23 minute read
By Max Marolt
The Gambia v. Myanmar: A Judgement for Judgement’s Sake, A Commentary on the Order of 23 January 2020
By Max Marolt*
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I. INTRODUCTION
In 1968 Paulo Frere published a book titled Pedagogy of the Oppressed. The book marks the beginning of the school of Critical Pedagogy. Frere viewed ‘activism’ as “action for action’s sake.”1 Drawing from this scholarship this paper is going to take a critical view on the judgement of The Gambia v. Myanmar and query; does the judgement have any meaningful impact for the victims? or is it solely a judgement for judgement’s sake?
On 11 November 2019 the Republic of The Gambia (hereinafter ‘The Gambia’) filed an Application instituting proceedings against the Republic of the Union of Myanmar (hereinafter ‘Myanmar’) concerning alleged violations of the Convention on Prevention and Punishment of the Crime of Genocide (hereinafter ‘the Genocide Convention’).2 On 23 January 2020, the International Court of Justice (hereinafter ‘ICJ’ or ‘the Court’) issued its order in response to the application of The Gambia.3 The ICJ found that it has prima facie jurisdiction over the dispute. Correspondingly, the Court granted The Gambia’s requests and unanimously issued four provisional measures. The measures require Myanmar to adhere to the requirements of Article II of the Genocide Convention, and, in particular that Myanmar’s military, in addition to any other armed groups directly or indirectly supported by it on the territory of the Rohingya state, immediately seize any actions incompatible with the acts enumerated in that provision.4 Furthermore, the Court required Myanmar to ensure the preservation of any evidence related to the allegations of acts of genocide and to file a report on all measures taken to give effect to this Order.5
* LL.B. Candidate, International and European Law Program, The Hague University of Applied Sciences, LL.B. Candidate, Psychology, Leiden University. 1 Paulo Frere, Pedagogy of the Oppressed (Print Book, Penguin Books 1972). 2 UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277, available at: https://www.refworld.org/docid/3ae6b3ac0.html [accessed 28 February 2021]. 3 Application of the convention on the prevention and punishment of the crime of genocide (The Gambia v. Myanmar) Order 23 January 2020. https://www.icj-cij.org/public/files/case-related/178/178-20200123-ORD-0100-EN.pdf. 4 ibid. 5 ibid para 86.
This landmark ruling sheds light on many issues. On the one hand, it gives rise to issues concerning the fairness of the proceedingsand the administration of justice. As such, this article will focus on, firstly, the standard of proof for adopting provisional measures and, secondly, whether or not, and, if so, to what extent the Court’s provisional measures have already paved the way for the outcome of the case. On the other hand, the case leads us to ask the question concerning its purpose for the victims, i.e., what good does it do for the victims? The importance of these issues lies in assurances of the Court’s ability to administer justice based on law, the likelihood of compliance with the final judgement and, above all, helping the victims of these horrific crimes.
In order to achieve these objectives, this article will begin by analysing the provisional measures issued by the Court. Next, special emphasis will be put on the level of standard of proof used by the Court for granting the adoption of the measures. Furthermore, the article will discuss the extent to which these measures already predetermine the outcome of the trial. The last part of the article will focus on the likelihood of a positive impact, if any, the proceedings will have on the victims.
II. PROVISIONAL MEASURES
In order to preserve rights under the Genocide Convention, The Gambia submitted an Application to the Court. The Application contained a Request for the indication of provisional measures in accordance with Article 41 of the Statute and Articles 73, 74 and 75 of the Rules of the Court, pending the Court’s final decision in the case. Among these provisions, Article 41 requires further elucidation. Article 41 of the Court’s Statute states:
1. ‘The Court shall have the power to indicate, if it considers that the circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of the parties. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and the Security Council.’6
