THE I DIPLOMAT
By Champa Patel and Ruma Mandal
March 18, 2020
Beyond refocusing the attention on the Rohingya crisis, the ruling raising questions about whether it might be an effective route for pursuing accountability.
The International Court of Justice (ICJ) ruling on the genocide case against Myanmar in January is refocusing attention on the desperate situation facing the Rohingya. It is also raising questions about whether the ICJ might be an effective route for pursuing accountability, given that the case was brought by a state not directly affected by the alleged violations of international law.
The Gambia — with the backing of the Organization of Islamic States — instituted the litigation as a party to the Genocide Convention that Myanmar also belongs to. It did so based on Article IX of the Convention that allows disputes over its “interpretation, application or fulfillment” to be referred to the ICJ.
The Gambia’s decision to initiate the case illustrates changing dynamics around South-South accountability, the potential of small states to act on human rights issues and the inventiveness being deployed by those working on accountability issues. But the decision itself does not clearly mark a new pathway for pursuing accountability at an international level. The legal route chosen highlights a few challenges.
The ICJ route used in this case relies on both the state accused and the complainant being parties to the Genocide Convention and the specific wording of Article IX. There may be a possibility of finding a similar route in other treaties — for example, the Torture Convention — but this is likely to be very limited. And while many countries are parties to the Genocide Convention, there is some irony in Bangladesh — the state most affected by the human rights situation in Myanmar — having a reservation to Article IX which undermines its standing to bring proceedings at the ICJ.
The prohibited conduct under the Genocide Convention is so specific that it won’t apply to most human rights emergencies, even the most serious. And the basis on which an unaffected state can use Article IX to bring a complaint under the Genocide Convention to the ICJ is not settled by the Court’s preliminary ruling in January — it may be reopened later in this litigation. Even where a state can establish that the ICJ has jurisdiction to hear a dispute under the Convention, genocide is extremely difficult to prove and the Court does not have scope to consider other human rights violations instead.
In terms of the immediate impact of the ICJ ruling in Myanmar, the Court made no finding as to whether genocide was attempted or took place — it decided merely that the allegations were plausible. The “provisional measures” ordered are focused on preventing any immediate irreparable harm and require Myanmar to “take all measures within its power” to prevent acts of genocide, preserve evidence relating to allegations of genocide and undertake regular reporting to the Court on implementation of these interim orders.
The reporting requirement may reflect a desire on the ICJ’s part to learn from previous experience in relation to provisional measures. In the Bosnia and Herzegovina v Serbia and Montenegro case, where this requirement did not form part of the provisional measures ordered, the impact of the Court’s interventions were questionable given the subsequent Srebrenica massacre.
Still, the interim decision is a significant rebuke to State Counselor Aung San Suu Kyi — who represented Myanmar at the Court — and to the Burmese military who deny that genocide has occurred. Reputational risks may persuade the Myanmar government to be seen to take some steps in relation to the provisional measures. But given the intensive scrutiny of Myanmar’s behavior to date, and the lack of action taken, it is unlikely that any response will be significant — even though the provisional measures are binding on Myanmar.
And while under Article 94(2) of the UN Charter the Security Council can be called on by a party to act on non-compliance, this is in relation to a “judgement” of the ICJ rather than an interim ruling. In any case, the Council has proven ineffective on Myanmar so far given the country’s strategic importance to China for trade, investment and connectivity.
In the meantime, the ICJ’s interim ruling may provide a hook for actors such as the UN Human Rights Council and General Assembly to maintain pressure on Myanmar. The investigation by the International Criminal Court into crimes that may have taken place on the Myanmar–Bangladesh border may also similarly help. The prospects for ensuring justice for the Rohingya remain unclear. But the ICJ case illustrates, perhaps, that inventiveness may hold the key to moving forward in an increasingly difficult environment for justice and accountability globally.
Champa Patel is Director of the Asia Pacific Programme at Chatham House, London. Ruma Mandal is Director of the International Law Program at Chatham House, London. This piece was originally published over at East Asia Forum here.