By Aman Ullah
Since August 2017, the ongoing Rohingya humanitarian crisis and the associated international crimes against the ethnic Rohingyas have been evoking extensive international attention. Though the Security Council could not pass a resolution on the crisis due to veto given by China, the Pre-trial Chamber of the ICC delivered its decision on 6 September 2018 agreeing with the prosecution request that it can exercise jurisdiction to the crime against humanity of deportation under the Rome Statute of the International Criminal Court (ICC) 1998. Despite the positive developments at the ICC, the question remains as to whether the prosecutor will investigate the crime of genocide.
The crime of genocide is one of the most serious international crimes and the present government of Myanmar is alleged for the commission of this crime. According to contemporary jurisprudence of international criminal law, the perpetrators from Myanmar responsible for committing genocide against the Rohingyas cannot simply go unpunished.
Myanmar is a party to the 1948 Convention on the Prevention and Punishment of Genocide. Article IX of the Genocide Convention provides that any contracting party may submit a dispute between it and another contracting party relating to the interpretation, application or fulfilment of the Convention to the ICJ, including disputes about the responsibility of a state for genocide. Fifteen states have lodged reservations relating to Article IX, but Myanmar has not. It has instead made reservations to Articles VI and VIII of the Genocide Convention, neither of which is an obstacle to pursing an ICJ case.
Article VI requires that persons charged with genocide be tried by a competent tribunal of the state in which the offense took place or by an “international penal tribunal”. Myanmar’s reservation does not disclaim the obligation to prosecute perpetrators of genocide but indicates that Myanmar considers its own courts to have exclusive jurisdiction over such cases. Myanmar’s reservation to Article VI might therefore exclude certain claims that could arise in the future (for example, if Myanmar were to refuse to surrender an alleged perpetrator to the ICC), but it poses no general bar to ICJ jurisdiction.
Article VIII provides that contracting parties “may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide”. Myanmar is the only contracting party to have made a reservation to Article VIII, and the precise legal effect of such a reservation is unclear. It surely cannot function to prevent other states from calling upon a competent UN organ to take action.
Thus, there is a jurisdictional basis for the ICJ to adjudicate a dispute about Myanmar’s compliance with the Genocide Convention—above all, the obligation of the state itself not to commit genocide. To be sure, the Court’s jurisdiction would not extend to claims about crimes against humanity, war crimes, or other human rights violations, but the underlying facts relating to such claims would overlap substantially with those relating to genocide and receive a hearing.
Bringing the case under the Genocide Convention in the ICJ can be important for several reasons. First, the focus of the ICC is to ensure individual criminal responsibility; on the other hand, the ICJ focus is on the responsibility at the state level. We have already observed the response of the Myanmar government after the Pre-trial Chamber decision that it will not allow the ICC prosecution to enter into Myanmar to investigate as it is not a party to the Rome Statute. Since Myanmar is a party to the Genocide Convention, it has the obligation at the state level to comply with the ICJ decision.
Second, in the ICJ proceeding there are chances for the world community to witness and observe the entire state policy of the Myanmar government including the “ethnic cleansing” and persistent violation of fundamental rights of the Rohingyas. It will be very difficult for Myanmar to deny these allegations while representing the case at the highest judicial level in the international plane.
Third, if the ICJ finally finds the violation of state responsibility not to commit genocide, the question of reparation may arise. It may include financial compensation for the victims to resettle in their homelands that may trigger also to claim citizenship rights and end of a wide range of discrimination.
Fourth, the ICJ can issue provisional measures if there are reliable shreds of evidence that Myanmar is not complying with the obligation under the Genocide Convention. The verdict on merit may take several years, so provisional measures may help to cease the persistent abuses.
Last but not the least; the ICJ could issue provisional measures directing Bangladesh and Myanmar to postpone their agreement to repatriate the Rohingya. While Myanmar may not comply with those measures, Bangladesh, which has been cooperative with the ICC, may be more inclined to do so. Such relief would be vital for Rohingya refugees fearful of returning to Myanmar.
