Rohingya Symposium: Judicial Intervention and the Duty to Prevent Genocide in the Rohingya Genocide Case–The Role of Obligatio Erga Omnes and Nouvelle Protection Diplomatique

[John Heieck is the Deputy Managing Editor of Opinio Juris and an independent researcher and scholar of international criminal law.]

Introduction

The focus of this post is the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) (hereinafter Rohingya Genocide case), and specifically, the importance of the ICJ’s Provisional Measures Order (PMO) of 23 January 2020.

I examine the international norms that The Gambia has used in its successful arguments before the ICJ to obtain a PMO against Myanmar for the protection of the Rohingya religious and ethnic group who resides entirely outside of the territory of The Gambia, and with whom The Gambia has no connection save its shared communal interests in the Rohingya’s non-destruction due to the simple fact that the lives of such vulnerable groups are worth preserving. I then translate that into a roadmap for other seemingly ‘less powerful’ states to assert their rights, and their due diligence obligations, in relation to other protected groups on the international plane.

These international norms include erga omnes obligations and the duty to prevent genocide. But in the process of connecting the relationship between these two norms, the ICJ seems to have impliedly identified a nouvelle protection diplomatique, where a state, in discharging its erga omnes obligations in pursuit of its duty to prevent genocide, protects a people with whom the state may not have a ‘genuine link’ as required by traditional public international law (see Mavrommatis, Barcelona Traction, & Nottebohm cases).

Erga Omnes Obligations

Erga omnes obligations were first recognized by the ICJ in the 1970 Barcelona Traction case. Obligatio erga omnes are obligations owed to the international community as a whole (Barcelona Traction, p. 32, at para. 33). They derive from, inter alia, the prohibitions of genocide and aggression, as well as ‘the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination’ (para. 34). As Crawford observes, erga omnes obligations provide legal standing for a third state to assert the rights of an injured party against an internationally wrongdoing state before an international court of law (Crawford, at 242-245).

The Relationship between Erga Omnes Obligations and the Duty to Prevent Genocide in the Bosnian Genocide Case

In the first PMO of the 2007 Bosnian Genocide case, the ICJ ordered Yugoslavia (Serbia and Montenegro) to ‘take all measures within its power to prevent [the] commission of the crime of genocide’ by all ‘organizations which may be subject to its … influence’ in Bosnia and Herzegovina (para. 45). In the second PMO of the Bosnian Genocide case, the ICJ reaffirmed its first PMO (para. 59), while Judge ad hoc Lauterpacht emphasized that the prohibition of genocide was a jus cogens norm (para. 100) and the prevention of genocide was an erga omnes partes obligation (para. 86). During the Preliminary Objections (PO) stage, the ICJ took the latter proclamation one step further when it said that ‘the rights and obligations enshrined by the [Genocide] Convention’ – including the duty to prevent genocide under Article I – ‘are rights and obligations erga omnes’; meaning, the duty to prevent genocide was an obligation owed not only to the other states parties to the Genocide Convention, but also to the international community as a whole (para. 31), thus expanding it beyond its treaty constraints.

The Scope of Erga Omnes Obligations vis-à-vis the Duty to Prevent Genocide in the Rohingya Genocide case

It was in this spirit of the erga omnes character of the prevention of genocide that The Gambia filed its application in the Rohingya Genocide case under the compromissory clause of Article IX of the Genocide Convention, in which it sought a judgment from the ICJ ‘relating to the interpretation and application of the Genocide Convention and the fulfillment by Myanmar of its obligations “to prevent genocide and to desist from its own acts of genocide”’ (para. 21), in particular as it related to the Rohingya residing in the ‘Rakhine State’ of Myanmar (para. 14). At issue in The Gambia’s request for provisional measures against Myanmar to protect the Rohingya group was the scope of erga omnes obligations vis-à-vis the duty to prevent genocide.

Duty to Prevent Genocide

Due Diligence

In the 2007 Bosnian Genocide case, the ICJ noted that the duty to prevent genocide is circumscribed by the due diligence standard. The due diligence standard, in turn, is comprised of objective and subjective elements. The objective element consists of the ‘capacity to effectively influence,’ which essentially states that the more military, diplomatic, political, and economic means a state has to influence a suspected genocidal actor, the more that the state must do to prevent the actor from committing genocide. The subjective element provides that if a state reasonably suspects that a genocidal actor harbors genocidal intent or is making preparations to commit genocide, or knew or should have known that there exists a serious risk that genocide might occur, then that state’s duty to prevent genocide is triggered. Once triggered, the state has a duty to use everything within its power, including utilizing its legal position within relevant international institutions, to prevent the genocide from occurring. (For more on this, see here, at pp. 29-44.)

While I have argued elsewhere (here, here, and here) about China, France, Russia, the UK, and the US’s extensive duties to prevent genocide by virtue of their privileged legal position as veto-wielding permanent five members (P5) of the United Nations Security Council (SC), the Rohingya Genocide case demonstrates that non-P5, and even non-SC states, can exercise their due diligence obligations by invoking the compromissory clause under Article IX of the Genocide Convention against other non-reserving, and potentially convention-offending, states before the ICJ. This form of ‘judicial intervention’ in pursuit of the prevention of genocide is made possible by such international norms as obligatio erga omnes and nouvelle protection diplomatique, discussed in the next section. And while it may not be as expeditious as humanitarian intervention (through the use of force), which, at times, may appear to be the play-toy of the powerful, the judicial intervention generated by The Gambia in the Rohingya Genocide case most certainly demonstrates The Gambia’s attempts to use its entire means at its disposal, to discharge its full capacity to influence Mynamar to prevent and suppress the reliably reported genocidal acts being committed against the Rohingya minority group by the HRC’s FFM. In this way, The Gambia serves as a model for other states, regardless of their military might or economic clout, which might desire to protect other groups subjected to or under threat of genocide. Nevertheless, there are a couple aspects of The Gambia’s case that are worth addressing for those states that are contemplating using judicial intervention to protect vulnerable national, ethnic, racial, or religious groups.     

