Rohingya at The Hague: A Long-Overdue Genocide Trial and the Global Judicial Game

In the year and month, a heavy silence enveloped the marble halls of the Peace Palace in The Hague. Facing fifteen judges of the International Court of Justice, Dawda Jallow, the Attorney General of The Gambia, spoke with clarity and conviction: "This is not about esoteric issues of international law. This is about real people, real stories, and a real human group—the Rohingya in Myanmar. They have been targeted for destruction." His words marked the beginning of the substantive phase of the International Court of Justice's hearings on Myanmar's alleged genocide against the Rohingya Muslims. This hearing is not only about the fate of a marginalized ethnic group but also has the potential to reshape the international community's legal understanding and practice of "genocide," the most severe of crimes.

Over 10,000 Rohingya people are still crowded into dilapidated refugee camps on acres of land in Cox's Bazar, Bangladesh, waiting for an answer from the legal proceedings that began in 2017. Janifa Begum, a 35-year-old mother of two, said in the refugee camp, "I want to see if our suffering can be reflected in the hearings." Her voice represents the collective appeal of hundreds of thousands: "We want justice and peace."

Case Context: From "Clearing Operations" to the International Court of Justice

At the heart of this legal storm is the so-called "clearance operation" launched by the Myanmar military in Rakhine State in August 2017. The immediate trigger of the incident was the Arakan Rohingya Salvation Army's attacks on multiple police outposts and a military base, which resulted in the deaths of approximately twelve security personnel. The Myanmar government characterized it as a counter-terrorism operation, but the subsequent military response quickly escalated into a systematic campaign of violence.

The Myanmar Armed Forces (Tatmadaw), in collaboration with Buddhist militia groups, launched a large-scale crackdown in northern Rakhine State. According to a report released by the United Nations High Commissioner for Human Rights, this operation resulted in "a textbook example of ethnic cleansing." Over tens of thousands of Rohingya people crossed the Naf River into Bangladesh within just a few months, bringing with them harrowing testimonies of mass rape, arson, and massacres. The United Nations Fact-Finding Mission concluded that there are reasonable grounds to believe the Myanmar military committed serious international crimes, including genocide, crimes against humanity, and war crimes.

In November 2019, The Gambia—a West African country with a Muslim majority—filed an application with the International Court of Justice, accusing Myanmar of violating the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. According to the Convention, any state party may bring a case before the International Court of Justice against another state party it believes has breached the treaty. The Gambia was not a direct party to the conflict, and this action itself reflects the spirit of "universal jurisdiction" embedded in the Convention’s design—genocide is considered a crime against all humanity, and any country has the right to take action.

The tortuous path of legal proceedings.

The case proceedings spanned several years of legal battles. In January, the International Court of Justice issued an order for provisional measures, unanimously ruling that Myanmar must take "all measures within its power" to prevent any acts of genocide against the Rohingya people and to preserve evidence. This order is legally binding, although the court itself lacks an enforcement mechanism.

Myanmar subsequently challenged the court's jurisdiction, arguing that The Gambia had no direct connection to the dispute and therefore lacked the standing to bring the case. In [month] [year], the judges dismissed this objection, confirming the court's authority to hear the case and clearing the way for substantive hearings. During this period, [number] countries, including the United Kingdom, France, Germany, and Canada, submitted written statements supporting The Gambia's interpretation of the Genocide Convention, while [number] member states of the Organization of Islamic Cooperation also expressed their support.

A symbolic moment in the case occurred in [year and month], when Myanmar’s defense bench was occupied by Nobel Peace Prize laureate Aung San Suu Kyi. The former democracy icon personally traveled to The Hague to defend her country. She dismissed The Gambia’s accusations as a “misleading and incomplete factual picture,” insisting that it was an “internal armed conflict” and that the military’s actions were a response to attacks by Rohingya militants. Aung San Suu Kyi’s appearance evoked complex emotions internationally, with many human rights advocates expressing disappointment over her defense of the military, viewing it as a tarnish on her reputation as a human rights defender.

