Tempering expectations in the aftermath of ICJ’s decision

Any hope that the current regime would exercise some restraint has been put to rest by reports of escalating conflict within Myanmar.

Bahzad Joarder

Bahzad Joarder

The Daily Star


File Photo: Reuters

September 29, 2022

DHAKA – The wheels of international justice tend to move at a slow pace, and the case brought to the International Court of Justice (ICJ) by The Gambia in 2019, alleging Myanmar to be in violation of the Genocide Convention, has finally taken a step forward with the ICJ’s rejection of Myanmar’s preliminary objections to the case. While there is an understandable desire to view this development as advancing justice for the Rohingya community who have been victims of the military junta’s brutal campaign of ethnic cleansing, there is a need to temper expectations. Any hope that the current regime would exercise some restraint has been put to rest by reports of escalating conflict within Myanmar, as well as heightened border tensions with Bangladesh. At a glance, the use of force in the face of scrutiny is akin to the North Korean playbook, but to fully appreciate Myanmar’s actions, it is important to consider the ICJ’s decision and current geopolitical demands that dictate the actions of other states.

In December 2019, following hearings, the ICJ unanimously adopted provisional measures requiring Myanmar to prevent genocidal acts against the 600,000 plus Rohingyas still remaining in Myanmar. The ICJ relied on the UN Fact Finding Mission Reports of 2018, which detailed human rights violations by the military, and called for an investigation into top military leaders, including Commander-in Chief Min Aung Hlain. Much of the provisional measures reiterated what Myanmar was already obligated to ensure as a state party to the Genocide Convention and the ICJ refrained from mentioning specific acts of abuse to avoid the impression that the allegations were already proven.

At the time, Aung San Suu Kyi headed the Myanmar delegation at the ICJ, but after the January 2021 military coup, she has been imprisoned and now faces over 150 years of imprisonment. We will never fully know how much influence she wielded when she defended the military at the ICJ. In the latest delegation created by the junta, two of its members, Ko Ko Hlaing and General Thida Oo, are on a US sanction list.

The new delegation presented Myanmar’s four preliminary objections in the February 2022 hearings. Of these, three were unanimously rejected by the ICJ, and one preliminary objection was rejected by a vote of 15 to 1, with the Chinese Judge Xue Hanqin dissenting. The first objection Myanmar submitted was that the Gambia was acting as a “proxy” of the OIC. Article 34 of ICJ’s Statute provides that only States can be party to proceedings. However, not only ICJ unanimously rejected the objection, but further added that obtaining financial or political support or even accepting an intergovernmental organisation’s proposal will not detract the Gambia’s status as an applicant.

Myanmar also contested the existence of dispute between itself and The Gambia as required under Article 9, but the ICJ concluded that a dispute need not be explicit and can be inferred from communications. The fact that the two countries adopted opposing views on UN Fact Finding Mission Reports which detailed the Myanmar military’s human rights violations showed the existence of a dispute between the State parties.

The next objection the ICJ unanimously rejected concerned Myanmar’s “reservation” to Article 8 of the Genocide Convention, which is a unilateral statement made by a state to exclude or modify the legal effect of certain provisions. When it ratified the Genocide Convention, Myanmar appended a reservation to Article 8, which enables state parties to ask competent UN organs to take action to prevent and suppress genocide. Myanmar argued its reservation precludes states from pursuing actions at the ICJ since it is a UN body. However, the ICJ took the view that Article 9 of the Convention requires it to exercise jurisdiction to adjudicate dispute over the application of the Convention. The scope of the two articles is distinct and therefore Myanmar’s reservation to Article 8 has no bearing on Article 9.

In the final preliminary objection that was rejected by a 15 to one vote, Myanmar argued that The Gambia cannot invoke Myanmar’s responsibility in the interest of the Rohingya since they are not Gambian “nationals”. In fact, Myanmar argued that Bangladesh was the most “natural state” to initiate proceedings since it hosts a large number of Rohingya refugees, but since Bangladesh appended a reservation to Article 9 of the Genocide Convention, it not only precludes Bangladesh but all other “non-injured” states like The Gambia from bringing a case against Myanmar.

