Can a Lawsuit Stop a Genocide?

The Case Against Myanmar
Rohingya refugees in Bangladesh (Alamy/Mahady Hasan Riad)

On January 23, 2020, the International Court of Justice in The Hague, informally known as the World Court, rendered a historic judgment. The decree ordered the government of Myanmar to comply with several directives: to take measures to prevent genocide against the Rohingya people; to ensure that its military refrain from acts prohibited by the Genocide Convention; and to preserve evidence and submit a report to the court within four months, detailing compliance with the court’s order. The unanimous decision by the fifteen-judge court represented only the third time that the Genocide Convention has been invoked before the World Court in a contentious case—and the first case ever to consider the claims, under the convention, of non-contiguous, non-warring countries.

The case presents what may seem to casual observers a peculiarity of standing. Why was Myanmar being sued by Gambia, a small, largely Muslim country in West Africa, eight thousand miles away? Gambia was permitted to bring its case against Myanmar to the World Court—a civil, not criminal court—because both nations are parties to the Genocide Convention, which explicitly gives the court jurisdiction to resolve any disputes between state parties relating to “the interpretation, application, or fulfilment of the Convention.” Gambia presented compelling evidence to the court that under the doctrine of erga omnes partes, it had an interest in Myanmar’s compliance—or lack thereof—with the Genocide Convention. Myanmar disputed whether Gambia could bring a case without showing that it was “specially affected” by such alleged violations. The court held that such a dispute was sufficient to justify jurisdiction under the Convention.

The January order, technically referred to as “provisional measures,” was intended to “protect the rights claimed by The Gambia while the underlying case proceeds on the merits.”  Because Myanmar is a party to the Genocide Convention of 1948, the court’s order essentially requires Myanmar “to take all measures within its power to prevent the commission of all acts” prohibited by that Convention. Whether the court ultimately concludes that Myanmar did in fact commit the crime of genocide in its treatment of the Rohingya people will depend largely on whether Gambia can prove that Myanmar violated Article 2 of the Genocide Convention, which prohibits such actions as killing members of the group or causing serious bodily or mental harm to them—and that it did so with the intent to destroy the group in whole or in part. (Neither of those findings was required for the court to impose “provisional measures”; rather, the court was only required to find that the allegations of genocide were “plausible.”) While this order will not resolve or even ameliorate the abhorrent conditions in which the Rohingya people are now living, primarily in Bangladesh, it will, if robustly implemented, prevent future acts of genocide against them.

The case brought to the World Court by Gambia results from the “clearance operation” conducted by the Myanmar army against the Rohingya people in the Rakhine State of Myanmar. The “clearance” was in retaliation for a series of alleged attacks against police posts and villages in October 2016 by a poorly armed Rohingya insurgent group calling itself “The Faith Movement,” formed after the 2012 Rakhine Riots and led by a Rohingya man raised in Saudi Arabia. In October 2016, the group changed its name to the Arakan Rohingya Salvation Army, recalling the centuries-long struggle by the so-called Arakan Army to create an independent state of Rohingya, or Arakan, as it had been called earlier.  

That conflict and the accompanying action by the Myanmar military, known as the Tatmadaw, caused more than 900,000 Rohingya people to flee to nearby Bangladesh, where they are living in one of the largest refugee camps in the world. Although more than 600,000 Rohingya still live in Rakhine and are attempting to flee, Bangladesh has indicated that it will take in no more refugees and will encourage the Rohingya living in Bangladesh to return to Rakhine voluntarily. (So far, almost none have left.) Bangladesh is also planning to relocate 100,000 of the refugees to a small island in the Bay of Bengal.

Muslims who have been living for centuries in Myanmar—a largely Buddhist country formerly known as Burma—the Rohingya people are among the world’s most persecuted minorities. Under Myanmar’s complicated citizenship requirements, the government recognizes 135 ethnic groups, but the Rohingya are not among them; they are not considered citizens and are essentially stateless. Rakhine, where the Rohingyas live, is in the west of Myanmar, bordering Bangladesh. The Rohingyas are not permitted to leave Rakhine without government permission, and the province is among the poorest in the world, with few services and ghetto-like camps. 