However, the political landscape took a dramatic turn. In February 2021, the Myanmar military staged a coup, overthrowing the democratically elected government. Aung San Suu Kyi was arrested and imprisoned, facing a series of charges widely regarded as politically motivated. At this hearing, Myanmar’s defense team was no longer led by her but was represented by delegates appointed by the military junta. The junta spokesperson did not provide any comments on the first day of the hearing.

Core Allegation: How to Prove "Genocidal Intent"

The core legal challenge lies in proving "genocidal intent"—that is, the specific intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. This constitutes the key legal threshold that distinguishes genocide from other atrocity crimes.

The Gambia's complaint accuses Myanmar's state actions of having a clear intent to destroy. Minister Dawda Jallow stated in court that the Rohingya people have suffered "decades of horrific persecution and years of dehumanizing propaganda," followed by military crackdowns and "an ongoing, genocidal policy aimed at erasing their existence in Myanmar." He cited numerous credible reports describing "the most brutal and heinous atrocities" inflicted upon this vulnerable group.

Article II of the Genocide Convention defines acts constituting genocide, including: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.

The Gambia argues that the actions of the Myanmar authorities encompass several of the aforementioned elements. In addition to large-scale killings and sexual violence, the Rohingya have long been systematically deprived of citizenship, freedom of movement, access to healthcare and education, which constitutes "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." Since the passage of the Citizenship Law in 1982, the Rohingya have been stripped of their citizenship, making them the world's largest stateless population.

The renowned international lawyer defending The Gambia, Philippe Sands, emphasized to the court: "When the court considers all the evidence together, the only reasonable conclusion is that genocidal intent permeates and is reflected in the countless state-led actions of Myanmar against the Rohingya." The International Court of Justice’s provisional measures order also specifically stated that Myanmar must prevent acts such as "killing members of the group" and "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part."

The recognition by the international community also lends support to the accusations. In 2019, a United Nations investigation team stated that Myanmar harbored "genocidal intent" against the Rohingya people. In 2022, the U.S. government officially declared that the violence in 2017 constituted genocide. Although these political determinations lack legal force, they constitute important evidence and shape the public opinion environment.

Myanmar's Defense Logic and Dilemma

Myanmar's defense strategy is expected to continue its longstanding stance, characterizing the actions of the year as legitimate counterinsurgency operations against terrorist threats. The military has consistently maintained that its operations are aimed at eliminating the Arakan Rohingya Salvation Army militants and safeguarding national security.

This defense faces multiple challenges. First, the scale and nature of the military response are questionable in terms of proportionality to the alleged threat. Extensive evidence suggests that the violence targeted the entire Rohingya community, not just militants. Second, systematic discrimination and persecution against the Rohingya had persisted for decades prior to the year in question, providing context that supports evidence of broader destructive intent. Finally, since the coup in the specified year, the legitimacy of the Myanmar military junta has been severely undermined both domestically and internationally, and its credibility in international courts has significantly diminished.

Another complicating factor is that the military regime, which overthrew Aung San Suu Kyi's democratically elected government, is representing Myanmar in court. This raises a delicate issue: the court's ruling is directed at the "State of Myanmar," whose responsibility does not disappear with a change of government, but the current regime has a more direct connection to the command structure of the operations in question. The supreme leader of the military government, Senior General Min Aung Hlaing, is himself the subject of a separate investigation by the International Criminal Court.

Beyond Myanmar: The Ripple Effects in the Global Judicial Landscape

The reason this case has garnered close attention from the global legal community extends far beyond the fate of the Rohingya people. This marks the first time in over a decade that the International Court of Justice has conducted a comprehensive trial of a genocide case, and its ruling is likely to establish a crucial precedent for how genocide is defined and proven.

The most direct chain reaction manifested in the case of South Africa v. Israel. In January, South Africa filed a case with the International Court of Justice, accusing Israel of violating the Genocide Convention through its military operations in Gaza. Israel vehemently denied the allegations and accused South Africa of providing political cover for the Palestinian armed group Hamas. Subsequently, countries such as Belgium submitted declarations of intervention based on Article 63 of the Statute of the International Court of Justice, formally joining the case.

University of South Australia international law expert Juliet McIntyre pointed out: "The International Court of Justice's final ruling on the Myanmar case will impact the South Africa case. The legal test for genocide is very strict, but judges may broaden its definition." The two cases intersect on a core legal issue: how to determine the "intent to destroy" in state conduct? Where is the line between military operations and systematic persecution targeting specific ethnic groups? When do measures taken by a state in an armed conflict shift from legitimate self-defense or counter-terrorism to illegal genocide?

