Rohingyas must enjoy equal rights as citizens in Myanmar

Michael Becker is a lawyer and has practiced in the US and the UK. He is an adjunct assistant professor at the School of Law at Trinity College Dublin in Ireland where he teaches public international law. From 2010 to 2014, he served as an associate legal officer at the International Court of Justice in The Hague and had the opportunity to work closely with the ICJ judges. The International Court of Justice (ICJ) begins its hearing against Myanmar on 10 December. Michael Becker speaks about various aspects of the ICJ case in a recent telephone interview with Prothom Alo. The second part of the interview appears today.

Prothom Alo: What are the usual procedures for choosing the arbitrators, prosecutors, judges or the number of judges at the ICJ?

Michael Becker: The ICJ is a standing, permanent court. There is no prosecutor. Instead, one state brings a case against another state. So there is no prosecutor at the ICJ - that is what we have at the ICC. The ICJ doesn't get to decide what cases come to it. Its docket depends on what states decide to do. In terms of the composition of the ICJ, it is made up of 15 judges who are elected by majority vote in the UN Security Council and UN General Assembly. The judges serve nine-year terms, and there are certain rules about geographic distribution for judges of different regions. At the moment, there are four judges from Asia, who come from Lebanon, India, China, and Japan.

Prothom Alo: Are there concerns about judges being biased or lacking impartiality based on the countries they come from, or the positions those countries have taken?

Michael Becker: One important point is that if a state appearing in front of the ICJ does not have a judge of its nationality on the bench, that state can appoint a judge, which is called a judge ad hoc.

The Gambia has already named Navi Pillay to be its judge ad hoc. She is a South African jurist who is the former UN High Commissioner for Human Rights, and she will serve on the bench on this case. Myanmar will have a chance to appoint someone, as well. Your question about bias is a commonly raised concern. First, as a formal matter, judges are independent. They are not on the ICJ as the representatives of their home states. They are not taking instructions from the government back home. They are meant to be independent actors. However, their viewpoints, their understandings of the law, the particular values they prioritize—all of this may very well reflect the legal or political cultures they come from or their own professional experiences. Many judges were government lawyers or diplomatic officials before they became judges, so they may have worked within the foreign ministry of their state. Or they have may work in the UN. Some have an academic background. All of those experiences will affect how they approach these issues. That's simply the nature of judging, and I don't think that is problematic in itself. But we have to hope that the judges approach the task with an open mind to all of the evidence and that they take seriously the information and arguments put to them, that they do not begin the case with an idea about how they want to decide things before they have reviewed everything. My personal experience is that the judges do take the work and the independence of the Court seriously.

Prothom Alo: What could be the maximum judges to hear this particular case?

Michael Becker: In this case, there will likely be 17 judges, the 15 permanent members of the Court and the two judges that The Gambia and Myanmar will be able to appoint.

Prothom Alo: Can Bangladesh play a role in the delegation from The Gambia?

Michael Becker: At this point, Bangladesh has no role in the case. Bangladesh is not a party to the case. Bangladesh cannot file its case against Myanmar because Bangladesh has not accepted the dispute settlement clause of the Genocide Convention, even though Myanmar has. But that is not necessarily an obstacle to intervention as a non-party, which would give Bangladesh, or another state, a formal role. As I said earlier, there are two different ways to intervene in a case between other states. Bangladesh could explore both of these options if it is interested in participating. Article 62 intervention refers to the situation where you have an interest of a legal nature that might be affected by the judgment in the case, and Article 63 intervention refers to a right to intervene because you are a party to the treaty that is the issue in the case. I think Bangladesh would have the right to intervene under Article 63, and there is a case to be made that Article 62 intervention might also be permissible.

Prothom Alo: Would you suggest that Bangladesh become a party to the process?

Michael Becker: I think it comes down to whether Bangladesh is concerned that it has an interest that is not going to be represented adequately by the positions that The Gambia will take. I have seen people making the argument to the effect that states should join the case in some way to show support for The Gambia and solidarity with the Rohingya. I understand that impulse--the moral or ethical appeal that such calls have. However, I am not sure that it would be helpful, either politically or legally. I don't think simply having more states on the side of The Gambia is going to influence the Court's assessment of the facts or the law. And there is always the risk that if you have more states involved, even if they all seek to have Myanmar held responsibly, they might make different arguments that undermine each other. So I think the first step would be for Bangladesh to be in communication with The Gambia and its legal team. I don't know whether this is happening. But this would be a means for Bangladesh to understand what The Gambia is arguing and to make its concerns clear to The Gambia.

