Gambia vs. Myanmar: Interstate litigation and accountability for mass atrocity crimes: Any potential in and for Africa?
By Bernard Ntahiraj. This blog post was first published on the African Group of Experts on International Criminal Justice blog.
On 11 November 2019, the Republic of The Gambia (Gambia) filed a complaint against the Republic of the Union of Myanmar (Myanmar) in the International Court of Justice (ICJ). It is alleged that Myanmar’s government has adopted, taken and condoned criminal acts against members of the Rohingya group, acts aiming at the total or partial destruction of the Rohingya as a distinct ethnic, racial and religious group and thus constituting the crime of genocide. The acts complained of were committed in the context of “clearance operations”, a term that the Myammar government itself uses. These acts are alleged to have been committed, mostly, in the Rakhine State as detailed in the report of the UNHCR’s mandated Independent fact-finding Mission on Myanmar. Pre-trial III of the International Criminal Court recently authorised an investigation for crimes in that situation that occurred or were consummated in Bangladesh, Myammar not being a party to the Rome Statute. As recalled by Pre-Trial Chamber I of the ICC in a previous decision, the court may exercise jurisdiction ‘if at least one element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party to the Statute’. A lawsuit based on the universality principle has also been initiated in Argentina against Myanmar’s civilian leader Aung San Suu Kyi and other officials.
The legal basis of Gambia’s application before the ICJ is the 1948 Convention on the Prevention and Punishment of the Crime of Genocide to which both states are parties. The complaint includes a request that the Court indicate provisional measures to protect the rights invoked from imminent and irreparable loss.
Although Gambia shouldn’t take all the credit for that action; the move having been discussed and agreed upon at the Organisation of the Islamic Conference (OIC), this should still be seen as a show of leadership. Indeed, experts reflecting on the possibility of bringing such a case to the ICJ envisioned France or Canada as the most likely to take that step, both states having been among the most vocal critics of Myanmar on the issue. One can only hope that Gambia will be emulated in Africa and mostly for crimes committed in Africa.
The purpose of this post is not to discuss the legal questions that are very likely to be discussed throughout the proceedings although some of them might raise very pertinent issues. It can be expected, for instance, that the court will be asked to pronounce on the existence of a genuine legal dispute between the two states as well as on the jus standiof Gambia as a non-injured state - or not directly injured state. The way the Court balances the last potential objection from Myammar with the erga omnes nature of the core international obligation in question will be interesting to see. The legal basis for reparations with a legal instrument - the Genocide Convention - which does not explicitly provide for them, the extent to which Customary Law can fill in the gap will be interesting to see, as well. It is worth mentioning that the articles on state responsibility for internationally wrongful acts are not cited in Gambia’s submissions. The proceedings being at their initial stage, this is not alarming in itself. This post does not address those questions. Readers with an interest in some of these issues may read blog posts by Priya Pillai, Thomas Van Poecke et al, Dimitrios Kourtis, and Michael A. Becker. The focus of this post is different. Learning from that initiative, the purpose is to assess the potential contribution of interstate litigation in the battle against impunity in Africa.
I. Why interstate litigation in cases of mass crimes, at all?
- Interstate litigation can sometimes be the only avenue for justice. This is so where, for instance, the crimes do not fall - in whole or in part - within the jurisdiction of any existing international criminal court. When the territorial state - or another state with a direct nexus with the crime - is not willing to prosecute and given the infancy of universal jurisdiction in Africa, interstate litigation might be the only available option.
- Interstate litigation can also serve as a complement to prosecution. While it is today widely admitted that justice is not fully served until injuries suffered by the victims are dealt with, criminal trials are still, most of the times, limited to the engagement of individual criminal responsibility. At the international level, the International Criminal Court was the first to provide for, at least, a possibility of reparations. The Rome Statute scheme for reparations is however far from perfect, in law as well as in practice (See, Moffett). If the Hissene Habre case is of any practical relevance, it is quite fair to state that universal jurisdiction-based trials are also still not satisfactory on the question of reparations for victims, not least because of the enormous discrepancy between the amount of compensations needed and the financial capabilities of the person recognised as individually responsible. The challenges involved in the Habre case have been highlighted here.
- Beyond the reparation of injuries suffered by the victims, interstate litigation provides a room to assess the merits of states’ policies (or lack thereof, most of the times) in the terms of prevention. In the worst cases, states’ direct and active roles will be exposed. This shouldn’t be considered superfluous when criminal responsibility has been established. It is indeed well known that direct inferences to a state’s responsibility cannot be drawn from criminal convictions - or acquittals - of nationals of that state, even if they are its agents. The renewed momentum of international criminal justice since the last decade of the twentieth century has had as a side effect a tendency to forget the role of state responsibility and this is just regrettable.
