By Rene Wadlow
On January 23, 2020, a panel of 17 judges of the World Court (ICJ) voted unanimously calling on Myanmar (formerly Burma) to take all measures in its power to prevent genocide of the remaining 600,000 Rohingya that the Court stated were extremely vulnerable to violence at the hands of the military. The Court calls for emergency provisional measures in order to respect the requirements of the 1948 Genocide Convention.
The unanimous ruling amounts to a rejection of the arguments of Aung San Suu Kyi that she presented in person at the Hague during the three-day hearing of the ICJ starting December 10, 2019. The unanimous decision is all the more remarkable as one of the 17 judges was nominated by Myanmar and another by the Gambia which had brought the complaint to the Court. This call for provisional measures is not the final decision of the Court, but it does point to what is likely to be the final judgment.
This is the first time that the World Court has been asked to deal with respect to the Genocide Convention and is thus an important step in the development of World Law. The Court does not have direct means of enforcement. Thus, there needs to be a strong pressure from non-governmental organizations concerned with the development of World Law.
The Government of Gambia on November 11, 2019 had brought to the International Court of Justice in the Hague a complaint against the Government of Myanmar for violation of the Genocide Convention concerning actions against the Rohingya. Under the rules of the ICJ, Member States can bring action against other Member States over disputes alleging breaches of international law, in this case the Convention on the Prevention and Punishment of the Crime of Genocide. All members of the United Nations are automatically members of the ICJ. However, most cases before the World Court concern actions touching upon the States involved, such as frontier limitations on which the ICJ has been particularly active.
In this case, Gambia is acting as the conscience of the world society, not being the country from which the Rohingya are fleeing nor the country to which they flee. The Attorney General of Gambia, Abubacarr Marie Tambadou, who had served as a special assistant to the prosecutor at the International Criminal Tribunal for Rwanda said: “The case is to send a clear message to Myanmar and the rest of the international community that the world must not stand by and do nothing in the face of the terrible atrocities that are occurring around us. It is a shame for our generation that we do nothing while genocide is unfolding before our own eyes.”
The Genocide Convention is a landmark in the effort to develop a system of universally accepted standards that promote an equitable system of world law for all members of the human family to live together in dignity. There have been repeated appeals to make the 1948 Genocide Convention operative as world law.
The then UN Secretary-General Kofi Annan said in an address at UNESCO on December 8, 1998: “Many thought, no doubt, that the horrors of the Second World War – the camps, the cruelty, the exterminations, the Holocaust – could not happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time – this decade even – has shown us that man’s capacity for evil knows no limits. Genocide – the destruction of an entire people on the basis of ethnic or national origins – is now a word of our time too, a stark and haunting reminder of why our vigilance must be eternal.”
The Genocide Convention has mechanisms for dealing with complaints concerning violations. Article VIII says: “Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.”
Article III states “The following acts shall be punishable:
– Conspiracy to commit genocide:
– Direct and public incitement to commit genocide:
– Attempt to commit genocide:
– Complicity in genocide.”
When the Convention was being drafted, the competent organs of the United Nations was thought to be the Security Council. However, despite factual evidence of mass killings – some with an intent to destroy “in whole or in part” an ethnic group in Rwanda, Burundi, the Democratic Republic of Congo, Sierra Leone and the Sudan – no Contracting Party to the Genocide Convention has ever called for any action under Article VIII of the Convention. Now Gambia has acted and focused on the highest legal body within the UN system. (1)
Genocide is one of the crimes on which the International Criminal Court (ICC) can also act. The International Criminal Court opened a preliminary inquiry into Myanmar’s alleged crimes against the Rohingya based on the UN’s 444-page report of the UN-created Independent International Fact Finding Mission on Myanmar which said in August 2018 that the Myanmar army’s tactics were “grossly disproportionate to actual security threats” and that “military necessity would never justify killing indiscriminately, gang raping women, assaulting children and burning entire villages.” It is not known what action the ICC will undertake.
The action of Gambia is important as it focuses both on the mechanisms of world law and the dramatic conditions of the Rohingya.
*Rene Wadlow, President, Association of World Citizens
Note: 1) For a detailed study of the drafting of the 1948 Genocide Convention and subsequent normative developments, see William A. Schabas. Genocide in International Law (Cambridge: Cambridge University Press, 2000, p 624)