When the violence began in 2016, the United Nations High Commissioner for Refugees created an independent fact-finding group on Myanmar, led by distinguished lawyers from Australia, Indonesia, and Sri Lanka. Myanmar refused to cooperate. After two years of investigation and interviews with more than a thousand victims, the UN Mission concluded that Myanmar had acted with “genocidal intent” and that there was a “serious risk of genocidal actions recurring.” The Mission recommended that “senior generals of the Myanmar military” should be “investigated and prosecuted in an international tribunal for genocide.” Similarly, the UN Special Rapporteur on human rights in Myanmar, Yanghee Lee of Korea, rendered her final report on March 4, 2020. Among other things, she reported that “the magnitude and tragedy of what occurred in Myanmar...cannot be overstated” and that the “extreme violence [that] was perpetrated in northern Rakhine...bore the hallmarks of genocide.” She called for the UN Security Council “to refer the situation in Myanmar to the International Criminal Court or for the international community to establish an international tribunal to prosecute alleged perpetrators of international crimes committed in Myanmar.” Lee had earlier concluded that the commander-in-chief and other senior Tatmadaw generals “should be held accountable for genocide in Rakhine.” The UN Special Adviser on the Prevention of Genocide, Adama Dieng of Senegal, concluded that “Rohingya Muslims have been killed, tortured, raped, burnt alive and humiliated, solely because of who they are,” and further that “the intent of the perpetrators was to cleanse northern Rakhine state of their existence, possibly even to destroy the Rohingya as such, which, if proven, would constitute the crime of genocide.”

Why was Myanmar being sued by Gambia, a small, largely Muslim country in West Africa, eight thousand miles away?

In November 2019, the International Criminal Court authorized its prosecutor to proceed with an investigation of alleged crimes committed in Bangladesh against the Rohingya. Although Myanmar did not ratify the 1998 Rome Statute creating the International Criminal Court, the court has jurisdiction to consider crimes committed in the territory of any party to the Rome Statute. Bangladesh is a signatory. In its press release announcing the investigation, the court said that “upon review of the available information, [the court] accepted that there exists 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 against the Rohingya population.” That investigation is ongoing.

Myanmar’s defense was led by its Union Minister for Foreign Affairs, Aung San Suu Kyi, the Nobel Peace Prize winner who is referred to in Myanmar as “Mama Suu.” Although she is the titular head of the Myanmar government, she is not in control of it; the Myanmar military is. Under the Myanmar Constitution, at least 25 percent of representatives in the Legislature must be from the military and must be nominated by the Tatmadaw commander-in-chief. The constitution also requires a legislative supermajority to amend it. In other words, the Myanmar Constitution cannot be amended without the permission of the military, and that is not likely to happen.

Somewhat surprisingly, Aung San Suu Kyi decided to appear herself before the International Court of Justice. In her statement, she asked the court to dismiss the case, arguing that the term “clearance operation” had been distorted, and that in the Myanmar language, nae myay shin lin yeh—literally, the “clearing of locality”—“simply means to clear an area of insurgents or terrorists.” Gambia’s counsel, Paul Reichler, took issue, noting that the UN Mission found that “Myanmar is making active efforts to prevent [the return of the Rohingyas] through the consolidation of the destruction of Rohingya villages, through appropriation of vacated land and terrain clearance, erasing every trace of the Rohingya communities and the construction on this land of houses for other ethnic groups.”

Aung San Suu Kyi also claimed that the violence was an internal armed conflict brought on by the Rohingya, and that Myanmar had a robust and functioning military-justice system that should be allowed to bring charges in the case of any alleged atrocities. “The Office of the Judge Advocate General in Myanmar is by our standards well-resourced with more than ninety staff and a presence in all regional commands throughout the country,” she asserted, adding that “I expect the Office to continue its investigations and prosecutions based on reliable evidence gathered in Rakhine and from persons who witnessed what happened there.” Were the court to preempt Myanmar’s military-justice system, in her view, it would be tantamount to “the removal of a limb.” Aung San Suu Kyi concluded her statement with a fervent plea, asking the court to “help us to create unity out of our diversity”—and a warning. “Steps that generate suspicions, sow doubts or create resentments between communities who have just begun to build a fragile foundation of trust,” she cautioned darkly, “could undermine reconciliation.” 

Her testimony was sharply criticized by another of Gambia’s counsels, the English barrister and law professor Philippe Sands. Addressing Aung San Suu Kyi directly, Sands asserted that “your silence says far more than your words,” noting the total absence of the word “rape” from the testimony both of Myanmar’s counsel and Aung San Suu Kyi herself, and pointing out that “she did not feel able to mention the word ‘Rohingya.’” Co-counsel Paul Reichler added that “what is most striking is what Myanmar has not denied.” In ordering the provisional measures, the court agreed, concluding that the Myanmar military-justice system was insufficient to guarantee compliance with Myanmar’s treaty obligations. This view is well-grounded in the record; the UN Special Rapporteur for human rights in Myanmar deemed Myanmar “incapable of delivering accountability,” while the Chair of Myanmar’s own Independent Commission of Enquiry, created to investigate the events in Rakhine, said that “there will be no blaming of anybody, no finger-pointing of anybody because we don’t achieve anything by that procedure.” And the court did not note, but could have, that in one of the few convictions rendered by the Myanmar military-justice system, the convicted soldier was later pardoned.

