Sexual Violence and Genocide: The International Court of Justice’s ruling on Rohingya

by | Mar 6, 2020

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About Jessica Anania

Jessica Anania is a DPhil candidate in Sociology at the University of Oxford, researching transitional justice and gender-based violence. She has worked broadly in gender and human rights in South Africa, the West Bank, and Northern Ireland. Jessica also holds an MPhil in Conflict Resolution from Trinity College Dublin.

Citations


Jessica Anania, “Sexual Violence and Genocide: The International Court of Justice’s ruling on Rohingya”, (OxHRH Blog, March 2020), <https://ohrh.law.ox.ac.uk/sexual-violence-and-genocide-the-international-court-of-justices-ruling-on-rohingya> [Date of Access]

Since August 2017, at least 10,000 Rohingya – a Muslim minority group in Myanmar’s Rakhine state – have been killed and 700,000 have fled to neighboring Bangladesh amidst a brutal army crackdown and clearing operation. Widespread sexual violence with “genocidal intent” was also documented, including rape and gang rape perpetrated against women, girls, men, boys, and transgender individuals. The Tatmadaw (Myanmar’s military forces) committed the overwhelming majority of sexual violence.

The International Court of Justice (ICJ), the UN’s primary judicial organization, ruled on January 23, 2020 that Myanmar’s Rohingya population is at risk of genocide, and that Myanmar must take “all measures within its power” to prevent genocide, refrain from destroying evidence of past genocidal acts, and report back regularly to the ICJ on implementation. This ruling acknowledges the dire risk posed to the Rohingya and sets a powerful precedent for global genocide prevention. The case was brought by The Gambia, which accused Myanmar of violating the Genocide Convention and of intending “to destroy the Rohingya group.” As the case was filed in November 2019, this represents a rapid response from the ICJ.

The ICJ ruling is unique in proactively identifying sexual violence as constitutive of genocide. The ruling highlights the impact “widespread rape and other forms of sexual violence” has had on the Rohingya’s right to exist. Rape as a form of genocide was first recognized by the 1998 Akayesu ruling in the International Criminal Tribunal for Rwanda, which found that sexual violence – including rape and sexual mutilation – constituted genocide. However, the Akayesu ruling has been criticized for failing to consider sexual violence against men and boys to be genocidal.

A 2018 UN report documented the ways in which sexual violence against Rohingya women and girls was strategically deployed as both an act of violence against an individual and as an act of genocide against the community. For instance, women and girls of “reproductive age” between 13 – 25 were systematically targeted and gang raped in military compounds: Such action implies intent to not only harm individual women and girls, but also to ‘dilute’ the Rohingya identity group through forced impregnation. This report’s findings underpinned the ICJ’s inclusion of sexual violence as an indicator of genocide.

However, the ICJ ruling did not specify against whom sexual violence must be perpetrated in order to constitute genocide. The 2018 UN report also details pervasive sexual violence against men, boys, and transgender individuals. Sexual violence against men and boys has been found to include rape, gang rape, sexual mutilation, and sexual torture – in some instances leading to death. It remains to be seen if future ICJ rulings highlight sexual violence against men, boys, and transgender people as constitutive of genocide.

Even if the ICJ ruling halts ongoing violence, however, the impact of sexual violence lingers. Survivors of sexual violence of all gender identities face stigma, as well as ongoing physical and psychological trauma, all of which may be barriers to accessing support services. Sexual violence services must be strengthened and scaled, particularly in refugee camps like Cox’s Bazaar settlement. The ICJ’s potential for offering support to survivors of sexual violence via redress or reparations measures must be further explored.

While the ICJ ruling marks a step forward in addressing genocide of the Rohingya, the full ICJ trial will likely drag on for years. Myanmar continues to deny wrongdoing, with Myanmar’s de facto leader Aung San Suu Kyi describing international investigations as “inaccurate or exaggerated.” ICJ rulings – although binding and carrying both symbolic and normative value – lack enforcement mechanisms. Myanmar has already been caught hiding evidence of human rights abuse, so it remains unclear how the ICJ ruling will impact transparency. However, the ICJ is also not the only judicial body taking on this issue. In November 2019, the International Criminal Court launched an investigation into human rights abuses against Rohingya, while Argentinian courts received a complaint via universal jurisdiction on behalf of the Rohingya community. While the ICJ ruling represents positive progress, the on-the-ground impact of such international efforts – particularly for survivors of sexual violence – remains to be seen.

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