04 Apr Is 2022 the Year of Genocide? Recent Events at the ICJ Suggest Yes
[Anthony Ghaly is a second year JD student at UC Berkeley School of Law, where he is a graduate student researcher at the Human Rights Center, a submissions editor for the Berkeley Journal of International Law, and an intern in the International Human Rights Law Clinic. Alexa Koenig, PhD, JD, is the Executive Director of the Human Rights Center and a lecturer at UC Berkeley School of Law.]
On March 16th, the International Court of Justice (ICJ) issued provisional measures in the case of Ukraine v. Russian Federation. The case involved allegations of genocide by Ukraine against Russia, citing the Convention on the Prevention and Punishment of the Crime of Genocide. Ukraine’s case against Russia is the second time this year—and only the fourth time in history—that the Court has heard arguments based on the Genocide Convention, suggesting this is an historic year for genocide claims.
Ukraine’s ICJ filing comes in the aftermath of public hearings for The Gambia v. Myanmar, another ICJ case in which the African nation accused Myanmar of genocide against the Rohingya, a Muslim minority population. It also follows this year’s so-called “Genocide Olympics,” given China’s status as host to the 2022 Olympics, despite allegations of China perpetrating genocide against the Uighur population in Xinjiang.
Put simply, 2022 is shaping up to be the Year of Genocide, with Article IX of the Genocide Convention taking center stage in conversations about state accountability and scrutiny over the effectiveness of international law to counter recent world events. So, what exactly is Article IX of the Genocide Convention? And what does new attention to the Convention mean for those interested in holding Russia, Myanmar, and China accountable for international crimes?
Signed in 1948 as a response to the atrocities of World War II, the Genocide Convention was established to hold the international community responsible for its pledge to “never again” allow for the perpetration of genocide, which Article II of the Convention defines as constituting any of the following five acts committed with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group”:
(a) killing members of the group,
(b) causing serious bodily or mental harm to members of the group,
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,
(d) imposing measures intended to prevent births within the group,
(e) forcibly transferring children of the group to another group.
Article IX grants the ICJ jurisdiction over disputes that arise between States that are parties to the Genocide Convention and relate to the Convention’s “interpretation, application or fulfillment.”
The first suit brought under Article IX was the case of Bosnia and Herzegovina v. Serbia and Montenegro. Filed in 1993, the Court held that the Srebrenica massacre of 1995 had been perpetrated with the intent to destroy Bosnian Muslims, thus constituting a genocide. Serbia had failed in both its obligation to prevent the Srebrenica genocide and to punish its perpetrators by not fully co-operating with the International Criminal Tribunal for the Former Yugoslavia (ICTY) to secure justice for those killings. Plagued by jurisdictional challenges and administrative burdens, the Bosnia case ultimately lasted 14 years, a period during which a second case concerning genocide was brought before the Court. In Croatia v. Serbia, the Court held that although Serb forces had carried out certain acts of genocide–namely killings and serious bodily or mental harm–the intent underlying those acts was not to eliminate a substantial part of the ethnic Croats but, rather, to forcibly displace them, and thus wasn’t genocide. The Croatia case concluded in 2015, and together with the Bosnia case, made up the totality of the jurisprudence on the Genocide Convention. That is, until the historical case brought by The Gambia in 2019.
The Gambia v. Myanmar marked the first time that a State party with no relation to the alleged violations instituted proceedings at the ICJ under erga omnes obligations, or obligations owed by all States to the international community due to the severity of the underlying violations. In their initial application and request for provisional measures, The Gambia alleged that Myanmar’s various ongoing crimes against the Rohingya people amount to genocide due to the State’s intent to destroy the ethnic and religious minority. In 2020, the Court issued provisional measures directing Myanmar to prevent genocidal acts against the Rohingya and to report on the implementation of those measures every six months. While the Myanmar Government had issued two such reports prior to the February 2021 military coup, a recent change in leadership has complicated not only the fulfillment of the provisional measures, but also the issue of who should represent the State before the Court. Nevertheless, the Court held public hearings from February 21st to 28th of this year (2022) addressing Myanmar’s preliminary objections to the ICJ’s jurisdiction over the case. The hearings had not even ended, however, before a second State initiated proceedings under Article IX, with Ukraine lodging its application before the Court on February 26th.