 

For centuries, scholars and state leaders have advocated humanitarian military intervention to stop human-rights abuses by sovereign states—states that do not consent to the intervention. Aristotle argued, for example, that Plato’s admonition that “the legislator should have his eye directed to two points, the people and the country,” was insufficient. According to Aristotle, “neighboring countries [i.e. neighboring Greek city-states] also must not be forgotten by him, if the state for which he legislates is to have a true political life. For a state must have such a military force as will be serviceable against her neighbors, and not merely useful at home.” Aristotle’s admonition led to the theory of the “just war,” widely credited to St. Augustine and later refined by St. Thomas Aquinas. Aquinas believed that if a sovereign became a tyrant and ignored the common good, it was acceptable for other sovereigns to act against him. Subsequent generations witnessed countless examples of one state intervening in the affairs of another to protect those being abused by their rulers.

The use of intervention to contain tyranny has not gone without criticism. Debate has raged between those who worry about unleashing the horrors of inter-state armed conflict, regardless of the justification, and those who prioritize human rights and would encourage interventions when those rights are grossly violated. For centuries the consensus has stood for caution and inaction. The Peace of Westphalia, which ended the Thirty Years War in 1648, spurred the modern concept of territorial sovereignty, in which sovereigns had the absolute right to do whatever they pleased within their territory. This concept ultimately was enshrined in Article 2(4) of the United Nations Charter, requiring member states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.”

In recent decades, however, the center of gravity has shifted. After the 1994 genocide in Rwanda, graphically described by Canadian Roméo Dallaire in Shake Hands with the Devil and Samantha Power in A Problem from Hell, along with the ethnic cleansing in Kosovo and other examples of violent human-rights abuses, UK Prime Minister Tony Blair, speaking in Chicago in 1999, declared that “the principle of non-interference must be qualified in important respects,” and further that “the most pressing foreign policy problem we face is to identify the circumstances in which we should get actively involved in other people’s conflicts.” Genocide, he argued, “can never be a purely internal matter.” Along similar lines Kofi Annan, in a 1999 essay entitled “Two Concepts of Sovereignty,” argued that the concept of state sovereignty should be reconsidered. The aim of the UN Charter, he wrote, was “to protect individual human beings, not to protect those who abuse them.”

Aquinas believed that if a sovereign became a tyrant and ignored the common good, it was acceptable for other sovereigns to act against him.

Blair and Annan’s comments led directly to the creation of the Canadian International Commission on Intervention and State Sovereignty and its seminal report, The Responsibility to Protect (known colloquially as “R2P”), issued in December 2001. That report, later adopted (although with significant reservations) by the UN General Assembly in the World Summit Outcome of 2005, contained three “responsibilities” that should be honored by sovereigns—or, if that doesn’t happen, by intervening states: the responsibility to prevent (deadly conflicts, that is); the responsibility to react (to situations of compelling need for human protection); and the responsibility to rebuild (a durable peace, good governance, and sustainable development). One of the reservations in the General Assembly’s Outcome Document concerned the narrow limitation placed on the types of situations for which intervention would be appropriate; another was the requirement that only the Security Council could authorize a humanitarian intervention.

Unfortunately, R2P has been ineffective. Formally invoked only once, in the UN-authorized invasion of Libya by NATO in 2011 to prevent Muammar Gaddafi from committing genocide, it has not engendered many lifesaving humanitarian interventions—and neither the United Nations nor any member state intervened to prevent the actions in Myanmar against the Rohingya people. Humanitarian military intervention has not been high on any state’s agenda; the risks have been considered too great. In fact, in May 1994, President Bill Clinton signed the then-secret Presidential Decision Directive/NSC 25 that limited U.S. participation in humanitarian military interventions to situations in which “participation advances U.S. interests and both the unique and general risks to American personnel have been weighed and are considered acceptable.”  

In addition, there is a general concern that R2P might be used to authorize interventions on bogus pretexts. Political scientist Gary Bass has written that “there is always the potential for any military intervention to shade into something much darker,” and cites Nietzsche’s admonition that “whoever fights monsters should see to it that in the process he does not become a monster.” Examples of pretextual interventions since World War II include Pakistan’s invasion of Kashmir in 1947; China’s invasion of Tibet in 1950; North Vietnam’s invasion of Laos in 1958; China’s invasion of India in 1962; the United States’s invasion of the Dominican Republic in 1965; India’s invasion of East Pakistan in 1971; Turkey’s invasion of Cyprus in 1974; Vietnam’s invasion of Cambodia in 1978; and Tanzania’s invasion of Uganda in 1979.