6 Statute of the International Court of Justice, art 41.
The ICJ has determined in LaGrand7 that provisional measures granted by the Court are binding. The combination of Article 41 of the Statute and the decision made by the Court in LaGrand provides us with two discussion points.8 Firstly, Article 41 imposes a direct obligation on the state to follow any Court orders issued thereunder.9 Secondly, given the fact that the obligation to comply formally arises under treaty law, some have described Article 41 as a “sparse, axiomatic statement”.10 Thus, its scope and content must be assessed by the Court on a case-by-case basis. Heretofore, the Court required the demonstration of (1) the prima facie jurisdiction of the Court over its claims and (2) the danger of irreparable harm to the rights claimed, linked to an urgency of the claimed protection.11
Concerning the application of the latter requirement to the case at hand, The Gambia contends that there is a risk of irreparable prejudice to the rights of the Rohingya population and to its own rights under the Genocide Convention, as well as urgency.12 The condition of urgency is met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the Court makes a final decision on the case.13 Myanmar, on the other side, denies any existence of an immediate risk of irreparable prejudice.14 By contrast, Myanmar asserts that it is currently engaged in repatriation initiatives for the return of the Rohingya and drafting policies aimed at protecting the people in Rakhine State while holding accountable those responsible for past violence. The Court recalled that the Genocide Convention ‘was manifestly adopted for a purely humanitarian and civilizing purpose.’ This was due to the fact that “its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality.”15 Hence, the
7 LaGrand (Merits) [2001] ICJ Rep 466, 502–03. 8 Cameron A. Miles, ‘Provisional Measures and the Margin of Appreciation before the International Court of Justice’, Journal of International Dispute Settlement, 2017, 8, 1–21. 9 ibid. 10 Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (OUP 2005) 62. 11 The space available in the present forum allows for only a brief rendition of these, but good general treatments of the additional preconditions can be found in: Brown (n 4) 135–46; Shabtai Rosenne, The Law and Practice of the International Court 1920–2005 (4th edn, Martinus Nijhoff 2006) 1399–413, Max Planck Encyclopedia of Public International Law (online edn, OUP 2006) s C; Karin Oellers-Frahm, ‘Article 41’, in A Zimmermann and others (eds), The Statute of the International Court of Justice: A Commentary (2nd edn, OUP 2012) 1026, 1038–50; Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (OUP 2013) 929–46 (vol 1), 1771–99 (vol 2); Robert Kolb, The International Court of Justice (Hart Publishing 2013) 621–38. 12 Order (n 2) para 67. 13 ibid., para 65. 14 ibid., para 68. 15 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, 23.
Court considers that the rights questioned in these proceedings, in particular the right of the Rohingya group in Myanmar to be protected from killings and other acts threatening their existence as a group, are of such a nature that prejudice to them is capable of causing irreparable harm.16 Additionally, the Court further takes note of the reports drawn during the Fact-Finding Missions of 2016 and 2019 which tend to be in support of the arguments put forth by The Gambia. In light of the considerations set out above, the Court finds that there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia.17
In regard to the application of the former requirement, namely, the demonstration of prima facie jurisdiction, the Court, firstly, recognized that The Gambia and Myanmar are parties to the Convention.18 This, however, is not sufficient to establish of jurisdiction pursuant to Article IX Genocide Convention. The article reads as follows:
Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.19
In other words, Article IX of the Genocide Convention makes the Court’s jurisdiction conditional upon the existence of a dispute relating to the interpretation, application or the fulfilment of the Convention.20 The Gambia has invoked as a basis of the Court’s jurisdiction the compromissory clause of the Genocide convention. Therefore, the Court must ascertain whether the acts complained of by the Applicant are capable of falling within the provisions of that instrument and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain.21 It is because of the special requirements necessary to establish jurisdiction, prima facie, - enshrined in Article IX - the provision requires further discussion.
In contrast to The Gambia, Myanmar claims that the Court does not have jurisdiction under Article IX of the Genocide Convention. Specifically, Myanmar bases their claim on,
16 Order (n 2) para 70. 17 ibid., para 75. 18 ibid., para 19. 19 Article IX Convention on Prevention and Punishment of Genocide. 20 Order (n 2) para 20. 21 ibid., para 20.
firstly, the argument that there is no dispute between the Parties because The Gambia is acting as a “proxy” and “on behalf” of the Organization of Islamic Cooperation (hereinafter ‘OIC’).22
To this claim, the Court gives a concise response in the negative. It does so, primarily, by relying on the fact that The Gambia instituted proceedings in its own name. Additionally, it restates that the existence of a dispute is a matter of objective determination by the Court; it is a matter of substance, and not a question of form or procedure.23 Secondly, Myanmar denies the existence of such dispute at the time of the filing of the Application. Myanmar claims that the statements issued by The Gambia regarding the situation of the Rohingya could not give rise to a dispute between the Parties as they did not amount to allegations of violations of the Genocide Convention. Recalling Article IX, Myanmar concludes that, the Court’s lack of jurisdiction in the absence of a dispute is manifest.24 Intending to oppose this claim, the Court relies on the parties’ statements in the seventy-fourth session of the General Assembly to establish an existence of a dispute. On that day, The Gambia and Myanmar presented opposing views on the situation in Rakhine state.25 In the Court’s opinion, these statements made by the Parties before the United Nations General Assembly suggest the existence of a divergence of views concerning the events, which allegedly took place in Rakhine State in relation to the Rohingya.26 The Court considered this divergence of views as sufficient to demonstrate the existence of a dispute.
