14 Jul The Gambia v. Myanmar and Ukraine v. Russian Federation: A Tale of Two Cases at the International Court of Justice
It has been a busy time at the International Court of Justice (ICJ) in the past few months, particularly in relation to cases based on the Genocide Convention. At the moment, there are two ongoing cases relating to this convention – Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) and Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation). Given the few cases based on this particular treaty before the ICJ – the last related to the Balkans in the 1990’s – these are significant developments, and the approach of the court will be of consequence not just to the determination of these cases but also to any future applications.
A brief recap of the current status of both cases before the ICJ.
From 21 – 28th February 2022, the ICJ held public hearings on the preliminary objections raised in The Gambia v. Myanmar. Recall that this case was instituted by The Gambia in November 2019, with provisional measures hearings in December of that year, and with an order by the court indicating provisional measures on 23 January 2020. In the case of Ukraine v. Russian Federation, the application was filed in February 2022, with a request for the indication of provisional measures. The hearings for provisional measures took place on 7 March, with Russia choosing not to appear before the court. However, it did submit a written pleadingobjecting to the courts jurisdiction. The court then rendered its order indicating provisional measures on 16 March 2022.
Both cases are at different stages, with the proceedings in The Gambia v. Myanmar having advanced to the preliminary objections stage, and with a judgment now due on 22 July. There have been delays, not least due to covid and the coup in Myanmar in February 2021. The case by Ukraine certainly seems to be progressing faster, having been initiated four months ago and at the memorial submission stage now.
Different Contexts, Same Convention
Both these applications have been filed in different contexts, though under the rubric of the same international convention. The case of Myanmar relates to mass atrocities against a minority population taking place within a state by functionaries of the state, while the case of Ukraine relates to the invocation of genocide as a pretext for the use of armed force by one state – the Russian Federation – against another – Ukraine.
In The Gambia v. Myanmar, The Gambia filed the application for the protection of the Rohingya, a minority within Myanmar. While there have been waves of violence and atrocities committed against the Rohingya over decades, the mass atrocities of 2017 and the exodus of nearly a million Rohingya to Bangladesh in the span of a few weeks precipitated this case. While The Gambia is arguably not “specially affected” by the actions taken against the Rohingya, it has put forward its case based on larger interests of the international community in preventing and punishing any acts of Genocide. Simply put, The Gambia argues that there is an obligation on the international community at large to prevent and punish acts of genocide, and it is in this larger interest that The Gambia has taken up the cause of the Rohingya minority in Myanmar. The ICJ in 2012 in Belgium v. Senegal opened the door to this possibility by finding that in relation to the Convention Against Torture, Belgium could approach the court on the basis of these wider obligations of the international community, due to the legal status of the prohibition on torture. Arguably, the case is even stronger in the case of the Genocide Convention.
In the application filed by Ukraine, the case being made before the court is that the specter of genocide is being invoked by Russia as a pretext for the use of armed force against Ukraine, contrary to the UN Charter. As Ukraine points out in its application para. 24, “…Russia has turned the Genocide Convention on its head…” While Ukraine’s argument is unique and has not been argued previously at the Court, it has also kept the door open to arguing more broadly – and this is the more conventional argument – that acts of genocide are also occurring in Ukraine (either in occupied territories, or even the whole of Ukraine). On 1 July, the Ukrainian Ministry of Foreign Affairs announced the submission of its memorial to the ICJ – nearly three months in advance of the date stipulated by the court. While the memorial is not yet publicly available at the time of writing this post, the MFA statement includes reference to the airstrike against the drama theatre in Mariupol, as well as other instances of targeting civilians. It seems – but can only be confirmed once the memorial is available – that the argument will be two-fold: the abuse of the Genocide Convention to wage aggressive war by Russia, as well as acts of genocide in Ukrainian territories.
Provisional Measures Ordered
The court has issued provisional measures in both cases – legally binding orders by the court – per the Statute.
In The Gambia v. Myanmar, a unanimous order which included compliance with the obligations under the Genocide Convention, measures to prevent destruction of evidence and to ensure preservation of evidence, as well as regular reporting by Myanmar to the Court addressing compliance with the order of the court. (Subsequently, the Rules of the court were amended to create a three-judge ad hoc committee to monitor compliance with provisional measures orders. I’ve written more about this development here, and about the provisional measures order here). While there is little public information about the reports being submitted by Myanmar, there is little doubt that there is a lack of compliance, given the ongoing coup and increase in conflict, including in Rakhine state, home to the Rohingya.
In Ukraine v. Russian Federation, not all the provisional measures ordered by the court were unanimous. However, by a majority of 13 to 2, the court in its provisional measures order of 16 March 2022 ordered the Russian Federation to “…immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine”, as well as ensure that any military or irregular armed units or organizations supported or directed by the Russian Federation are to cease steps in furtherance of the military operations. Clearly, the Russian Federation is in breach of this order, given the continuation and exacerbation of the conflict.
