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Home International Criminal Law Archive for category "Genocide"

The Challenges for the ICJ in the Reliance on UN Fact-Finding Reports in the Case against Myanmar

Published on December 14, 2019        Author: 

 

This past week’s provisional measures hearing in the case against Myanmar at the International Court of Justice (ICJ) made for a remarkable spectacle (see here, here, and here). Acting as the head of her country’s delegation, Nobel Peace Prize winner Aung San Suu Kyi sat silently as The Gambia’s legal team laid out its case alleging violations of the 1948 Genocide Convention, including brutal descriptions of the atrocities that have been exacted upon the Rohingya minority. When Aung San Suu Kyi addressed the Court herself, she pointedly did not utter the word “Rohingya”—except in a sole reference to the Arakan Rohingya Salvation Army, an insurgent group that Myanmar places at the center of what it frames as an internal armed conflict. Instead, she asked the Court to reject the provisional measures request and to resist the efforts by The Gambia and others to “externalize accountability” for alleged war crimes, leaving Myanmar to addresses these matters itself (CR 2019/19, pp 17-18, paras 24-25) .

In brief, The Gambia accuses Myanmar of engaging in a systematic policy of oppression and persecution against the Rohingya, a Muslim minority in a predominantly Buddhist country, that reaches back decades. Based on the Application, the ICJ will be asked to focus on military campaigns (termed “clearance operations” by Myanmar) carried out against the Rohingya since 2016, which are estimated to have caused more than 10,000 deaths and more than 700,000 people to seek refuge in Bangladesh. This is not the first time that a non-injured State has sought to enforce obligations erga omnes partes at the ICJ, but it is the first such case brought under the Genocide Convention.

I wrote previously about the possibility of an ICJ case against Myanmar and some of the attendant challenges. This post aims to highlight a specific challenge that these proceedings will pose for the Court: The Gambia’s extensive reliance on UN fact-finding reports, combined with the absence of prior or parallel international criminal proceedings relating to these events. Read the rest of this entry…

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A Picture is Worth a Thousand Words

Published on December 4, 2019        Author: 

(Image credit: AFP)

Next week, Aung San Suu Kyi, the Nobel Peace Prize laureate and de facto head of government of Myanmar, will appear in person before the International Court of Justice. She will be defending her country in the case brought by Gambia for breaches of the Genocide Convention due to atrocities against the Rohingya. The Court will be holding oral hearings on provisional measures in the case (for our earlier coverage, see here). According to an AFP report:

Ardent fans of Aung San Suu Kyi are snapping up spots on $2,000 tours to The Hague, in a display of moral support as Myanmar faces charges of genocide over the Rohingya crisis at the UN’s top court in December.

Supporter rallies, billboards and outpourings of praise online followed the shock announcement by the country’s civilian leader last week that she would personally represent Myanmar at the International Court of Justice (ICJ).

The once-lauded democracy champion will be defending the 2017 military crackdown against the Rohingya minority.

One travel operator is organising a five-day tour to The Hague that includes visa and transportation as part of a $2,150 package, said employee Ma July — a prohibitive rate for most in the developing nation.

Social influencer Pencilo and well-known TV presenter Mg Mg Aye are among the 20 or so people to have already signed up.

“I believe this is our duty as citizens,” Pencilo, 29, told AFP Friday, urging any of her 1.1 million Facebook followers who have the means to do the same.

“It’s important the world knows her compatriots are fully behind her.”

– ‘We stand with you’ –

All of this is so deeply disturbing on so many levels that I genuinely find myself bereft of words. But the image above somehow manages to convey it all – Peace Palace, Photoshop, Facebook. For analysis of why Suu Kyi has decided to appear before the Court in person, perhaps due to her total inability to accept a reality that is not to her liking, or perhaps as part of a cynical strategy to buoy support for her party and herself within Myanmar, see here and here. Either way, it will be a sad spectacle, in more ways than one.

