On 23 January, at 10 a.m. in The Hague, the International Court of Justice delivered its decision on a request for provisional measures in the contentious case of The Gambia v Myanmar ( www.icj-cij.org/en/case/178 ). At the time, I was six time zones away – awaiting the Court’s decision with a group of Rohingya refugees in Kutupalong, the world’s largest refugee camp located outside of Cox’s Bazar in Bangladesh. Relying on the limited internet connection of a health clinic (cell service in the camps is virtually non-existent), we parsed the contents of the order together from the tweets and press releases of journalists present in The Hague: the case would proceed to the merits, and the Court had granted four provisional measures for Myanmar to implement in the interim.
I have been following this case closely since it was filed in November of 2019, as I have been researching the Rohingya genocide for the entirety of my law school career. I began my work on the topic in July of 2018, a month before my first year, helping Professor John Packer (Director of the Human Rights Research and Education Centre and the inaugural Neuberger-Jesin Professor of International Conflict Resolution) organise a symposium on the legal dimensions of the Rohingya crisis. I have continued this research for Prof. Packer over the course of my studies at the University of Ottawa, and have had the opportunity to study this case in my Public International Law, International Human Rights, and Law of International Organisations courses. And, for my January term this year, I completed a directed research project on the customary status of the principle of non-refoulement, looking at the legal implications of the possible forced repatriation of Rohingya refugees from Bangladesh to Myanmar.
In this last connection, I was offered the opportunity to accompany Prof. Packer on a week-long trip to Bangladesh. He was set to lecture at the University of Dhaka’s Centre for Genocide Studies’ 6th annual Winter School, at the invitation of the Centre’s Director, Mr. Mofidul Hoque. I had the opportunity to meet Mr. Hoque, who is also the founder of Bangladesh’s impressive War Liberation Museum ( www.liberationwarmuseumbd.org ), as well as a number of the Centre’s graduate students and researchers. Prof. Packer delivered two separate lectures for the Winter School, providing students with an overview of the ICJ case, and examining other legal dimensions to the Rohingya genocide. We stayed at the institute where the course was held and so enjoyed meeting the course organisers from Dhaka University, as well as the Bangladeshi, Nepalese, Sri Lankan, and Cambodian students in attendance. Prof. Packer also engaged with the students over issues arising from the 1.1 million Rohingya refugees currently living in Bangladesh, debating policies aimed at preventing integration and at encouraging the repatriation of Rohingya refugees (including, in particular, the lack of formal, recognised education and accreditation available in the camps).
The timing of the week-long course was fortunate: we arrived in Dhaka on Monday, January 20th, three days before the ICJ decision would be delivered. As such, in addition to lecturing, Prof. Packer was interviewed by three prominent Bangladeshi newspapers and met with journalists to discuss the case and answer substantive questions: What did the case mean for Bangladesh? What enforcement mechanisms are available to the Court to ensure Myanmar’s compliance with any provisional measures? What role, if any, would the Security Council play moving forward? We were also able to meet with the Bangladeshi Foreign Secretary, His Excellency Masud Bin Momen, and six of his Director Generals, for whom Prof. Packer outlined the ICJ case and the potential for States to join the proceedings (under Articles 62 and 63 of the ICJ Statute) and discussed how the case might affect international negotiations and contribute to a solution for the ongoing situation. Being in the room as this conversation took place, I gained an invaluable perspective into the diplomatic dimension of International Law – one which, despite being constantly highlighted during my studies, is difficult to glean from a classroom. In particular, I was struck by Prof. Packer’s emphasis on the interests of Bangladesh, discussing refugee policy as a developmental opportunity – reframing access to education and skills-based training for Rohingya refugees as a long-term investment in the peace and stability of the region.
However, the most poignant moment for me remains discussing the ICJ case and decision with Rohingya refugees huddled in Kutupalong camp. Only a handful of Rohingya were in The Hague to hear the decision in person. Unfortunately, as a dispute between States, there is little opportunity for the Rohingya to be meaningfully represented or even heard in the ICJ case. Nevertheless, the Rohingya stand to be substantially affected by the Court’s decisions and orders. For the Rohingya who remain inside Myanmar, the decision marks the first time that a court has ordered Myanmar to take action to protect the Rohingya; the State has been directed to take all measures within its power to prevent the commission of all genocidal acts against the Rohingya, and to take effective measures to prevent the destruction and ensure the preservation of evidence relating to the case. For Rohingya refugees living in Bangladesh, the order may pave the way for future repatriation and possible reparations – and has garnered increased global attention to their plight.
On our return to Canada, and a little over a week after the Court’s decision, it was striking to see the Government of Bangladesh announce it will begin to offer schooling and skills training opportunities to all Rohingya children. The Foreign Secretary told journalists that his Government “has felt the need to keep Rohingya children’s hope for the future alive with extending education and skills training to them”.
We thank the uOttawa Faculty of Law alumni (class of ‘81) Edith Neuberger and Norman Jesin for their financial support of the Neuberger-Jesin Professorship in International Conflict Resolution.
By Anne-Lise Bloch (L2 - JD 2021)