By Michael A Becker, EJIL: Talk!
In April 2017, the UN Human Rights Council established the Independent International Fact-Finding Mission on Myanmar to investigate alleged human rights abuses by military and security forces. The Fact-Finding Mission issued an initial summary reportin August 2018, followed by a 444-page report of detailed findingsin September.
Among other things, the Fact-Finding Mission found that after an armed group called the Arakan Rohingya Salvation Army launched a series of small-scale attacks against government military outposts on 25 August 2017, a government campaign aimed at Rohingya communities in Rakhine State resulted in at least 10,000 deaths and caused 725,000 Rohingya to flee, mainly to neighbouring Bangladesh. The Myanmar authorities termed their actions “clearance operations” meant to eliminate a terrorist threat. The Fact-Finding Mission described a campaign of indiscriminate killing and maiming, rampant sexual violence, and widespread destruction of Rohingya villages—a “human rights catastrophe”, but one long in the making because of a history of state-sanctioned discrimination against the Rohingya, a Muslim minority in a predominantly Buddhist country.
The Fact-Finding Mission (which Myanmar refused to admit into its territory) concluded that the actions of Myanmar’s forces constituted crimes against humanity and war crimes. It also found sufficient evidence to warrant the investigation and prosecution of senior officials for the crime of genocide. Among other recommendations, the Fact-Finding Mission urged the UN Security Council to refer the situation to the International Criminal Court (ICC) (Myanmar is not a party to the Rome Statute) or to establish an ad hoc international criminal tribunal. (After the Fact-Finding Mission issued its August report, a Pre-Trial Chamber of the ICC determinedthat the ICC has jurisdiction over the alleged deportation of Rohingya individuals from Myanmar to Bangladesh, and possibly over additional other crimes; ICC prosecutor Fatou Bensouda has since announceda preliminary examination into the situation.) The Fact-Finding Mission also recommended targeted sanctions against government officials and an arms embargo. The Chair of the Fact-Finding Mission, Marzuki Darusman, addressed the Security Council last month (over the objections of China and Russia) to reiterate these conclusions. In the meantime, the UN Human Rights Council responded by establishing a mechanismto collect and preserve evidence of international law violations in Myanmar (discussed here).
The emphasis of the Fact-Finding Mission and the UN Human Rights Council on individual criminal accountability is unsurprising. Many other fact-finding missions and commissions of inquiry that have investigated large-scale human rights violations have been similarly focused—a reflection of the extent to which international criminal law has become the central or even dominant narrative of the international response to so many crises. Indeed, advocacy groups have long campaigned for an ICC-focused response to the Rohingya crisis, alongside the urgent need to provide humanitarian assistance to the thousands of Rohingya refugees now living in difficult conditions in camps across the border in Bangladesh. (A dealnegotiated by UNHCR and UNDP with Myanmar in May 2018 to facilitate the repatriation of the Rohingya has been widely criticizedand remains unimplemented.)
The increased focus on Myanmar in 2018 is to be welcomed. UN officials and some governments have already characterized the conduct of the Myanmar authorities as acts of genocide (see here, here, here, and here), and the reputation and credibility of Myanmar’s de facto leader, the Nobel peace laureate Aung Sung Suu Kyi, has seen a rapid and precipitous decline (see here, here, and here). Yet amidst all of these developments, the almost singular focus on an international criminal justice response to the plight of the Rohingya is striking. The idea of seeking legal accountability at the level of State responsibility has gone largely unmentioned, a further example of what Laurel Fletcher has called the “effacement of state accountability for international crimes”. In that vein, the remainder of this post will consider the prospects for a case against Myanmar at the International Court of Justice (ICJ).
Is there a jurisdictional basis to sue Myanmar at the ICJ?
