By Henry Fix
Since the Holocaust claimed the lives of at least six million people, the phrase “never again” has become so commonly deplored that it has lost all meaning. Whether in Sudan or Rwanda, Bosnia and Herzegovina or Cambodia, global leaders have repeatedly failed to prevent genocide since Hitler’s Final Solution. Instead, the international community is left to pick up the pieces. If “never again” is not realistic, how do we hold perpetrators of mass atrocity accountable? Is it even possible to deliver justice in the wake of such widescale violence? These questions have surrounded one of the world’s most recent genocides: the Burmese military’s acts of murder, sexual violence, and displacement of more than 700,000 Rohingya people. The Gambia, under the principle of universal jurisdiction, has taken Myanmar to the International Court of Justice (ICJ) for its violations of the Genocide Convention. Still, any future possibility of meaningful action seems implausible.
There is no doubt, of course, that the Gambia’s case is historic. The Gambia v. Myanmar marks the first time that a state has brought a case against another state from a different continent, without being directly affected by the actions of the respondent state. In other words, the Gambia’s case is built not on direct grievances committed against it by Myanmar, but on a universal obligation to prosecute genocide under international law. The most recent movements in the proceedings were on July 22, 2022, when the Court struck down Myanmar’s argument that the Gambia did not have proper jurisdiction to move the case forward Should Myanmar lose, the Gambia is seeking the creation of a tribunal to try individual perpetrators, receive reparations for victims, and obtain full citizenship for the currently stateless Rohingya people, amongst other demands.
Despite attempts from the government of Myanmar to have the case dismissed, the ICJ has confirmed its jurisdiction to proceed - a promising sign for the Gambia. In previous hearings held in 2019, Myanmar prioritized attacks on the Gambia’s legal standing under Articles 8 and 9 of the Genocide Convention, due to a lack of direct dispute or damages directed at the applicant state. As ruled on by the Court’s justices, however, the Genocide Convention explicitly provides the ICJ with jurisdiction to address mass atrocity and enables states to utilize UN organs to suppress breaches of the Convention. Though the Gambia’s lack of explicit dispute with Myanmar is an altogether new approach to coercing recompense for genocide from states, their actions represent not a legal loophole, but a UN member state finally taking the initiative on an existing call to action from international law. This strategy of holding perpetrators responsible despite a lack of personal involvement is an exciting new step in international criminal law after a long global history of marred geopolitics and feigned ignorance towards human rights abuses.
While a win for the Gambia would be an important achievement, an ICJ victory does not necessarily translate to meaningful accountability. The Tatmadaw military junta, which, as of 2021, rules Myanmar as an authoritarian unitary state, would never agree to implement demands that could diminish its political power unless it was forced to. They stepped down and relinquished authority to a semi-democratic government after 2007, but only after mass protests and international condemnation generated enough pressure. Even then, the junta continued to possess heavy influence in government while they regrouped for an eventual coup. The Rohingya genocide was an intrinsically violent power grab, threat of elimination, and display of force. Hence, the idea of such a government offering safe return to Rohingya refugees or providing reparations is glaringly idealistic.
After all, what is stopping Myanmar from simply ignoring the ruling of the ICJ? China did so when the Court ruled that they had little claim to the South China Sea in 2016 and continued to aggressively push for territory. Similarly, Japan ignored the ICJ’s 2014 ruling on its illegal commercial whaling practices and resumed its activities the same year. Likewise, the United States ignored the ICJ’s mandate in 2018 that called for exemptions from sanctions for humanitarian exports in Iran. Myanmar is a signatory to the ICJ and, therefore, is bound to its rulings on paper. However, what would really happen if the military refused to accept its jurisdiction? It is likely that sanctions would be imposed, or a “strong condemnation” issued from the UN Security Council. However, neither of these possibilities are likely to deter the military junta, especially with China and Russia posed to veto any potential resolution. By and large, global disapproval has failed to sway Myanmar’s military power and it is unlikely to be swayed now. This is not to say that any hope of justice for victims of the Rohingya genocide is lost. Russia could have gotten away with its 2022 invasion of Ukraine had the international community not stood in almost complete solidarity against its violation of international law. Such near-unanimous concurrence is undoubtedly rare in international politics, but it is not altogether impossible. Already, dozens of countries have publicly recognized the actions of Myanmar’s Tatmadaw as genocide and have called for upholding accountability. Even the United States, which had only previously recognized eight genocides in history, has publicly declared Myanmar’s actions against the Rohingya as acts of genocide and crimes against humanity.
If a ruling is found in favor of the Gambia, it must not be the last judicial mechanism to provide justice for the victims of the Burmese atrocity. The legal community should be focused on creating an independent criminal tribunal for crimes committed in Myanmar, which would further be legitimized by a successful ruling in the ICJ. It is worth acknowledging that without direct military intervention, transitioning Myanmar to a place in which leaders of the Rohingya genocide may be prosecuted will be complex and limited until another regime change. However, a tribunal would result in actual criminal sentencing and prosecution, a necessity that the ICJ cannot provide. Additionally, this would result in the further gathering of evidence of Genocide by prosecutors and the placement of Interpol Red Notices on ringleaders within the junta. It is even possible that trials could proceed before a complete power transition in Myanmar, should suspects be arrested within Interpol jurisdiction; the International Criminal Court could easily justify trying sitting heads of state due to past precedents such as the trial of Slobodan Milosevic, especially due to the illegitimate nature of Myanmar’s military government. Presented with such possibilities from a tribunal, the international community could increase the cost for any resistance to an ICJ ruling from Myanmar, making the Gambia’s case all the more impactful.
As the situation stands, however, hope remains bleak for a positive outcome for Myanmar’s genocide victims. However, substantive accountability is only as distant a possibility as the international community lets it be.
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