Rohingya ruling: How a tiny African country brought Myanmar to court

When the International Court of Justice in The Hague ruled last month that Myanmar must take immediate action to protect its “extremely vulnerable” Rohingya minority, the decision was historic. But not only because it may mark a turning point in the international campaign to hold the country’s government accountable for an alleged genocide. 

It was historic, too, because of who brought the case to the court. For the first time in the seven-decade history of the ICJ, the plaintiff wasn’t a nation connected to the crimes it said were committed.

It wasn’t one of Myanmar’s neighbors, or even a regional power flexing its muscle. 

It was Gambia.

A sliver of riverbank running through the center of Senegal, Gambia is the smallest country on Africa’s mainland, and one of the smallest in the world. It’s also 7,000 miles away from Myanmar, with little in the way of cultural or diplomatic ties between them.

But its campaign to protect the Rohingya is a reminder of the outsized influence that small countries can – and often do – play in the international justice system, and the precedents they can help to set.

“Any country in the world could have done this, but it was the Gambia that did,” says Ottilia Anna Maunganidze, head of special projects and an expert in international criminal justice at the Institute for Security Studies in South Africa. “That means something.”

Gambia’s campaign to protect the Rohingya began in May of 2018, when the country’s attorney general and justice minister, Abubacarr Tambadou, visited a Rohingya refugee camp in Cox’s Bazaar, Bangladesh, with a delegation from the Organization of Islamic Cooperation (OIC). The stories of mass murder and rape he heard there called to mind his decade working as a prosecutor at the United Nations tribunal to try those responsible for the 1994 Rwandan genocide.

“I saw genocide written all over these stories,” he recalled in an interview with Reuters last year.

With the OIC’s backing, Mr. Tambadou’s office filed a lawsuit at the ICJ, the United Nations’ top court, in November last year, alleging that Myanmar had committed genocide against the Rohingya and asking that the court order the country to protect the group from further persecution. Myanmar has acknowledged war crimes, but repeatedly denied that genocide took place. 

Because every U.N. member state has equal standing in the ICJ, it didn’t matter that Gambia was much smaller than Myanmar, or far from its borders. All that mattered, Ms. Maunganidze notes, was the strength of the case it assembled from UN reports and other investigations into the violence.

But for Gambia, the case was also personal.

“Twenty-two years of a brutal dictatorship has taught us how to use our voice,” Mr. Tambadou told Reuters, referring to the rule of former President Yahya Jammeh, who was at last ousted from power in the country’s 2016 election. “We know too well how it feels like to be unable to tell your story to the world, to be unable to share your pain in the hope that someone out there will hear and help.”

Mr. Jammeh’s repressive rule, which included the killings and common arrests of anti-government activists, journalists, and other members of the opposition, was all the more painful for what preceded it.

In the first two decades of its independence, which it won in 1965, Gambia had been a regional human rights leader, notes Oumar Ba, an assistant professor of political science at Morehouse College in Atlanta who studies international criminal justice. Under its then-president Dawda Jawara, Gambia hosted the experts assigned to draft an African human rights charter, which eventually became the 1981 Banjul Charter. Since the late 1980s, the African Commission on Human and Peoples’ Rights has been based in Banjul, Gambia’s capital.   

Gambia’s role in shaping the continent’s human rights record was abruptly interrupted in 1994, when Mr. Jammeh overthrew Mr. Jawara in a military coup. For the next 22 years, Gambians suffered “a whole range of human rights violations,” according to a report by Amnesty International, “including unlawful detention, torture while in detention, unfair trials, enforced disappearance and extrajudicial executions.”

“Right now the government of Gambia is trying to retake that mantle and go back to that position of leadership that it had in the region before Jammeh took power,” Professor Ba says.

Gambia’s stand is not without complications. In recent months, the country’s president, Adama Barrow, has faced repeated criticism for reneging on a promise to step down from office after three years, and for a violent crackdown on protests calling for him to step down, which left dozens wounded.

The contradiction between the Gambia’s international stand and its domestic troubles “is a tension within the state itself,” Ms. Maunganidze says. Like any country, the Gambia’s government is not a monolith, and contains both officials who support its leadership in international human rights and others for whom it is far less important. But crucially, she notes, “the fact that the process proceeded the way it did means it wasn’t blocked, even if it wasn’t something everyone in government agreed with.”   

The ICJ’s order is provisional, but orders Myanmar’s government to take emergency measures to protect the Rohingya while the case continues, and to preserve any evidence connected to the allegations of genocide. The case itself could take years to formally decide, and Myanmar may flout the orders. 

But from the perspective of international justice, Gambia’s stand at the ICJ is still important, says Ms. Maunganidze, even beyond Myanmar’s specific case.

“This case could serve as a precedent for forcing states to take action on genocide,” she says. “That is significant in its own right.”