While the court has ordered certain interim measures, these are binding orders and states are legally obligated to comply (Statute of the ICJ, Article 41). However, there is the matter of compliance with the orders, or the lack thereof. Clearly, non-compliance with the orders of the court should be a matter for the UNSC to take up and censure – but the realities of the composition of the UNSC with Russia a permanent veto wielding member makes this unlikely. In the case of Myanmar also, the support of China and Russia for the junta has an adverse impact on any UNSC actions to address the atrocities that continue to be committed, as well as relation to the question of non-compliance.
The last case based on the genocide Convention in which provisional measures were ordered was Bosnia and Herzegovina v. Serbia and Montenegro. In fact, there were two orders on provisional measures – the first in April 1993 and the second order in September 1993. However, as evidenced by the genocide in Srebrenica in July 1995 (recognized by ICTY judgments), these orders were evidently not complied with. In the current cases, the danger of non-compliance should be even more a cause of concern, given this past record of non-compliance in Genocide Convention cases in particular (also in death penalty cases). (The Ukraine MOFA statement indicates that non-compliance with the courts provisional measures is part of their argument in the memorial).
“Accountability Matrix”: “Lawfare” in Other Fora
While these cases are proceeding at the ICJ, it is worth pointing out the legal initiatives at other fora. Not all these are a matter of state responsibility and are instead focused on individual responsibility. This “accountability matrix” as it were encompasses multiple legal initiatives, and the implications of these other initiatives must be factored into legal strategies.
In the case of Myanmar, there are a few other initiatives, some of which are overlap in certain respects. Keep in mind, some of these legal efforts were undertaken in the aftermath of the mass atrocities against the Rohingya in 2017, and before the 1 February 2021 coup. Therefore, many of the efforts have been focused on the Rohingya but there are increasing efforts to initiate broader legal actions to include the current situation in Myanmar. The International Criminal Court – also in the Hague – is investigating crimes by virtue of Bangladesh being a state party, focused on individual criminal responsibility. The case has already crossed some initial steps and an investigation was authorized by a pre-trial chamber on 14 November 2019. There is another case advancing through the courts in Argentina, under the aegis of universal jurisdiction – which has been brought by members of the Rohingya community and survivors. In addition, there is an investigative mechanism mandated by the UN Human Rights Council and operational since 2019 – similar to the Syrian mechanism – whose mandate is to collect and preserve evidence for cases at national, regional or international courts. The mandate of the Independent Investigative Mechanism for Myanmar (IIMM) is from 2011 onwards and encompasses the whole of Myanmar, which includes potential crimes committed during and after the coup. Lastly, there are also civil actions in countries such as the UK and the US against Facebookbrought by Rohingya survivors (in addition to The Gambia suing Facebook in US federal court for access to the data it holds relevant to the claim of genocide before the ICJ).
In the case of Ukraine, ‘lawfare’ is quite literally on a war footing. In addition to this current application, there is a previously instituted case in 2017 by Ukraine against Russia before the ICJ, relating to the Convention on Suppression of Financing of Terrorism and the Convention on the Elimination of Racial Discrimination (CERD). The 2019 judgment on preliminary objections issued by the court ensures the continuation of the case. The International Criminal Court is also pursuing its investigation into the conflict in Ukraine. On 2 March 2022, the ICC Prosecutor authorized an investigation based on referrals by 43 state parties. The scope of the ICC investigation relates to any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person from 21 November 2013 onwards. There is significant support for the ICC investigation, as evidenced by the Ukraine Accountability Conference underway on 13 – 14 July. In the effort to encompass the crime of aggression within the purview of accountability efforts, there is discussion of a special tribunal for Ukraine, separate from the International Criminal Court, solely focused on aggression. While still early days, the details of what any potential aggression tribunal might look like are being hammered out. Ukraine also instituted a case before the European Court of Human Rights, with an interim order in its favour and the expulsion of Russia from the Council of Europe. Yet another case relates to the detention of Ukrainian vessels and personnel from 2016, which is ongoing and the arbitral tribunal has just issued an award on preliminary objections of the Russian Federation. Clearly, there are more regional venues as well as other state focused legal remedies which are being initiated by Ukraine.
The next steps in both cases at the ICJ relating to the Genocide Convention are important. In The Gambia v. Myanmar, a pivotal moment coming up in a week is the preliminary objections judgment on 22 July 2022. This will determine the course of the case and put to test some of the arguments that have been made in this case, in particular on standing of The Gambia. In Ukraine v. Russian Federation, Ukraine has upped the ante by the early submission of its memorial, which will necessarily hasten proceedings – clearly, this is a priority case for Ukraine. In addition, there is the question of intervening states – in the case of Myanmar, three states have announced their intention to intervene, and in the case of Ukraine, multiple states have decided to intervene. Of course, the political and symbolic significance of intervention needs to be weighed in relation to the legal significance, including its impact on the timeline of the legal proceedings.