Introduction
After witnessing massive destruction caused by World War II, United Nations (UN) was established with the global endeavor for maintaining international peace and security reaffirming faith upon fundamental human rights, dignity and worth of human lives and to save future generation from scourge of war. Depending upon the objectives mentioned in the Preamble of its Charter, UN has obligation to prevent international crimes affecting international peace and security, which includes crimes of genocide, crime against humanity and mass atrocities etc. In light of the current humanitarian crisis of Rohingya in Myanmar, the effectiveness of UN in preventing international crimes like genocide has been questioned; as it has failed, in some aspects, to implement policies in addressing such serious issue, despite having substantial amount of UN-created policies intended to eradicate genocides. Behind this failure some reasons like geopolitics, lack of Court’s jurisdiction and weaknesses of international law played dynamic role. However, UN has proved its effectiveness to some extent, Gambia’s Case against Myanmar in ICJ is a good example. Still there are some prospects on the part of UN which can be effective to solve this issue.
UN approach to Rohingya genocide
UN has adopted Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) with a view to prevent and punish the heinous crime of genocide, which has defined the term ‘Genocide’ under Article 2. Myanmar is under obligation to prevent genocide in its territory under Article 1, being a State party to the convention. However, government of Myanmar has committed genocide against Rohingya ethnic minority group residing in Rakhaine State, in guise of ‘ethnic cleansing’ or ‘anti-terrorism movements’, which was a part of systematic attack inflicted by military resulting in mass killing, brutal rape, causing serious injuries etc.
The United Nations High Commissioner for Human Rights has labeled these violent actions as ethnic cleansing, and another top UN official said the events have “the hallmarks of genocide.”[i]Despite these powerful remarks, along with some other compact evidences of genocide and existence of Genocide Convention, UN has been proved ineffective while protecting the Rohingya in Myanmar which caused massive destruction of human rights in that region.
Role of Security Council and veto by superpowers
Security Council (SC) has effective role to play in this regard under Article 39 by determining threat to peace and taking appropriate measures. Moreover, SC could have taken provisional measures, account of non-compliance and implicating economic, diplomatic or communication interruption etc.[ii]SC did not take any such step. Nevertheless, ‘veto’ provided by China and Russia has prevented the adoption of draft resolution on the situation in Myanmar. Otherwise, it would have been possible to call upon Myanmar’s Government to cease military attacks upon ethnic minority groups residing in Rakhaine and possibilities would have been arisen to begin substantive political dialogue leading towards democratic transition.
For the same reason, scope of referring the case to International Criminal Court (ICC) by SC under Article 13 (b) of Rome Statute has been constrained and possibility of commencing investigation under Article 16 of Rome Statute upon resolution adopted by SC under the purview of Chapter VII of UN Charter has been restrained.[iii] Geopolitics played crucial role in this regard which has made this whole crisis more insensitive.
Gambia vs. Myanmar: Little ray of hope
Gambia, which is a party to the Genocide Convention, dragged Myanmar to ICJ for violating its obligation to prevent and punish genocide under Article 9 of the convention, which allows for disputes between parties “relating to the responsibility of a State for genocide” and related acts to be submitted to the ICJ by any party.[iv]Gambia seek determinations from ICJ that,
- Court may declare that Myanmar has committed crime of genocide;
- It must cease any acts that violate the Convention;
- It must hold individuals who committed acts in violation of the Genocide Convention criminally accountable within its domestic legal system;
- It must pay reparations to the victims of the Rohingya;
- It must demonstrate its intent to not commit further violations of the Genocide Convention.[v]
ICJ held that,
Myanmar must take steps to prevent further genocidal acts by its own forces or by groups or forces acting within its territory over which it has any “control, direction, or influence,”; Myanmar must take steps to preserve any evidence of wrongdoing under the Genocide Convention; Myanmar must submit a report to the ICJ within four months on the steps it is taking to comply with these orders.[vi]
ICJ has played creditable role as being judicial organ of the UN, which has paved narrow alley towards the justice in this issue. However, compliance with such measures depends upon the cooperation of Myanmar’s government which is likely impossible to be attained as ICJ doesn’t have power to impose sanction for non-compliance and killing of two Rohingya women after Court’s ruling is an evidence.[vii]SC has a role here as well to play by complying with order of the Court as ICJ has directed some orders for SC as well and Gambia has called upon SC for the same.
