Genocide and International Justice: Legal Accountability in Gaza, Myanmar, and Beyond

Introduction

Genocide, widely recognized as the most egregious violation of international law, is referred to as the “crime of crimes”.^[1] The ban on genocide holds fundamental importance, having both jus cogens status (peremptory norm) and establishing obligations owed erga omnes partes (to all State Parties to the treaty).^[2] The main legal instrument for combating genocide is the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).^[3] Recent contentious cases before the International Court of Justic (ICJ), particularly those relating to military operations in Gaza Strip,^[4] and the persecution of Rohingya in Myanmar, highlight the evolving role of international justice in enforcing state accountability for mass atrocities while reinforcing essential preventative obligations. This essay will explore the legal framework surrounding genocide, evaluate accountability efforts in Myanmar and Gaza, and consider broader implications these judicial processes may have for international justice.

I. The Framework of Genocide and State Obligations

Article II of the Genocide Convention legally defines genocide as encompassing five prohibited acts (killing or causing serious bodily or mental harm) committed with specific intent to destroy a protected national, ethnic, racial or religious group wholly or partially. A significant challenge in prosecuting genocide lies in proving this distinct mental element (mens rea). This intent distinguishes genocide from other international crimes like war crimes or crimes against humanity. The International Court of Justice (ICJ) has interpreted this duty as one demanding “due diligence,” wherein states must utilize all reasonably available means to avert genocide as much as possible.^[5] Notably this obligation applies extraterritorially; states must act even when facing high risks outside their borders if they possess effective influence over potential perpetrators.^[6] The authority to initiate proceedings before ICJ regarding this obligation is grounded upon erga omnes partes principles inherent within convention frameworks.

II. Legal Accountability for Atrocities in Myanmar

The case The Gambia v. Myanmar,^[7] initiated in 2019 serves as a key example whereby international justice utilizes erga omnes partes obligations effectively.^[8] The Gambia’s application addresses alleged genocidal actions by Myanmar’s military against Rohingya individuals. Allegations detail systematic “clearance operations” involving mass killings among other violations aimed at destroying Rohingya communities altogether. Global scrutiny indicated that such conduct warranted investigation into potential genocidal actions against vulnerable groups.^[9]  Myanmar raised preliminary objections asserting that The Gambia lacked standing due to insufficient territorial connection with alleged crimes committed there.^[10] However, the Court decisively dismissed these objections affirming “any State party” may invoke another’s accountability based upon shared interests regarding compliance with erga omnes partes obligations confirming Gambian standing which bolstered procedural powers for states distant from conflict zones seeking enforcement mechanisms.^[11]

In its Provisional Measures Order dated 23 January, the ICJ found plausible claims indicating rights relating “to protection from genocidal acts” existed partly supported by reports from UN Independent International Fact-Finding Mission concerning evaluations made about conditions inside Burma. The court mandated all necessary steps be taken by government authorities within capacity directed towards preventing any further instances related directly or indirectly engaging victims who are viewed extremely vulnerable at risk.^[12]

This case exemplifies how ICJ could serve functions similar too “judicial R2P” through application or development of protective norms like those outlined within conventions existing today.^[13] Alongside state-level proceedings pursued via ICJ investigations launched by International Criminal Court focusing individual responsibility issues arising from Palestine where forced displacement occurs amongst various crimes associated targeting Rohingya populations.^[14] Such dual approaches between ICC/state level courts strengthen efforts addressing injustices experienced broadly throughout regions impacted.

III. Legal Accountability In Gaza

In South Africa v. Israel,^[15] there was an ongoing hostility occurring within Gaza Strip since October twenty-third following Hamas attacks that has raised serious concerns globally around adherence fundamental norms established globally, including allegations pointing towards instances related specifically concerning potentially committing genocides. South Africa lodged an application against Israel before ICJ alleging breaches occurred violating obligations laid down under convention protecting Palestinian nationals.^[16]

Military operations executed Israeli Defence Forces resulted catastrophic humanitarian situations marked by considerable loss life documented numbers reaching approximately 24 800 deaths recorded up until May 24 2024 extensive damage endured alongside displacements affecting roughly one point seven million Gazans suffering deprivation basic needs thereby placing them vulnerable risk worsening conditions ahead.^[17] Alleged Breaches Certain International Obligations Respect Occupied Palestinian Territory.^[18]