From the available evidence it can be assumed that if genocide case is brought against Myanmar in the ICJ under the Genocide Convention, there is a high chance that Myanmar may be found violating the obligation under the Genocide Convention not to commit genocide and to prevent committing genocide. It is now the government of Bangladesh to decide whether it will bring a case in the ICJ against Myanmar when diplomatic efforts are failing due to various actions and omissions of the Myanmar government. It is true that a case in the ICJ will not solve all the problem of the Rohingyas. But the charge of genocide is by far the most atrocious allegation against Myanmar that simply cannot go unpunished and as such the ICJ can be a practical option for the Rohingyas who thirst for justice.
Moreover, The ICC’s opening of a preliminary examination is an important step toward justice for the Rohingya. Given the ICC’s victim-oriented proceedings, there is significant space for victims and their legal representatives to participate fully in the proceedings. That, combined with parallel genocide proceedings before the ICJ, could provide an effective path to fully addressing the crimes against the Rohingya.
Now the question is who can bring cases in the ICJ against Myanmar. In principle, any contracting party to the Genocide Convention could bring an ICJ case against Myanmar, so long as that state has taken the necessary steps to establish the existence of a dispute between it and Myanmar over the subject-matter of the claim. The hypothetical case against Myanmar would present a paradigmatic example of the invocation of State responsibility by a non-injured State. The obligations that derive from the outlawing of genocide are obligations flowing towards “the international community as a whole” (as the Court famously put it in Barcelona Traction) and certainly towards every other contracting party, each of which has a common interest in seeing the purposes of the Convention accomplished. In other contexts, the ICJ has shown its openness to claims based on the breach of obligations erga omnes partes(e.g., the Habré case; the Whaling case). There should therefore be no question of admissibility simply because the case has been filed by a non-injured state.
Even those parties to the Genocide Convention that have opted out of Article IX—a list that includes neighbouring states such as Bangladesh and Malaysia—could potentially bring such a case. The general view is that the rule of reciprocity that applies when jurisdiction is based on an optional clause declaration does not apply where consent to jurisdiction is based on a compromissory clause.
However, the fact that any contracting party could serve as the applicant in an ICJ case against Myanmar does not mean that any state (or group of states) will be willing to do so. Nor does the fact that a case could be brought mean that such a case should be brought. Decisions to litigate at the ICJ are not taken lightly. Bringing a case may have political and economic consequences. It may be perceived as a hostile act, not only by Myanmar but by other states that support the regime or view such litigation as an impermissible intrusion into another state’s domestic affairs. It may also be challenging for a non-injured state to justify its decision to sue to a domestic public. So what states might be willing and able to commit the necessary resources to an ICJ case and face the political blowback? States that have been among the most vocal critics of Myanmar’s conduct—such as Canada and France—come to mind. States in which there are organized Diaspora communities of Rohingya refugees (such as Ireland) might be places where there are opportunities to build local support for such an effort. But the challenge of identifying or persuading a state to bring an ICJ case against Myanmar should not be underestimated. There are past examples of campaigns to generate support for ICJ litigation (for example, against Iraq in the 1990s) that ultimately failed when no applicant state could be found. Moreover, it remains important that any potential applicant state ascertain that Rohingya communities themselves are supportive of such an action, taking into account the potential gains and risks.
Although, Bangladesh do not take the case against Myanmar but It will extend its all-out support to Gambia as it is playing the lead role in taking the Rohingya issue to the International Court of Justice for establishing the legal rights of Rohingyas and addressing the question of accountability and justice.
