Holding Myanmar Legally Accountable for the Rohingya Genocide

After a three-year terror campaign by the Myanmar government against Rohingya Muslims, the Republic of The Gambia (“The Gambia”) filed an Application Instituting Proceedings and Request for Provision Measures with the International Court of Justice in November 2019.[1]  In its application, The Gambia detailed the devastating and genocidal acts committed by the Myanmar government in direct violation of the Convention on the Prevention and Punishment of Crime of Genocide (“Convention”), to which both States are a party.[2]  The Gambia cited multiple international organization reports to establish that Myanmar has been systematically committing acts of genocide against the Rohingya people in order to eliminate the population from the country.[3]  In its application, The Gambia sought multiple types of relief, including declarative and injunctive relief, while also seeking six provisional measures due to the urgent situation currently in the country.[4]  On January 23, 2020, the International Court of Justice (“ICJ”) ordered four provisional measures to be taken by Myanmar after finding that the ICJ has prima facie jurisdiction to hear the case between the two countries.[5]  This post provides background on the Convention, the history and status of genocidal acts in Myanmar, a summary of The Gambia’s application and the ICJ’s order on provisional measures, and an analysis on how the international community can hold Myanmar legally responsible for the genocide through different international channels.

The Convention on the Prevention and Punishment of Crime of Genocide

In 1948, the United Nations adopted the Convention on the Prevention and Punishment of Crime of Genocide (“Convention”), an international agreement to criminalize genocide under international law and denounce and condemn the act as being against the aims of the United Nations.[6]  The Convention was signed in December 1948 and went into effect in January 1951.[7]  As of May 2019, 151 States are party to the Convention, including the country of Myanmar.[8]  According to the Convention, genocide includes five distinct actions that are “committed with the intent to destroy, in whole or in part, a national, ethical, racial, or religious group[.]”[9]  The actions listed as genocide are: (1) “[k]illing members of the group;” (2) “[c]ausing serious bodily or mental harm to members of the group;” (3) “[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;” (4) “[i]mposing measures intended to prevent births within the group;” and (5) “[f]orcibly transferring children of the group to another group.”[10]  Genocide can occur during times of peace and war.[11]  All actions taken to commit, attempt to commit, or incite commitment of genocide are punishable under the Convention.[12]

Cases of genocide can be brought in the international legal sphere regardless of who commits the acts as the Convention provides for prosecution of State rulers, public officials or private individuals.[13]  The enforcement mechanism of the Convention is found in Articles VI and VIII.  Article VI provides that any persons charged with genocide or any other enumerated crimes in the Convention can be tried either in the State in which the crime was committed or before an international penal tribunal which has been granted jurisdiction by the Convention’s State parties.[14]  Article VIII allows for any State in the Convention to call upon the United Nations under the Charter of the United Nations to take appropriate measures to prevent and suppress acts of genocide.[15]  Crimes of genocide are not considered political crimes and States shall extradite any offender to the appropriate State as relegated under extradition treaties.[16]  Issues of interpretation, application or fulfillment of the Convention can be submitted to the International Court of Justice at the request of any party in a dispute.[17]  Although the Convention went into effect in 1951, the first case against a State brought before the ICJ was in 1993 when Bosnia brought a suit against Yugoslavia accusing the government of failing to prevent and punish genocide.[18]  In its 1996 decision, the Court determined that the Convention gave the International Court jurisdiction “over a suit alleging a state’s perpetration of genocide.”[19]

Genocide in Myanmar

Although the country of Myanmar has exhibited longstanding discrimination and persecution against Rohingya Muslims, with some reports of persecution dating back to 1982, military forces and the Myanmar government began widespread genocide against the Rohingya Muslim population in October 2016.[20]  Before the current widespread genocide, a UN Special Rapporteur on Freedom of Religion or Belief reported in 1992 that the Rohingya people were “subjected to persecution based on their religious beliefs involving extrajudicial executions torture, arbitrary detention, forced disappearances, intimidation, gang-rape . . .” and more.[21]  While Myanmar’s actions at the time were monitored by the international community, the concerns of widespread genocide have been more recently reported.  In 2012, the spokesperson of Myanmar’s president posted a statement calling the Rohingya population “terrorists” who would be “completely destroy[ed] by the Myanmar government and military forces.”[22]