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The Gambia’s gamble, and how jurisdictional limits may keep the ICJ from ruling on Myanmar’s alleged genocide against Rohingya

Published on November 21, 2019        Author: , and

 

On 11 November, The Gambia filed an Application instituting proceedings and requesting provisional measures at the International Court of Justice (ICJ) in relation to the genocide allegedly committed by Myanmar against the Rohingya (for a first analysis of the Application, see this post by Priya Pillai). As notably reported by The New York Times and The Washington Post, the application is at least in part a personal quest for justice by The Gambia’s Minister of Justice and Attorney General, Abubacarr Marie Tambadou, who acts as The Gambia’s Agent and previously worked for the prosecutor of the International Criminal Tribunal for Rwanda. The Gambia’s application is backed by the Organisation of Islamic Cooperation (of which The Gambia is a member) and its legal team is led by the US law firm Foley Hoag (see here). As we will argue below, the peculiar origins of this quest for justice may well be determinative for the establishment of the ICJ’s jurisdiction.

Regarding the atrocities committed against the Rohingya, the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar has found ‘that the factors allowing the inference of genocidal intent are present’ (see here, para 1441). While there appears little reason to disagree with the Fact-Finding Mission’s conclusion, in this post we will not examine substantively whether the atrocities complained of constitute genocide. Instead, we will briefly sketch why it makes sense for The Gambia to seize the ICJ while proceedings relating to the Rohingya are already going on at the International Criminal Court (ICC), after which we will address the request for provisional measures.

Different nature of the ICJ and ICC Proceedings

Just three days after The Gambia submitted its application to the ICJ, Pre-Trial Chamber III of the ICC authorized the Prosecutor to investigate the situation in Myanmar/Bangladesh (see here). As Myanmar is not a party to the Rome Statute, and as the position of China and Russia make a UN Security Council referral highly unlikely (see eg here), the Prosecutor has opened an investigation on her own initiative. The investigation ‘geographically’ focuses on Bangladesh, Myanmar’s neighbouring country to which over 742.000 Rohingya refugees have fled (see here). Bangladesh is a party to the Rome Statute, and accordingly provides a jurisdictional link to the Court. Read the rest of this entry…

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo case? (Part 3)

Published on November 6, 2019        Author: 

In this three-part series I seek to draw attention to legally-unprecedented and epistemologically-unsound evidentiary standards emerging at the ICC, particularly in the Gbagbo case.  The mainstream reaction to the Gbagbo case has been to accept the narrative that the problem lies entirely with evidence.  However, when the majority derides the “questionable quality of much of the evidence” (§1608), it speaks from a lens of Cartesian standards. If one reads the judgment instead through the lens of more typical legal standards, the evidence is harrowing.  Thousands of diverse items of evidence – eye-witnesses, videos, insiders, experts, and forensic and documentary evidence – attest to hundreds of instances of killing, wounding, raping, torturing and burning of civilians by police and other pro-Gbagbo forces.

At Nuremberg, Robert Jackson warned that giving the defendants an unfair trial would be a poisoned chalice for the tribunal itself.  My concern is that opposite extreme is also a poisoned chalice.  An exclusive focus on the interests of the accused, to the exclusion of all other considerations, leading to rarified and ungrounded standards, will also collapse the system.  If unchecked, these standards can only lead to repeated collapses of investigations and prosecutions.  We are at an interesting moment, because scholars are rightly warning against ‘crisis narratives’, and I myself have appealed for less alarmism.   Nonetheless I think that evidentiary standards are now one of the most crucial topics for study and reform.

The previous two posts (see Part I here and Part II here) gave only a cursory outline of problematic approaches to evidence and examples thereof. I will now touch on two related points, (1) evidentiary expectations for crimes against humanity and (2) investigative criticisms that overlook the applicable legal regime, and then I will conclude. Read the rest of this entry…

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A Disappointing End of the Road for the Mothers of Srebrenica Litigation in the Netherlands

Published on July 23, 2019        Author: 

On Friday, the Dutch Supreme Court issued its final decision in the Mothers of Srebrenica litigation regarding the acts and omissions of the Dutch battalion (Dutchbat) of U.N. peacekeepers at Srebrenica in July 1995 (English translation). I’ve written previously on these pages about a pair of earlier, narrower cases (Nuhanović and Mustafić-Mujić) related to the Netherlands’ responsibility for Dutchbat’s failures during the genocide  (see here, here,  and here). Friday’s ruling marks the end of an extraordinarily lengthy process regarding the more comprehensive litigation effort led by the Mothers of Srebrenica organization. The litigation went up to the European Court of Human Rights on the issue of U.N. immunity (which was upheld), before turning to the responsibility of the Netherlands.

