CENTRAL UNIVERSITY OF SOUTH BIHAR

TOPIC – A CRITICAL ANALYSIS OF ICJ IN SPECIAL REFERENCE TO

ROHINGYA GENOCIDE

SUBMITTED BY SUBMITTED TO
Divjendra Kumar Divyanshu Dr Kumari Nitu
Session 2022-27 Assistant Professor
Enroll No CUSB2213125037 School of Law and Governance
BA LLB(Hons) CUSB
4th Semester, Sec -A

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 ACKNOWLEDGEMENT

I would like to thank my faculty Dr Kumari Nitu, who gave me assignment of such relevant topic
made me work towards knowing the subject with a greater interest and enthusiasm and moreover
respected professor guided me throughout the project. I owe the present accomplishment of my
project to my faculty and colleagues, who helped me throughout the project in regard to the sources
of the material needed for this assignment. I am much obliged to them. I would like to extend my
gratitude to my parents and all those unseen hands who helped me out at every stage of my project.

Divjendra Kumar Divyanshu

(B.A.LL.B. 4TH Semester)

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CONTENT

 Introduction

 Rohingya Genocide

 Who are Rohingya’s and What is their legal status

 Reason behind the Genocide

 Role of International Court of Justice

 Conclusion

 Bibliography

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 INTRODUCTION

The term genocide means “the deliberate and systematic destruction of a racial, political, or
cultural group”1. The term was coined in 1944 by Raphael Lemkin, a Polish- Jewish lawyer.
Lemkin defined genocide in the words which are as follows:
“Generally speaking, genocide does not necessarily mean the immediate destruction of a nation,
except when accomplished by mass killings of all members of a nation. It is intended rather to
signify a coordinated plan of different actions aiming at the destruction of essential foundations
of the life of national groups, with the aim of annihilating the groups themselves. The objectives
of such a plan would be the disintegration of the political and social institutions, of culture,
language, national feelings, religion, and the economic existence of national groups, and the
destruction of the personal security, liberty, health, dignity, and even the lives of the individuals
belonging to such groups2.”
Genocide has occurred throughout the history in various parts of world and in different types of
civilisations and cultures. Genocides have taken millions of life all over the world till now. Some
instances of genocide like the Holocaust, it was an organised annihilation of 6 million Jews by the
Nazi regime in Germany under the leadership of Adolf Hitler. The years from 1942-1945 are
painted black in the history of humanity due to this act of cruelty. Other genocides like Armenian
genocide which began in 1915 by Turkish government to eliminate the Armenians from the
Ottoman Empire and Rwandan genocide which occurred due to prevailing tensions between the
majority Hutu community and the minority Tutsi community in 1994.
The most recent one is Bangladeshian Genocide, after the independence of Bangladesh from
Pakistan in 1971, country faced a bloody war which claimed the lives of about 300,000 ethnic
Bengalis. War crimes like mass rapes, deportation and massacre of civilians were carried out by
the Pakistani Army and militias, particularly against the Hindu minority population.
Genocides always left its horrible imprints on the humanity. It is not a crime against any single
community or any country but it is a crime against all human race. Although genocides were seen

1
Merriam Webster dictionary

Oxford English Dictionary “Genocide” citing Raphael Lemkin Axis Rule in Occupied Europe (1943) ix. 79rd
2

Dictionary

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many times but there were many tribunals and conventions which were made to address the issue
and protect the humanity from such mass human killings.

The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), or
the Genocide Convention, is an international treaty that criminalizes genocide and obligates state
parties to pursue the enforcement of genocide prohibition. It was adopted by the United Nations
General Assembly, on 9 December 1948. The Convention entered into force on 12 January 1951
and has 152 state parties as of 2021.
Article 2 of the Convention defines genocide as “any of the following acts committed with intent
to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) Killing
members of the group; (b) Causing serious bodily or mental harm to members of the group; (c)
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) Forcibly transferring children of the group to another group3. And Article 3 defines the crimes
that can be punished under the convention: (a) Genocide; (b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide;
(e) Complicity in genocide4.

The Convention establishes on State Parties the obligation to take measures to prevent and to
punish the crime of genocide, including by enacting relevant legislation and punishing
perpetrators, “whether they are constitutionally responsible rulers, public officials or private
individuals”. Disputes between the Contracting Parties relating 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 submitted to the
International Court of Justice at the request of any of the parties to the dispute5.
International Court of Justice is an organ of UN, which was established in June, 1945 by the
charter of the UN. Its role is to settle, in accordance with international law, legal disputes
submitted to it by States and to give advisory opinions on legal questions referred to it by
authorized UN organs and specialized agencies.

