McGill law professor Payam Akhavan has been serving as legal counsel for the government of Bangladesh, a country that has received a million Rohingyan refugees from Myanmar. Most of those refugees are occupying Kutupalong, a former wildlife refuge, which became the world’s largest refugee camp in 2018.
In April of that year, Akhavan drafted legal submissions for Bangladesh to the International Criminal Court (ICC), on whether or not the Court has jurisdiction to investigate crimes against humanity perpetrated by the military leaders of Myanmar. His legal strategy was to focus on the crime of forcible deportation of the Rohingya.
The strategy was successful. On September 6, the ICC delivered a historic judgement extending jurisdiction to the deportation of the Rohingya.
Recently, Akhavan joined the legal team representing the government of Gambia, a small African state. Gambia filed a parallel legal action, this time before the International Court of Justice (ICJ), on behalf of the Rohingya. In late January, the ICJ issued an order requiring Myanmar to cease and desist from genocidal acts against the Rohingya. The decision is intended to protect 600,000 Rohingya who are still in Rakhine state, their homelands. He recently spoke to the McGill News about his involvement in the case.
Since we last interviewed you in 2018, how has the situation changed?
The government of Gambia decided to bring a case before the International Court of Justice. The ICJ does not have jurisdiction because Myanmar never signed its statute — but it did sign the 1948 Genocide Convention, which was adopted, in the shadow of the Holocaust, by the U.N. to prevent and punish genocide. Under that treaty, the ICJ has jurisdiction, except that only states can bring cases before the court — so we needed a plaintiff.
We found our hero, in the form of the Gambia’s justice minister Abubacarr Tambadou, and I had the honour of being chosen to be on the legal team.
We requested, from the Court, urgent provisional measures to protect the 600,000 Rohingya who remain in Myanmar’s Rakhine state.
The Court voted unanimously — which is quite rare — to uphold our request, ordering Myanmar to take all possible measures to prevent further genocidal acts.
So even the judges appointed by states with ties to Myanmar ended up voting in favour.
Once appointed, they are independent judges, at least in theory — answering to international law, not to their capitals. That is another reason this was a great day for justice — none of the judges acted out of political motivation.
The point of this exercise is to deter further atrocities. In the world of human rights, the measure of success is what doesn’t happen. To the extent to which there have been no further genocidal acts — to the best of our knowledge — is, perhaps, a cause for cautious optimism. Myanmar now understands that it will be held accountable for any further atrocities.
What happens next?
The ICJ now requires periodic reports from Myanmar, in compliance with its order. The case will now proceed to the merit stage, which means that Gambia must present its full case in written form, to which Myanmar may respond. At some point, perhaps two or three years later at the earliest, there will be an oral hearing in the Hague, which will address the question of urgent measures as well as Myanmar’s responsibility.
Besides the unanimous vote, why was the recent ruling a historic one?
In the history of the Genocide Convention, this is the first time that a state not directly affected has brought a case on behalf of the world community. This is a legal precedent and a redefinition of solidarity, not just paying lip service to genocide victims, but standing with them, to speak truth to power. This may be a turning point for international human rights, at a time when we’ve seen, in previous years, a retreat from multi-lateralism and a rise in nationalism and skepticism towards international law. Gambia’s action has placed accountability at the centre of the global stage, acting in the world community`s wider, common interest.
The only other successful case that was brought before the Court under the Convention was by Bosnia against Serbia in 1993, for the ethnic cleansing campaign in the former Yugoslavia.
What do you think of the case presented by Aung San Suu Kyi and her civilian government of Myanmar?
I think it was commendable that Myanmar showed up, and that someone as prominent as she participated in the proceedings. This shows that Myanmar takes the Court, and these accusations, seriously. It also shows the power of international law. In an inextricably interdependent world, legitimacy is very important for political leaders and countries. No state wants to be known as a genocidal one.
As to the actual content of Myanmar’s argument, the important thing is not my opinion, but that of the Court. The Court rejected their arguments.
How can the ICJ ruling be enforced?
There is no global police force to go in and enforce it. But we have the collective conscience of the world; the world is watching, as we told the Court. We don’t have a perfect system of global justice, but we have to do what we can with the tools at our disposal. The ICC and ICJ are the most important tools for accountability.
I should add that this is the first time in history that we have parellel proceedings, before the ICC and ICJ, on the same issue. We will have to see how they can work in tandem, to make a difference on the ground.
In addition to the situation at Kutupalong, the Rohingya have also take refuge in other countries. Are they becoming a new diaspora?
Yes, victims of genocide end up becoming diaspora communities, building lives in other countries. But most of the Rohingya still want to be able to go home, to their lives in Rakhine state. Perhaps today, that hope is becoming more realistic.