It is rare that political leaders turn to courts and ask them to play a role in stopping ongoing mass atrocity crimes. The international judiciary is not a natural defensive weapon against such crimes: their usual ambit extends to retrospective prosecutions of individuals, often many years after the fact. In the recent decision of the International Court of Justice in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), the Court has laid down a marker which may have far-reaching implications. While the decision clearly has significance for Myanmar’s long-persecuted Rohingya minority, it may also redefine the international community’s ability to halt (or at least slow) the commission of mass atrocity crimes.
After hearing compelling evidence that the Myanmar military had, since August 2017, carried out mass atrocities against the Rohingya, the Court ordered provisional measures against the Myanmar government. These measures include orders to prevent the commission of genocidal acts within the scope of Article 3 of the Genocide Convention, as well as to ensure the preservation of evidence of mass atrocity crimes. Myanmar has also been ordered to provide biannual reports to the Court on all measures it has taken to comply with Court’s provisional orders.
The case is only the third in the Court’s history to grapple with the Genocide Convention. Moreover, the decision stands alone in that unlike earlier decisions of the Court concerning genocide in the former Yugoslavia, the applicant party here is a State with no direct connection to Myanmar, the Rohingya or the alleged genocide. The Gambia, a nascent advocate for human rights on the African continent, has no geographic proximity to Myanmar, and no basis to assert that it is “directly affected” by the alleged violations of the Convention. For these reasons, Myanmar contended to the Court, Gambia had no standing because only an “injured State” could bring a case before the Court alleging a violation of the Convention. The Court rejected this argument, highlighting the erga omnes partes obligations of States under the Convention and observing (at ):
“In view of their shared values, all the States parties to the Genocide Convention have a common interest to ensure that acts of genocide are prevented and that, if they occur, their authors do not enjoy impunity. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention.”
The implications of this finding are noteworthy. Foremost, State actors who perpetrate acts of genocide may not escape being hauled before the International Court of Justice simply because neighbouring States, who are directly affected by such acts, decide against bringing violations before the Court. Further, the Court’s findings on standing encourage all States who have signed up to the Court’s jurisdiction (and have also ratified the Convention) to hold to account other States who commit, or attempt to commit, acts of genocide. No State can wash its hands by asserting that it is not directly affected by the crimes committed and therefore lacks standing to apply to the Court for provisional or other orders.
Scholars and commentators will, understandably, view the Court’s decision with caution. Although its decisions are binding on parties, the Court does not have sharp teeth: it has no enforcement powers and can only refer decisions to the UN Security Council. Recent experience concerning events in Syria has certainly diminished confidence in the UN Security Council’s ability to take decisive action in the face of mass atrocities. As always, the constraints of realpolitik will, in most cases, be determinative of the global community’s willingness to come together and produce a robust response to mass atrocity crimes.
Whilst some degree of scepticism is warranted, the rap of a judge’s gavel echoes far beyond the walls of the Court and the weight of the decision should not be understated. For a start, the Court’s findings provide legitimacy for multilateral institutions, regional blocs and individual States to take a stronger stand against the actions of the Myanmar government. Indeed, on 5 February 2020, EU member states of the UN Security Council issued a joint statement calling on Myanmar to, inter alia, take “credible action to bring to justice those responsible for human rights violations”. Despite reports that China (unsurprisingly) opposed a proposal for the UNSC to issue a joint declaration, the position adopted by EU bloc members signifies that the UNSC is monitoring the situation in Myanmar and is cognisant of the Court’s provisional orders.
In addition to acting as a catalyst for change in political will, the Court’s decision weighs heavily on Myanmar itself. Although there has been no finding of a breach of the Genocide Convention (as yet) and the Court has been careful to avoid evaluative judgments of the evidence, it has highlighted (at -) the reports of independent fact-finding missions and subsequent General Assembly resolutions, including UNGA resolution 73/264, which noted that there was:
“…sufficient information to warrant investigation and prosecution so that a competent court may determine liability for genocide in relation to the situation in Rakhine State, that crimes against humanity and war crimes have been committed in Kachin, Rakhine and Shan States, including murder, imprisonment, enforced disappearance, torture, rape, sexual slavery and other forms of sexual violence, persecution and enslavement, that children were subjected to and witnessed serious human rights violations, including killing, maiming and sexual violence…”
There is no doubt that such findings, brought into focus by the Court’s judgment, cause embarrassment for the Myanmar government. This was evident in the defensive position taken by Myanmar’s Ministry of Foreign Affairs, which labelled the judgment “a distorted picture of the situation”. It should also be recalled that a mere four days before the Court’s decision was handed down, an Independent Commission of Inquiry appointed by the Myanmar government published a final report which concluded that “war crimes, serious human rights violations and violations of domestic law took place during the security operations between 25 August and 5 September 2017”. The timing of the release of this report suggests the Myanmar government feared the worst from the Court’s decision and sought to soften the blow by pre-emptively having a (nominally) independent commission make findings of mass atrocity crimes. All of this serves to illustrate the substantial impact of the Court’s decision on Myanmar’s reputation and global standing.
Amongst the consideration of the Court’s future approach to provisional measures and analysis of the geopolitical implications for Myanmar and other States, we should not forget the significance of the Court’s decision for the Rohingya people. For too long, their suffering has received scant attention against the backdrop of other global tragedies, particularly the horrors that have unfolded in Syria. There is no doubt that the Court’s decision provides some degree of vindication for the Rohingya and recognition of the brutal crimes inflicted upon them. More importantly, the Court’s provisional orders may provide some hope to the Rohingya that the world will pay more attention to their plight, build consensus for a stronger and more unified response and, ultimately, cause Myanmar’s government (and its generals) to think again before carrying out murderous “clearance operations”, as they have done with impunity in the past.
Craig Hershowitz is a Senior Associate at a boutique law firm in Perth. He wrote his Honours thesis on the application of the Responsibility to Protect in Libya and Syria and is a former board member and educator with the Holocaust Institute of Western Australia.