The International Court of Justice and the Rohingya: The Long Road Ahead for Accountability

At the International Conclave on Justice and Accountability for the Rohingya organized by the Centre for Peace and Justice (BRAC University), the Asia Justice Coalition and the International Institute of Social Studies on 18 October 2019, the Minister of Justice for The Gambia announced that he had instructed counsel on 4 October to proceed to file an application at the International Court of Justice (ICJ) based on the Genocide Convention, in respect to the crime of genocide against the Rohingya. This puts state responsibility of Myanmar front and center in efforts for accountability, distinct from individual responsibility. 

While there has been much discussion about the potential for an application to the ICJ, this was the first formal confirmation that the case will proceed with The Gambia at the helm, supported by the Organisation of Islamic Conference (OIC) and possibly other states. What are the implications and what does the road ahead look like? 

Basis of legal action and ICJ ‘precedent’ 

The court will be approached based on allegations of breaches of the Genocide Convention, which is nearly universal in its ratification. However, while Myanmar is a party to the Genocide convention, this does not mean automatic recourse to the ICJ. Article IX of the convention permits recourse to the court in the case of a dispute in the “interpretation, application or fulfilment” of the Genocide Convention. While at least seventeen states have entered reservations to this provision, Myanmar has not, thereby leaving the door open to a dispute being brought before the court. 

While The Gambia has been tasked with taking the legal action forward based on the OIC resolution, the question is whether and how other states may support this legal action. There are efforts in Canada to ensure government support for an ICJ case. Two states that may have a direct interest in filing a case due to the influx of refugees – Bangladesh, as well as Malaysia – have entered reservations to article IX, thereby bringing into question their ability to approach the ICJ. The question is what does support by other states mean – would this be moral and/or financial support, or would this be legal applications before the court? As yet, there is no public statement by other states on this point.  

The ICJ has previously ruled on state responsibility for genocide – in the case of Bosnia and Herzegovina v Serbia and Montenegro, and Croatia v Serbia (dismissed at initial stages). In Bosnia v Serbia, the application was filed in 1993 during the course of the conflict and after numerous steps along the way, in its final judgment in 2007 the court found a failure to prevent genocide, but did not find direct responsibility on the part of Serbia. The breaches of the Genocide Convention related to the obligations to prevent and the lack of cooperation, but not for the commission of genocide. This is despite the adjudication and recognition of genocide in Srebrenica by the International Criminal Tribunal for the Former Yugoslavia (ICTY) by this time, albeit in the context of individual perpetrators.  

In the context of international legal proceedings, neither advisory nor contentious cases before the ICJ function as legal precedent, as cases would in many domestic jurisdictions. However, they are instructive and valuable in many ways: in the legal issues raised and how they were addressed by the court, as well as honing arguments in light of the particular circumstances of each case.   

Contemporaneous proceedings 

While this case proceeds before the ICJ, other institutions are continuing their work on diverse aspects of accountability. 

The first that comes to mind is the International Criminal Court (ICC). The focus of the ICC prosecutor relates to the crime against humanity of deportation, inhumane acts and persecution under Article 7, given the jurisdiction emanating from Bangladesh as a result of the cross-border nature of the crimes. On 4 July this year, the prosecutor has requested the authorization of an investigation, and the pre-trial chamber determination on this matter is awaited.   

The other institution that has been established is the Independent Investigative Mechanism for Myanmar (IIMM), which is mandated to “collect, consolidate, preserve and analyse evidence” of serious international crimes since 2011, for the purpose of use in legal proceedings. While this usually would relate to criminal proceedings – whether in domestic, hybrid, regional or international courts – it is not inconceivable that these records may be used by other institutions, including the ICJ.  Also, the IIMM has been established as a result of the work of the Independent International Fact-Finding Mission on Myanmar, which has amassed a vast amount of evidence, indicating that there are elements which may lead to the inference of genocide. Thus, another institution whose work will likely be used before the ICJ, if the case moves beyond the preliminary stages. 

The importance of these contemporaneous proceedings and institutions is the manner in which they may be relied upon by the ICJ. For instance, while it is clear that the remit of the cases before the ICC and the ICJ are fundamentally different – individual versus state responsibility – there are bound to be overlaps in the assessment of evidential material and issues such as the interpretation of the crime of genocide. Previously, in Bosnia v Serbia, the ICJ relied upon case law of the ICTY extensively to establish the context of the conflict, and many factual and legal issues including the evidentiary basis of the crime of genocide. The ICJ stipulated in detail its methodology in assessing facts, with reliance placed on ICTY jurisprudence as well as UN reports on Srebrenica. By the time the case proceeded before the ICJ, the ICTY had already adjudicated and determined the commission of genocide at Srebrenica. The ICJ relied on the first ICTY conviction for genocide in the case of Radislav Krstić, among others. 

Hence, the timeline for the ICJ case relating to Myanmar as well as the pace of other proceedings and institutions will determine if and how the ICJ relies on these proceedings.  

Legal strategy and implications 

The ICJ case is a necessary step in the legal strategy for accountability. Having said that, there are still pitfalls to avoid, and ways to make the legal strategy more focused and effective. 

The first note of caution relates to the expectations of survivors, either in Cox’s Bazaar or those still in Myanmar. While there may be high hopes of both the ICC and the ICJ, there is room for disappointment, as evidenced by the ICC Afghanistan decision and the ICJ Bosnia genocide judgment. So, it would be advisable to emphasize the realities of initiating proceedings before the ICJ – that it is bound to take time, and that there is no pre-determined outcome. The stages of a case before the ICJ – provisional measures, preliminary objections, jurisdiction, merits – can take time, and there is no guarantee of success. 

On the legal steps at the ICJ, an application for provisional measures should be requested along with the institution of the proceedings. In the case of Bosnia v Serbia, this interim measure was ordered in a little over two weeks. While typically the court responds soon to a provisional measures request, it is important to follow the interpretation of the ICJ in regard to provisional measures – it is not expansive and specific criteria must be met – including the linkage to underlying rights to be adjudicated. The jurisprudence of the court is evolving, and developments pertaining to provisional measures such as in Qatar v United Arab Emirates should be factored in for this important first step. The impact of a positive provisional measures order is that it places international legal obligations on a state to ‘cease and desist’ its actions. Given reports of ongoing atrocities, such an order would place legal pressure on the state to comply. The ICJ rules of the court have also just been revised, especially with regard to preliminary objections, so something more to factor into the legal strategy.  

The ‘real world’ implications of the ICJ proceedings – beyond the legal realm – needs to computed as far as possible. This includes potentially a more aggressive stance taken by the Myanmar government, potential repercussions against those in Myanmar, as well as implications regarding the divisive and highly problematic issue of repatriation. The onus is on states as well as humanitarian actors to monitor and take into account the complexity of, and responses to, the ICJ proceedings.

Ultimately, the path chosen is long and complex. But because something is difficult does not mean that it should not be undertaken, and this case indeed must be pursued to its conclusion. 

[Disclaimer: As the head of the secretariat of the Asia Justice Coalition, I was part of the organization of the International Conclave in the Hague on 18 October 2019.]