In sum, the Court established the presence of urgency, the demonstration of danger of irreparable harm to the rights claimed and established prima facie jurisdiction over the matter. Nonetheless, the establishment of prima facie jurisdiction, by itself, does not amount to an automatic right for the court to adopt provisional measures. Thus, further discussion is needed regarding the standards through which the Court granted provisional measures.
22 ibid., para 23. 23 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016 (I), p. 270, paras. 35-36). 24 Order (n 2) para 24. 25 ibid., para 27. 26 The Court recalled on previous precedent for establishing a dispute based on the given facts: “a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis . . . the position or the attitude of a party can be established by inference, whatever the professed view of that party” (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 315, para 89).
III. STANDARD OF PLAUSIBILITY
Recognition of orders is an inherent flaw of the ICJ’s jurisprudence.1 One of the reasons behind this inadequacy lies in the Court’s inconsistency in issuing provisional measures.2 One of the many controversies arising from the granting of provisional measures can be traced back to the standard of proof the Court uses for their determination. International law recognizes that the standard of proof required for granting provisional measures should meet a lower threshold than that of, for example, ‘beyond reasonable doubt.’3 The reason lies in the need for differentiation between judgement of admissibility and judgement of merits. With this, the Court avoids predetermining the judgement prior to the merits stage. To further elucidate, the Court approached the issue in its own jurisprudence by distinguishing the ‘standard of plausibility’ from the ‘beyond reasonable doubt standard’. The authority for the view that the standard of proof is “plausibility” appears explicitly in the Court’s case law only with the Obligation to Prosecute or to Extradite Order4 in the Belgium v Senegal judgement of 2009. This condition of plausibility has been restated and applied in each order on provisional measures through an evolving jurisprudence.5 Unfortunately, the question remains: what type and quality of evidence must be presented to the Court to show that this plausibility is met? Plausibility may range from a minimum standard, i.e., fumus non boni juris, to medium standards, to some high standards, i.e., fumus boni juris. 6 In effect, the Court has not yet been
1 Provisional Measures and the Margin of Appreciation before the International Court of Justice, Cameron A. Miles, 2. 2 Indeed, its first order of provisional measures in Anglo-Iranian Oil was ignored by Iran and for a period throughout the 1970s and 1980s, non-compliance was rife. In the late 1990s and early 2000s, the recalcitrance of the United States in the Breard and LaGrand cases did further damage to the Court’s reputation. Although the compliance rate stabilized after the clear ruling by the Court in LaGrand that provisional measures were binding, the recent repeated breaches of the Court’s interlocutory orders by Nicaragua in the joined cases of San Juan River and Border Area have again identified the Court’s tenuous position. (see: Provisional Measures and the Margin of Appreciation before the International Court of Justice, Cameron A. Miles, 2). 3 Zimmermann (n 10). 4 ICJ, Reports, 2009, pp. 151–152, paras 57. 5 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua, 2011); Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand, 2011); Seizure and Detention of Certain Documents and Data (Timor Leste v. Australia); Immunities and Criminal Proceedings (Equatorial Guinea v. France, 2016); Application of the ICSFT and of the CERD (the famous Ukraine v. Russia case, 2017); Jadhav (Pakistan v. India, 2017); Application of the CERD (in the Qatar v. UAE case, 2018); Alleged Violations of the 1955 Treaty of Amity (in the Iran v. U.S. case, 2018); Application of the CERD (new measures, Qatar v. UAE, 2019). 6 6 Karin Oellers-Frahm and Andreas Zimmermann, “Article 41”, in: Andreas Zimmermann and Christian Tams (eds.), The Statute of the International Court of Justice, A Commentary (3rd edition, 2019), 1158.
