John Packer (JP): For a number of reasons, the ICJ’s decision of 23 January 2020 is legally significant. First, the Court has acknowledged that the case is prima facie meritorious. Second, the Court has clearly confirmed – not only by accepting the case, but even by commenting – that it is entirely valid for The Gambia to bring the case as a non-injured state. It has validated the principle of obligations erga omnes partes as a pure action before the Court (with no other interest asserted nor any spectre thereof). That is unprecedented.
Connected to that, the subject matter in dispute concerns peremptory norms of international law, specifically the prevention, prohibition and punishment of genocide. So, the ICJ’s decision opens the prospect that there may be future cases based on the jurisprudence of this case. In other words, it’s not just a matter of obligations erga omnes partes to the UN Genocide Convention here at issue, but it raises the question: could other states which are parties to other conventions that address peremptory norms, such as the prohibition against torture, etc., eventually bring such cases (i.e. without a specific interest or injury)? That’s an interesting question. But it’s not just speculation: it follows from the example of this case.
LD: What do you think about the unanimous position of the ICJ?
JP: It is certainly significant that the Court reached its decisions unanimously. The Judges need not have indicated that. They could have decided by consensus, but they voted. And the voting included the Judges who may have been previously questioned about their political orientation based on their nationality or appointment. The position of the ad hoc Judge appointed by Myanmar is quite striking. I believe it is a result of the strength of the case to which they have simply applied the law – according to their oath and duty.
LD: What is your view about the provisional measures ordered by the ICJ?
JP: The Court has agreed on four out of six of the requested provisional measures. And for those, they now place obligations on Myanmar immediately to implement. Some of these require Myanmar to identify and to indicate which exact measures or steps will be taken. We don’t know yet exactly what they are; it will be fascinating to see what Myanmar is going to do. Some of these relate to control of their armed forces which, in light of Myanmar’s own domestic Independent Commission of Enquiry (ICOE), is obviously needed. Indeed, the ICOE reported earlier last week, and the Government of Myanmar has acknowledged that some of its armed forces have acted beyond authority or out of control or have participated in international crimes. So, the question remains what exactly Myanmar will do that would be credible, effective and supervisable. Because they will have to report and continue to report to demonstrate compliance with the Court’s orders. Though Myanmar has been arguing that the situation (even an armed conflict) is their domestic affair, the ICJ’s decision has clarified that it is no longer their domestic affair. The world will watch closely, and Myanmar may have difficulty in fact fully complying.
LD: How would the provisional measures be implemented?
JP: The UN Secretary-General has already done his job in communicating the ICJ’s decision to the Security Council. Now, the Security Council must establish its own supervisory mechanism. This will be interesting to watch. And no member state – including the permanent members – may interfere with the normal conduct of that supervision. That’s the specific mandate which must be carried out according to the Statute of the Court which forms an integral part of the UN Charter. Another important aspect is that the reporting is not just to the Security Council, but to the ICJ. It means the ICJ will assess the veracity and appropriateness of the contents of reported action. There is a whole process here which has nothing to do with the Genocide Convention. This is now about showing respect to the ICJ as an institution, its Statute and the UN Charter. Failures by Myanmar to fulfil its obligations will be breaches of the UN Charter.
LD: Was there any opportunity for Bangladesh to get involved in the case to the ICJ?
JP: Yes. There are multiple possibilities. First, Bangladesh itself could initiate a case. There is a technical problem in that Bangladesh has a reservation to Article IX of the UN Genocide Convention which is the compromissory clause that permits a contentious case between parties. However, Bangladesh could argue that the reservation is not a bar given the character of the subject matter, or, better, Bangladesh could simply withdraw its reservation – which I honestly don’t understand why it exists since I see no prospect that Bangladesh is a genocidal state. Bangladesh could have joined a multi-state action; it’s not clear why that didn’t happen. Still now Bangladesh could join this current case under Article 62 of the ICJ Statute or it could intervene under Article 63 of the Statute.
Article 62 permits a state which has an interest in the matter, and there is no doubt that the most interested state other than Myanmar is Bangladesh. Remarkably, Myanmar in its pleading specifically asserted that; Myanmar agrees that Bangladesh is directly injured and interested which raises the question why the directly injured state has so far not acted. I don’t believe that the reservation to Article IX precludes an application under Article 62, because that is not a new action. Rather, it’s a joinder to the ongoing case already before the Court where interests are affected. I don’t see that Bangladesh can be barred once someone else has brought the case. Article 62’s application has a wide range. Bangladesh could assert its own injuries, it could make claims, or argue many things. It seems an open opportunity. And again, if there is any doubt whatsoever, Bangladesh should just withdraw its senseless reservation.
On the other hand, Article 63 applies to any state party to a multilateral convention being adjudicated. The prospect is that the substantive elements of the convention will be interpreted either in general or in specific application to the facts. That has implications for the future affecting all other states parties. So, all other states parties, whether or not they are injured or wish to make any claim, enjoy a right to make a submission. The Court cannot deny them that right (as long as it respects the terms of the provision).
Under Article 63 the intervenor doesn’t become a party, but gets to submit its position to help the Court in interpreting the Convention. Under Article 62, the acting state in effect becomes a party.
LD: How important is the ICJ’s decision for the Rohingyas?
JP: Extremely important. For a start, the Court itself in its judgment repeatedly uses the word “Rohingya” – as a group. That means there is no doubt that the Rohingyas are the legitimate subject of protection of the Convention. That’s irrespective of whether the Convention has been breached or not – which will be determined later; but there is no doubt that the Rohingyas as a “national, ethnical, racial or religious group” prima facie exist and should therefore enjoy protection. For the Rohingyas, that recognition is essentially existential.
Moreover, the Court says that prima facie the Rohingyas have suffered enough to be protected under the Convention. References to the reports of the UN Independent Fact-Finding Mission on Myanmar offer sufficient evidence and support the proposition that they have been suffering for long and in severe ways – again, irrespective of whether that amounts to genocide. The double recognition to ‘group identity’ as well as ‘group-based-suffering’ is of profound significance for the Rohingyas. I believe it will generate hope for many Rohingyas and help them, because I strongly feel that they are on the edge of hopelessness.
Further, the decision will encourage the international human rights community, the NGO community and the scholarly community opening a new vista of possibilities to think about what justice, reparation and durable solutions may look like. I think it’s inspiring to see a small state like The Gambia brings such a case simply by filing some paper and arguments. What may come of this is difficult to foresee. I believe it’s a turning point.
LD: Thank you.
JP: You are welcome.