In this post, I discuss four issues arising in the Supreme Court’s decision

  • the Court’s apportionment of responsibility to the Netherlands for Bosnian Serb forces’ killings of the 350 Bosnian Muslim men who had been in Dutchbat’s compound;
  • the theory of attribution adopted by the Court, and how it compares to the approach adopted in earlier Srebrenica cases;
  • the Court’s approach to Dutch responsibility for those outside the compound;
  • and the justiciability of the duty to prevent genocide.

The Percentage of Dutch Responsibility

The headlines have focused on the Netherlands’ share of liability. The Court of Appeal held the state liable for 30% of the damages associated with the killings of the 350 men whom Dutchbat had evicted from its Potočari compound and into the hands of the Bosnian Serb forces (VRS) (paras. 68-69.1). The Supreme Court reduced this share to 10% (para 4.7.9). Both courts appear to have applied a form of proportionate responsibility to Dutchbat with respect to the VRS killings, while applying joint and several responsibility to the Netherlands with respect to the actions of Dutchbat. In other words, the Netherlands is to be held fully responsible for the 10% apportioned to Dutchbat, even though Dutchbat’s conduct is potentially also attributable to the U.N. Read the rest of this entry…

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Canada Avoids Indigenous Reconciliation and the UN Declaration on the Rights of Indigenous Peoples

Published on July 3, 2019        Author: 

If you believe that Canada is a country filled with self-effacing and polite people, you may miss the genocidal violence within its borders. First Nations, Inuit, and Métis have always known that the Government of Canada along with the Canadian provincial governments have deliberately implemented and enabled the continuous annihilation of Indigenous peoples. The National Inquiry into Missing and Murdered Indigenous Women and Girls found in its report, released earlier this month, that Indigenous women were 12 times more likely to be killed or to disappear than other women in Canada. The report concluded that this violence is the result of historical and ongoing race-based genocide against Indigenous peoples.

The National Inquiry was commissioned by the Government of Canada in 2015 to launch a public inquiry into the disproportionate levels of violence against Indigenous women and girls. It was the result of long-standing pressure from grassroots family members and survivors, community organizations and national Indigenous organizations, international human rights organizations, and the Truth and Reconciliation Commission of Canada. It took a tragedy in 2014 to lead to a public inquiry: the body of Tina Fontaine, a 15-year-old girl from the Sagkeeng First Nation, was found in the Red River in Winnipeg, Manitoba wrapped in a duvet weighed down with 25 pounds of rocks; when the main murder suspect was acquitted, people across the country were outraged which generated wide-spread calls for an investigation into why Indigenous girls and women were dying at a high rate.

The report’s conclusion was not new news to anyone who understood Canadian politics. What is noteworthy is that Prime Minister Justin Trudeau publicly accepted that Canada has committed and continues to commit genocide. Many citizens and prominent officials in Canada, however, had a visceral reaction against the characterization of the violence as genocidal. It did not match the story that Canadian citizens and government officials tell themselves about Canada as a promoter of international human rights abroad or of what they thought modern genocide looks like.

Never has international law forced Canada to face itself so honestly. Some are arguing that because genocide did not exist as an international crime before the 1948 Geneva Conventions, the colonial violence in Canada’s past may not fall under the gambit of modern international criminal law (here and here) even if they reverberate today. These arguments, however, treat colonialism in Canada as a punctuated historical phenomenon. Read the rest of this entry…

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Filed under: Genocide, Indigenous Peoples
 
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Symposium on the Genocide Convention: Is the Duty to Prevent Genocide an Obligation of Result or an Obligation of Conduct according to the ICJ?

Published on May 16, 2019        Author: 

Editor’s note: This is the final post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the other posts in this symposium here and here.