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. As Giorgio Gaja has written (prior to his election to the ICJ), Article VIII retains only an “expository character” and does not add to the powers of UN organs or affect their exercise (see The UN Genocide Convention: A Commentary (Paola Gaeta, ed) (OUP 2009) at 400). In view of the fact that Myanmar declined to opt-out of Article IX when it ratified the Genocide Convention in 1956, it would be nonsensical to interpret the reservation to Article VIII as amounting to non-acceptance of the Court’s jurisdiction
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.
Who could bring such a case 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. Nonetheless, if the applicant state has itself opted-out of Article IX, this might introduce a degree of jurisdictional uncertainty; it is a relatively novel scenario. In any event, most reservations to Article IX do not categorically exclude ICJ jurisdiction, but condition jurisdiction on the consent of the reserving state—a condition that would be met in this hypothetical case.
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 couldbe 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.
What could an ICJ case hope to achieve and what are the risks?
One objective of an ICJ case would be to compel Myanmar to respond to genocide allegations in a formal and adversarial judicial setting. It is relatively easy for Myanmar to condemn in conclusory terms the assessment by the Fact-Finding Mission (or by other groups) as flawed and biased, as it did at the UN Security Council last month. It may be more challenging to make the same types of dismissive arguments in the Great Hall of Justice, where Myanmar’s position can be tested.
Secondly, a case at the ICJ might afford some measure of dignity to victims. Although the claims would be limited to Myanmar’s obligations under the Genocide Convention, the proceedings would be an opportunity to shine a light on the totality of Myanmar’s policies and practices in relation to the Rohingya, including the regime’s efforts to rewrite the history of the Rohingya people and to strip them of citizenship and other fundamental rights.
Thirdly, if the ICJ were to find that the State responsibility of Myanmar has been engaged, the question of reparations would arise. While the ICJ has often taken a conservative approach to remedies, there may be scope to seek more wide-ranging relief in this case (ranging from financial compensation for victims to structural reforms aimed at granting the Rohingya full citizenship and ending a range of discriminatory practices).
Moreover, unlike an ICC prosecution, the ICJ affords the possibility of seeking provisional measures. If there are credible reports that Myanmar is continuing to act in breach of its obligations under the Genocide Convention or is seeking to destroy evidence of past crimes (for example, by bulldozing and clearing Rohingya villages that were previously burned down), an applicant state could seek interim relief. A decision on the merits would take several years, so provisional measures might contribute to broader efforts to curb continuing abuses. This possibility might take on greater importance if the repatriation of Rohingya refugees from Bangladesh to Myanmar gets underway soon, despite serious concerns about the conditions attached to repatriation and whether it is safe to return.
There are significant risks to bringing an ICJ case, however. First, Myanmar might choose not to appear (following the playbook of China and Russia in recent high-profile arbitrations). This would not preclude the case from moving forward but would remove the opportunity to press Myanmar directly on its claims and denials. Secondly, a victory on the merits could have limited impact, depending on the type of relief that might be won and whether political pressure could be mobilized to see a final judgment enforced and implemented. This would be no small task. Thirdly, consideration must be given to how Myanmar might benefit from a finding of “no genocide”. There is no guarantee that a claim against Myanmar alleging breaches of the Genocide Convention would succeed on the merits. Although there is little question that mass atrocities have taken place against the Rohingya, the term “genocide” is often invoked in ways that depart from the strict legal requirements that attach to proving genocide under the terms of the Convention. Events that may look like genocide (for example, mass atrocities in a context of ethnic discrimination) may more easily meet the legal definition of crimes against humanity—a reality that may seem baffling to the general public. Even when there is abundant evidence of violence and cruelty, the task of demonstrating genocidal intent (i.e., intent to destroy in whole or in part a protected group) is very steep, and international courts and tribunals, including the ICJ, have often interpreted the law of genocide—or at least the question of genocidal intent—in a cautious and restrictive way.
