There should be communication between Gambia and Bangladesh

Michael Becker
Michael Becker

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 concluding part of the interview appears today.

Prothom Alo: Can the European Union or Amnesty International be a party to this case?

Michael Becker: At the ICJ, the only parties eligible to participate are states. So the EU cannot participate, but individual EU member states could try to intervene in the ways I have described. NGOs like Amnesty or Human Rights Watch cannot participate in any formal way. They can issue reports, they can assist The Gambia. But they cannot separately appear, and the ICJ, unlike some other international courts, does not accept friend-of-the-court briefs from third parties. If The Gambia wanted an investigator or official from Amnesty to be involved, they could potentially call that person as a witness-for example, to describe the NGO’s approach to collecting evidence that it has then publicised in a report about the situation. This would be a way that NGOs could participate in the case, in coordination with The Gambia, but they cannot participate of their own accord.

Prothom Alo: I’m sure that you have gone through the 444 pages of the UN fact-finding report. Which part do you think is most crucial or relevant to the prosecution or a potential indictment of Aung San Suu Kyi?

Michael Becker: There is a lot of very information in the report, but I can’t address the question of its relevance to a potential prosecution because, in the ICJ context, we are not talking individual criminal responsibility. In terms of Myanmar being found responsible for violations of the Genocide Convention, the report illustrates systemic discrimination over many years, as well as the so-called “cleansing operations” and military campaigns against the Rohingya since 2016. This information is going to be central to the case. I don’t know that I would pick certain parts of it to highlight here. As a whole, the report contains a lot of critical information and suggests very strongly that Myanmar’s responsibility has been engaged-that is, that Myanmar has breached obligations under the Genocide Convention. The question of Aung Sang Suu Kyi’s criminal liability is a different question that I am not focused on.

Prothom Alo: What about the doctrine of superior responsibility, where the people in command bear responsibility for what perpetrators do? Aung San Suu Kyi is the civilian leader but has openly defended the perpetrators, so there is an argument that she should share the burden of responsibility.

Michael Becker: You are correct that international criminal law is not concerned only with people who are direct perpetrators that those who are killing people. It is also concerned about the leadership, and who is giving orders.  There are different modes of liability in terms of how you can be found responsible or found guilty under the Rome Statute. If a criminal case can proceed about Myanmar, the question of Aung San Suu Kyi’s criminal liability will be in play. But I can’t say more beyond that.

Prothom Alo: Does the doctrine of double jeopardy pose problems here in terms of there being proceedings at both the ICJ and ICC?

Michael Becker: There is no conflict here because these are different legal regimes. This goes back to the idea that the ICJ case is about the responsibility of the state. It will not result in any individual criminal convictions. The ICC or some other international criminal tribunal or domestic criminal court could still seek to prosecute any of the people who are named as individual perpetrators. So there is no formal legal conflict here in terms of ‘double jeopardy’. It is a separate issue whether any findings that the ICJ makes, including if it were to find that Myanmar has not breached the Genocide Convention, could hinder future prosecutions. Formally speaking, it should not, but the substance of an ICJ decision might affect prosecutorial decisions down the line. However, international prosecutors are not limited to prosecuting the crime of genocide-they could also seek to charge individuals with crimes against humanity, for example. The ICJ has no jurisdiction to consider allegations of crimes against humanity.

Prothom Alo: Myanmar has published reports saying that they have tried some people for the excess of their duty. If Myanmar pleads that they have held trials, would this affect the case, since you have written about Myanmar’s reservations to Article VI of the Genocide Convention?

Michael Becker: I don’t think this will have any relevance to jurisdiction in the ICJ case. One of Myanmar’s reservations to the Genocide Convention relates to Article VI, which concerns prosecutions for individual criminal liability. I don’t think that reservation will have relevance here. If they have prosecuted anyone domestically, that might be relevant on the merits to some of the specific claims that The Gambia is making, but it’s not going to be an obstacle to jurisdiction over The Gambia’s case.

Prothom Alo: Do you still think there is jurisdictional uncertainty in this case?

Michael Becker: No. Neither the Gambia nor Myanmar has taken a reservation to the Genocide Convention in terms of their acceptance of ICJ jurisdiction over disputes relating to the interpretation or application of the treaty.  The jurisdictional issue is very straightforward in this case. States like Bangladesh and Malaysia are in a different situation, for example, because they opted out of Article XI of the Genocide Convention, which is the ICJ dispute settlement clause.  This prevents them from being able to bring cases against Myanmar under the treaty. But that’s why the possibility of intervention as a non-party is interesting. It doesn’t require the same jurisdictional basis.