 

If R2P has been ineffective, and if the member states of the UN have chosen for their own reasons not to act to prevent human-rights abuses such as those visited upon the Rohingya in Myanmar, what can be done? The court’s decision in the Myanmar case suggests what we might call “humanitarian judicial intervention” as a new way forward—paraphrasing Dag Hammarskjöld—in dealing with violent human-rights abuses. The Genocide Convention certainly gives the court jurisdiction to adjudicate “disputes” between and among signatories concerning, among other things, the legitimacy of certain conduct toward their inhabitants, and the court has the prerogative to prohibit illegal conduct by the parties before it. In addition, the court’s order in the Myanmar case could serve as a blueprint for other state parties that encounter human-rights abuses.  

In fact, if the measures prove to be successful in stopping further abuses, they may accomplish far more than armed military intervention could bring about. There would be a reduction in violence, and evidence of genocide would be preserved for trial. Evidence of individual criminal conduct could also be presented to the International Criminal Court or to an ad hoc UN Tribunal. The phrase “international judicial intervention” has sometimes been applied to these ad hoc tribunals, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. The decisions of those tribunals are unlike the court’s provisional measures order in the Myanmar case, however, in that those tribunals only decide whether a particular defendant (not a state) committed criminal acts and cannot impose an injunction prohibiting genocide.

Myanmar’s leaders have repeatedly made clear that they do not need to change anything—because, in their view, they have not committed genocide.

The UN Secretary General António Guterres has stated his belief that Myanmar “will duly comply” with the provisional-measures order. But what if it does not? Myanmar’s leaders have repeatedly made clear that they do not need to change anything—because, in their view, they have not committed genocide.  

Unfortunately, the rules of the International Court of Justice do not lay out a means of enforcement of the court’s judgments; nor does the court have its own independent enforcement mechanism. However, Article 94(2) of the UN Charter provides that “if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendation or decide upon measures to be taken to give effect to the judgment.” Although that article refers to “judgments” and not provisional measures—which are not technically speaking “judgments”—most United Nations scholars have concluded that it could be used by the Security Council to enforce compliance with such measures. Chapter VII of the charter authorizes the Security Council to determine the existence of any threat to the peace, breach of the peace, or act of aggression—which a failure to comply with the provisional measures order could represent—and to decide what measures should be taken in order to maintain or restore international peace and security.  

But how? If military force is required to enforce the provisional measures of the International Court of Justice, Article 41 authorizes the Security Council to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.”  Unfortunately, because Article 43 of the UN Charter, requiring each member state to “undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance and facilities,” has never been implemented and has fallen into disuse, the Security Council does not today have available to it any armed forces other than the severely constrained UN Peacekeepers—who are forbidden to use force except in self-defense.  

Yet even if Article 43 cannot be brought back to life, there are some things that the Security Council could do. It could impose sanctions on Myanmar, or authorize the use of military force by states operating—under their own command—to enforce Security Council resolutions, as was done in the First Gulf War against Iraq. In either case, the five permanent members of the Security Council would have to agree (or abstain from a vote) before the Council could act—China has threatened to veto such resolutions concerning Myanmar in the past—and nine votes would be necessary to pass a resolution.

For Gambia, proving its case on the merits will not be easy. First of all, it is unlikely that eyewitnesses can be found and persuaded to testify. In their absence the court could rely on evidence obtained by other agencies such as the UN Mission, or the reports of the various UN Special Rapporteurs and advisers. It has done so in the past, but it may be reluctant in the Myanmar case. In the Bosnia v. Serbia case in 2007, the court did rely heavily on the findings from the International Criminal Tribunal for the Former Yugoslavia. But those findings were based on an actual trial, whereas with Myanmar there is not yet a parallel criminal proceeding for the court to rely on. Moreover, one of the requested provisional measures that the court did not grant was Gambia’s request that “Myanmar shall grant access to, and cooperate with, all United Nations fact-finding bodies that are engaged in investigating alleged genocidal acts against the Rohingya, including the conditions to which the Rohingya are subjected.”  

Although this failure suggests that Myanmar’s military may continue to prevent outside investigators from pursuing their investigations inside Myanmar, Gambia’s trial team has recently been strengthened by the September 2, 2020, decision of Canada and the Netherlands to intervene on the side of Gambia. In their joint statement, Canada and the Netherlands said that they “consider it our obligation to support these efforts which are of concern to all of humanity...Canada and the Kingdom of the Netherlands reiterate their call to all States Parties to the Genocide Convention to support The Gambia in its efforts to address these violations.” This case is far from over. 

Published in the October 2020 issue: 

Paul C. Saunders is a retired partner of Cravath, Swaine & Moore LLP; Distinguished Visitor from Practice, Georgetown University Law Center; and Director of the International Rule of Law Project of the Bingham Centre for the Rule of Law.

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