3
Convention on the Prevention and Punishment of the Crime of Genocide, Article 2 (9 December 1948,) accessed on
9 October 2022.

4
Convention on the Prevention and Punishment of the Crime of Genocide, Article 3 (9 December 1948,) accessed on
9 October 2022.
5
Convention on the Prevention and Punishment of the Crime of Genocide, Article 9 (9 December 1948,) accessed
on 9 October 2022.

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ROHINGYA GENOCIDE
The Rohingya genocide is a series of ongoing persecutions and killings of the Muslim Rohingya
people by the Burmese military in Myanmar. The United States, United Kingdom, and other
countries refer to the events as “ethnic cleansing”6. The crisis forced over a million Rohingya to
flee to other countries. Most fled to Bangladesh, resulting in the creation of the world’s largest
refugee camp7, while others escaped to India, Thailand, Malaysia, and other parts of South and
Southeast Asia, where they continue to face persecution.
The persecution of Rohingya Muslims in Myanmar dates back to the 1970s. Since then, the
Rohingya people have been persecuted on a regular basis by the government and Buddhist
nationalists. In late 2016, Myanmar's armed forces and police launched a major crackdown
against the people in Rakhine State which is located in the country's north western region. The
Burmese military was accused of committing ethnic cleansing and genocide by various United
Nations agencies, International Criminal Court officials, human rights groups, journalists, and
governments8.

Who are rohingya’s and what is their legal status?

The Rohingya are an ethnic Muslim minority who practice a Sufi-inflected variation of Sunni
Islam. There are an estimated 3.5 million Rohingya dispersed worldwide. Before August
2017, the majority of the estimated one million Rohingya in Myanmar residing in Rakhine
State, where they accounted for nearly a third of the population. They differ from Myanmar’s
dominant Buddhist groups ethnically, linguistically, and religiously. Neither the central
government of Myanmar nor Rakhine’s dominant ethnic Buddhist group, known as the
Rakhine, recognize the Rohingya community. Government refuses them to grant citizenship

6
Griffiths, David Wilkinson, James (13 November 2017). “UK says Rohingya crisis ‘looks like ethnic cleansing’”.
7
“Myanmar’s Rohingya Crisis Enters a Dangerous New Phase”, Crisis Group.
8
“AP finds mass graves, latest evidence of Rohingya genocide in Myanmar”, CBS News

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due to which they don’t have legal documents regarding their identities. Rohingya’s are
registered as temporary citizens with white cards which means they have limited citizenship
rights but these cards cannot be produced as proof of citizenship.

Reason behind the genocide

The sentiment of local Rakhine people is often seen as a mix of hatred of Muslims and
historical feelings of deprivation in terms of land and opportunities. The feeling of deprivation
was formed during British rule. Arakan was an independent kingdom until it was invaded by
Burma in 1784 and annexed to British India in 1826 after 40 years of Burmese rule. Under
the British, immense numbers of immigrants went from Bengal to Arakan in search of
economic opportunities and land. At that time, the wage level in Arakan was much higher
than that of Bengal, and seasonal employers in Arakan replaced Arakanese with
“Chittagonians.” Also, the British encouraged immigration for agricultural purposes and vast
arable lands were granted to the newcomers. When the Arakanese who fled Arakan due to
oppressive Burmese rule came back to their homeland, the land was no longer theirs 9. The
feeling of deprivation, laced with deep religious and ethnic divisions, erupted into communal
violence since times.

Along with such political and identity reasons, there were some security reason too which
was used as an excuse by the Myanmar. In August 2017, a small band of Rohingya known as
Rohingya Salvation Army (ARSA) carried out an attack in Myanmar. After which the
government declared it a terrorist organisation which led to military retaliation against the
entire Rohingya population, producing the fastest refugee movement since the 1994 Rwandan
genocide. Over 675,000 Rohingya fled the country in just three months, seeking safety in
Bangladesh. They joined 300,000 refugees who had fled in earlier waves of ethnic violence,
and thousands are still crossing the border each day.

