Non-Muslim states should be litigants against Myanmar

John Packer is Neuberger-Jesin Professor of International Conflict Resolution in the Faculty of Law and Director of the Human Rights Research and Education Centre at the University of Ottawa, Canada. He has followed the Rohingya issue since 1992 when he was a UN Human Rights officer and assistant to the first UN special rapporteur on human rights in Burma. He has investigated human rights violations in dozens of countries, specialising in international protection of minorities. In an e-mail interview with Prothom Alo, he speaks about the recent case against Myanmar at ICJ.

Prothom Alo: What could be the possible interim order of the International Court of Justice (ICJ)? How do you see Professor Sands’ pleading about an order within 4 months to have a new fact-finding mission to visit Rakhine?

John Packer: The Court should respond to the applicant’s request. It has the possibility to order what it believes is merited in line with the objectives of preserving rights and avoiding irreparable harm. The case, being about the most serious and urgent of matters – purportedly on-going genocide, is unusual compared with cases typically coming before the Court, so the Court could find merited the unusual (but arguably appropriate) request. Moreover, the Court has within its statute the possibility to order an enquiry, so this is not entirely beyond what might be envisioned and reasonably sought.

Prothom Alo: What about the double standard as shown by Burma’s lawyer? Do you think it has breached any ethical code?

John Packer: On substance, it may be that genocidal intent is not the only deducible conclusion, but at this stage of proceeding (seeking provisional measures) all that is required is to show a plausible connection between the risk and the protection sought (which includes the plausibility of genocidal intent). For example, the State may be motivated also by other reasons (e.g. to obtain land), but that, logically, does not in itself therefore negate the plausible intent at the same time to destroy the group as such at least in part (i.e. to commit genocide). Different violations may “co-exist” and one may even be a part of another. Of course, a motivation may be deduced from the full appreciation of the facts, in respect of which the inescapable and hugely disproportionate use of force, accompanied by egregious harms like mutilations, very substantially points to an intention to destroy; there can be little other rationale for it.

As for Professor Schabas deciding to act for Myanmar, it seems from reports that he is badly confused about the nature of the case – invoking, as reported, everyone’s “right of defense”. While Myanmar does possess that right at International Law, the case should not be confused with a criminal prosecution (which it is not at all) where the services of a highly competent lawyer may be justified on the noble basis of “service to the law” and defense against the power of prosecution given the risk of conviction (which is not at issue in this case). The State of Myanmar (with all its resources, powers, immunities and influential friends) faces no possibility of such risk. This case is a dispute between States – something closer to an international civil action. The best lawyers need feel no compulsion to act for a regime of the evident nature of Myanmar and assist it to avoid responsibility for its conduct – conduct which has self-evidently caused enormous harm to so many. Invoking a moral imperative to do so is entirely misplaced. I am saddened by Professor Schabas’ choice in the matter.

Prothom Alo: Schabas helped research a report in 2010 on systematic attacks against the Rohingya, which concluded that they met the international threshold of crimes against humanity, now he has retracted. Human Rights Watch says he is selling out the Rohingya.

John Packer: Self-evidently, the inconsistency of Professor Schabas’ previous public statements with positions he asserted before the Court could reasonably be expected to be observed and to undermine his credibility before the Court. Of course, he can also, reasonably, form a more definite opinion upon closer scrutiny of facts, or he may simply change his mind. But these possible explanations do not engender confidence within the Court or among others.

Prothom Alo: Aung San Suu Kyi has stated that genocidal intent is not the only hypothesis. She also confessed disproportionate use of force, etc. Do you find lapses on her part, legally speaking?

John Packer: In terms of the law, Aung San Suu Kyi and her lawyers seem to think that there exist permissible excuses for genocide – such as the existence of a purported terrorist threat (no matter how small or large) or some error in proportionate response, or perhaps even Burma’s stage of democratic development (e.g. seeking some leniency… to trust the Government NOW to punish some wrong-doers). None of these invoked reasons constitute, in law, permissible excuses. Indeed, there is no excuse in law for genocide. Rather, the positive duty is to prevent it!

Prothom Alo: Suu Kyi statement got into quite a bit of the factual, historical, and legal detail. She did not waste time honing in on what will be Myanmar’s central argument – that the patterns of conduct to which She did not utter the word ‘Rohingya’. I thought this omission –surely intentional – reflected poorly on her.