The Republic of Gambia is a country in West Africa that is almost entirely surrounded by Senegal with the exception of its western coastline along the Atlantic Ocean. It is the smallest country within mainland Africa. The Gambia plays an active role in international affairs, especially West African and Islamic affairs, although its representation abroad is limited. As a member of the Economic Community of West African States (ECOWAS), the Gambia has played an active role in that organisation’s efforts to resolve the civil wars in Liberia and Sierra Leone and contributed troops to the community’s ceasefire monitoring group (ECOMOG) in 1990 and (ECOMIL) in 2003.
On his visit in Bangladesh during May 2019, Gambian Foreign Minister Dr Mamadou Tangara promised to the Bangladeshi Prime Minister Sheik Hasian that, Gambia is committed to taking the Rohingya issue to the International Court of Justice (ICJ).
In a major diplomatic breakthrough in March, the Organisation of Islamic Cooperation (OIC)unanimously adopted a resolution to move the ICJ for establishing the legal rights of Rohingyas. The OIC has called for launching the case of Myanmar’s human rights violations against the Rohingyas at the International Court of Justice. In March, the OIC foreign ministers agreed on taking Myanmar to the court at the Hague.
The 14th Islamic Summit Conference held in Makkah on 29-30 May 2019 stressed the need for international, independent, and transparent investigation into the human rights violations, including sexual violence and aggression against children, and holding accountable those responsible for the brutal acts.
The Makkah conference further called for ensuring free and unrestricted access to humanitarian assistance by affected persons and communities and creating conditions conducive for safe, voluntary, and dignified return of the refugees.
In the Conference, forming a joint communiqué led by Gambia, OIC urged to take immediate measures to launch the case at the International Court of Justice on behalf of the 57-member global body.
Meanwhile, Canada, which became the first country in the world to officially recognise the violence against the Rohingya by Myanmar’s security forces as ‘genocide’, is facing mounting pressure from senators, and members of the civil society and rights groups from across the country to take more international action in holding Myanmar accountable for the Rohingya genocide.
Thirty-four senators — a third of the Senate — and more than 100 human rights organisations and advocates sent a joint letter to Canadian Foreign Minister Chrystia Freeland this week urging Canada to initiate proceedings before the International Court of Justice over the breaching of the United Nations convention against genocide.
Similar letters have been sent to Chrystia Freeland and Justice Minister David Lametti in recent weeks, including one from an all-party group of MPs, which also called for Canada to take international legal action.
In addition, Toronto and Montreal city councils have passed unanimous motions and several other Canadian mayors and other rights organisations have sent their own letters to Freeland urging Canada to seek justice for the atrocities perpetrated against the Rohingya in Myanmar.
The fact remains that Myanmar has unequivocally rejected the non-binding conclusions of the Fact-Finding Mission and a dispute about Myanmar’s compliance with the Genocide Convention persists. A case at the ICJ provides a means to resolve that legal dispute, even if addressing the broader challenges faced by the Rohingya is a far more complicated affair. Lasting solutions may require finding ways to persuade those states that are supporting and investing in Myanmar (such as China and Japan) that it is in their own interest to see Myanmar change its ways. Whatever the merits of pursuing individual criminal accountability, those efforts seems unlikely to provide direct relief to Rohingya refugees in Bangladesh or elsewhere, or to prompt the institutional reforms that are needed to make a future for the Rohingya in Myanmar possible. A binding legal judgment on the question of Myanmar’s responsibility for genocide against the Rohingya is not a panacea. It could, however, serve as a powerful focal point within a broader strategy aimed at promoting, protecting and vindicating the rights of the Rohingya people. If we are serious about our paeans to the international rule of law and the fight against impunity, the idea of an ICJ case is at least worthy of consideration.
About the International Court of Justice (ICJ)
By Aman Ullah
The International Court of Justice (ICJ) sometimes called the World Court, is the principal judicial organ of the United Nations (UN). The ICJ’s primary functions are to settle international legal disputes submitted by states (contentious cases) and give advisory opinions on legal issues referred to it by the UN (advisory proceedings). Through its opinions and rulings, it serves as a source of international law.