For example, the ICJ reaffirmed in Croatia v Serbiain 2015 that genocidal intent could be established in the absence of direct proof (para 139), but that inferring “the existence of dolus specialisfrom a pattern of conduct” requires this to be “the onlyinference that could reasonably be drawn from the acts in question” (para 148; see also para 417 (emphasis added)). This gives accused states significant room for legal maneuvering. The Court has also left the relationship between ethnic cleansing (i.e., the forcible displacement of an ethnic group from a territory) and genocidal intent ambiguous, even when a campaign of ethnic cleansing is marked by the enumerated acts of genocide set forth in Article II of the Convention. In Croatia v Serbia, the Court found that the fact that acts committed by Serb forces had the effect of making the Croat population flee the territories concerned “was not a question of systematically destroying that population”, but of forcing it to leave (para 435). A problem with the Court’s approach to ethnic cleansing is that it appears to treat the effectof a campaign undertaken with genocidal intent—i.e., the mass exodus of the threatened population—as evidence of the absenceof such intent. Counsel for Myanmar could be expected to seize upon these aspects of the case law. It also bears noting that the Court’s 2007 holding in the Bosnian Genocide case that Serbia had breached the obligation to prevent genocide at Srebrenica was aided by the fact that the ICTY had already addressed the same complex of facts and reached conclusions about genocide having taken place. In a case against Myanmar, the ICJ may have no parallel international criminal proceedings to refer to or rely upon.
To its credit, the UN Human Right Council’s Fact-Finding Mission appears to have approached its task with eyes wide open to the case law and engaged extensively with how genocidal intent could be inferred from indirect evidence (see paras 1411 to 1441 of the detailed findings). It considered and rejected the argument that other reasonable inferences could be drawn from that evidence, including that the “clearance operations” were a legitimate counter-terrorism response or an innocent means to effect demographic changes within Rakhine State (paras 1435-1438). The analysis provides a ready blueprint for any state willing to pursue an ICJ litigation. Nonetheless, one cannot presume that a genocide claim against Myanmar would succeed. The ICJ might interpret the facts and the law differently than has the Fact-Finding Mission; it would almost certainly not adopt findings and conclusions of the Mission wholesale. These risks needed to be weighed accordingly. A negative judgment might still provide a valuable factual account of serious wrongdoing on the part of Myanmar authorities, but a rejection of the genocide allegations could be a propaganda victory for Myanmar and complicate other efforts to seek redress and reform.
Ultimately, a key reason to pursue an ICJ case against Myanmar would be to increase the pressure on the regime to change its conduct and policies—or, as a first step, to persuade third states and private companies doing business in Myanmar to take a harder line. A binding judgment from the ICJ might provide additional leverage in other channels, but these types of instrumental objectives also must be weighed against the possibility that a genocide case could have the opposite effect. It might marginalize those within the regime who are genuinely trying to find a solution (if such people exist) and embolden hard-liners within the regime. It might complicate or frustrate whatever diplomatic initiatives are underway or undermine future efforts at reconciliation. Worst of all, an ICJ case might provoke renewed violence. It might become an obstacle to providing the humanitarian relief that is desperately needed, and it might make the eventual return of the Rohingya to Myanmar—on conditions acceptable to the Rohingya—even less likely. These types of consequences are very difficult to predict and must be assessed by those with country-specific expertise, including UN officials and foreign ministry officials engaged with Myanmar, as well as civil society.
It is reasonable for the idea of bringing a case against Myanmar at the ICJ to elicit skepticism. ICJ litigation—let alone winning such a case—cannot in itself resolve the Rohingya crisis, and it would be naïve to think otherwise. Some may also consider the proposal superfluous given the Fact-Finding Mission’s report, which they might see as sufficiently authoritative and damning—“adjudication” by other means. What more could an ICJ judgment add? The arguments are familiar: that ICJ judgments are not enforceable in practice; that the slow pace of justice at the Peace Palace offers too little, too late; or that the Court is simply too much on the periphery of international affairs to be relevant. But the Court’s current level of activity—fifteen cases filed within the last thirty months, including several cases involving powerful states—suggests that such concerns have not dissuaded others from seeking recourse at the Court. There may be value yet in a formal and consent-based adjudicatory process.
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.