Symposium: High Politics at the International Court of Justice
The Rohingya Crisis at the ICJ:
Caught between Legal Technicalities and Limits of the Court
By Emraan Azad
Assistant Professor in Law, Bangladesh University of Professionals
Published on 18 October 2024
The crisis in relation to the protection of the Rohingya has two dimensions: one is legal and relates to the adjudication of the genocide claim against Myanmar at the International Court of Justice (ICJ); and the other is practical and concerns the prospect of safe and dignified return of slightly over a million Rohingya to their homeland. While the former is now adjudicated in front of an international court, the repatriation issue is still framed as a bilateral matter between Bangladesh and Myanmar with frequent interventions from UN agencies and a few powerful nations like the US, Canada, and China. The endeavour to deal with these two scenarios at two different fronts may appear realistic but it is also problematic, and to some extent it may prolong the crisis itself at least for the next decade or so. In this backdrop, this post intends to illustrate the setbacks that the ICJ encounters in responding to high-profile international disputes, owing to legal technicalities and its own limits. Taking the Rohingya genocide case as a point of reference, the post will attempt to make sense as to why some international crises drag on despite the ICJ’s involvement. Even though The Gambia’s application to the ICJ has been hugely appreciated in popular discourse (Africa Insiders 2019, The Daily Star 2019, Arab News 2022), we cannot be oblivious of the fact that the ICJ often struggles to ensure just outcomes in the geopolitically sensitive cases like the present one due to its limitations arising out of its Statute and broader international law.
Many scholars have focused on legal technicalities of the Rohingya genocide case (see for instance, Islam 2022, Becker 2020, Pillai 2019 , Poeck et al. 2019). By ‘legal technicalities,’ I refer primarily to jurisdictional and admissibility issues. Undeniably, scholarly discussion is needed to understand the interpretation and application of technical legal concepts such as plausibility requirement, obligations erga omnes partes, standing of injured vis-à-vis non-injured states, third party intervention, etc. (McGarry 2023, Ramsden 2022, Tanaka 2021, Chow 2020, Wet 2013). Nevertheless, it is equally important to transcend these technicalities by paying attention to some of the fundamental limits of the Court itself. These limits include the Court’s powerlessness to guarantee state compliance with its orders unless the UN Security Council steps in and the ICJ’s choice to address questions which are politically sensitive.
In recent years, there has been marked increase in incidental proceedings in front of the ICJ, as more and more states request the indication provisional measures as a tool to their legal arsenal. Between 2001 and 2023, the ICJ issued 54 provisional measures orders in 15 cases. For comparison, the Court issued 10 provisional measures orders in the first 50 years of its existence (1945-1995) (Alexianu). In 2024 alone, 6 requests were submitted to the Court. The provisional measures ordered in 2020 by the ICJ required Myanmar to comply with several protective measures for the Rohingya (para. 86, pp. 30-31). Alexianu has shown that the Rohingya genocide case is one of the 15 cases to date where there was no compliance at all with the Court’s orders. Thus, the willingness of the Security Council to back up the ICJ in politically charged cases with providing necessary support and resources matters immensely. While this might be seen as one of the genuine limitations of the Court, it is also an expression of the elementary truth that the ICJ is a part of broader global order and cannot act in isolation. Be as it may, the Rohingya crisis is still escalating, even after the ICJ ordered several pro-Rohingya provisional measures. As the Human Rights Watch reported on 25 September 2024, around 18,000 additional Rohingya refugees entered Bangladesh in August-September ‘to escape abuses amid the surging fighting between Myanmar’s military junta and the ethnic Arakan Army, while another 10,000 are reportedly waiting at the border.’
In the Order of 23 January 2020 concerning the Request for the Indication of Provisional Measures, the Court did not conclude any measures concerning the repatriation of the Rohingyas. In 2022, Myanmar raised four ‘technical’ objections to the jurisdiction of the Court and the admissibility of The Gambia’s application. Except for a dissenting opinion from Judge Xue Hanqin, the ICJ decided against Myanmar in line with the arguments that underpinned the Order of 23 January 2020. In response to Myanmar’s preliminary objections, The Gambia raised issues of reparations and repatriation, and argued that Myanmar has an international obligation to offer reparations to the victims of genocidal crimes in addition ‘to allowing the safe and dignified return of forcibly displaced Rohingyas’ (paras. 23-24, pp. 11-13). Granting full citizenship and eliminating discrimination are not only a matter of human rights, but they are also ‘consistent with the obligation to prevent genocide’ (ibid). In its Preliminary Objections Judgment of 22 July 2022, the ICJ could have touched upon the reparations and repatriation issues, but it did not do so. One may argue that this was because the ICJ wanted to limit itself within the premises of legal technicalities relating to the discussion on jurisdiction/admissibility until it would determine the dispute on merits. To date, reparations and repatriation however appeared to be ancillary topics to the ICJ, and its singular focus on legal technicalities may eventually undermine the role of the ICJ within the broader landscape of international adjudication.
