The Gambia v Myanmar: Can the ICJ Shy Away from the Nationality Question?

[Andrea Marilyn Pragashini Immanuel is a PhD Candidate at the Peter McMullin Centre on Statelessness, Melbourne Law School, University of Melbourne and an Assistant Professor of Legal Practice (on leave) at Jindal Global Law School, India.]

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) case before the International Court of Justice (ICJ) involves the question of whether Myanmar has violated the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) in its actions towards the Rohingyas of Myanmar. In its application instituting proceedings before the ICJ, the Gambia alleges that Myanmar has committed genocidal acts of ‘killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births, and forcible transfers…intended to destroy the Rohingya group in whole or in part’. It further alleges that Myanmar has attempted, conspired and failed to prevent genocide as well as has incited and been complicit in genocide. Among other things, the Gambia indicates Myanmar’s 1982 citizenship legislation as showing genocidal intent against the Rohingyas and seeks reparation for the Rohingyas through ‘respect for their full citizenship and human rights and protection against discrimination, persecution, and other related acts, consistent with the obligation to prevent genocide under Article I’. In this article, I address if the ICJ can avoid the question of the nationality of the Rohingyas when answering whether Myanmar has violated the Genocide Convention.

Nationality and Statelessness: A Brutal Canvas for the Genocide

Nationality enables states to categorise persons as nationals and aliens. However, states have been known to abuse this power to exclude groups and individuals from rights and protection. In fact, states have deprived persons of nationality and then committed acts of genocide or discrimination against individuals and peoples. For instance, in 1945, German Jews were denationalized before they were persecuted. Another example is the discriminatory nationality policies of South Africa that facilitated apartheid. So, nationality plays a vital part in alienating peoples, making them vulnerable to crimes such as genocide.

In the case of the Rohingyas, there is a definitive link (see here and here) between their statelessness or their lack of nationality and the genocidal acts of the state perpetrated against the Rohingyas. Myanmar’s 1982 citizenship legislation identified its nationals on the basis of ethnicity and in doing so, deprived groups such as the Rohingyas of their nationality. Ever since, the state has treated the Rohingyas as illegal migrants and aliens within its borders, eventually leading to clearance operations against them. This is why the Gambia has submitted before the ICJ that the citizenship legislation indicates genocidal intent. Furthermore, the state’s act of depriving the Rohingyas of their citizenship could be considered as the genocidal act of ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’ under Article II of the Genocide Convention (such arguments have been made here, here and here). Citizenship deprivation of the Rohingyas leading to statelessness itself is an important ‘condition of life’ inflicted on the Rohingyas that became the ‘cornerstone’ or an initial step for other acts and conditions of life intended to bring about the destruction of this group. 

In The Gambia v Myanmar, the Gambia has requested reparation before the ICJ in the form of respect for full citizenship and human rights of the Rohingyas by Myanmar. This means respect for the right of everyone to a nationality. Reparation can take the form of restitution, ‘to re-establish the situation which existed before the wrongful act was committed’ and at times, can be in the form of ‘compliance with the primary obligation’ (See Commentary to Article 35 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts). While genocide is the wrongful act in question, this act is linked to the nationality deprivation that preceded it and so, reparation, as requested by the Gambia, should include restitution of nationality. For this, the ICJ will have to resolve the nationality question of the Rohingyas.

Nationality of the Rohingyas and the ‘Reserved Domain’

It is an oft-quoted principle of international law that nationality questions are within the reserved domain of the state. So, it is the state that has the power to decide who its nationals are, subject in its exercise of this power to other principles of international law including international human rights law. International human rights law mandates states to avoid statelessness, respect the right of everyone to a nationality and prohibits the arbitrary deprivation of nationality (see here and here). Nevertheless, in The Gambia v Myanmar, the question is about the obligations of Myanmar under the Genocide Convention. As stated before, there is ample link between the nationality question of the Rohingyas and the genocidal acts committed by Myanmar. Ignoring the nationality question would mean that even if the ICJ finds Myanmar in violation of the Genocide Convention, it still would not have addressed the core means through which the state was able to orchestrate genocidal acts against the Rohingyas. The second relief that the Gambia seeks in this case is that Myanmar should cease its internationally wrongful actions and respect the Genocide Convention. The purpose of the Genocide Convention, as its full title (Convention on the Prevention and Punishment of the Crime of Genocide) indicates, is also to ‘prevent’ genocide from occurring. Will the Rohingyas receive adequate protection against genocide if the ICJ does not resolve the nationality question, particularly when the (absence of) nationality facilitated the perpetration of acts of genocide against them and was in fact a chief ‘condition of life’ inflicted to bring about their destruction? 