Since the start of the systematic terror campaign in 2016, Myanmar carried out “clearance operations,” a phrase used by the Myanmar government to refer to the genocidal actions taken.[23]  The clearance operations were intended to destroy the Rohingya population “by the use of mass murder, rape, and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses.”[24]  The United Nations have cited countless incidents of murder, violence, and residential demolition.  The UN Special Rapporteur on the situation in Myanmar provided first-hand accounts of homes being set ablaze with people inside and children being thrown into fires.[25]  She also recounted incidents of men and boys being separated from females to be executed.[26]  The women and girls were then raped and killed.[27]  In March 2018, the UN Special Rapporteur concluded that she was “convinced that the crimes [committed in Myanmar] bear the hallmarks of genocide” and further stated in 2019 that the commander-in-chief of the Myanmar’s military forces and responsible individuals should be held responsible for their genocidal actions.[28]

The UN Special Advisor on the Prevention of Genocide acknowledged in 2018 that Rohingya Muslims were murdered, raped, tortured, persecuted, and humiliated because of their ethnicity and that the State’s intent was to “cleanse [the] northern Rakhine state of their existence.”[29]  Nearly all Rohingya Muslims live in Myanmar’s Rakhine State, along the border of Bangladesh, where they are an ethnic and religious minority.[30]  The United Nations also employed the UN Human Rights Counsel’s Independent International Fact-Finding Mission on Myanmar in 2017, which interviewed over 600 victims and eyewitnesses and consulted with over 250 interested parties, including intergovernmental and non-governmental organizations, researchers, and diplomats.[31]  Through the interviews, consultations, and other data gathering resources, such as satellite images and record searches, the Fact-Finding Mission found that Myanmar’s actions presented a genocidal intent and that the senior officials of the military forces should be investigated and prosecuted.[32]  In October 2018, the Chairman of the Mission declared that there was ongoing genocide in the country although Myanmar had claimed that they ended their last wave of clearance operations before that time.[33]

Gambia’s Application for International Relief and the ICJ’s Order on Provisional Measures

On November 11, 2019, The Gambia filed an Application Instituting Proceedings and Request for Provisional Measures with the ICJ.  In its application, The Gambia recounts in detail the acts of genocide committed by the military forces, public officials, and private individuals in Myanmar.[34]  The Gambia argues that Myanmar has violated all terms of the Convention from killing Rohingya Muslims to forcibly assimilating Rohingya Muslim children into other ethnic communities.[35]  The Gambia states that Myanmar’s actions are specifically intended to eliminate the Rohingya Muslim population.[36]

While Myanmar has stated that it has ended its practice of “clearance operations,” The Gambia argues that the Rohingya “remain the target of a Government attack aimed at erasing the[ir] identity and removing them from Myanmar.”[37]  In the past year, Myanmar razed an additional thirty villages and Rohingya homes and shops in larger cities were burned to the ground.[38]  Besides the destruction of villages and structures, the government of Myanmar has used “a policy of forced starvation . . . designed to make life in northern Rakhine unsustainable for Rohingya who remain.”[39]  Access to rice fields and markets have been denied to the Rohingya people, creating a lack of food and starvation amongst the people.[40]  The government confiscated Rohingya land, especially agricultural land, and harvested Rohingya crops which were taken from Rakhine where Rohingya Muslims remain.[41]  The government instituted raids on Rakhine in which food, including crops and humanitarian aid, is confiscated and livestock is taken or slaughtered.[42]  The Gambia argues that these ongoing actions evidence Myanmar’s intent to continue taking genocidal actions against the Rohingya people.[43]

In The Gambia’s application, it seeks declaratory and injunctive relief, along with criminal damages and reparations, from the International Court.[44]  The Gambia wants the International Court to declare that Myanmar has breached and continues to breach its obligations under the Convention.[45]  The Gambia requests that the Court enjoin Myanmar from taking genocidal actions against the Rohingya population and begin following the Convention’s obligations.[46]  The Gambia also seeks that individuals who partook in committing genocide face a competent tribunal for criminal punishment and that Myanmar must provide reparations to the Rohingya people, including, but not limited to, allowing the population to safely return to the country and providing full citizenship and human rights to them without “discrimination, persecution, and other related acts.”[47]  In the application, The Gambia also requests that the Court decides that Myanmar must provide assurances and guarantees of non-violations going forward.[48]  The Gambia further requests that the Court institute provisional measures in order to protect the Rohingya population.