The facts underlying the dispute in Ukraine v. Russian Federation are relatively unique. As Chimène Keitner and Zoe Tatarsky have thoroughly explained in a recent piece for Just Security, Ukraine has argued that the Court’s jurisdiction over the case arises from Russia’s invocation of genocide as the pretext for invasion. Specifically, Ukraine’s application instituting proceedings and request for the indication of provisional measures outline three issues that potentially fall under Article IX: (1) whether Russia is correct in alleging that Ukraine has committed genocide in the separatist regions as defined under Article II of the Convention, (2) whether there exists a lawful basis, under Article I of the Convention, for Russia to act with military force to “prevent and punish” a supposedly ongoing genocide, and (3), whether Russia itself is planning genocide in Ukraine (while the last claim does not appear in the request for provisional measures, it is briefly discussed in Ukraine’s initial application to the Court). On March 16th, the Court held that statements made by both Russian and Ukrainian officials indicate a “divergence of views” between the parties on the first two issues, thereby creating a justiciable dispute under Article IX. By a vote of 13 to 2, the Court ordered Russia to “immediately suspend military operations” in Ukraine and prohibited both parties from “any action which might aggravate or extend the dispute before the Court.”
This year’s developments in both the Ukraine and The Gambia cases at the ICJ have brought the Genocide Convention into the spotlight. Such a focus on genocide is especially relevant in the aftermath of the Winter Olympics in Beijing, from which 10 States declared diplomatic boycotts in protest of the ongoing Uyghur genocide. While many have looked to the International Criminal Court (ICC) to try to hold Russian officials criminally responsible for their ongoing crimes in Ukraine, China is not a party to the ICC’s Rome Statute, which precludes the ICC’s Office of the Prosecutor (OTP) from pursuing a case against those responsible for genocide in Xinjiang. Moreover, China’s position on the U.N. Security Council means that it can veto any attempted referral by the Security Council to the ICC.
With the ICC an inviable option for holding Chinese officials accountable, the Genocide Convention becomes a potentially appealing alternative. Unfortunately, however, while China is a party to the Convention, it has long held a reservation to Article IX, meaning the Court cannot exercise jurisdiction over China in Convention-related disputes. As Beth Van Schaack has noted, China’s reservation does not leave the Court optionless, however, as the UN General Assembly can still seek an advisory opinion from the ICJ about whether China has violated the Convention. The ICJ has asserted that reservations against Article IX do not affect the obligations prescribed by the rest of the Convention and, importantly, do not deprive the Court of its power to exercise advisory jurisdiction. Such an opinion from the Court, although not legally binding on China, would provide an invaluable determination that China is committing genocide against the Uyghurs. States and other international bodies could then be prompted to respond to a legal finding of genocide through sanctions, boycotts, or the pursuit of universal jurisdiction cases, especially in light of Article I’s obligations “to prevent and to punish,” which the Court has long held are “not territorially limited by the Convention.” This extraterritorial duty will, as mentioned previously, be relevant to the Ukraine case, in which the Court will determine whether Russia’s use of military force to prevent and punish “genocide” in Ukraine is legal. This inquiry could, in tandem with an advisory opinion on whether China has been committing genocide, clarify important legal boundaries surrounding what qualifies as genocide, and what States can and ought to do in response when it occurs.
As this Year of Genocide continues, Ukraine’s case before the ICJ will become increasingly important. Not only for potentially holding Russia accountable for crimes perpetrated on Ukrainian soil, but also for the potential impact of international law. Mechanisms like the ICJ can, ultimately, only be effective if they are actively used and their decisions respected. Petitions like Ukraine’s demonstrate that, despite their shortcomings, international courts and tribunals may continue to provide a powerful pathway to justice.