21 Nov The Rohingya Genocide Case: Who is Entitled to Claim Reparations?
[Dimitrios A. Kourtis is a Research Associate and Adjunct at the School of Law of the University of Nicosia. He is completing his PhD at the Aristotle University of Thessaloniki studying remedies for victims of genocide in international law.]
In a possibly historical movement, The Gambia has launched an application instituting proceedings against Myanmar for acts and omissions targeting the Rohingya allegedly constituent of the crime of genocide. The present short commentary will not focus on the legal perplexities of litigating an inter-State complaint on genocide (see here, here, and here). Instead, it will turn to a slightly overlooked issue, that of the exact scope of the World Court’s remedial jurisdiction, should the ICJ accept Myanmar’s responsibility under the Convention on the Prevention and Punishment of the Crime of Genocide.
The Obligation to Provide Reparations to Genocide Victims
In the present case, the applicant asks the Court, inter alia, to pronounce that Myanmar must perform the obligation of reparation in the interest of the Rohingya. Then it goes on to mention an indicative list of the remedies sought (allowing the safe and dignified return of forcibly displaced persons, ensuring respect for their full citizenship, safeguarding their human rights, and granting protection against discrimination, persecution, or other related acts). Moreover, The Gambia states in its application (para 112, fourth point) that Myanmar’s obligation to provide reparations to the interested group is premised on Article I of the Genocide Convention. Evidently, the applicant proposes a particularly nonrestrictive reading of the said provision, which merits further analysis.
We should bear in mind that even the ICJ itself has supported a creative reading of the relevant rule. In the Bosnian Genocide Case (para 166),the Court deduced the obligation of States not to commit genocide through their organs and instrumentalities from the object and purpose of the Convention, interpreting constructively Articles I and IX. Contrariwise, in the present instance,the text of the Convention remains absolutely silent on the issue of reparations. Surprisingly, this was not always the case, since the original Secretariat draft contained an explicit rule (Article XIII) obligating the responsible State to grant to ‘the survivors … redress of a nature and in an amount to be determined by the United Nations’. According to the draft’s commentary, this provision was considered complementary to the penal sanctions prescribed by the Convention, incorporating the self-evident principle that the State, which committed/failed to avoid the perpetration of genocide within its territory, must pay (Abtahi/Webb 102-104).
The omission of the provision from later drafts and the final text mirrored the reservations of the United States against the lack of precision characterizing the proposed rule and the need for a more holistic approach linked to the establishment of an international court vested with primary jurisdiction vis-à-vis the crime of genocide. Consequently, the Convention’s travaux préparatoires confirm that at the time of its adoption the duty to redress was considered incumbent but not (yet) precisely delineated. That being the case, we can safely argue that subsequent practice under several international human rights instruments, and ultimately the adoption of the Rome Statute, have further elaborated and solidified the normative content of this obligation. Currently, the duty to redress has probably achieved the status of a general principle or a customary rule of international law, based on the respective right’s universal recognition and acceptance (Darfur Report para 597). After all, as stated in the UN Basic Principles and Guidelines, applicable to the crime of genocide (Schabas 472; van Boven 34), the general obligation to provide reparation should not be seen as a new legal concept but rather as the result of an inductive assessment of the various rules adopted within a wide range of international regimes.
Who Is Entitled to Raise a Claim on Reparations for Genocide?
At this point, we should also consider the dual legal nature of the Genocide Convention as an instrument of international criminal and human rights law, securing the right of existence held collectively by the protected groups (Reservations Advisory Opinion 23). Notwithstanding the abstract existence of such a right, its judicial enforcement is not an easy task. To elaborate, in the present case, lacking special arrangements providing for the victims’ jus standi before a competent international tribunal, it is not clear who is entitled to vindicate the aforementioned collective right, raising a reparations’ claim on behalf of the victimized community. It has been suggested that the erga omnes character of the obligations arising from the Genocide Convention may influence the issues of representation and the assertion of reparations on behalf of the right-holder community. Nevertheless, relevant State practice remains both scant and contradictory. For instance, Ethiopia and Liberia, defending the Namibians’ right to self-determination, sought only declaratory relief (Preliminary Objections 322-324; Second Phase 10-11). On the other hand, Portugal requested the ICJ to order Australia to pay reparations ‘to the people of East Timor … in such form and manner as may be indicated by the Court’ (East Timor Case 95). Moreover, ILC’s ARSIWA, citing the Namibia jurisprudence (para 127), seemingly support the position that, when a collective entity’s right is at stake, third parties acting on its behalf can only seek declaratory relief (127 para 11).
As a result, even though the obligation to provide reparations is accommodated in the spirit and teleology − but not the letter − of the Genocide Convention, reinforced by various international instruments, and further elaborated by relevant case law, the question whether reparations can be sought before the ICJ by third States on behalf of the victimized group remains controversial. Unlike the erga omnes obligations established directly by the Convention, the obligation to provide reparations is primarily owed to the survivors of the targeted group and stems from the breach of their collective right. Therefore, reliance on the jurisdiction of the ICJ to provide something more than a declaration of the existing norms would imply a new radical reading of the duty to redress as itself an erga omnes obligation owed to the international community for the benefit of the protected group. Otherwise, it is not clear how the applicant State can invoke the respective obligation before the Court, given the lack of direct links to the targeted population.
Although The Gambia’s initial submissions do not clarify whether a purely declaratory judgment on reparations or a more robust pronouncement is sought, the latter seems more unlikely, given the questions of causation, valuation, and identification that render particularly challenging a comprehensive in casu assessment of reparations. Moreover, one may argue that the ICJ is not particularly well-placed to adjudicate reparations claims within the context of mass criminality. Be that as it may, for the time being the chambers of a properly constituted remedial jurisdiction remain close to the victims of the ongoing mass atrocity, while the ICC will probably deal with only one aspect of the case. Therefore, the remedial powers of the World Court, even in the form of a declaratory judgment, possess not only an inherent authoritative value, but also the potential to strengthen the long overdue quest for accountability, justice, and redress for the Rohingya.