The ICJ heard arguments from both sides regarding the provisional measures requested by The Gambia on December 10 through December 12, 2019.[49]  On January 23, 2020, the ICJ issued an Order on the provisional measures.[50]  Myanmar argued that The Gambia does not have standing to bring a case regarding their actions and that the ICJ does not have jurisdiction based on Myanmar’s reservations to the Convention.[51]  However, the ICJ found that it does have prima facie jurisdiction to hear the case since Myanmar made no reservations to Article IX permitting the ICJ to have jurisdiction and that The Gambia has standing to bring suit since it established that the two parties are both members to the Convention and that The Gambia has had a plausible dispute with Myanmar on its understanding and interpretation of the Convention.[52]

Further, the ICJ found that it is plausible that the actions Myanmar has taken against the Rohingya people have been acts of genocide under the Convention and therefore, has the right to order provisional measures for Myanmar to take to protect the Rohingya population.[53]  The ICJ ordered the four following provisional measures: (1) Myanmar shall “take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention;” (2) Myanmar shall ensure that the military, including irregular armed units within its control, do not commit acts of genocide, conspire to commit acts of genocide, cause public incitement to commit genocide, attempt to commit genocide, or be complicit in genocide; (3) Myanmar shall take measures to ensure that evidence of the actions taken against the Rohingya people is not destroyed; and (4) Myanmar shall report to the ICJ of the measures taken to follow the Order within four months of the order and thereafter every six months until the end of the case.[54]

The ICJ has established a timeframe for The Gambia and Myanmar to submit a Memorial and Counter-Memorial, respectively, in the case.[55]  The initial pleadings must be submitted to the ICJ by January 25, 2021.[56]

Holding Myanmar Accountable

Myanmar signed the Convention in December 1949 and officially ratified it into domestic law in March 1956.[57]  At the time of signature, Myanmar made two distinct reservations regarding the enforcement mechanisms in the Convention.  With reference to Article VI, Myanmar declared that it would not consent to “foreign Courts and tribunals jurisdiction” to try penal cases of genocide perpetrated in the State.[58]  With reference to Article VIII, Myanmar declared that the entire Article would not apply to the State, prohibiting other States from calling upon the United Nations to take appropriate measures to prevent and suppress acts of genocide.[59]  Myanmar argues that these reservations indicate that it has not granted consent to the ICJ to hear cases regarding genocide occurring in the State.  In order for the ICJ to adjudicate cases, both parties in the dispute have to consent to the Court’s jurisdiction.  The Gambia argues, and in its Order, the ICJ seems to agree, that since Myanmar did not make any reservations to Article IX of the Convention, the ICJ does have jurisdiction to hear the case.[60]  Article IX of the Convention provides that any dispute between Party States “relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide . . . shall be submitted to the International Court of Justice.”[61]  In its Order, the ICJ stated that although Myanmar made reservations to Article VIII concerning actions taken by the United Nations, the Article “does not refer to the submission of disputes between Contracting Parties to the Genocide Convention to the Court for adjudication.”[62]  The ICJ continued that the issue of adjudication in its Court is specifically addressed in Article IX, to which Myanmar made no reservation.[63]  The ICJ was clear in its Order on provisional measures that it has jurisdiction to hear the case and that The Gambia has standing to bring the case against Myanmar.[64]  This means that the state of Myanmar can be held accountable by the ICJ with regards to the application and fulfillment of the Convention.