clear as to what plausibility entails: it has swung from the notion of “possibility”7 to the mere and blank assertion of plausibility8 whatever that may exactly mean.9 It appears that there is great uncertainty in the law with regard to this standard. Arguably, the Court is bound to receive criticism for not taking this opportune situation to provide some clarification into what exactly the standard of plausibility entails and when it is met.10
Genocidal intent (dolus specialis) serves as the decisive element in distinguishing genocide from other serious international crimes. On the one hand, The Gambia claims that genocidal intent can be deduced by a pattern of conduct directed against the Rohingya in Myanmar and refers, in this regard, to the inference of such intent drawn by the Fact-Finding Mission in its reports.11 In The Gambia’s view, the Court is at this stage only required to accept that from the facts stated in the Fact-Finding Mission report, one of the many plausible inferences to be drawn is that of the existence of genocidal intent. The Gambia is thus, as could be expected, arguing for the low threshold of the standard of plausibility. On the other hand, Myanmar, however, never truly addresses whether or not the rights asserted by The Gambia are plausible.12 Nevertheless, Myanmar does bring forth the argument that a “plausible claim” under the Genocide Convention must include evidence of the required specific genocidal intent.13 Their claim - “it is this subjective intent that is the critical element distinguishing genocide from other violations of international law such as crimes against humanity and war crimes”14 – is very much aligned with the view of Vice-President Judge Xue. In her separate opinion on the judgement, she states: “... I have serious reservations with regard to the plausibility of the present case under the Genocide Convention. For the genocide offence to be distinguished from other most serious international crimes, e.g. crimes against humanity, war crimes, genocidal intent constitutes a decisive element. Even accepting that, for the purpose of indication of provisional measures, a determination of the existence of such intent is not necessarily required, the alleged acts and the relevant circumstances should, prima facie, demonstrate that
7 Obligation to Prosecute or Extradite case, ICJ, Reports, 2009, p. 152, para 60. 8 Certain Activities, ICJ, Reports, 2011-I, p. 19, para 58. 9 Kolb (n 10) p.380. 10 Nevertheless, the Court might benefit from abstaining to elucidate the notion, for it is free to exercise some degree of discretionary power. 11 Order (n 2) para 46. 12 ibid., para 27. 13 ibid., para 47. 14 ibid.
the nature and extent of the alleged acts have reached the level where a pattern of conduct might be considered as genocidal conduct. In other words, there should be a minimum standard to be applied at this early stage. In order to find the jurisdiction of the Court under Article IX of the Genocide Convention to indicate provisional measures, the Court has to determine, prima facie, that the subject-matter of the dispute between the Parties could possibly concern genocide.”15
In contradiction to the above, the Court decided not to address the plausibility of existence of genocidal intent.16 By doing so, the Court showed some inconsistency to its previous case law. It did not follow the previously set precedent of the process of analysis in Ukraine v Russia. 17 In that case, the Court required proper proof of the plausibility of all subjective elements of the offences.18 Although the Court refers to this judgement in its Order, it does not mention it in light of the plausibility of subjective element. As such, the Court seems to neither confirm nor abandon its Ukraine v Russia precedent, bringing further confusion to the standard of plausibility in cases concerning allegations of genocide.
IV. WHAT CAN BE EXPECTED: JUDGEMENT AND VICTIMS
The main question of this article remains: what impact, if any, will the judgement have for the victims, the Rohingya people? Firstly, the justification of the Court's cautious approach to inferring genocidal intent and restrain from determining a violation, if any, of the Genocide Convention lies in the Court's obligation not to let the discussion of the merits take place at the preliminary stages of the trial. The latter ensures that the discussions that have taken place do not reach conclusions that would pre-determine the trial's outcome.19 An example is a genocidal intent, i.e., if the Court recognized the existence of dolus specialis for the concerned crime, it
15 Vice president Xue seperate opinion, para 2. 16 The Court recognizes this by stating, among other things, that “for the purposes of the present proceedings, the Court is not required to ascertain whether any violations of Myanmar’s obligations under the Genocide Convention have occurred. See order para 30. 17 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, pp. 131-132, para 75, importantly, this case never explicitly mentioned »genocidal intent« however it did discuss »dolus specialis« in general. 18 In Ukraine v. Russia the Court insisted on the fact that the applicant must establish a prima facie merits case in order to get provisional measures; it then clarified that this means that the dolus specialis of any alleged breach must be proved to that standard; and it finally pointed out that Ukraine failed to meet that standard. 19 Zimmermann (n 31).