The ICJ simply held that all state parties to the Convention have a common interest in ensuring the prevention and punishment of acts of genocide.

The case will now proceed on merits. Gambia’s claim is that Myanmar as a state bears responsibility for genocide and Myanmar will respond. Gambia also asked reparations for the Rohingya victims of genocidal acts, and that those displaced be allowed a dignified return, full citizenship, and protection of their human rights. It will take time and, despite the extensive reporting of the harrowing crimes perpetuated on the Rohingya, proving genocidal acts and intent will be a struggle.

Should the ICJ rule in favour of The Gambia, under Article 94 of the UN Charter, Myanmar will be required to abide by its decision. If it fails to comply, the UN Security Council can decide an appropriate measure, but the threat of veto from China and Russia could also render it impotent.

It is important to note here that this is not a criminal case against individual suspects, since the ICJ only adjudicates disputes between countries. It is very likely that the architects of genocide will continue to enjoy impunity. Although the International Criminal Court’s (ICC) Office of the Prosecutor was granted a request to open an investigation in November 2019, the scope of the investigation is limited since Myanmar is not a signatory of the Rome Statute.

The ICC can only investigate crimes that are committed at least in part on the territory of Bangladesh and after June 1, 2010, the date of entry into force of the Rome Statute for Bangladesh. This means, that any genocidal acts that took place within the territory of Myanmar proper may remain outside the scope of the ICC to investigate unless it receives a mandate from the UNSC, which is again highly unlikely. The UNSC had an opportunity to act but it chose not to. Under Article 41 (2) of ICJ Statute 8, notice of the provisional measures (based on the UN Fact Finding Mission Report which found evidence of genocidal acts/intent) were sent to the UNSC and a plethora of resolutions were possible, including directing Myanmar to take actions to protect the Rohingya or giving ICC the mandate, but China and Russia threatened to veto any resolution.

Another long shot attempted by some activists in Argentina was to use the doctrine of universal jurisdiction to hold alleged perpetrators to account for international crimes like genocide. This doctrine simply means any country can have the interest to investigate and punish such crimes. It has been used in the Pinochet trials in the UK, but it is unlikely it will be put to use here, since it will require the alleged suspect to be in the jurisdiction of the country willing to exercise universal jurisdiction.

The current regime clearly understands that so long it has China’s blessings, the consequences are limited. China remains steadfast behind the military regime since it has strategic projects and sub-regional framework needs like the Lancang Mekong Cooperation Forum, which requires Myanmar’s participation. China would also not want to create a precedent by making allowances for the investigation of international crimes when its own actions in relation to the Uyghur community has been termed as crimes against humanity by the UN High Commissioner for Human Rights. Russia, too, faces accusations of war crimes in Ukraine as newly liberated areas lead to the discovery of mass graves. It is likely that a more assertive China will continue to support Myanmar as it attempts to create an alternative power structure like the Shanghai Cooperation Organization with Russia and extend its sphere of influence, and it will make good of its threats of veto should others attempt to bring resolutions.

However, all is not lost. The ICJ decision will prompt countries to take a tougher stance against the military junta. In fact, the UK has recently sanctioned companies to try to cut off supply of military equipment, and it has also implemented financial sanctions against Myanmar. The US has done the same. While sanctions are a blunt instrument, over time it can cripple an administration and force it to make concessions such as scaling down of brutality, not only against ethnic minorities but against politically conscious demonstrators. Joint Ministerial Statements show a coalescing of like-minded countries willing to condemn Myanmar. Among Western countries, UK, Canada and Netherlands are intending to intervene in the ICJ proceedings to aid The Gambia. More significantly, it is hoped that the Western world preoccupied with the Ukraine war will remember the need to renew its efforts to bring an end to one of the most despicable atrocities in human history in another corner of the globe. That too is a gain.

Bahzad Joarder is an Associate Tutor at University of Warwick, UK.

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