Besides holding the state of Myanmar accountable for the actions of its military against the Rohingya population, the International Criminal Court (“ICC”) has begun investigating the genocidal actions taken in Myanmar for potential criminal prosecutions.[65]  While Myanmar is not a member of the Rome Statute, which provides the ICC with jurisdiction, Myanmar’s neighboring country, Bangladesh, is a member.[66]  The ICC Pre-Trial Chamber III, which is handling the investigation of the matter, determined that the ICC “may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party.”[67]  In this instance, the Chamber held that there is a “reasonable basis to believe widespread and/or systematic acts of violence may have been committed that could qualify as the crimes against humanity of deportation across the Myanmar/Bangladesh border and persecution on grounds of ethnicity and/or religion . . . .”[68]  Since the actions taken by Myanmar against the Rohingya population has resulted in the exodus of an estimated 600,000 to one million Rohingya individuals to Bangladesh, the ICC would have jurisdiction over the matter due to Bangladesh’s membership in the Rome Statute.[69]  Further, the ICJ, the UN Commissions of Experts on the Rwanda Situation, and multiple United States courts have found that acts of genocide are so atrocious and grave that “the crime of genocide has achieved the status of jus cogens [the principles which form the norms of international law that cannot be set aside] and binds all members of the international community,” whether the state is a party to the Rome Statute or not.[70]  Whether the ICC determines that it has jurisdiction over the actions of Myanmar through its relations with Bangladesh or through a universal jurisdiction claim, the ICC could determine that it has jurisdiction over Myanmarese government officials, military officers and soldiers, and private citizens who committed acts of genocide against the Rohingya people.

A final way that the international community could hold Myanmarese individuals responsible for acts of genocide is through a potential international or hybrid criminal court or tribunal under the direction of the United Nations.  While Myanmar declared reservations against Article VIII which grants parties to bring causes to the United Nations (“UN”), Myanmar is a member of the United Nations Charter, which means that a criminal court could be developed to handle the offenses taking place.[71]  Previously, UN member states “commit[ted] to ensuring that impunity is not tolerated for genocide, war crimes and crimes against humanity or for violations of international humanitarian law and gross violations of human rights law.”[72]  The states also committed to ensuring that offenses are “properly investigated and appropriately sanctioned, including by bringing the perpetrators of any crimes to justice, through national mechanisms, or where appropriate, regional or international mechanisms . . . .”[73]  To deal with previous violations of grave humanitarian concerns, the UN implemented several special tribunals and courts, including the International Criminal Tribunal for former Yugoslavia, the International Criminal Tribunal for Rwanda, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, and the Special Court and the Residual Special Court for Sierra Leone.[74]  In the instances of the former Yugoslavia and Rwanda, the tribunals were created to handle the genocidal actions that took place in those countries against certain ethnicities.  Rwanda was and currently is a member to both the UN Charter and the Convention, although Rwanda did not make any reservations when signing and ratifying the Convention.[75]  While Myanmar made a reservation to Article VIII of the Convention, it is still a member of the UN and thus agreed to ensure that acts of genocide are not tolerated and to bring perpetrators of genocide to justice in the Declaration of the High-level Meeting on the Rule of Law.[76]  Being a member of the UN Charter, violations of the Charter, Convention, and international law in general, should be legally handled by the international community and states and individuals who commit those acts should be held accountable.  While it is unlikely that the UN would institute a tribunal in this matter, due to the costs and lengthiness of previous tribunals, the UN could institute a hybrid criminal court with the help of other UN nations to prosecute Myanmarese individuals who participated in the genocidal offenses.  The court could be similar to those found in the instances of Cambodia and Sierra Leone with Bangladesh acting as the primary country of contact since Myanmar adamantly insists that genocide is not taking place in its country.

By signing and ratifying a Convention that deals with the most grievous human rights violations, states should not be able to partake in those actions simply because they reserve the right to be held accountable by the international community.  Parties to the Convention should not allow other members, who have agreed to not participate in these heinous offenses against their people, to use an enforcement reservation to circumvent its obligations to the international community and its own population.  Although Myanmar made reservations to the enforcement articles of the Convention, the actions taken by the government, military officials and private citizens should be considered so egregious as to shock the conscience of the international community and the international legal community should have jurisdiction to hold the state and individuals of Myanmar accountable for their actions.