- Depending on the rules of procedures applied by the Court, inter-state litigation may also allow the imposition of provisional measures and this is generally not the case for criminal courts. When the alleged violations are still going on - as is allegedly the case with regards to the Rohingya - the importance of this cannot be overstated.
II. How reasonable is inter-state litigation for mass crimes?
- There seems to be no dispute today that legal norms prohibiting some atrocity crimes are of a jus cogens character and that the obligations owed under the legal instruments for their prevention and repression of erga omnes and erga omnes partes in nature, i.e., they are owed to the entire international community. The Court has explicitly stated that with regards to genocide, and torture, for instance. It follows from that that all States parties to those instruments have a “legal interest” in the enforcement of those obligations. With regard to genocide, in particular, the International Court of Justice has stated in unequivocal terms “the universal character both of the condemnation of genocide and of the co-operation required ‘in order to liberate mankind from such an odious scourge.’”
- With regard to the Convention on the Prevention and Punishment of the Crime of Genocide, jurisdictional issues were settled in advance by article IX and stating as follows:
‘Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.’
There seems, therefore, to be a ‘compromis’ between all states parties to the Convention to give jurisdiction to the International Court of Justice.
African states with an interest in interstate litigation to pursue accountability for mass atrocity crimes have, at their disposal, global as well as regional judicial fora.
III. Global judicial fora and accountability for mass atrocity crimes in Africa
- Global judicial fora for interstate litigation can indeed be used in the fight against impunity in Africa. They have not been used, so far. The point of this blog is not to name and shame. There is, therefore, no point in listing instances where such prerogatives could have been used. However, limiting the focus on the same treaty - the Genocide Convention, it is worth recalling that 30 African states are parties to it. Sudan is one of them. Charges of that crime against officials of that state in the Darfur region - including the head of State - did not move any African state to the International Court of Justice to ask the Court to compel Sudan to act on those crimes, as the Gambia is doing now against Myammar. Individually, each one of the 29 states enjoyed standing for that. Collectively, it was possible – and would have been desirable – that the African Union take resolutions calling individual states to take that step in the spirit of article 4 (h) of its Constitutive Act. Quite the opposite happened. A strong movement of support to the main suspect in the conflict - former Sudanese President Omar Al - Bashir was formed. Three years after the continental ‘revolution’ (from the Organisation of African Unity to the African Union), the silence and inaction to the crimes in Darfur exposed how the very praised ‘paradigm shift’ from non-interference to non-indifference was just what it sounds like: a slogan.
- The use of global judicial fora in the interest of ‘peoples’ other than their nationals is not alien to the international politics of African states. Suffice it to recall the role played by the states of Ethiopia and Liberia in the judicial part of the independence struggle, mostly in the benefit of the current state of Namibia (South West Africa during the colonial time). It is widely known that both states directly initiated proceedings at the ICJ against the Republic of South Africa  and lobbed other states within the United Nations General Assembly for a request of an advisory opinion on the matter. To explain today’s tendency not to use international judicial fora in the fight against impunity, one is therefore bound to reject the scepticism about theinstitutions – like the International Court of Justice – and hypothesise on a value system which prioritises non-interference over accountability.
Obviously, interstate litigation does have political consequences, one of them being that it is perceived, most of the times, as a hostile move by the respondent state. However, if the judicial and political moves above referred to (Ethiopia’s and Liberia’s in the independence movement) are of any relevance, it is that the ‘African solidarity’ states used to adhere and hold on to was among ‘peoples’ (in the political sense) rather than among states themselves - which is sometimes a legal name for ‘ruling elites.’ The hypothesis on the value system remains, therefore, the only plausible explanation of the current passivity. It is fair to conclude that, factually, the paradigm has shifted in the opposite direction.
IV. Regional fora for interstate litigation and accountability for mass atrocity crimes in Africa
At the continental level, interstate litigation for accountability does have room within the African human rights system. That dual mechanism (Commission and Court) provides two paths:
- In theory, Communications from states are supposed to be the main channel to bring a human rights situation to the attention of the African Commission on Human and Peoples’ Rights. Needless to say that the crimes discussed here are always blatant violations of the Charter’s provisions (right to life, freedom from torture, freedom from arbitrary arrest, etc...). Interestingly enough, states parties always enjoy jus standi. The alleged victimsdo not need to be their nationals. Drafting the Charter, African states collectively gave the impression of willingness to be their neighbours’ keepers. It turned out later that they did not mean it. In more than thirty years, the Commission only handled one inter-state communication and it involved the citizens of the complainant state. In other words, no African state has ever invoked the erga omnescharacter of the obligations created by the African Charter. Will Gambia bring the new leadership ‘home’ and start a ‘movement’?