In addition, the ICJ often makes conscious choice to address disputes with contentious political undercurrents and this is evident in the Rohingya genocide case. One pathway toward the resolution of the Rohingya crisis therefore would involve the ICJ overcoming its self-imposed restraint in highly political cases. Doing so would also help us comprehend that the ICJ’s inabilities to redress mega political cases is perhaps the tip of the iceberg, and the real problem lies with the ways international courts interact with international institutions and the states within those institutions. Immersed already in its institutional challenges (Sterio 2020, 468-475; Ogbodo 2012, 105-107), the ICJ cannot just avoid a meaningful engagement with the current state of international law in which superpowers-led politics often debilitate the legitimacy of international courts and tribunals, which in turn aggravates international crises. Undoubtedly, the World Court finds navigating the complex global politics difficult while also performing its routine mandates. Therefore, to understand the ICJ’s engagement with the case, we need to examine how the ‘Great Powers’ such as the USA, China or India have approached the Rohingya crisis and its aftermath. On the one hand, the US and its Indo-Pacific allies, namely Australia, India, and Japan, are concerned about internal politics of Myanmar, while maintaining a ‘go-slow’ approach as far as tackling the Burmese ethnic resistance is concerned. Their fear that ‘excessive pressure would open the regime to greater Chinese influence’ (Hein and Myers 2023) is connected to the strategic relationship they are trying to maintain with Myanmar. On the other hand, China prefers stability across the borders for safeguarding its ‘multibillion-dollar investments in Myanmar under the Belt and Road Initiative’ (ibid). However, the Chinese closeness with the junta regime comes with contradictions as China itself ‘has never quite trusted the military’s leadership’ although it is one of the biggest arms-suppliers to the Burmese military (ibid).
Just because these dynamics were not explicitly raised or considered in the Rohingya genocide case at the ICJ, we cannot also contend that the Court were totally unaware of geopolitical high tides related to The Gambia/Myanmar proceedings. This background is significant, if we recall the Court’s acceptance of the military government as the representative of Myanmar in the ICJ proceedings in 2022. On 1 February 2021, the Aung San Suu Kyi’s democratic government was ousted through a military take-over and since then the military started representing the country internationally – even after the National Unity Government (NUG), which was composed of elected representatives of Myanmar, refused to accept it. Instead of judicially determining who was actually going to represent Myanmar in the Rohingya genocide case, the ICJ simply accepted the military-chosen representatives as the latter was in control of the Myanmar mission in Brussels with whom the ICJ was able to maintain the proceedings-related communication. The NUG criticized the Court’s ‘letter box approach,’ as it was characterized by Weller, for siding with the military regime that used force to oust a democratically-elected government in Myanmar. In the words of Weller, ‘the Court seems to have ignored the issue, or perhaps rather, ignored the existence of the NUG and its claim to legitimacy, including the right to represent Myanmar internationally. If it continues to do so, it risks the accusation of acting inconsistently with the trend towards legitimacy as an operative principle of international law. It also would appear out of step with other organs of the UN system, which have condemned the coup and demanded a transfer of authority back to the elected, legitimate government’ (Weller 2022).
It goes without saying, the liberal approach of the ICJ to several technical issues such as the standing of parties (i.e., locus standi) and obligations erga omnes partes in the Rohingya genocide and other cases has created new opportunities for states to bring cases in front of the ICJ. As a result, the Court has now found itself facing constant challenges of pronouncing on disputes with highly contentious political aspects (ASIL 2024). The analyses made above give the impression that the political milieu in which the ICJ functions is not only making the World Court fallible, but also chipping away humanity’s faith in the supremacy of this ‘principal judicial organ of the United Nations’. In this specific case, the problems of refugees and their ongoing displacement remain out of convenient settlement by the ICJ and continues to generate considerable doubts on legitimacy of the Court itself. If the ICJ is to maintain its credibility and legitimacy, it cannot simply ignore political questions attached to disputes, because at the end of the day, the ICJ has to operate within the existing ecosystem of political struggles.
To conclude, the ICJ is not a secluded island insusceptible from global politics. Amid various challenges, the ICJ has demonstrated its willingness to engage with the seemingly controversial politico-legal questions. Functioning in a tense political space to deal with global challenges is itself a herculean task for the ICJ. As a matter of fact, this has also been making the ICJ face political backlashes and suffer from legitimacy crisis yielding more lack of trust for the affected groups in the international system. The Rohingya genocide case at the ICJ is an important testament to how intrinsic limitations of the Court coupled with geopolitics have further heightened uncertainties surrounding the issue of repatriation of the Rohingya. Therefore, understanding the Rohingya dispute has much to do with unearthing the Court’s deep-rooted limitations as described above, rather than just addressing the legal technicalities of each case. Doing so might not necessarily guarantee the resolution of the crisis, but it would perhaps be one step toward seeing light at the end of tunnel.
Emraan Azad is an Assistant Professor and teaches international law at Bangladesh University of Professionals. He did his LLM in International Law from the University of Cambridge with a Commonwealth (Cambridge Trust) Scholarship. During his LLM tenure, he served as one of the General Editors at Cambridge International Law Journal. He is the co-founder of Dhaka Law Review and served as its Editor-in-Chief at the University of Dhaka. Previously, he did his LLB (Honors) and LLM (Master of Laws) from the same institution. Emraan’s X handle is @emraanazad.