdf accessed on Monday, December
23, 2019, at 12.46.
84
Ibid.
85
Marko Milanović, “State Responsibility for Genocide: A Follow-Up”, European Journal of
International Law 18, No. 4, (2007): 669–694. https://doi.org/10.1093/ejil/chm043.
Jurisdiction of International Court of Justice… Yordan G, Sonya WR, Aliza M, Kukuh DT, Aisah
326
statement from the person who involved
86
. That’s why all cases regarding the
genocide that bring to the ICJ never meet the element of “intent”. At the end of
judgment,
87
the court just releases such kind of suggestion, like what the state
should do in solving this kind of problem.
In such a convention, the contracting States do not have any interests of
their own; they merely have, one and all, a common interest: namely, the
accomplishment of those high purposes which are the raison d ‘être of the
Convention.
88
Consequently, in a convention of this type, one cannot speak of
individual advantages or disadvantages to States, or of the maintenance of a
perfect contractual balance between rights and duties.
89
The high ideals which
inspired the Convention to provide, by virtue of the collective will of the
parties, the foundation and measure of all its provisions.
90
This statement was
the expression of the concept of the erga omnes rights.
As explained above, the jurisdiction of the court is based on Article 36,
paragraph 1, of its Statute and Article IX of the Genocide Convention. The
Gambia and Myanmar are the UN Member States and parties to the Genocide
Convention. Both have accepted the jurisdiction of the Court under Article IX
without any reservation. As it sets out in this application, there is an existing
dispute between The Gambia and Myanmar concerning the interpretation, use,
and fulfilment of obligations under the Genocide Convention.
4. Why ICJ?
The Gambia submitted institutes proceedings against Myanmar to the
International Court of Justice concerning genocide cases that happen to
Rohingya Muslims in the early November 2019. The genocide is one of the
grave breaches of human rights and criminal violation. Many arguments stated
on the reason for the Gambia action to bring the case to ICJ, not the
International Criminal Court (ICC). Is the action that taken by the Gambia is
proper to bring the case to ICJ authority?
There are reasons for Gambia’s action to bring the case to the ICJ. First, the
problem that the Gambia asks, in this case, is not about the genocide crime
itself, but the way how Myanmar has violated the Genocide Convention 1948,
86
Miscellany, “Three Responses to Can There Be Genocide Without the Intent to Commit
Genocide?”, Journal of Genocide Research 10, No. 1, (2008), pp. 111-133.
https://doi.org/10.1080/14623520701850955.
87
Andrew B. Loewenstein and Stephen A. Kostas, “Divergent Approaches to Determining
Responsibility for Genocide: The Darfur Commission of Inquiry and the ICJ’s Judgment in the
Genocide Case”, Journal of International Criminal Justice 5, No. 4, (2007): 839–857.
https://doi.org/10.1093/jicj/mqm049.
88
E. Hambro, The Case Law of the International Court (The Netherlands: Sijthoff International
Publishing, 1977), 91.
89
Michael K. Addo, International Law of Human Rights (New York: Routledge, 2016), 401.
90
Loveday Hodson and Troy Lavers, Feminist Judgments in International Law (United Kingdom:
Hart Publishing, 2019), 69.
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327
which already ratified by Myanmar in 1956. In the first article of the
Convention, it institutes the fact that genocide acts, regardless of the presence or
not of war, constitute international crimes and also commits Parties to the
Convention to undertake actions to both prevent and punish the acts. So, in the
Gambia perspective, Myanmar, as the contracting parties of the Convention, is
failed to prevent the genocide crime that happens in their state. Also, Myanmar
knows about the action, and the Tatmadaw did the action, but there is no such
action taken by Myanmar to punish people who involved in that action. While,
in the Myanmar side, what happened to the Rohingya is not their responsibility,
even the crime happened in their state, because Myanmar doesn’t recognize the
existence of Rohingya as one of Myanmar citizens based on Burma Citizenship
Law 1982.
Second, it also clearly stated in Article IX of the Convention. If there are any
disputes between the contracting parties (Myanmar and Gambia ratified
Genocide Convention 1948), it must be brought to the International Court of
Justice. So, the question is, how if one of the two states is not the party of the
Convention? The answer is the ICJ will have no jurisdiction upon that case
because the Genocide Convention applied the principle of non-retroactive.
91
Non-retroactive, or in a legal term, usually known as nullum crimen nulla poena
sine lege praevia, is the prohibition of a criminal act that must exist before the
criminal act itself.
92
It means that the Genocide Convention (or others
Convention or regulation which applied the non-retroactive principle) can’t
come into force before such a Convention is applied.
Third, the case cannot be brought to the ICC because Myanmar is not a
signatory to the Rome Statute, and as such, a self-referral to the International
Criminal Court would not be possible in this instance. Because, Rome Statute is
the essential element in ICC, the statute has formulated the structure of ICC as
well as the jurisdiction of ICC. Even though, if Myanmar is a signatory to the
Rome Statute, the case also cannot be brought to the ICC. Because, first, what
the Gambia ask in the case is state accountability which refers to Myanmar, not
individual responsibility. The case regarding state accountability is a
jurisdiction of ICJ, while individual responsibility being the jurisdiction of
ICC.
93
Second, if Gambia is bringing the case to the ICC, Gambia seems to have
no guidance as to the basis for the lawsuit because the Genocide Convention is
just applicable for ICJ, not ICC.