John Packer: Aung San Suu Kyi ‘s refusal – clearly her intention –not even to utter the word ‘Rohingya’ reveals a definite, deeply held position against the very existence of the group as such. Arguably, given her official position, that violates the human right of the group to exist and anyhow demonstrates the attitude of the government against the group for which the Genocide Convention is intended to afford essential protection. While it is not proof of genocide per se, it is proof of the attitude of the State which, combined with other facts, may reasonably lead the Court to conclude the existence of the ill intention.

Prothom Alo: Much of Aung San Suu Kyi’s presentation reframed the situation as an internal armed conflict between the military and a ‘rebellion’ or ‘separatist movement’. She mentioned a so-called independence movement and tacitly claimed that the part of present day Bangladesh was part of the ancient kingdom. Why did she venture so much into the pages of history?

John Packer: The arguments about history are strictly irrelevant to determination of breaches of the Genocide Convention. So, too, is the existence or not of an armed conflict (for which, of course, there was and is no armed conflict with the Rohingya); genocide may occur in time of peace or in war. Either Aung San Suu Kyi is simply lost in her misunderstanding of the Genocide Convention or is seeking to obfuscate and distract – or to reinforce narratives that play well for nationalist Burman politics back in Myanmar.

Prothom Alo: One expert said that she is blurring the idea of complementarity from the ICC context with a broader proposition that domestic justice mechanisms need to be allowed to work before a state can reasonably be accused of failing to meet its obligations. This sets up an argument about whether Myanmar’s domestic justice mechanisms are credible, probably an argument that Myanmar will have a hard time winning. It invites further scrutiny that may not be to Myanmar’s advantage.

John Packer: There is no principle of complementarity relating to the Genocide Convention. The argument might apply to the duty to punish individuals, but that is distinct from the State’s own obligations to prevent and not to commit genocide, as well as other obligations under the Genocide Convention which Myanmar has manifestly failed to fulfill and which raise questions about good faith and treaty law applicable between parties.

Prothom Alo: She has indicated that ‘resourceful countries’ are allowed to police and investigate themselves, but similar efforts by states such as Myanmar are never considered adequate. She even alluded to Trump’s pardoning of war criminals in the US. Comment please.

John Packer: The idea that Myanmar should be granted leniency –i.e. a lower standard of performance – raises obvious questions about equal sovereignty! Is she arguing that Myanmar is not reasonably to be expected to fulfill its obligations as an equally sovereign State (and not even a newly independent one)? As for the failures of others, that does not grant a right to breach obligations. These are extraordinarily weak arguments that indicate some grasping at straws. It is surprising her legal team would have concurred in the presentation of such arguments.

Prothom Alo: Do you agree that she has some constructive attitude to the distressed Rohingyas? Though strategic on genocidal intent, she emphasised that there are government programmes aimed at social cohesion, for people to go to school or university, etc. Her argument is that such programmes would be completely inconsistent with the presence of genocidal intent. She even showed a playground.

John Packer: This is utter nonsense. There is abundant and overwhelming evidence – inlarge part from Myanmar’s own policies and laws – that Myanmar overtly and badly discriminates against Rohingya and violates almost all their human rights. It is simply not credible that the Rohingya are well-served and happy people… with now some 85% of the entire population, over the last many years, having fled their homeland. In addition, it is not mutually exclusive that a few Rohingya may be provided some benefit (even one playground!) while the general position of the State is oppressive and genocidal. The Court will judge this, in the immediate in terms of the risks it must assess vis-à-vis the request for Provisional Measures.

Prothom Alo: Closer scrutiny may reveal that they add up to less than she has suggested, which will undermine the claim. Can the Court ask to provide a report? What would be the other means to go before the next hearing?

John Packer: The Court should adjudicate promptly on Provisional Measures, given that they must respond to urgency and the risks of irreparable harm. The rest of the (main) case will then unfold. Yes, the Court can order specific reporting notably on compliance with the Provisional Measures.

Prothom Alo: If Gambia is not happy with the Provisional Measures awarded then what options exist under the procedure?

John Packer: For The Gambia, this is a single opportunity. But, this does not preclude other states bringing their own applications – possibly for a broader or different case and seeking different Provisional Measures. This is, I believe, unlikely. However, it will depend in part on what the Court does – whether States believe the response is suitable. The Gambia followed its own belief and decided on its own application. 150 other States parties to the Genocide Convention are free to make the same decisions and act on their own rights.
There exists considerable scope in terms of the facts for such applications to be brought, alone or jointly, by States – notably since Myanmar has been a State Party to the Convention since 1956 and it has arguably committed or permitted breaches of the Convention for a long part of that period and also vis-à-vis other groups than the Rohingya (as some ethnic groups have long contended).

