Standing on “Shared Values”: The ICJ’s Myanmar Decision and its Implications for Atrocity Prevention

[Shannon Raj Singh is a Visiting Fellow of Practice at Oxford’s Institute for Ethics, Law & Armed Conflict, where she is researching the duty to prevent atrocity crimes with Federica D’Alessandra, the founding Executive Director of the Oxford Programme on International Peace and Security.  Shannon is also an Associate Legal Officer at the Special Tribunal for Lebanon in The Hague. The views expressed herein are those of the author and do not necessarily reflect the views of the STL.]

As the international community absorbs the International Court of Justice’s historic Provisional Measures decision, one of the questions most widely asked is why, of all the countries in the world, it was the tiny West African nation of The Gambia that charged Myanmar with failing to prevent a genocide some 7,000 miles away. The charges are not premised on a shared border, a shared region, or any armed conflict between them. Rather, the charges brought by The Gambia against Myanmar are based solely on their shared status as signatories to the 1948 Convention on the Prevention and Punishment of Genocide. The Court’s ruling that this alone is sufficient to confer standing breaks new ground for understanding States’ obligations to prevent and punish atrocity crimes under international law.

It has been widely understood that the prohibition of genocide is both a peremptory norm of international law, and that it constitutes an obligation erga omnes (i.e., an obligation owed towards the international community as a whole), and erga omnes partes – in other words, an obligation owed by each State party to a treaty to the community of other States parties.

Before this case, however, the ICJ had never before been faced with a case in which one State was seeking to invoke standing solely on the basis of obligations owed to it under the Genocide Convention erga omnes partes. It had found standing based on obligations erga omnes partes obligations in Belgium v Senegal, but that case was not only under a separate treaty (the Convention Against Torture), regarding a separate crime, but also involved assertions by Belgium that it was an “injured” State specially affected by the outcome of the case.  In prior cases brought before the ICJ under the Genocide Convention, such as the Bosnian Genocide case and Croatia v Serbia, the litigants shared physical borders, a history of conflict, and extensive other interests that made them natural parties to assert the existence of a genocide. The Gambia, by contrast, could hardly be further removed from the genocide taking place in Myanmar’s Rakhine State – a point not lost on counsel for Myanmar, who suggested that The Gambia was “completely unaffected” by the subject-matter of its claim.

Myanmar developed this point further in its legal challenge to The Gambia’s standing before the Court. Although it accepted the erga omnes partes nature of some of the obligations under the Genocide Convention, Myanmar argued that “even if The Gambia has an interest in Myanmar’s compliance with erga omnes partes obligations under that Convention, it does not follow without more that The Gambia also has standing to bring a case before the Court in respect of a claimed breach by Myanmar, without being specially affected.” Further, Myanmar suggested that Bangladesh, not The Gambia, would be the natural candidate for being the “specially affected” State at issue.

Significantly, the Court disagreed. It held that not only “specially affected” States, but all signatories to the Genocide Convention have standing, on the basis of their shared values,to challenge the failure to comply with its provisions:

“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… It follows that any State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end.” (emphasis added)

In so finding, the Court brought to life what was formerly a technical term of art. It took the concept of erga omnes partes, long understood to apply to the Genocide Convention, and held that it conferred not only interests, but specific standing for even the most distant, “unaffected” State Party to raise claims before the ICJ. Indeed, the existence of The Gambia’s case takes the concept of erga omnes partes to its logical extreme, indicating that the obligations arising under the Genocide Convention permit even the smallest country in continental Africa to assert that a genocide is occurring on the opposite side of the world.

Like all rights, this one surely comes with responsibilities. If we consider that The Gambia – and indeed all 152 States parties to the Genocide Convention – have the right to bring a claim at the ICJ for failure to enforce its provisions, wherever that failure may occur, we must consider the implications for the obligations of “unaffected” third States as well.

In its historic Bosnian Genocide judgment, the ICJ held that, pursuant to Article I, States parties to the Genocide Convention have a “direct obligation to prevent genocide”, and must “do their best to ensure that such acts do not occur”. Notably, the obligation is not limited to a State’s territorial jurisdiction, but applies “wherever [a State] may be acting or may able to act in ways appropriate to meeting the obligations in question”. According to the Court, from the moment that a State learns of a serious risk that genocide will be committed,

“if the State has available to it means likely to have a deterrent effect on those suspect of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit”. (emphasis added).

Put succinctly by one commentator, “the more a state can do, the more it must do.”

The Gambia’s case challenges the notion of what each third State can, and therefore must, do under the Genocide Convention. Its case shows that even those nominally “unaffected” by a situation of genocide have the ability to enforce provisions before the ICJ – at the very least, to request and obtain provisional measures to protect groups at risk. And importantly, this ability will factor into how thoroughly States have exercised their duty to prevent under the Genocide Convention, as the standard to which a State is held has always been premised on its capacity to influence genocidal actors. Presumably, the Gambia can sleep easy knowing that, at least with respect to the situation in Myanmar, it fulfilled its own duty to prevent under the Convention – but the case should raise questions about the failure of other States to raise or join similar claims.

During oral argument, counsel for Myanmar asserted that standing should be limited to “specially affected” States because, among other reasons, “it is States most specially affected by international crises who are involved in diplomatic negotiations and practical initiatives to seek a resolution of the situation [and] who are best placed to judge when the bringing of a case before this Court would help or hinder those efforts”. This is not necessarily true. Too often, the States most “specially affected” by situations of atrocity risk are those with extensive linkages to the host State – historical, diplomatic, and economic – which face the highest political risks in raising a claim before the ICJ that the risk of mass atrocity exists in another State. It may well be a more distant State – operating solely on the basis of “shared values” in the prevention of atrocity crimes – that has the political freedom to exercise its rights and obligations under the Genocide Convention.

With its case against Myanmar, the Gambia has raised the standards for third States, showing that even those “completely unaffected” by a situation of genocide have the right, and perhaps the duty, to enforce the obligation to prevent and punish atrocity crimes. Let us try to live up to those standards.