Did the Burmese military commit genocide against the Rohingya, or merely war crimes? The judges of the International Court of Justice are yet to rule on this question. But it is hopefully indicative of their initial thoughts that this week they ordered Myanmar to take significant actions to ensure genocide cannot occur while the proceedings take place. They have resolutely vowed to enforce the order.
Another court considering the question has already come to a judgement. That is the court of the Independent Commission of Enquiry, set up by the Burmese government who strongly protested against the existence of an international investigation and decided to set up its own court to come to a ruling to its liking. Even the usually tight-lipped UN is agreed that its independence exists in name only.
Uncoincidentally timed just before the ICJ’s order, the ICoE ruled that, though war crimes had taken place, the actions of the Burmese military did not constitute genocide. Their justification was twofold. Firstly, it could not be proven that the actions were motivated solely with the purpose of wiping out the Rohingya as an ethnic or national group. But more tacitly, it did not use the word Rohingya once in its report, suggesting a denial of the status of the Rohingya as having its own ethnic identity and status. If an ethnic group does not actually exist, genocide cannot be perpetrated against them.
The Independent Commission of Enquiry did not once mention the Rohingya by name
The timing of the ruling is expedient for another reason. The counter-ruling of the ICJ pits a national justice system against that of the ICJ, a complex legal issue for which there can be justifiable reasons for prioritising national justice. It therefore can be framed as the international community overriding Burmese sovereignty, and treating its supposedly independent judiciary with contempt. Which is all, in some senses, true; why should the international community trust the rule of law in a country where even a kangaroo court cannot deny that war crimes have been committed?
The ICoE ruling is a cunning political ruse. It tries to deflect focus from the ICJ ruling to complex questions of sovereignty. It tries to treat the torrent of mass slaughter that displaced 740,000 people as war crimes, a lesser crime than genocide: like downgrading murder to manslaughter. The international community should pay no attention to such claims. The question is how to help the Rohingya, and how to make sure their plight cannot be repeated.
Photo: Utenriksdept via CreativeCommons