Erga Omnes Obligations

‘Specially affected states’

Based on the first PMO, it appears that the ICJ is building upon the law of due diligence from the Bosnian Genocide case in the Rohingya Genocide case (para. 45). Moreover, it is noteworthy that both cases describe (at least initially) that the duty to prevent genocide is (at least) an erga omnes partes obligation. Despite this character of the duty to prevent under the Genocide Convention, Myanmar argued during the Provisional Measures stage that The Gambia, as a ‘non-injured party,’ did not have standing to assert a claim against it, because The Gambia was asserting claims on behalf of the roughly 600,000 Rohingya people in the Rakhine State (paras. 8-9). In essence, Myanmar argued that only states that had been ‘specially affected’ – i.e. injured – by a wrongdoing state had standing to bring a claim – a proposition that had no firm footing in general international law.

Unsurprisingly, the ICJ rejected Myanmar’s argument: it essentially held that the notion of ‘specially affected states’, (which though well-known, is highly contested, in customary international law), was irrelevant when erga omnes obligations were involved. Instead, the Court noted that, in the case of obligations under multilateral treaties, such as the Genocide Convention, which are erga omnes partes in nature, any state party thereto is entitled to invoke the responsibility of another state party for the breach of that state’s obligations, without having to prove a special interest (Rohingya Genocide case, PMO, at para. 40). The ICJ concluded by noting that any state party to the Genocide Convention could invoke the responsibility of another state party with the goal of bringing any failures of honoring the provisions thereof to an end, thus sounding the death knell of ‘specially affected states’ in relation to obligatio erga omnes partes (para. 41). Thus, The Gambia could assert claims on behalf of the Rohingya against Myanmar.

Erga omnes v. erga omnes partes obligations

This victory notwithstanding, there is an issue in the case involving erga omnes v. erga omnes partes obligations. It appears that The Gambia’s litigation strategy before the ICJ included arguing, inter alia, that Myanmar’s duty to prevent genocide was an erga omnes partes obligation, despite the broader ruling in the Bosnian Genocide case (para. 31). It is unclear why counsel for The Gambia made such an argument when precedent existed at the PO stage of the Bosnian Genocide case that the duty to prevent genocide was an erga omnes obligation. It is also unclear why the Bosnian Genocide PO Judgment was not cited in the PMO stage of the Rohingya Genocide case by the ICJ, given that the former was a judgment, which means that it resolved certain issues of law. Instead, the ICJ cited another contentious case that was not entirely on point (Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (dealing with the Convention against Torture)), and an advisory opinion, albeit an admittedly important one at that (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide(discussing the communal object and purpose of the Genocide Convention)).It is somewhat confounding why the ICJ did not pick up on its description of, e.g., the duty to prevent genocide as an erga omnes obligation from the Bosnian Genocide case.

One possible explanation is that The Gambia argued that Myanmar’s duty to prevent was an erga omnes partes obligation, much like Bosnia and Herzegovina did initially against Yugoslavia (Serbia and Montenegro) in 1993. If this is the case, I suppose it’s understandable, because Bosnia was successful with respect to its claim regarding Serbia’s failure to prevent genocide. Nevertheless, the ICJ has a responsibility to proclaim what the law is. Certainly, as the Court itself stated only 13 years ago in the Bosnian Genocide case, the duty to prevent genocide is an erga omnes obligation, not merely an erga omnes partes obligation. It is a distinction with a difference, for it is not limited to the signatories of the Genocide Convention: it applies to all states, with or without reservation. In short, it applies to the international community as a whole. Nevertheless, one cannot entirely fault The Gambia’s counsel’s conservative approach, given that Bosnia’s counsel’s approach was ultimately successful. 

Nouvelle protection diplomatique

Setting aside this criticism, the ICJ appears to be exercising its approval of a sort of nouvelle protection diplomatique in the Rohingya Genocide case, which is a positive development for human rights protection. Under the traditional view, a state may only exercise diplomatic protection over a person if he or she can demonstrate a ‘genuine link’ to the state asserting the protection in an international court (see Mavrommatis, Barcelona Traction, & Nottebohm cases). However, in the Rohingya Genocide case, the ICJ appears willing to allow a state to assert what essentially amounts to a new form of ‘diplomatic protection’ over a person who lacks the necessary genuine link formerly required under traditional international law in light of the erga omnes character of the primary obligation involved; in this case, the duty to prevent genocide. Although not expressly addressed by the ICJ in the PMO, the fact that the ICJ has recognized the prohibition of genocide as a jus cogens norm elsewhere (see, e.g., Armed Activities in the Congo (Rwanda), p. 6, at para. 64)) arguably had a bearing on this analysis, and, therefore, should be considered when weighing whether other primary norms necessarily imply the secondary norm of the nouvelle protection diplomatique.

These are admittedly strong contentions; however, given the logical conclusion of the ICJ’s rationale in the PMO, they are well warranted in light of the erga omnes – or even erga omnes partes – character of the duty to prevent genocide. Thus, as long as the norm in question entails an erga omnes obligation, it appears there is precedent that a state has third-party standing to assert a claim on behalf of an injured individual or group, not just an injured state, before an international tribunal such as the ICJ.