Acknowledging responsibility towards prevention against genocides South African government initiated legal action appealing jurisdictional premises framed under article nine pertaining convention emphasizing collective duties owed collectively highlighting urgency required given prevailing circumstances happening now^[19] Israel countered dismissively arguing conduct did not breach any articles defined within said agreements framing responses solely rooted self-defence arguments focused intentions aimed eliminating Hamas rather than targeting Palestinians directly hence negating notions suggesting intentional genocidal motives.^[20] The court had issued the following three critical provisional measures orders:

1. Order dated January 26^th: Confirmed prima facie jurisdiction asserting rights claimed were plausible recognizing imminent threats posed jeopardizing irreparable harm ensuing events.^[21] The court order required action be taken ensuring prevention occurring among parties involved preserving evidence whilst providing humanitarian support throughout affected areas. However limited scope existed halting ongoing military campaigns was not ordered.^[22]
2. Order dated March 28: reaffirmed earlier directives mandating increased accessibility basic services provided ensuring delivery humanitarian assistance through improving logistical capacities maintaining open land crossings continuously until necessary.^[23]
3. Order dated May 24: Latest order instructed cessation immediate military offensives taking place ordering halt any additional actions possibly inflicting dire living conditions leading physical destruction large scale across groups involved.^[24] Related developments unfolded with ICC prosecutor initiating arrest warrants targeting leaders implicated either side conflict resulting war crimes being perpetrated although charges explicitly excluding genocidal accusations noted up till current analysis conducted.^[25]

Simultaneously, Nicaragua filed lawsuits claiming Germany breached responsibilities linked preventing acts aiding illegally providing military assistance contributing ultimately suspension funding resources supporting UNRWA despite requests made however no provisional measures ordered resulting here against.

IV. Broader Implications For International Justice

Recent jurisprudential findings regarding both cases emphasize substantial judicial determination directing focus strengthening prevention mandates revolving around atrocities committed. Willingness endorsed consistently verifying positions non-specially affected nations elevates efficacy underpinning shared responsibilities solidifying foundational legal instruments transforming existing conventions dynamic entities capable adapting evolving challenges faced today.^[26] Reliance invoked utilizing provisions entailed Article IX permits various actors situated great distances away from dispute zones thus enhancing overall global community abilities seek redress despite political consensus limitations encountered previously. Such mechanisms aligned closely resonating third pillar central tenets underlying responsibility protect framework manifestly highlighting pathways aspiring peaceful resolutions similar judicial avenues invoked historically serving crucial roles promoting peace securing protections entitled individuals facing oppression globally.^[27]

Nonetheless challenges persist encumbering comprehensive pursuits achieving true justice ramifications highlighted absence direct enforcement capabilities coupled extraordinary burdens placed evidentiary thresholds linked proving intents behind allegations levied across diverse contexts presented historically.^[28] Noteworthy paradox arises given historical context underlying accusations brought forth notably surrounding nation-state dynamics influenced stemming profound tragedies endured previously during Holocaust era yet still pursuing ambitions realizing requisite accountability enabling formations built protect lives irrespective identities faced adversities encountered equally worldwide.^[29]

Conclusion

Recent proceedings undertaken by the ICJ, in response to conflicts marked by persistent struggles, reflect a growing commitment to mass atrocity accountability. This shift signals the active participation of emerging Global South states in reshaping dominant narratives and challenging traditional paradigms. Their engagement underscores a deeper alignment with principles that justify action through established legal safeguards. These frameworks are designed to uphold human dignity and integrity, especially in the face of global vulnerabilities confronted today.

Bibliography

Case Law

• Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v Germany) (Order of 30 April 2024) [2024] ICJ Rep.
• Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Provisional Measures Order) [2024] ICJ Rep.
• The Gambia v Myanmar (Preliminary Objections Judgment) [2022] ICJ Rep 477.