The International Court of Justice's ruling will involve a delicate legal balancing act. On one hand, the seriousness of the Genocide Convention must be upheld, preventing its abuse or devaluation as a political tool. On the other hand, it is essential to ensure that the definition of this "crime of crimes" can effectively encompass modern forms of group annihilation. The judges' interpretation will influence the international community's legal response to similar atrocities for decades to come.

Furthermore, this case highlights the diverse roles and limitations of international judicial bodies. The International Court of Justice handles disputes between states and determines state responsibility, but it cannot prosecute individuals. Meanwhile, the International Criminal Court, also located in The Hague, is investigating Myanmar's military leader Min Aung Hlaing for alleged crimes against humanity and requested an arrest warrant from judges earlier this year. While it focuses on individual criminal responsibility, its jurisdiction requires either state consent or authorization from the United Nations Security Council (Myanmar is not a party to the Rome Statute, but Bangladesh is, allowing the court to exercise jurisdiction over certain crimes based on this).

There is also a third legal front: Argentine courts are hearing another case involving the Rohingya based on the principle of universal jurisdiction. This "judicial network" means that even if efforts are blocked in one court, the pursuit of accountability can continue on other platforms.

The Dimensions of Justice: The Challenge of Enforcement and the Long Wait for Victims

Regardless of the ruling issued by the International Court of Justice, a harsh reality remains: enforcement has always been the greatest weakness of international law. The judgments of the International Court of Justice are legally binding on the parties involved, but the court has no police or military force to enforce them. Its power primarily stems from the moral authority and political pressure of its rulings.

If the court rules that Myanmar has committed genocide, it would be a significant political and diplomatic blow to the military junta, potentially triggering broader sanctions and isolation. However, since the coup in 2021, the Myanmar military junta has been deeply mired in civil war and may be less sensitive to international public opinion. The provisional measures order requires Myanmar to regularly report on the situation, but it is difficult for the outside world to verify whether the junta is reporting truthfully.

For the Rohingya people in the refugee camps in Bangladesh, the meaning of justice is more specific and urgent. Survivor Monera told Reuters outside the court in The Hague, "We do not just hope for justice, we demand justice. We ask the court to take action against the Burmese dictator and the leaders of the Myanmar military who committed genocide." Their demands include: official recognition of the crimes, holding those responsible accountable, obtaining compensation, returning safely and with dignity to their homeland, and the restoration of all their rights.

However, the prospects for returning to Myanmar remain bleak. The situation in Rakhine State remains unstable, and the issues of citizenship and security for the Rohingya people are far from resolved. The refugee camps in Bangladesh face severe challenges, including poor conditions, funding shortages, high crime rates, and a lack of educational and medical resources. Some Rohingya people are taking desperate risks by boarding dangerous boats in an attempt to reach Malaysia or Indonesia.

The trial itself, for the victims, represents a symbolic acknowledgment. The hearing specifically allocated three days to listen, behind closed doors, to the testimonies of Rohingya survivors and experts. This marks the first time Rohingya victims have directly recounted their experiences before an international court. Although not open to the public, the procedural significance is profound—their voices have finally been formally heard by an authoritative international judicial body.

The domestic political landscape in Myanmar also casts a shadow over the pursuit of justice. The military government suppresses dissent nationwide, engages in continuous conflicts with various ethnic armed organizations, and the country remains in a state of deep crisis. In such an environment, implementing any international ruling that demands domestic legal reforms is exceptionally difficult.

The hearings at the Peace Palace in The Hague will continue until the end of January. The judges will need months or even years to deliver a final verdict. During this prolonged wait, the suffering of the Rohingya people persists. The proceedings at the International Court of Justice serve as a prism, reflecting the vast gap between the ideals and realities of international human rights protection, while also testing the resilience and effectiveness of the post-World War II humanitarian legal framework amid the complexities of 21st-century geopolitics. This trial is not only an indictment of Myanmar but also a test of the international community's collective conscience and its commitment to enforcement.