Role of Other Countries in this matter

This mass killing of rohingya community sought the attention of all countries over the world.
United States of America, United Kingdoms and many other countries referred it as “ethnic
cleansing”. The matter was criticised by many countries as the crime against humanity. The UN
fact-finding mission recommended that the Security Council impose an arms embargo and other
sanctions on Myanmar and top military officials. On 3 February 2017, the Office of the United
Nations High Commissioner for Human Rights (OHCHR) released a report based on interviews

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Aya Chen, “The Development of a Muslim Enclave in Arakah (Rakhine) State of Burma (Myanmar).”

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with more than 200 Rohingya refugees, which said that the abuses included gang-rape, mass
killing, and killing children.

UNICEF has been on the ground in the refugee camps in Bangladesh from day one, and is still
there for every Rohingya refugee child who needs clean water, health care, protection, nutritious
food and education and many other international organisation which worked for the welfare of
rohingya community. Meanwhile, many countries, including the United States, Canada, Norway,
and South Korea, as well as international donors, have upped their humanitarian assistance.
Advocacy groups including Human Rights Watch, Amnesty International, the Arakan Project, and
Fortify Rights continue to appeal for international pressure on Myanmar’s government10.
In November 2019, Gambia, on behalf of the fifty-seven-nation Organization of Islamic
Cooperation, filed the first international lawsuit against Myanmar at the International Court of
Justice, accusing the country of violating the UN Genocide Convention. Both Gambia and
Myanmar are parties to the genocide convention. Gambia, which ratified the Genocide Convention
in 1978, brought the case under Article 9 of the convention, which allows for disputes between
parties “relating to the responsibility of a State for genocide” and related acts to be submitted to
the ICJ. The case is known as Gambia v. Myanmar case.

ROLE OF INTERNATIONAL COURT OF JUSTICE

When it comes to Myanmar, and the plight of its Rohingya people in particular, the international
community has consistently failed to adequately respond when faced with serious risks, or even
the actual commission of, mass atrocities. The words “prevention” and “never again” ring hollow
when the world’s most powerful, including the United Nations Security Council, did little as a
genocide against the Rohingya was unfolding in Myanmar’s Rakhine State.
No nation dared to initiate legal action at the International Court of Justice (ICJ) for more than two
years since 2017’s escalation of state violence against the Rohingya.
Ultimately, it was the smallest country in mainland Africa – Gambia – that filed a case at the ICJ
in November 2019. Gambia accused Myanmar of violating the Genocide Convention and
requested the Court to issue provisional measures in order “to protect against further, irreparable
harm to the rights of the Rohingya group,” in its application. Two months later, the ICJ ordered
Myanmar to prevent genocidal acts generally, to specifically ensure military and police forces do
not commit genocidal acts, to preserve all evidence of genocidal acts, and to report back to the
court on compliance with these measures.
The first required report was submitted by Myanmar to the ICJ on May 23. The report was not
made public and was not shared privately with outside parties, including the Security Council.
While the ICJ is not required to share the report, it is at least an option for Security Council
10
cfr.org, Council on foreign relations, the Rohingya crisis, Eleanor Albert and Lindsay Maizland

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members to make such a request – collectively or individually – to the ICJ. Importantly, 13 of the
15 current members of the Security Council are also parties to the Genocide Convention, and
therefore have dual obligations to prevent and punish acts of genocide committed against the
Rohingya. Examining the first report submitted in May and the subsequent reports due every six
months, would allow Council members to monitor compliance with the provisional measures and
ensure that Myanmar is doing everything in its power to protect the Rohingya11.
The preliminary objections were filed by Myanmar’s civilian government just before it was
overthrown in a military coup in February 2021, and argue that the court does not have the
jurisdiction to hear the case. Among other things, Myanmar is attempting to have the case thrown
out on the grounds that that The Gambia was acting as a proxy for the Organization of Islamic
Cooperation, and that the court can only hear cases between nations.
Article 9 of the UNCG gives the ICJ jurisdiction over disputes between states about ‘‘the
interpretation, application or fulfilment’’ of the convention. Whether this provision encompasses
charges that a state has actually committed genocide has been a matter of some dispute over the
years. The court concluded in previous cases that parties to the UNCG ‘‘are bound not to commit
genocide, through the actions of their organs or persons or groups whose acts are attributable to
them.’’ This conclusion applies both to the crime of genocide itself, which is defined in art. 2 of
the UNCG, and to the four other punishable acts listed in art. 3, namely conspiracy, attempt, direct
and public incitement, and complicity. Replying to the argument that international law does not
recognize the concept of state crimes, the court said that it was ruling on issues of state
responsibility, not state criminality, referring to what it calls ‘‘duality of responsibility 12 ’’.
However, international Court of Justice does not have any machinery to force its decisions on the
parties.
In the present matter during hearings in February, a lawyer for The Gambia called on the judges to
“reject Myanmar’s meritless preliminary objections and proceed to adjudicate the merits of this
dispute.” As it happens, the merits of the case have been clouded by the political struggle that has
unfolded in Myanmar since the military coup, particularly, the question of who has the right to
represent Myanmar at the hearings. While the military junta assumed the right to represent
Myanmar at the ICJ, the opposition National Unity Government (NUG) asserts that it is the
legitimate representative of the country. To this end, in January, the NUG officially recognized the
ICJ’s jurisdiction, pledged to withdraw all of the preliminary objections, and promised to
cooperate with the proceedings13.
In its ruling, the court unanimously rejected Myanmar’s objections, and rejected one by a vote of
15 to 1. The judgment affirmed that “the applicant in this case is the Gambia”; that “a dispute