[1] Application Instituting Proceedings and Request for Provisional Measures (Gam. v. Myan.), Application (Nov. 11, 2019), https://www.icj-cij.org/files/case-related/178/178-20191111-APP-01-00-EN.pdf.

[2] Id. at 10-37.

[3] Id. at 2-37.

[4] Id. at 38, 45-46.

[5] Order, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gam. v. Myan.) (Jan. 23, 2020), https://www.icj-cij.org/files/case-related/178/178-20200123-ORD-01-00-EN.pdf.

[6] Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277.

[7] The Genocide Convention: Background, U.N. Off. on Genocide Prevention and the Resp. to Protect, https://www.un.org/en/genocideprevention/genocide-convention.shtml (last visited Nov. 21, 2019).

[8] Id.

[9] Supra note 1, at Art. II.

[10] Id.

[11] Id. at Art. I.

[12]  Id. at Art. III.

[13] Id. at Art. IV.

[14] Id. at Art. VI.

[15] Id. at Art. VIII.

[16] Id. at VII.

[17] Id. at IX.

[18] John Quigley, International Court of Justice as a Forum for Genocide Cases, 40 Case W. Res. J. Int’l. L. 243 (2008).

[19] Id.

[20] Supra note 1, at 2, 13.

[21] Id. at 12.

[22] Id. at 18.

[23] Id. at 3.

[24] Id.

[25] Id.  (For more detailed information, see generally The Gambia’s Application which extensively details victims’ and eyewitnesses’ accounts of genocide and persecution by Myanmar military forces.)

[26] Id.

[27] Id.

[28] Id.

[29] Id. at 4.

[30] Id. at 12.

[31] Id.

[32] Id. at 5.

[33] Id. at 5.

[34] Id.

[35] Id. at 1.

[36] Id.

[37] Id. at 33 (quoting Un Fact-Finding Mission, Report of the Detailed Findings (2019), para. 2).

[38] Id. at 33-34.

[39] Id. at 34.

[40] Id.

[41] Id. at 35.

[42] Id.

[43] Id. at 36-37.

[44] Id at 38.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Press Release, I.C.J., Request for the Indication of Provisional Measures, No. 2019/49 (Nov. 18, 2019), https://www.icj-cij.org/files/case-related/178/178-20191118-PRE-01-00-EN.pdf.

[50] Supra note 5.

[51] Id. at 6-13.

[52] Id.

[53] Id. at 19.

[54] Id. at 25.

[55] Press Release, I.C.J., Fixing of Time-Limits for the Filing of the Initial Pleadings, No. 2020/4 (Jan. 28, 2020), https://www.icj-cij.org/files/case-related/178/178-20200129-PRE-01-00-EN.pdf.

[56] Id.

[57] Status of Treaties: Chapter IV Human Rights: 1. Convention on the Prevention and Punishment of the Crime of Genocide, U.N. Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-1&chapter=4&clang=_en#EndDec (last updated Feb. 12, 2019).

[58] Id.

[59] Id.

[60] Supra note 5, at 12.

[61] See supra note 1 and note 6, at Art. IX.

[62] Supra note 5, at 11-12.

[63] Id. at 12.

[64] Id. at 12-13.

[65] Press Release, I.C.C., ICC Judges Authorise Opening of an Investigation into the Situation in Bangladesh/Myanmar, PR1495 (Nov. 14, 2019), https://www.icc-cpi.int/Pages/item.aspx?name=pr1495.

[66] Id.

[67] Id.

[68] Id.

[69] Id.

[70] Michael P. Scharf, The ICC’s Jurisdiction Over the Nationals of Non-Party States: A Critique of the U.S. Position, 64 Case W. Res. Faculty Publ’ns 67, 87 (2001).

[71] Member States, United Nations, https://www.un.org/en/member-states/ (last visited Feb. 21, 2020).

[72] International and Hybrid Criminal Courts and Tribunals, United Nations, https://www.un.org/ruleoflaw/thematic-areas/international-law-courts-tribunals/international-hybrid-criminal-courts-tribunals/ (last visited Feb. 21, 2020).

[73] Id.

[74] Id.

[75] Supra note 57.

[76] Supra note 72.

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