Prothom Alo: What about interim relief? Should Bangladesh or any other state seek interim relief under the ICJ Statute to prevent renewed violence?

Michael Becker: This is what the Gambia is already doing. I don’t see any role for Bangladesh or for any other state to play in terms of the request for provisional measures. Again it would be very good for there to be communication between the governments of Bangladesh and The Gambia so that if Bangladesh has concerns, they can potentially be incorporated into what The Gambia is arguing. But there is very little time before the first hearing takes place and the Gambia has already submitted its application for provisional measures.

Prothom Alo: What would be the possible legal consequences if the Gambia decides at any time to withdraw from the case? Can another state continue the process?

Michael Becker: If Gambia was to discontinue the case, the case would end. You would need a new state to bring a new case. There would be no chance for another country to start from where The Gambia left off.

Prothom Alo: You mentioned that the ICJ has often taken a conservative approach to remedies. Why is this?  Is this because perpetrators are backed by strong countries? 

Michael Becker: This is a really good and complicated question. There are different theories to explain this. In general, I think, a degree of the Court’s conservative or cautious approach on some issues, including remedies, can be attributed to the fact that its jurisdiction is based on state consent. The Court is conscious of wanting to order relief that doesn’t go beyond what is within its powers-and what will be viewed as such. The Court also doesn’t want to order relief that it knows has very little chance of compliance. It may be better to issue a judgment that is relatively restrained on the question of remedies, but that the state will comply with. There is a certain amount of strategic thinking on the part of the Court. But every case is different. The Court takes very seriously the limitations of its jurisdiction. And the types of remedies it issues have to be within the frame which international law permits. We might say that it is not just the ICJ but international law in general which is conservative when it comes to remedies.

Prothom Alo: You have written that Myanmar might benefit from a finding of 'no genocide' in this case. Why have you written so bluntly that there is no guarantee here and that no one should presume that the claim against Myanmar about breaching the Genocide Convention would success on the merits, despite the evidence all over the world and a strong UN Fact-Finding Mission report?
Michael Becker: There is no question that mass atrocities have taken place. My impression is that it would not be very difficult to persuade a court that crimes against humanity have taken place in Myanmar. But the ICJ case is not about crimes against humanity. It's about genocide, which is a particular legal construct with a very specific definition. From the evidence, it seems quite clear that acts which may constitute acts of genocide have taken place. That's one part of proving genocide, but the harder part is always the question of 'intent'—that the 'intent' behind the terrible acts that have been documented, the reason behind them, was to destroy the protected population group in whole or in part. That's where it gets difficult because the way the Court has approached this in the past is quite restrictive. If you base an allegation of the genocidal intent on a pattern of conduct where you are inferring intent from a pattern of conduct, the Court has said that the only reasonable inference must be that you acted with 'genocidal intent'. This opens the door for states like Myanmar to argue that, yes, some or all of these terrible things happened, but this isn't because we wanted to commit genocide and destroy a population in whole or in part. Instead, it was because we were responding to threats of terrorism. Or we were trying to terrorise people to make them leave the territory—that is, we were engaged in ethnic cleansing, but not genocide. This conduct is still criminal, but it may be distinct from genocide. A party can make this kind of arguments—pointing to other inferences that can be drawn to explain the reason behind its actions—and this is part of what makes proving genocide a challenge. You will not necessarily have clear written documents from the central government saying that the goal is to destroy the population in whole or in part. I still believe that The Gambia has a strong case here, and I don't want to take away anything from that. But I simply want to caution that genocide cases are very difficult to prove, even when you have abundant evidence proving that terrible acts have taken place.

Prothom Alo: You have presumably seen the work that other scholars have done to document the existence of genocidal intent, looking at the entire history of the situation. So don't you think, as a scholar, that genocide took place?

Michael Becker: Based on the materials I have seen, I think there is sufficient evidence here to make a compelling case showing a specific intent to commit genocide. It's a clearer case in some ways that we had in the cases relating to Yugoslavia. Those situations were different because the alleged acts of genocide in those conflicts took place during armed conflict. In the Myanmar case, we don't have an armed conflict, which I think is helpful for The Gambia. But I don't want people to assume that the Court will necessarily see all of this evidence the same way. The UN Fact-Finding Mission did a good job because it anticipated exactly some of these legal arguments and, I think, it tried to preemptively show that it had considered those points. This is to its credit and one reason and may help to overcome some of the legal obstacles that the Court's jurisprudence has created. But it still requires careful lawyering.