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justsecurity.org, The rohingya genocide and the ICJ, the role of international community, Nadira Kourt.
12
James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and
Commentaries (Cambridge: Cambridge University Press, 2002.
13
ICJ to Rule on Myanmar’s Objections in Rohingya Genocide Case, Sebastian Strangio

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relating to the interpretation, application and fulfilment of the Genocide Convention existed
between the parties at the time of the filing of the application by the Gambia”; and that “the
Gambia, as a state party to the Genocide Convention, has standing to invoke the responsibility of
Myanmar for the alleged breaches of its obligations under Articles I, III, IV and V of the
Convention.”

However, The International Court of Justice rules on disputes between states. It is not linked to the
International Criminal Court, also based in The Hague, which holds individuals accountable for
atrocities. Prosecutors at the ICC are investigating crimes committed against the Rohingya who
were forced to flee to Bangladesh. The rohingya genocide matter is still pending in the court and
Rohingya Muslims are still awaiting justice and protection.

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CONCLUSION
Rohingya genocide is the crime against human killing which resulted in death of many, violence
and made many Rohingya Muslims homeless. Many of them migrated on other countries
especiallyBangladesh which became home to many refugees.

The study also estimated that over 18,000 Rohingya Muslim women and girls were raped, 116,000
Rohingyans were beaten, and 36,000 Rohingyans were thrown into fires. It was also reported that
at least 6,700 to 7,000 Rohingya people including 730 children were killed in the first month alone
since the crackdown started. The majority of them died from gunshots while others were burned
to death in their homes. The sources described their killings as "violent deaths".

In 2017, the vast majority of Rohingya people were displaced and became refugees as a result of
the genocide. At the peak of the crisis in 2017, over a million Rohingya were forced to flee to other
countries. Most fled to Bangladesh while others escaped to India, Thailand, Malaysia, and other
parts of South and Southeast Asia. According to the United Nations reports, as of January 2018,
nearly 690,000 Rohingya people had fled or had been driven out of Rakhine State who sought
refuge in Bangladesh.
Gambia has filed case against the genocide in the International court of Justice. Court gave some
orders to Myanmar to follow but it doesn’t seems that Myanmar is complying with the orders.
Rohingya Muslims are still awaiting justice and protection of their rights five years after the
Myanmar, military began a sweeping campaign of massacre, rapes and arson in northern Rakhine
State on August 25, 2017, Human Rights Watch said today. More than 730,000 Rohingya fled to
precarious, flood-prone camps in Bangladesh, while about 600,000 remain under oppressive rule
in Myanmar.

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BIBLIOGRAPHY

 Oxford English Dictionary

 Convention on Prevention and Punishment of the crime of Genocide (CPPCG)

 Genocide: A Comprehensive Introduction, Adam Jones, Third edition

 Centuries of Genocide, Critical essays and eyewitness accounts, edited by Samuel Totten,

fifth edition.

 Council on Foreign relations, the Rohingya crisis, Eleanor Albert and Lindsay Maizland

 Leaflet.com

 Https://www.hrw.org

 https://www.state.gov

 https://www.thelancet.com

 http://worldwithoutgenocide.org

 https://www.unicef.org

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