If Bangladesh doesn't think its positions will be incorporated into The Gambia's legal strategy that would be a reason to seek to intervene. It's a very interesting question and it comes down to what Bangladesh would be seeking to accomplish by participating in the case. The answer to that question will help to determine whether it makes sense to seek to intervene on less than one of the options. Perhaps more than any other third state, Bangladesh has felt the impact of the developments in Myanmar, and I think it is clear that Bangladesh has a serious interest not only in how the question of Myanmar's responsibility is resolved, but what that means in terms of remedies. Will a judgment, in this case, create the framework for the Rohingya in Bangladesh to return to Myanmar, in conditions that are safe and assure the human rights of the Rohingya? Bangladesh has an interest in this.

Prothom Alo: Looking at the composition of the Burmese delegation, they have carefully chosen a Nobel laureate to gain something politically. Should the Gambia do something to counter her presence? Does her presence create a great cloud over The Gambia or the OIC or the Rohingya?

Michael Becker: I would not place too much stock in the need to counter Aung San Suu Kyi's presence as part of the delegation from Myanmar. The Gambia has assembled a very strong legal team which includes its justice minister, who was a former prosecutor at the Rwanda Tribunal and has a personal interest in the case. They have retained extremely experienced, well-known international lawyers who have a lot experience both with the ICJ and with the Genocide Convention. That includes Philippe Sands, who is a celebrated lawyer, author and scholar and who has appeared in front of the ICJ many times. As I understand it, there is also Payam Akhavan, a Canadian expert on genocide who has also appeared in multiple ICJ cases. And they have Paul Reichler and the Foley Hoag law firm based on Washington, DC. Reichler is extremely familiar with the court's procedures. So there is no shortage of experience and expertise on The Gambia's legal team.

What I do think will be important is how The Gambia communicates with members of the Rohingya community to assure that their concerns and views are reflected. It would be great to see a Rohingya person as part of the legal team. The Gambia doesn't have a direct connection to the situation, so it is important to show that The Gambia is working hand-in-hand with the community that has suffered, the Rohingya, because of Myanmar's conduct. It would be interesting to see what The Gambia's legal team does to make it clear to the world, and, importantly to the Court, that they are taking into account and fairly representing the experiences and desires and aspirations of the Rohingya community.

Prothom Alo: If the perpetrators are found guilty and convicted, what type of punishment could be expected?

Michael Becker: There will be no convictions here because the ICJ is not a criminal court. So there are perpetrators, but they are not the defendants in this case. The state itself is the defendant. We are not talking about individual criminal guilt, but rather about the responsibility of the State. If Myanmar is found to have breached an obligation under the Genocide Convention that means it is responsible in the language of international law. And if it is found to have breached its obligation, there are various consequences, including an obligation to make reparations. This could be financial compensation; it could include the restitution of land or property that has been confiscated. It is less clear whether the Court would be able to order relief that goes directly to another central issue: the need for the Rohingya who have been forced out of Myanmar to be able to return, to live safely and with dignity in Myanmar.

It's an open question whether the Court would be able to directly order Myanmar to take the necessary steps and to put the safeguards in place for this to happen. I am not ruling out that the Court is asked, could find a way to do this, but it would go beyond what the ICJ has typically ordered in terms of relief. But of course, a lot of people would like to see Myanmar make major changes to its citizenship laws and other laws to make sure that the Rohingya are treated equally.

Prothom Alo: The entire bone of contention and the crux of the problem is the denial of their citizenship. Does the Court have jurisdiction to order Myanmar to address the citizenship question, rather than monetary compensation?

Michael Becker: It's a good question and one that many international lawyers will be thinking hard about as the case goes ahead. I can't answer right here today. I can imagine a situation where the Court might say to Myanmar that you need to undertake necessary reforms to allow the Rohingya people to return and to live safely and with dignity. In this specific context, such actions could be seen as essential to Myanmar's compliance with its legal obligation to prevent genocide. Maybe the Court ends up leaving it to Myanmar to figure out precisely what it needs to do to meet that standard. The Court might strongly suggest that compliance with the Genocide Convention means reforming your citizenship laws to prevent systematic discrimination that contributes to situations of genocide, but it would be left ultimately to Myanmar to make the reforms. It is a difficult question, and I am not sure, based on the Court's past practice, whether it would be in a position to order Myanmar to legislate in a particular way. That relief arguably goes beyond the letter of the Genocide Convention, which provides the outer limits to the Court's jurisdiction here. For example, the Genocide Convention requires states to criminalize acts of genocide in their domestic law.