- Things are slightly different in the African Court on Human and Peoples’ Rights. Any state that has (previously) lodged a complaint to the Commission can submit a case to the Court. This can therefore be any state party to the Charter and the Protocol creating the Court. Outside that context, i.e., when proceedings start within the Court, a state enjoys standing if its citizen is a victim of human rights violations or if it justifies another ‘interest’ in the case. This is not an inherently limiting factor in a human rights instrument. Comparative human rights law generally avoids a narrow interpretation of the notion of ‘interest’. The African Court still has to define and characterise it, though. It will need an opportunity for that. As a judicial institution, it does not respond to ‘academic’ questions. It will need to be seized (by a non-directly injured state) of such a case to pronounce on it. It has not, so far. To date, statistics from the Court itself show that no state has ever lodged a complaint against another.
Gambia is definitely to be praised for its leadership. It can only be hoped that its example will be followed. With some political will, African states do have global as well as regional instruments and fora to act in that direction. If African states are to ever be taken seriously on the values they want to protect at the global stage, they will have to start doing the same within their region. It is undoubtedly commendable but almost too charitable - and therefore a bit suspicious - for a firefighter to leave his/her own house and hill burning and run thousands of miles to extinguish another fire.
Bernard NTAHIRAJA is a research fellow at the Department of Public and International Law of the Faculty of Law, University of Oslo. He has previously taught Criminal Law, Criminal Procedure and Human Rights Law at the Faculty of Law of the University of Burundi. His research interests include Criminal Justice (both domestic and international) and Human Rights Law. He holds a PhD in Law (Katolieke Universiteit Leuven, Belgium.
 Regarding the crimes against the Rohingya community, the ongoing investigation by the Prosecution of the International Criminal Court (ICC) is limited to segments of crimes that occurred or were consummated in Bangladesh, a state party to the Rome Statute, because Myammar is not.
[2 ]For genocide, see, for instance, Application of the Convention on the Prevention and Punishment of the Crime of Genocide(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, I.C.J. Reports 2007, p. 111, para. 161 (citing Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment of 3 February 2006, I.C.J. Reports 2006, p. 32, para. 64). See also, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),18 November 2008
 See Laurel E. Fletcher, A Wolf in Sheep's Clothing: Transitional Justice and the Effacement of State Accountability for International Crimes, Fordham International Law Journal, vol.39, 447-532.
 For the erga omnes character of the obligations under the genocide convention, see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),Judgment, I.C.J. Reports 2015, pp. 45-47, paras. 85-88 (citing Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 110-111, para. 161).
 See, ICC, Questions relating to the obligation to prosecute or extradite (Belgium vs. Senegal),Judgment of 20m July, 2012, paras 68-70.
 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962), Second Phase, Judgment of 5 February 1970, I.C.J. Reports 1970, p. 32, para. 33. See also, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits, Judgment of 20 July 2012, I.C.J. Reports 2012, p. 450, para. 69.
 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, I.C.J. Reports 1951, p. 23 (emphasis mine).
 Genocide Convention, art. IX
 Article 4, h of the AU Constitutive Act poses as one of the principles of that organisation ‘the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity;’
 See, for instance, the Decision on Africa's Relationship with the International Criminal Court Ext/Assembly/AU/Dec.1-2 (Oct.2013) (2013), adopted at the AU's Extraordinary Session on 12 October 2013 in Addis Ababa, Ethiopia. See also African Union, 30th Ordinary Session of the Assembly, 28-29 January 2018, Addis Ababa, Ethiopia, Decision on the International Criminal Court, Doc. EX.CL/1068(XXXII), Assembly/AU/Dec.672(XXX)
 Two procedures Ethiopia v. South Africa andLiberia vs. South Africa were later on joined to make one.See, https://www.icj-cij.org/en/case/46
 See ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)notwithstanding Security Council Resolution 276 (1970)
 Article 47 to 49 of the African Charter on Human and Peoples’ Rights
 DRC v Burundi, Rwanda and Uganda (2004) AHRLR 19 (ACHPR 2003). See also Centre for Human Rights, A guide to the African Human Rights System, Pretoria University Law Press, 2016, p.18.
 Article 5,1, b of the Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on Human and Peoples’ Rights.