Prothom Alo: Are there similarities between the Myanmar case and the Bosnian genocide or Croatian genocide case?
Michael Becker: Those cases involved invoking breaches of the Genocide Convention, so the case law will certainly be relevant. But the big difference is, as I said, that in both these cases there was a situation of armed conflict. The factual situations were different and in some ways more complicated. And these complications were probably helpful for Serbia in those two cases. We don't have armed conflict in Myanmar, and we have an extensive record of historical discrimination and a lot of evidence about what has happened in the past few years. It is true that when the ICJ was hearing those cases against Serbia it had the benefit of the International Criminal Tribunal for the former Yugoslavia having already held trials. And the ICTY had already determined various facts relevant to the same situation the ICJ was looking at. The Court was able to defer or rely on some of those findings, which was helpful for the ICJ. In the Myanmar case, there is very little prospect of ICC prosecutions being completed any time soon, which means the ICJ won't have those types of judgments to rely on. The Court will presumably be asked to rely much more on the UN Fact-Finding Mission reports. That raises some complications, and it will be interesting to see how the Court will decide to take into account the UN Fact-Finding Mission report or other information that various fact-finding entities have produced.

Prothom Alo: You mentioned earlier that you welcomed the participation of Myanmar's delegation since for the first time they agreed to accountability before an international body. Does the ICJ have the power to send an investigative team into Myanmar? Myanmar has previously turned down the ICC's request to investigate, citing that they don't have any jurisdiction in Myanmar.
Michael Becker: The ICJ does have the power to establish an inquiry; it's done this once in its history. It also has, in theory, the power to travel to a location itself to investigate the situation, through a site visit... I think this is extremely unlikely here. The Court will probably not see a need to do this because of all the evidence it already has in front of it. More interestingly, if the Court is asked to rely on UN reports, it might call as witnesses some of the people who were involved in producing those reports and running those investigations.

Prothom Alo: The UN fact-finding mission was not allowed to enter into the disputed or the area of conflict in Arakan. So the fact-finding mission was not conclusive in a sense. They were not allowed to talk to the victims, they only interviewed people who are in Bangladesh or Malaysia or elsewhere, but not within Myanmar. So sending an independent investigative team to Arakan may serve the greater causes of justice.
Michael Becker: It is an interesting idea. It largely depends on whether The Gambia will ask the Court to do that, which might suggest that The Gambia feels it does not already have enough evidence, however. This makes this unlikely.

Prothom Alo: Do you agree with my point, however? Do you think it has some rationality?
Michael Becker: Yes, I can see the rationale because the Fact-Finding Mission and the UN special rapporteur haven't been able to visit the area in question. This means much fact-finding has focused on the Rohingya people who have entered into Bangladesh in particular. So potentially there could be relevant information that could be obtained by talking to people who remain in Rakhine or have been displaced internally. I think it's unlikely that the Court would take that step—to investigate—and doing so could create some problems. Although Myanmar has agreed to participate in the proceedings, it might react very negatively to the Court taking that step and might even withdraw from the case.

Prothom Alo: Is it possible to withdraw after entering the case at any stage?
Michael Becker: Myanmar could decide not to participate, but that doesn't mean the case will end. The case would continue without their participation. The ICJ would still hear evidence and issue a judgment. But they will do so without the benefit of Myanmar's arguments. Regrettably, states have done that before, where they participated until they didn't like the way that certain decisions went—after which they refused to participate in the rest of the case. The most famous example was when the United States bowed out of a case brought by Nicaragua in 1984 after the ICJ rejected the US jurisdictional objections.

Prothom Alo: What will be the fate of the Argentinian lawsuit where Suu Kyi was named? Or would it be possible to file a lawsuit in Ireland or UK under domestic law?
Michael Becker: I have not considered whether there is a statutory basis in Ireland or the UK that would permit a prosecution to be undertaken. There are probably other states beyond Argentina where cases could be filed, but I have not considered this either. I also don't know much about the status of the action in Argentina, although bringing cases against sitting world leaders also raises immunity issues. In front of a domestic court, a leader like Aung San Suu Kyi presumably enjoys personal immunity for as long as she holds the office. Nonetheless, there are countries including Argentina which seek to exercise universal jurisdiction about certain types of criminal conduct. We see more and more states in Europe, for example, using universal jurisdiction statutes to prosecute people who have been involved with ISIS. So the use of universal jurisdiction statutes seems to be on the rise.

Prothom Alo: Thank you, Mike, for your wonderful conversation.
Michael Becker: It's been a pleasure to speak with you. It is truly important to understand the difference between the ICC and ICJ, and the difference between individual criminal prosecution—an idea that most people are familiar with—and the idea of a case against a state.