This post questions the findings of the International Court of Justice (ICJ) in the 2007 Bosnia v. Serbia case, according to which the duty to prevent a genocide is an obligation of conduct that can be assessed only after the occurrence of a genocide. The post first briefly explores the distinction between obligations of conduct and obligations of result on the basis of the International Law Commission (ILC)’s works and judicial practice. The post moves on to emphasise some inconsistencies in the ICJ’s reasoning in relation to the occurrence of a genocide as a prerequisite for the violation of the duty to prevent genocide. Finally, the post advances some possible explanations of the role of the event ‘genocide’ in relation to the duty to prevent genocide.

The 2007 ICJ’s Decision

In the 2007 Bosnia v. Serbia case, the Court for the first time declared that an autonomous obligation of diligent conduct to prevent genocide exists under Article I of the 1948 Genocide Convention (see my reflections here). According to the Court:

It is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance. (para 430, emphasis added)

The Court went on to affirm that a breach of the duty to prevent genocide can be assessed only after a genocide has occurred. The Court took the view that:

a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs. […] If neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen. (para 431, emphasis added)

However, the view that a genocide must occur before a State’s compliance with the duty to prevent genocide can be assessed ignores the fact that this duty is a due diligence obligation of conduct. This conclusion is supported by the analysis of the evolution of the notion of obligations of conduct. Read the rest of this entry…

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Symposium on the Genocide Convention: Reflecting on the Genocide Convention at 70: How genocide became a crime subject to universal jurisdiction

Published on May 16, 2019        Author: 

Editor’s note: This is the second post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the first post here.

The 9th of December 2018 marked the 70th anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 by the United Nations General Assembly. Article 6 of the Convention expressly grants adjudicatory jurisdiction to the territorial State (the State where the crime occurred) and to an international penal tribunal with the acceptance of the Contracting Parties. However, the textual content of the Article has not prevented the application of extraterritorial jurisdiction to the crime, including universal criminal jurisdiction. Reflecting on the Genocide Convention at 70, this post briefly analyses the development of universal jurisdiction over the crime of genocide. It explains how Article 6 has led to the application of the universality principle to the crime, and considers what can be learned from this phenomenon in the context of the legacy of the Genocide Convention.

The origins of the application of universal jurisdiction to genocide began decades before the drafting of the Genocide Convention in 1947. Read the rest of this entry…

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Symposium on the Genocide Convention: Codification of the Crime of Genocide – a Blessing or a Curse?

Published on May 15, 2019        Author: 

Editor’s note: This is the first post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. 

Codification of the crime of genocide

A lot has been written about the origins of the crime of genocide that need not be repeated here. It is well known that Lemkin originally saw genocide as a broad concept, i.e. as different acts aimed at destroying the culture and livelihood of groups (Axis Rule in Occupied Power, pp. 79-82). Along the same lines, the 1946 UN General Assembly Resolution 96 described genocide as the denial of the right of existence of entire human groups – including political ones. However, the scope of the definition adopted in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide was significantly narrower. Cultural destruction and forcible population transfer were not included in the final text, protected groups were restricted, and jurisdictional reach limited. Yet, the Convention must be understood in the context of time. Indeed, having in mind the historical background, it is quite remarkable that the Convention was adopted at all – and broad support was generated by making concessions and imposing more stringent requirements.

Since the Genocide Convention defined and codified the crime of genocide as an independent crime, the definition of genocide has remained firmly settled in international law. Perhaps prematurely, the ICJ had already proclaimed its customary status in 1951, which was subsequently fortified by the verbatim reproduction of Article II of the Genocide Convention in the statutes of international ad hoc tribunals (here and here) as well as the Rome Statute of the ICC. This surely contributed to legal certainty and, from this perspective, codification can be viewed as a blessing for the relatively consistent application of the definition of genocide at the international level. Yet, simultaneously, it was a curse, preventing the crime from undergoing a development similar to that of crimes against humanity and even war crimes. This downside of the early codification could have been at least partially addressed through teleological and evolutive interpretation of the offence. The international tribunals, however, failed to realize the potential of the definition and thus contributed to frustrations surrounding prosecutions of genocide as well as to claims that genocide today is a redundant crime. Read the rest of this entry…

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