Social Structures
Author: Niccolò Zugliani, Doctoral Candidate at the Law Department of the University of Verona (Italy)
Copyright Musealia
The International Day of Commemoration in memory of the victims of the Holocaust is a yearly reminder of the atrocities perpetrated by the Nazi regime during World War II. It is also an occasion to pay heed to the existence, even at present times, of potential cases of genocide, despite the international commitments to prevent it and to punish its perpetrators. As such, it offers the opportunity to reflect on the hurdles faced by international criminal justice when confronted with this international crime, and on some avenues recently pursued to avoid impunity.
Genocide is defined by Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide as a series of harmful practices carried out against a national, ethnical, racial or religious group, committed with the specific intent to destroy that group, in whole or in part. It is among the crimes that fall within the jurisdiction of the International Criminal Court (ICC) and its prohibition is considered by the International Court of Justice (ICJ) as a customary rule of international law that has reached the status of jus cogens (see, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)).
International conventions place the primary responsibility to prevent and punish the crime of genocide on the State in the territory of which the activities have taken place. The jurisdiction of international courts and tribunals is given a complementary role and is subject to strict limitations: according to the ICC Statute adopted in Rome in June 1998 (Rome Statute), the ICC may exercise jurisdiction when genocide is committed by a national of a State party, in the territory of a State party, or in a State non-party that has accepted the jurisdiction of the Court. Alternatively, the UN Security Council (UNSC) can refer a crime to the ICC acting under chapter VII of the UN Charter. The UNSC can then institute ad-hoc international criminal tribunals to deal with a specific situation. Its activity is, however, highly politicised, and has notoriously been an obstacle to the jurisdiction of international criminal courts. To date, the UNSC has referred crimes to the ICC or has created international tribunals only in a handful of cases.
The limits of the ICC’s jurisdiction become evident whenever acts of genocide take place in a State that is not party to the Rome Statute and that does not accept the jurisdiction of the Court, or when a State party is unwilling to cooperate (as seen in the Al-Bashir case). In such cases, the matter is left to the discretion of the UNSC, with no guarantees that actions will be taken.
A prime example of the shortcomings of international criminal justice when faced with uncooperative local authorities is the case of Myanmar, where a campaign of ethnic cleansing carried out by the military against the Muslim Rohingya minority in 2017 is thought to have killed thousands and has forced about 750,000 Rohingya to flee to refugee camps in neighbouring countries. With regards to these events, an Independent International Fact-Finding Mission (FFM) established by the United Nations Human Rights Council has found, among other things, sufficient information to warrant the investigation and prosecution of senior officials on charges of genocide.
Myanmar is not a party to the Rome Statute and has rejected the (non-binding) conclusions of the FFM, refusing to investigate accordingly. This situation has placed the burden on the UNSC which, due to the opposition of Russia and China, has remained inactive.
The ICC prosecutor has initiated investigations by its own volition, authorised on 14 November 2019 by the ICC Pre-Trial Chamber, although this was limited to acts that involved cross-border conducts in the neighbouring territory of Bangladesh, which is party to the Rome Statute. Framed in such terms, the ICC investigation does not include the crime of genocide, with the ensuing risk of impunity of the perpetrators.
However, alongside the (not unexpected) limited reach of the ICC’s jurisdiction, the case of Myanmar has shed light on the role that the international community can display and on some alternative routes that can be taken to complement the ICC in the search for accountability.
Individual responsibility of Government officials for the crime of genocide is currently being sought by the Burmese Rohingya Organization UK before an Argentine criminal court. The claim is based on universal jurisdiction, which allows national courts to prosecute international crimes (including genocide) regardless of any connection with the territory of the State. The first example in this regard was the famous Eichmann case, judged by an Israeli court for activities connected with the holocaust. Notwithstanding some inherent limitations, especially in the enforcement phase, universal jurisdiction is finding growing international support and legal basis in numerous national legislations.
After an initial rejection by a Court of First Instance, a federal Appeal Court has requested clarification to the ICC as to the duplication of the investigation, so to proceed should no incompatibility arise. This would be the first case of proceedings based on universal jurisdiction running in parallel with an ICC investigation and could play a key role in complementing the ICC’s activity: by covering acts of genocide otherwise excluded from the jurisdiction of the ICC, the Argentine court could determine whether the Government officials involved bear individual responsibility for such acts.
In addition, the application recently filed by Gambia against Myanmar before the ICJ will determine whether Myanmar bears the international responsibility for violations of the Genocide Convention. This is the first time a non-injured State has sought to enforce erga omnes obligations based on the Genocide Convention. The proceedings before the ICJ constitute an important step in the quest for accountability and have, so far, led to the implementation of provisional measures to protect the rights of the Rohingya minority.
It is clear that international criminal justice has still a long way to go in the fight against genocide. The International Holocaust Remembrance Day is a constant reminder that history can repeat itself, even when it comes to the most heinous international crimes, and that the international community must keep the attention high. When this happens, as the case of Myanmar shows, there is hope that impunity for acts of genocide can be avoided.