Nevertheless, as mentioned before, generally speaking, determining the nationality of individuals is part of a state’s reserved domain. Will the ICJ step into this domain? An instance where the ICJ had to deal with the nationality of a person was in 1955 in the Nottebohm case. In this case, while the Court defined nationality and how a person could be considered a national for the purpose of diplomatic protection, it reiterated that it was for states to make nationality laws. The Court refrained from commenting on the nationality of Nottebohm but confined its response to whether one state (Guatemala) should recognise the nationality offered by another state (Liechtenstein). The Gambia v. Myanmar is different in that the Court is called upon to decide on whether a state has committed genocide against an ethnic group and where the state has abused its reserved domain of nationality to perpetrate genocide. The Gambia has invoked erga omnes obligation and erga omnes partes right under the Genocide Convention to protect the Rohingyas against genocide. The ultimate goal of the case is to prevent genocide and obligate Myanmar to punish perpetrators for the crime of genocide. This means that the ICJ cannot refrain from addressing the nationality question for without this, the Rohingyas as a group remain as aliens under Myanmar’s national law without protection from the abuse that can occur on account of their statelessness. To its credit, the ICJ, in the recent judgement on Preliminary Objections, notes that references to the ‘Rohingya’ in the judgment refers to the group that ‘claims a long-standing connection to Rakhine State’ of Myanmar. While the ICJ was not recognising the nationality of the Rohingyas, this statement of the World Court in recognizing the connection of the Rohingyas to Rakhine state in Myanmar is important and counters the ‘illegal migrant’ label given by Myanmar.

Traversing the ‘Reserved Domain’

Since states have the power to determine nationality, the ICJ might hesitate to comment on the 1982 citizenship legislation, a domestic law, or the nationality of the Rohingyas. However, consider Article V of the Genocide Convention where state parties have undertaken to enact legislation to give effect to the Convention. This refers to legislation to implement the Convention. Yet, a corollary of the principle in Article V would mean that states should not enact legislation that promotes genocide or violates the principles of the Convention. So, Myanmar’s 1982 citizenship legislation that has been found to be in violation of international human rights law, which acted as an enabler of the genocide and which inflicted a ‘condition of life’ on the Rohingyas for their destruction cannot be justified under the Genocide Convention. This means that the ICJ can deal with the nationality question of the Rohingyas because even if this question is within the reserved domain of the state, the question is linked to specific norms (particularly Article V) that Myanmar has violated under the Genocide Convention 

The reserved domain of the state is not immune from inquiry and is restricted by obligations undertaken under international law and the rules of international law. In The Gambia v Myanmar, first, the Genocide Convention itself enables the Court to answer the nationality question of the Rohingyas within Myanmar’s reserved domain. Second, international human rights law prohibits arbitrary deprivation of nationality and racial discrimination. These constitute Myanmar’s obligations under international law. The prohibition of racial discrimination being a peremptory norm and the 1982 citizenship legislation having a racial basis, the ICJ can engage with questions within the ‘reserved domain’ of Myanmar. 

Conclusion

In all this, a pertinent point is the extent to which nationality, a state power within its reserved domain, is open to abuse. Sadly, international law has watched from the sidelines as states have used nationality as an ‘othering’ mechanism and inflicted harm through justifications of national security or migration or other ‘national’ rhetoric. The ICJ’s stand on the nationality question in The Gambia v Myanmar could not only address such rhetorics but could also provide directions for dealing with questions that fall within the reserved domain of the state.

Note: This article is part of a PhD project titled, ‘The Right to Nationality During Armed Conflict’ that the author is undertaking at the Melbourne Law School, University of Melbourne. The author is grateful to Professor Michelle Foster and Dr. Katharine Fortin for their helpful comments on a previous draft.