The ICJ is the successor of the Permanent Court of International Justice (PCIJ), which was established by the League of Nations in 1920 and began its first session in 1922. After the Second World War, both the League and the PCIJ were succeeded by the United Nations and ICJ, respectively. The Statute of the ICJ draws heavily from that of its predecessor, and the latter’s decisions remains valid. All members of the UN are party to the ICJ Statute.
The ICJ comprises a panel of 15 judges elected by the General Assembly and Security Council for nine-year terms. The court is seated in the Peace Palace in The Hague, Netherlands, making it the only principal U.N. organ not located in New York City. Its official working languages are English and French.
The unprecedented bloodshed of the First World War led to the creation of the League of Nations, established by the Paris Peace Conference of 1919 as the first worldwide intergovernmental organization aimed at maintaining peace and collective security. Article 14 League’s Covenant called for the establishment of a Permanent Court of International Justice (PCIJ), which would be responsible for adjudicating any international dispute submitted to it by the contesting parties, as well as to provide an advisory opinion upon any dispute or question referred to it by the League of Nations.
In December 1920, following several drafts and debates, the Assembly of the League unanimously adopted the Statute of the PCIJ, which was signed and ratified the following year by a majority of members.
In October 1944, the Allied published a proposal that called for the establishment of an intergovernmental organization that would include an international include an international court. A meeting was subsequently convened in Washington, D.C. in April 1945, involving 44 jurists from around the world to draft a statute for the proposed court. The draft statute was substantially similar to that of the PCIJ. During the San Francisco Conference, which was held by the 50 countries of the world from 25 April to 26 June 1945 decided that an entirely new court should be established as a principal organ of the new United Nations. The statute of this court would form an integral part of the United Nations Charter, which, to maintain continuity, expressly held that the Statute of the International Court of Justice (ICJ) was based upon that of the PCIJ.
Consequently, the PCIJ convened for the last time in October 1945 and resolved to transfer its archives to its successor, which would take its place at the Peace Palace. The judges of the PCIJ all resigned on 31 January 1946, with the election of the first members of the ICJ taking place the following February at the First Session of the United Nations General Assembly and Security Council. In April 1946, the PCIJ was formally dissolved, and the ICJ, in its first meeting, elected as President José Gustavo Guerrero of El Salvador, who had served as the last President of the PCIJ. The Court also appointed members of its Registry, drawn largely from that of the PCIJ, and held an inaugural public sitting later that month.
The ICJ is composed of fifteen judges elected to nine-year terms by the UN General Assembly and the UN Security Council from a list of people nominated by the national groups in the Permanent Court of Arbitration. The election process is set out in Articles 4–19 of the ICJ Statute. Elections are staggered, with five judges elected every three years to ensure continuity within the court. Should a judge die in office, the practice has generally been to elect a judge in a special election to complete the term.
No two judges may be nationals of the same country. According to Article 9, the membership of the court is supposed to represent the “main forms of civilization and of the principal legal systems of the world”. Essentially, that has meant common law, civil law and socialist law (now post-communist law).
Article 6 of the Statute provides that all judges should be “elected regardless of their nationality among persons of high moral character” who are either qualified for the highest judicial office in their home states or known as lawyers with sufficient competence in international law.
Judges may deliver joint judgments or give their own separate opinions. Decisions and advisory opinions are by majority, and, in the event of an equal division, the President’s vote becomes decisive, which occurred in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Opinion requested by WHO),  ICJ Reports 66. Judges may also deliver separate dissenting opinions.
Generally, the court sits as full bench, but in the last fifteen years, it has on occasion sat as a chamber. Articles 26–29 of the statute allow the court to form smaller chambers, usually 3 or 5 judges, to hear cases. Two types of chambers are contemplated by Article 26: firstly, chambers for special categories of cases, and second, the formation of ad hoc chambers to hear particular disputes. In 1993, a special chamber was established, under Article 26(1) of the ICJ statute, to deal specifically with environmental matters.