Failure of Myanmar to prevent genocide and precedent of Bosnia and Herzegovina v Serbia case and Montenegro case
In Bosnian Genocide Case, final question explored by the court’s ruling was whether the Federal Republic of Yugoslavia (FRY) had complied with its obligations to prevent and punish genocide under Article 1 of Genocide Convention. ICJ held that,
Federal Republic of Yugoslavia failed to prevent and punish genocide as by doing nothing to prevent the killings, the Federal Republic of Yugoslavia violated the duty to prevent genocide established by the Convention.[viii]
Myanmar committed gross violation of the obligation it incurred under Genocide convention by not taking any necessary step with an aim to prevent commission of genocide. Nonetheless, Myanmar government has used its army to attack Rohingya in the name of ‘clearance operation’ which included mass killing, rape, and arson, resulting in mass atrocities against Rohingya ethnic population.[ix]
Considering the non-observance of obligation under Article 1 of Genocide Convention by Myanmar, ICJ can held Myanmar liable as it has utterly failed to prevent genocide and Bosnian Genocide Case can play imperative role as guidance in this regard.
In addition, ICC has a role to play as prosecution of violations of the Genocide Convention is within the jurisdiction of the ICC as Article 5 states that,
The jurisdiction of the ICC shall be limited to the most serious crimes of concern to the international community as a whole.[x]
Intervention of SC would also be required in this regard, as it has sturdy role to play here; but then role of SC is being contrary to requisite.
Recommendations
SC has significant role to play in solving this matter and enforce violation against Rohingya. Under UN Charter, SC possesses necessary powers and obligations e.g. under chapter VII, which are sufficient enough and can be effective if exercised accordingly. Focus should be made upon the aims and prime objectives of UN set out in preamble rather than acute geopolitics. SC may also refer the case to ICC for prosecution, as SC has room to do the same as per UN Charter and Rome Statue.[xi]
Myanmar has failed to comply with UN Fact Finding Mission by refusing to grant access to human rights investigators, which has inhibited the investigators from completing their mission, which should be treated by UN more seriously by recognizing failures to comply with U.N. fact-finding missions as violations of Genocide Convention’s stated obligation to prevent genocide and thus refer the matter to ICC for prosecution.
This method of enforcement would be effective since the threat of prosecution by the ICC and the punishments that might result would be a sufficient step to obtain compliance. UN, especially SC, should generate pressure upon Myanmar to comply with the ruling of ICJ.
Conclusion
UN has been vested with sacred duty to maintain global peace and international security all over the world by UN Charter, which also includes the prevention and punishment of international crimes like genocide and other acts threatening to peace, security and human rights. Over the years, UN has contributed much in the development of international law, improving the international approach towards the prevention of genocide and adoption of genocide convention. However, due to some unavoidable influence of complex geopolitics, policies of UN are being proved to be ineffective, which results in humanitarian crises like Rohingya issue. UN should change its approach enforcing policies relating to prevention and punishment of genocide and SC, as being key organ of UN should play frontier role.
Writer:
Md. Arif Rayhan, Student of Masters of Law (LL.M. Professional), Department of Law, Bangladesh University of Professionals.
Footnote:
[i]OHCHR, Investigation of Alleged Human Rights Violations and Abuses Against the Rohingya, published on September 26, 2017, https://www.ohchr.org/EN/NewsEvents/Pages/Investigation-AllegedHRViolationsAgainstRohingya.aspx/, accessed on 9th September, 2020.
[ii] See Charter of United Nations, Article 41.
[iii] Security Council Report, In Hindsight: The Security Council and the International Criminal Court, published on 31 July 2018, https://www.securitycouncilreport.org/monthlyforecast/201808/in_hindsight_the_security_council_and_the_international_criminal_court.php/, accessed on 9th September 2020.
[iv] See Convention on the Prevention and Punishment of the Crime of Genocide 1948, Art. 9.
[v] D. Wes Rist, ‘What Does the ICJ Decision on The Gambia v. Myanmar Mean?’, Volume 24 Issue 2, published on February 27, 2020, https://www.asil.org/insights/volume/24/issue/2/what-does-icj-decision-gambia-v-myanmar-mean/, accessed on 9th September, 2020.
[vi] Ibid.
[vii] Ibid.
[viii]Marlise Simons, ‘Court Declares Bosnia Killings Were Genocide’, N.Y. TIMES, published on February 27, 2007, https://www.nytimes.com/2007/02/27/world/europe/27hague.html/, (Accessed on 9th September, 2020).
[ix] The Simon-Skjodt Center for the Prevention of Genocide, “They Tried To Kill Us All”: Atrocity Crimes Against Rohingya Muslims In Rakhine State, Myanmar 2 (2017), https://www.fortifyrights.org/downloads/THEY_TRIED_TO_KILL_US_ALL_Atrocity_Crimes_against_Rohingya_Muslims_Nov_2017/, accessed on 9th September 2020.
[x] See Rome Statute of the International Criminal Court 1998, Art. 5(1).
[xi]Alexa Levy, ‘Rohingya in Myanmar: The United Nations’ Failure to Enforce Violations of Crimes Against Humanity and Genocide’ (2019) 51 Geo. Wash. Int’l L. Rev. 321, Volume 51, 330.