Last, the proposed of the court’s jurisdiction is limited both in terms of the
crimes that it may adjudicate and its relationship to the Security Council, the
court’s statute does include genocide as one the essential crimes that can be
91
Tams, Article 14 (Jerman: Reemers Publishing Services, 2014), 311.
92
Farhad Malekian, Jurisprudence of International Criminal Justice (Cambridge Scholars
Publishing, 2014), 16.
93
Logan Cochrane and Abdoulie Faatty, “A Gambian Perspective on The Gambia v. Myanmar
Case on the Crimes of Genocide at the ICJ”, Nokoko Pod Journal, (2020): 1-22.
Jurisdiction of International Court of Justice… Yordan G, Sonya WR, Aliza M, Kukuh DT, Aisah
328
adjudicated.
94
In 1948, the United Nations wrote a definition for genocide as the
attempt to destroy a national, ethnic, racial or religious group through any of the
following acts: Killing members of the group, causing serious bodily or mental
harm to members of the group, creating living conditions that will cause the
groups’ destruction (such as starvation), preventing births within the group (so
its population will not grow), moving children to a separate group.
95
Besides the
definition of genocide, there are two elements of genocide:
96
1. Objective elements (actus reus)
a. They are killing members of the group.
b. Causing serious bodily or mental harm to members of the group.
c. It is deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part.
d. Imposing measures intended to prevent births within the group.
e. It is forcibly transferring children of the group to another group.
2. Subjective elements (mens rea)
a. It is killing members of a group.
b. It is deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part.
c. Imposing measures intended to prevent births within the group.
d. It is Forcibly transferring children of the group to another group.
Myanmar’s treatment of the Rohingya includes genocide. The first defines
that the Rohingyas do not have citizenship and human rights violations suffered
in Myanmar, the second is political and socio-economic discrimination against
Rohingya who violates their human rights, the third is violence and widespread
slaughter which implies the start of the genocide in Myanmar. These four
Rohingya tribes violate their human rights refugees in neighbouring countries
are made unsafe because of the status of those who do not have citizenship.
State-approved violence in Myanmar creates a terrible humanitarian crisis
that has escalated into the Rohingya genocide and will cause more deaths if left
unchecked. Discrimination against Rohingya from 2000 to the present shows a
pattern of human rights violations, which has eliminated the Rohingya’s ability
to live safely without hunger, illness, arbitrary detention, and physical abuse.
97
By referring to the statement, the action that was taken by the Gambia to bring
the case to the ICJ is the right way to enforce international law in the global
world.
94
Jeffrey S. Morton, Loc.Cit.
95
Mark Friedman, Genocide (Britania Raya: Heinemann Library, 2012), 4.
96
Kai Ambos, Treatise on International Criminal Law (New York: Oxford University Press,
2014), 42.
97
Linda Crossman, “Myanmar’s Rohingya Refugees: The Search For Human Security”,
Georgetown University: A Thesis, (2014).
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329
Many Islamic countries joining the Organization for Islamic Cooperation
(OIC) want to sue Myanmar, but due to the procedural lawsuit in ICJ,
98
Only
one country can file a case against other countries in the ICJ.
99
The Gambia can
sue Myanmar. The Gambia filed a lawsuit in ICJ after winning the support of
the OIC, which has 57 member countries, and the Gambia drove it.
100
The
Gambia has also asked the court to order temporary measures for Myanmar.
101
Myanmar has been asked to stop its troops from taking action or contribute to
the genocide crimes against the Rohingya, including murder, rape, and
destruction of homes and villages.
102
The Gambia also asked judges to order
Myanmar to confirm evidence of atrocities.
103
International Court decisions are
binding and cannot be appealed. Although the court has no means of law
enforcement and states sometimes ignore it or fail to comply fully.
104
C. Conclusion
In the Rohingya case, ICJ plays the first role of settles international legal
disputes between states. The dispute is between Gambia and Myanmar. For the
jurisdiction, ICJ has jurisdiction over the Rohingya case. The first reason why
the International Court of Justice has jurisdiction upon genocide case is that the
statue of the International Court of Justice constitutes an integral part of the
United Nations Charter. The second reasons are the jurisdiction of the
International Court of Justice depends on the consent of states. Article 36 (1) of
the statute of the International Court of Justice provides that. The third reasons
are the concerns of the Convention on the Prevention and Punishment of the
Crime of Genocide. Article IX of the Genocide Convention 1948 stipulated that
if there is a dispute between contracting parties, they shall submit it to ICJ.
98
OIC, 2019, Resolution No. 4/46-MM on the Situation of the Muslim Community in Myanmar,
available at https://www.oicoci.org/docdown/?docID=4447&refID=1250 accessed on Thursday,
December 19, 2019, at 19.17.
99
UN Fact-Finding Mission, 2019, Report of the Detailed Findings.
100
OIC, 2019, Final Communiqué of the 14th Islamic Summit Conference, available at
https://www.oic-oci.org/docdown/?docID=4496&refID=1251 accessed on Thursday, December
25, 2019, at 17.16.
101
8 Note Verbale from Permanent Mission of the Republic of The Gambia to the United Nations
to Permanent Mission of the Republic of the Union of Myanmar to the United Nations.
102
Amnesti International, “We Are at Breaking Point - Rohingya: Persecuted in Myanmar,
Neglected in Bangladesh”, Loc.Cit.
103
Ibid.
104
UN Fact-Finding Mission, Loc.Cit.
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330
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