It was a year ago that you started pursuing the unique approach to holding Myanmar accountable in the ICJ. How did that come about?
The idea of a country without any connection to the crimes bringing a case to the International Court of Justice had never been done before, even though, technically, any member state of the 1948 Genocide Convention could do so. The fact that it was Gambia – a small African country recovering from 20-plus years of dictatorship – and not a big, rich country makes its leadership even more inspiring.
It’s now more than two years since Myanmar’s latest ethnic cleansing campaign began, and military atrocities against the Rohingya go back years. Why have there been no consequences until now?
Myanmar’s longstanding brutal treatment of ethnic Rohingya is exactly the kind of crisis that the International Criminal Court (ICC) was created to address. The ICC tries individuals for grave international crimes, while the ICJ adjudicates disputes between countries. But since Myanmar isn’t a member of the ICC, only the UN Security Council could refer the situation to the ICC. That hasn’t happened because China has acted as Myanmar’s ally and protector, and as permanent member of the Security Council, can veto any resolution. The implied threat of a Chinese veto has managed to stifle criticism of Myanmar’s egregious human rights record and kept the situation from being referred to the ICC.
You needed to find a country to bring the case before the ICJ. How did that work?
When we first started raising this, at the UN in New York and in Canada and with other countries that had spoken out on genocide against the Rohingya, they said, what a creative, interesting idea – it’s not going to happen. We reached out to countries that had ratified the Genocide Convention in Europe, Africa, Asia and the Americas.
Then, out of nowhere, the West African nation of Gambia made public their intention to move ahead. I wish we could claim credit! Gambian Minister of Justice Abubaccar Tambadou’s vision, moral courage and leadership in seeking justice for the Rohingya is truly inspirational. Gambia demonstrated to the world that there was a state brave enough to take on Myanmar’s brutal ethnic cleansing campaign and risk China’s wrath in doing so.
Gambia’s decision to step forward gave new life to our efforts to reach out to countries around the globe, because now we were asking them to support Gambia in moving forward.
Gambia is just emerging from two decades of brutal dictatorship. Why did it take this on?
Gambian Justice Minister Tambadou had worked as a prosecutor at the International Criminal Tribunal for Rwanda, prosecuting cases from the 1994 Rwandan genocide. When he unexpectedly found himself in Bangladesh, sent at the last minute to represent his country at the annual conference of the Organisation of Islamic Cooperation, he met with Rohingya refugees at Bangladesh’s Cox Bazar camp. He says that after listening to story after story, it was clear that they had experienced genocide. And he felt morally compelled to do something about it.
What was it like being in The Hague for the ICJ hearing in December?
We brought a couple of Rohingya activists to The Hague and experiencing the moment with them was really moving. They felt they were finally being recognized by the world court because their government tried to erase them, which brought heartbreak but also power.
Outside the court building, there were demonstrations, a lot of shouting and chanting by both Rohingya and Myanmar government supporters. The decision of de facto Myanmar leader and Nobel Peace Prize winner Aung San Suu Kyi to defend the military in person before the court brought an extra level of scrutiny – as well as more demonstrators and media.
The Rohingya activists said they felt betrayed by Suu Kyi, who had spent many years under house arrest by the then-military government for her pro-democracy activism. They told me that they once hoped she would be their protector, but she was protecting the military instead.
What’s the significance of Aung San Suu Kyi defending Myanmar’s military in court?
The fact that she went to The Hague and personally spoke in defense of the military’s actions against a minority community means she has owned the military’s atrocities in court before the entire world. She has aligned herself with the perpetrators rather than the victims.
What does the court’s order mean for the Rohingya? For international justice?
The ICJ directed Myanmar to prevent genocide, and this could have a real impact in protecting the 600,000 Rohingya who remain in the country. Additionally, the ICJ process means Rohingya survivors and activists have a platform for their experiences to be recognized.
The ICJ order is a powerful reminder that Myanmar should not rely on powerful countries – notably China – to escape its responsibilities under the Genocide Convention and other international treaties. It also brings hope that so long as countries like Gambia are willing to step up, international justice can prevail.
Can the court’s order be enforced?
The ICJ has made a legally binding ruling, but enforcing it, given Myanmar’s track record, could prove difficult. The world needs to raise the political cost of non-compliance for Myanmar and show them countries are watching. Human Rights Watch will be urging governments to use their diplomatic leverage with Myanmar to improve the Rohingya’s situation. We will also promote resolutions at the UN Human Rights Council and the UN General Assembly to send a strong message to Myanmar to abide by the court’s order. The Security Council, too, could play an important role in enforcing the order, but because of China’s veto power I’m not holding my breath. In that regard, UN Secretary-General Antonio Guterres, who issued a strong statement in support of the ICJ ruling and has urged the Security Council to act on the Rohingya crisis in the past, could be a key player.
What’s next?
Now the ICJ will hear submissions from both sides about the merits of the case, that is, whether or not Myanmar committed genocide against the Rohingya. It’s a pretty long road and will take years to unfold, and no outcome is certain. But this court order, and the court requirement that Myanmar report regularly on its implementation of the order – every six months -- makes clear that the court is taking the matter very seriously and its scrutiny isn’t going away. And that could go a long way to helping protect the Rohingya remaining in Myanmar.
You woke up at 3:30 a.m. in New York to hear the ruling and finalize Human Rights Watch’s response. Was it what you expected?
It all feels surreal. I had a feeling the court would hand down a favorable ruling, but that the 17 judges ruled unanimously is simply incredible. It adds to the weight of the order. There was a moment of panic before everything starts, and I started thinking, what if they rule against Gambia? What would we tell our Rohingya partners? And there’s also the logistics – getting our news release out quickly, answering media calls, and commenting on social media to explain to the world this important victory for the Rohingya, Gambia and international justice.
When, at the end of the ruling, the chief judge said “unanimously,” then hearing him say it four times over – that really drove the point home.
If you had told me a year ago that we would be in this place, I’d have said you were crazy. But that’s our job, right? To do our part to make things happen and help survivors get the justice they deserve.