would be difficult to continue proceedings, for there would not be much left to discuss. However, as elucidated above, plausibility does not mean certainty. Whereas establishing the existence of dolus specials would indeed bring the judgement too close to the merits, establishing its plausibility would not. The Court nevertheless refrained from any discussion and granted the order of provisional measures based on the facts and standards elucidated in previous parts of this note. The measures that the Court granted are the following:
1. The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group; 20
2. The Republic of the Union of Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide; 21
3. The Republic of the Union of Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide;22
20 Order (n 2) para 86. 21 ibid. 22 ibid.
4. The Republic of the Union of Myanmar shall submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court.23
The measures enumerated above, despite their denomination as ‘provisional’ appear to achieve at least three objectives. First, the Court reaffirmed the continued existence of the obligations incumbent upon Myanmar under the Genocide Convention. Second, it issued an obligation to ensure that military forces do not commit genocidal acts at present and in the future. Third, through an obligation imposed on Myanmar to submit reports, the Court, in a way, indirectly, requested ‘proof’ of non-repetition. Now, let us bring forth the possibility of the Court finding Myanmar to have violated the Genocide Convention in the judgement on merits.24 In this potential scenario, the final judgement of the Court can entail the following: (1) recognition of continued existence of the obligation25 to prevent and punish genocide, (2) obligation to cease the activity and providing guarantees of non-repetition,26 and, (3) grant reparations27 to The Gambia in forms of either restitution,28 compensation,29 or just satisfaction.30 Concerning option three, it is safe to assume that restitution for crimes of this gravity is impossible. Thus, the question arises – so what? Apart from affording satisfaction, if it has arguably not yet done so, the Court will, in addition to everything it already achieved in the provisional measures, grant compensation for Myanmar's damages to The Gambia. Importantly, we must ask ourselves what exactly are the damages that The Gambia suffered? Even if the Court concludes that Myanmar committed genocide, the victim is not The Gambia or its people. Moreover, the ILC articles on Diplomatic Protection provide for the basic principle that an injury to an alien state is an injury to his/her state of nationality, 31 as well as for the right of the winning claimant state to keep the compensation for itself.32 All of the above
23 ibid. 24 the probability of which will not be discussed in this note. 25 ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001) UN Doc A/56/10 art 20. 26 ibid art 30. 27 ibid art 31. 28 ibid art 35. 29 ibid art 36. 30 ibid art 37. 31 ILC, 'Draft articles on Diplomatic Protection' (2006) UN Doc A/61/10. 32 ibid.
forces us to examine the last question of this article: what will the impact of the judgement be on the victims of the alleged genocide?
As elucidated above, the Court has already ordered Myanmar to ensure that its military or any other forces directly supported by it do not commit any acts incompatible with Article 2 of the Genocide Convention or even to conspire or attempt to commit genocide. The Court also requested for the reporting of compliance with these orders from the Myanmar authorities. Unfortunately, there is not much more than the actual victims of the genocide – The Rohingya People – can expect. The potentially awarded compensations are directed towards the “damaged party”, which is, in this case, The Gambia. However, despite satisfaction technically being awarded to The Gambia, if the ICJ recognizes the horrific atrocities committed over the Rohingya population as genocide, it will hopefully bring some satisfaction to the Rohingya. Apart from potential recognition of the horrors committed upon the Rohingya population the victims of genocide will in all likelihood get nothing out of this judgement–beyond a statement of formal recognition of their plight. So, is this only a judgement for judgement’s sake?
V. CONCLUSION
The question posed in the title of this article seems to, unfortunately, have an answer in the affirmative. It appears that the real-world consequences contingent on the outcome of this trial have been predetermined if not already occurred. The reason for this conclusion lies in the provisional measures issued by the Court in its Order of 23 January 2020. In this Order, the Court justified provisional measures by establishing that it has prima facie jurisdiction. It found that there is a danger of irreparable harm and the requisite urgency to act on the matter. Having discussed this, the Court missed out on yet another opportunity to elucidate further the standards required for such decisions, especially the standard of plausibility. Some judges, in their Separate opinions, pointed this out together with other related concerns. The Order listed four provisional measures which were aimed at ensuring Myanmar’s compliance with the Genocide Convention. Focusing on the victims, the Rohingya population, and the real-world consequences the judgement will leave for them, we, unfortunately, cannot expect much more from the final judgement than that which has already been established with the provisional
measures.