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 Organisation 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
fulfilment’ 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 focussed 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 Counsellor 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
behaviour 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.
Source: EASTASIAFORUM