The initial ruling by the International Court of Justice on the case brought by Gambia against Myanmar over its treatment of Rohingya Muslims gives a first look at what the U.N. top legal body’s final judgment might look like.
Opinions are split on what the ruling and provisional demands by the court actually mean, and which side has the upper hand. The ICJ case will take years to unfold. Whatever the outcome of the trial, Aung San Suu Kyi, Myanmar’s de facto leader, looks set to emerge as the biggest winner.
Contrary to what many have asserted, the ICJ ruling, including the provisional measures, does not actually constitute a finding that Myanmar committed genocide. That judgment will not be made until the end of the case, after extensive collection and adjudication of evidence and arguments by the two sides
In its preliminary ruling on Jan. 23, the ICJ recognized the extreme vulnerability of the Rohingya in Myanmar and the irreparable harm they have suffered, and it orders Myanmar to take all measures within its power to prevent: a) killing members of the group; b) causing serious bod09ily or mental harm to the 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; and d) imposing measures intended to prevent births within the group.
Among better-informed legal experts and analysts, the pursuit of a genocide verdict is perhaps the biggest weakness in Gambia’s case. To meet that standard, Gambia will have to prove that the Myanmar security forces acted with genocidal intent against the Rohingya. Precedent is not in Gambia’s favor. In the genocide case against Serbia in 2006, the ICJ did not find such intent and dismissed the genocide charge. Had Gambia adopted a more realistic strategy of focusing on war crimes, or even ethnic cleansing, it would probably have a better chance of winning.