The ICJ would be well with its power, if it were to find that Myanmar has failed to do this, to order Myanmar to criminalise genocide because that is what the Genocide Convention expressly requires. Taking another step-to require reforms to citizenship laws so that the people can live with dignity and not be under the threat of genocide-there are clear linkages here, but this is a step further away from what the Genocide Convention requires on its face. This may be a big issue in the case.

Prothom Alo: What is your personal opinion as a scholar, do you believe the ICJ should order such relief?

Michael Becker: The Court has to be careful not to order relief that goes beyond what it has the power and jurisdiction to order. At this stage, my thinking is that the Court could order Myanmar to undertake reforms and enact the necessary legislation to allow Rohingyas to live safely and with dignity. But it seems unlikely that the Court would be very specific in its prescription.

Prothom Alo: Do you agree that unless the Rohingya are allowed to be citizens, or if this question remains unresolved, that even winning the case at the ICJ and getting monetary compensation, or later getting guilty verdicts at the ICC, will be ultimately meaningless?

Michael Becker: I agree that unless the Rohingya can ultimately enjoy equal rights as citizens in Myanmar, all of these efforts at legal accountability or other potential remedies will feel insufficient. However, I am skeptical that the ICJ judgment will be able to achieve this result on its own, although I think it is a worthy and plausible aim to pursue. Sitting here today, I'm not in a position to say exactly how the Court can address the citizenship question. I'm not ruling it out, but the question requires attention. It goes beyond what the ICJ has done before, and I think the ICJ has probably been more conservative in the types of relief it has ordered, at least in comparison to an institution like the Inter-American Courts for Human Rights, which has been more creative at times.

Prothom Alo: Are ICJ judgments unenforceable in practice?

Michael Becker: Like any court, the ICJ doesn't have its police force. Even in domestic settings, a court typically requires other actors within the structure of government to enforce its judgments. This is similar in some ways to the ICJ. It cannot itself enforce judgments, but other states or states working together in the UN Security Council can seek to enforce ICJ judgments. That said, it is possible that a state will refuse to comply with a judgment, and that enforcement will not take place. That is not a good situation, but non-compliance has its costs. Politically, states may be able to seize upon non-compliance to further isolate a state, to justify economic sanctions, or to take other hard tactics aimed at compliance. Judicial decisions, whether in an international court or a domestic court, are part of a political world. They are part of a bigger political process. People, who are excited about the case against Myanmar at the ICJ need to think about how a successful judgment against Myanmar if that is the outcome, can then be utilized. What are the political uses of an ICJ judgment in terms of accomplishing the underlying goals? The goal isn't just to win the case; it's to make Myanmar end the policies and practices that are leading to abuses and atrocities. And to provide some relief to improve the situation of the Rohingya, an ICJ judgment will be a part of those efforts. But it won't be the entire answer. If you get a successful judgment, you have to find ways to then use it to your advantage in terms of achieving those underlying goals.

Prothom Alo: Has the UN Security Council in the past sought to implement the judgments given by the ICJ?

Michael Becker: No. The Security Council has the power under the UN Charter to enforce ICJ judgments, but it has never acted under that authority, and it's only rarely been asked to do so. It's not that there is an extensive record of the Security Council refusing to enforce ICJ judgments, it is rather that even in cases of non-compliance the matter has not necessarily been brought to the Security Council. But most of the time parties do comply with ICJ judgments. We tend to focus on the more limited situations where they do not.

Prothom Alo: Can you give any specific example where a state spontaneously acted upon the pronouncement of a judgment?

Michael Becker: There are many examples, but a good recent example is Belgium versus Senegal case from 2012. This concerned Hissene Habre, the former dictator of Chad, who had sought refuge in Senegal. Belgium, acting based on a universal jurisdiction statute in Belgian law, tried to extradite him to Belgium to be put on trial for torture and other offences. Belgium made the argument that Senegal had an obligation under the 1984 Convention against Torture to prosecute Habre, or otherwise to extradite him to state that did want to prosecute him. The ICJ largely agreed and ordered Senegal to either investigate and prosecute Habre or extradite him to Belgium. Following that judgment, Senegal finally did undertake a proper investigation and prosecuted Habre. So he was never extradited to Belgium, which is why the case was started, but Senegal did comply with the Court's judgment. The ICJ hears many different kinds of cases, including boundary disputes and maritime delimitation cases, and states usually comply with what comes out of those types of cases. Sometimes there can be disagreement about certain aspects of a judgment or good faith confusion about how to implement a judgment. But states normally comply.

(To be continued)