Journal Articles

• Atadjanov R, ‘The ICJ’s Order on Provisional Measures in South Africa v Israel: A Legal Turning Point or a Missed Opportunity?’ (2024) Journal of Genocide Research
• Gupta V, ‘The Introspection of Sufferings of Rohingyas and Hidden Genocidal Angle’ (2019) 2 International Journal of Law, Management and Humanities
• Hossain MP, ‘Transitional Justice to Address Denial: A Case Study of the Rohingya in Myanmar’ (2024) International Annals of Criminology
• Klopper A, ‘Seventy-Five Years of the Genocide Convention: The Obligations on States to Prevent Genocide’ (2024) 30 Fundamina
• Lachowski T, ‘Comments on the ICJ Provisional Measures Orders in the Case of South Africa v Israel on January 26, March 28, and May 24, 2024’ (2024) 13 Polish Review of International and European Law
• Morris PS, ‘Economic Genocide under International Law’ (2018) 82 Journal of Criminal Law
• Pezzano L, ‘Towards a Judicial R2P: International Court Justice Obligation to Prevent Genocides in The Gambia v Myanmar Case’ (2023) 15 Global Responsibility to Protect
• Ramsden M, ‘The Crime of Genocide in General Assembly Resolutions: Legal Foundations and Effects’ (2021) 21 Human Rights Law Review

Legislation

• Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.

[1] P Sean Morris, ‘Economic Genocide under International Law’ (2018) 82 Journal of Criminal Law 18, 28.

[2] Antonie Klopper, ‘Seventy-Five Years of the Genocide Convention: The Obligations on States to Prevent Genocide’ (2024) 30 Fundamina 64, 112.

[3] Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention); Tomasz Lachowski, ‘Comments on the ICJ Provisional Measures Orders in the Case of South Africa v Israel on January 26, March 28, and May 24, 2024’ (2024) 13 Polish Review of International and European Law 211, 24, 46.

[4] Klopper supra (n 2) 65.

[5] Klopper supra (n 2) 65.

[6] Klopper supra (n 2) 67.

[7] The Gambia v Myanmar (Preliminary Objections Judgment) [2022] ICJ Rep 477, 490.

[8] M Novokmet, supra 126.

[9] Michael Ramsden, ‘The Crime of Genocide in General Assembly Resolutions: Legal Foundations and Effects’ (2021) 21 Human Rights Law Review 671, 690; Visalakshy Gupta, ‘The Introspection of Sufferings of Rohingyas and Hidden Genocidal Angle’ (2019) 2 International Journal of Law, Management and Humanities 56, 58.

[10] M Novokmet supra (n 9) 127.

[11] Lachowski supra (n 3) 24.

[12] Visalakshy Gupta, ‘The Introspection of Sufferings of Rohingyas and Hidden Genocidal Angle’ (2019) 2 International Journal of Law, Management and Humanities 56, 58.

[13] Luciano Pezzano, ‘Towards a Judicial R2P: International Court Justice Obligation to Prevent Genocides in The Gambia v Myanmar Case’ (2023) 15 Global Responsibility to Protect 305, 307.

[14] Mohammad Pizuar Hossain, ‘Transitional Justice to Address Denial: A Case Study of the Rohingya in Myanmar’ (2024) International Annals of Criminology 356, 357.

[15] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Provisional Measures Order) [2024] ICJ Rep (Order of 26 January 2024).

[16] Lachowski, supra (n 3) 8.

[17] Lachowski, supra (n 3)14, 29, 33, 34.

[18] Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v Germany) [2024] ICJ Rep (Order of 30 April 2024).

[19] Lachowski, supra (n 3)12-46.

[20] Antonia Klopper, ‘Seventy-Five Years of the Genocide Convention: The Obligations on States to Prevent Genocide’ (2024) 30 Fundamina 64-101.

[21] LachowskI, supra (n 3) 28-29.

[22] Rustam B Atadjanov, ‘The ICJ’s Order on Provisional Measures in South Africa v Israel: A Legal Turning Point or a Missed Opportunity?’ (2024) Journal of Genocide Research 277.

[23] LachowskI, supra (n 3) 33-34.

[24] Antonia Klopper, supra (n 20) 70.

[25] LachowskI, supra (n 3) 40.

[26] Lachowsk supra (n 3) 56-61.

[27] Luciano Pezzano, ‘Towards a Judicial R2P: International Court Justice Obligation to Prevent Genocides in The Gambia v Myanmar Case’ (2023) 15 Global Responsibility to Protect 305, 307, 324, 329.

[28] M Novokmet, ‘Economic Genocide under International Law’ (2018) 82 Journal of Criminal Law 18, 143

[29] R B Atadjanov, ‘The ICJ’s Order on Provisional Measures in South Africa v Israel: A Legal Turning Point or a Missed Opportunity?’ (2024) Journal of Genocide Research 288.