Prothom Alo: Why and how did The Gambia take the initiative?

John Packer: This is a result of a number of coincidences, linking the OIC’s long engagement and frustration, the change in politics and Government in The Gambia, the person of The Gambia’s Minister of Justice (as a prosecutor at the Rwanda Tribunal), connections with other international lawyers, the desire of others (including Sheikh Hasina) to see action taken, readiness of some to provide the required funding, etc. It is significant and unprecedented that The Gambia has taken forward the case purely on the basis of general public interest and as a State Party to the Genocide Convention. That is remarkable and laudable. It does beg the question why no other, more capable State was moved to act – including countries like Canada which declared genocide occurred but then choice not to act.

Prothom Alo: She came to the ICJ as Myanmar’s StateAgent, then on which basis has the Dutch Parliament afforded a State guest reception to her? Any breach?

John Packer: The case at the ICJ is against the STATE of Myanmar and not against any individual. Aung Sun Suu Kyi is de facto head of government (if not head of state) and is so far participating in presumed good faith in a legal process to which it is bound to participate. This is the proper unfolding of the rules-based order whereby a dispute is being peacefully litigated between equal States. As such, there is no reason, between States, not to accord usual courtesies. I presume Aung Sun Suu Kyi will have been subjected to some substantive questions in the Dutch Parliament. But until the Court would reach its conclusions, the process should not be overtaken by assumptions – indeed, the case is just beginning.

Prothom Alo: Her visit to the Dutch Parliament has been cancelled due to “unexpected changes” in her programme. How do the people of EU feel about Suu Kyi and her standing?

John Packer: From the news and from people – mainly scholars – I have spoken with, there is no doubt that the standing of both Suu Kyi and Myanmar have been diminished. The public process has revealed the poverty of their arguments in defense. This raises many questions about the character of existing and future relations.

Prothom Alo: What about the ICC proceedings? Will these continue?

John Packer: On the ICC investigation, that is entirely separate (as is the work of the new IIMM in Geneva) and will follow its own course. Both of these mechanisms (the ICC being judicial) focus on the responsibility and possible culpability of individuals. The ICJ case is against the State of Myanmar. While these are each distinct, there is evident overlap (e.g. regarding some events) and they may be viewed as complementary and potentially may inter-sect (e.g. evidence collected by ICC and IIMM may be brought into the case at the ICJ).

Prothom Alo: What role you do expect from Bangladesh and Myanmar? Do you think Dr Mahathir could direct Malaysia to join the case?

John Packer: There are certainly possible separate cases (or a joint case) to be brought at the ICJ by Bangladesh and/or Malaysia against Myanmar under the Genocide Convention. Indeed, it would be highly desirable because both Bangladesh and Malaysia have been directly and substantially affected, incurring costs and suffering other harms. Applications from them would have numerous advantages – notably what can be argued and requested especially in terms of substantial reparations. In addition, their participation would hold substantial political implications. There are procedural questions to be addressed, including with regard to reservations, but these could be fairly easily overcome (e.g. through withdrawal of the reservations which serve no good purpose).

Important, however, would be for other, non-Muslim States to join the proceedings as litigants and demonstrate that the issue is truly of general public interest and not motivated by religion or direct interest. Canada could well lead in this regard, perhaps accompanied by a handful of other States ideally from other parts of the world. That would also help when it comes to the eventual implementation of any judgment and order against Myanmar.

Prothom Alo: Did you notice that Articles 6, 7, and 8 of the Genocide Convention are ‘reserved’ by both Myanmar and Bangladesh. What can Bangladesh do? Do you think it would be detrimental to The Gambia case if Bangladesh develops good bilateral relations with the Burma leaders?

John Packer: The case will establish whether Myanmar has violated any of its obligations under the Genocide Convention. That does not preclude that Myanmar and Bangladesh cooperate in finding a solution. On the contrary, Myanmar must anyhow meet its obligations towards the Rohingya people and Bangladesh should be cooperative in regard to genuine and earnest efforts to that end. The ICJ case may help move Myanmar in that direction.

15 December 2019