TODAY, history is made at The Hague, Netherlands. The International Court of Justice (ICJ), the principal judicial body of the United Nations set up together with that international organisation in 1945, will determine whether to grant provisional measures in respect of protecting the Rohingya minority who have suffered at the hands of the Myanmar regime led by Nobel Peace Prize laureate, Aung San Suu Kyi, no less.
Much has been chronicled about the downfall of the former icon of liberal democracy and darling of the West.
Whichever way the ICJ swings its decision, i.e. in favour of the granting of measures based on the Convention on the Prevention and Punishment of the Crime of Genocide or otherwise,it is sure to mark the final nail in the coffin of the already sullied reputation of Suu Kyi.
That the case was brought by an African nation - the Republic of The Gambia - which is far removed from actual goings-on within not just Myanmar but the whole region of Southeast Asia, signifies a new era where nation states take on a more active role in policing human rights within other nations.
It would appear that international law has finally arrived in the realm of human rights.
Not just in the way nation states act in concert with one another within measures adopted by the UN Security Council (UNSC) or General Assembly (UNGA), but also nation states as initiators of strategic litigation before international law tribunals, such as the ICJ.
However, I would also caution that it remains to be seen whether this phenomenon will be lasting in its effect or even positive as regards those who stand to benefit from the ICJ ruling, namely the Rohingya community.
International law tribunals like the ICJ are based on the geopolitical will of powerful states that still influence the appointments thereto.
Thus, they still need to factor the political atmosphere of the environment they operate within.
This would mean no ruling that is too unpalatable to the big powers closely aligned with the Myanmar regime, such as Russia and China.
The ICJ would also need to ensure that whatever ruling it makes is respected, if not accepted.
This translates into what is achievable having regard to the present geopolitical climate.
The result, if history is any guide, tends to be decisions that do not wholly favour one side or the other.
Having said this, I believe that it is increasingly impossible to ignore the growing global clamour for respect for human rights.
It would be foolhardy for the ICJ to issue an essentially conservative reasoning as such a decision would fly in the face of the global trend in favour of increased human rights protection.
Therefore, it will be interesting to see whether the ICJ softens the provisional measures asked for by The Gambia if the case proceeds to the merits stage.
The basis of the provisional measures is the Convention on the Prevention and Punishment of the Crime of Genocide, which both The Gambia and Myanmar are party to.
Michael Baker in his September 2019 research paper, ‘The Situation of the Rohingya: Is There a Role for the International Court of Justice?’, assesses the jurisdictional basis, as well as the likelihood of success for any claim brought against Myanmar in respect of the Rohingya succeeding on the basis of this Convention.
He concludes favourably thereon, notwithstanding Myanmar’s reservation to Articles VI and VII of the Convention.
Article VI states that persons charged with genocide shall either be tried by a court of the nation wherein the same is committed or by an international tribunal while Article VIII allows anyone to use the organs of the UNSC and UNGA to take action against the commission of genocide.
Both do not, according to Baker, operate as a bar to the jurisdiction of the ICJ, more so when Article IX of the Convention which specifically mentions the role of the ICJ is not restricted by reservation by Myanmar, and would not be a bar to action before the ICJ in respect of the Convention even if it were.
Furthermore, The Gambia has every reason to be confident considering that the most recent vote to condemn Myanmar on the atrocities and human rights abuses received substantial support at the UNGA in December with 134 nations voting in favour and nine against, and 28 abstaining.
It should embolden those positively inclined on the ICJ bench.
I for one do hope for a positive outcome in favour of the provisional measures to be applied against Myanmar by the ICJ and dare to hope that the same forms the basis of a legally binding UNSC resolution applying political and economic sanctions against Suu Kyi and her cohorts within the Myanmar regime should they fail to comply.
But, whatever the outcome today, we already have much to be thankful for as the plight of the Rohingya is not only being taken note of, but acted upon.
Such a phenomenon does wonders for the preservation and enjoyment of universal human rights internationally in line with the three international human rights instruments which we in Malaysia hold dear, namely the Universal Declaration of Human Rights, the Cairo Declaration on Human Rights in Islam and the Asean Human Rights Declaration.
The writer is a Kuala-Lumpur based lawyer and the chief executive of Centre for Human Rights Research & Advocacy (CENTHRA).
The views expressed in this article are the author’s own and do not necessarily reflect those of the New Straits Times