The Gambia-Myanmar’s Genocide Case Before The International Court Of Justice- May The Government of Ethiopia Faces The Same?

Genocide _ Ethiopia

Dejen Yemane Messele
(Doctoral Student,Addis Ababa University, College of Law and Governance Studies)
January 3, 2020

The International Court of Justice: A Right Venue for
a Genocide Trial?

The International Court of Justice (ICJ), a primary judicial organ of the United Nations, assumes advisory and contentious jurisdictions on issues of international disputes. Its advisory role is operated on the request of the Security Council and/or the General Assembly of the United Nations.Those two organs will not bind by the advisory opinions of the ICJ and they are at liberty to use or not to use the latter’s advice.Its contentious jurisdictions come to function when sovereign states brought international disputes.The decisions of the court at any stage of the proceedings are binding to the disputants, when the court sees cases in its contentious jurisdictions.

That said as to the general picture of the court,one may wonder whether ICJ has the jurisdiction to decide on individual human rights violations such as Genocide,Crime against Humanity, War Crimes and Crimes of Aggressions. The wonder may come from the understanding that such serious crimes have another venue to be adjudicated.It’s true that there are other judicial venues for the prosecution and trial of individuals suspected in the commission and participation of grave crimes of nature under international criminal law.These venues do play a subsidiary or complementary role in the prosecution and conviction of individuals suspected in grave crimes in default of domestic or national jurisdictions. As most of these crimes are committed through the channel of governments in power prosecution of individuals before domestic courts are unlikely. Failure of justice institutions due to the internal instabilities during the commission of those crimes could also make impossible to provide justice at the domestic level.These facts make international adjudication venues primary in defacto.     

The history of international adjudications on serious crimes corresponds with the history of individual criminal responsibility at the international level. This dates back the Nuremberg Trial conducted right after the World War II.The cardinal principles of international criminal law were born by then.International adjudications of individuals were undertaken through the establishment of Adhoc (temporary) criminal tribunals to be ceased after the completion of their tasks given by their establishing instruments. The international criminal tribunal for the former Yugoslavia (ICTY) and international criminal tribunal for Rwanda (ICTR) were among the temporary international criminal venues established by the resolutions of the United Nations Security Council. They are now ceased as they have done with their missions.Meanwhile, a permanent criminal court is established to prosecute and convict individuals suspected of genocide, crime against humanity, war crimes and crimes of aggression.This permanent criminal court is the ICC, as established under the 1998 Rome Statute.The court assumes jurisdiction on three ways.Own investigation of crimes committed in the member countries; member countries initiations and referral by the United Nations Security Council.This is just to give the picture on how individuals are brought to justice at international level.

Apart from the individual’s criminal responsibility to be ascertained on the abovementioned ways,States can still be sued before the international judicial venue on the issue of serious crimes, Genocide in this case.States cannot be prosecuted before the ICC, as this court is only for individuals. The right venue for States is the international court of justice (ICJ).States accusation before the ICJ could not bar individuals’ prosecution and conviction before the ICC.They are two different proceedings. States accused on their inability to prevent or reduce the mass human rights violations taking place in their jurisdictions.          

But,accusation of States before the ICJ on the basis of international responsibility perquisites states, complainant, to file the case against the breaching state.This cannot be done by the referral of the UNSC unlike its mandate to make referrals to the ICC on individual criminal responsibility. The Gambia, the seat of the African Commission on Human and Peoples Rights, became the second state in instituting a state for the violation of international law on the grounds of genocide against the Myanmar.   

Gambia’s Road to The Hague: Faithfulness to Humanity

The Gambia’s road to the peace palace,The Hague, took the attention of the globe.They marched to the ICJ in defence of humanity.Gambia accused Myanmar for the alleged genocide committed against the Muslim minorities in the defendant state. On 11 November 2019,The Gambia brought the genocide case to the ICJ, accusing Myanmar/Burma of trying to “destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence.” The oral hearings took place at The Hague, with an African presiding judge.The court is expected to deliver its judgments on the provisional measures requested by the Gambia.Whatever the outcome of the court will be, Gambia’s benevolence to humanity is noted down.  

The irony comes when the once Noble Laureate in Peace Winner, Aung San Suu Kyi, defends the country accused of Genocide.The world is embarrassed on the lady’s failure from grace.Why the genocide happened in the face of such a peace ambassador to the world remains the puzzle for all of us.It alarms that unless a precaution is taken humanity are easily broken. Proceeding before the ICJ is taking place parallel to the investigations of the ICC prosecution office on the situations of Rohnigya muslims in Myanmar.

Linking the stories to Ethiopia:Do we really have such a concern?

Ethiopia’s multifarious reform is quelled with counterproductive carry-ons. It’s highly interwoven with the good and bad episodes.Both state and non-state actors lent their hands for this hazy status.The government appears impotent to clear this cloudy and its monopoly of violence is ousted by the non-state actors.Insecurity, tension, criminal impunity and anarchy adapted into norms. All the bad episodes of the country are not yet managed, conflicts are unalleviated.

Be that as it may, serious issues were tabled for decisions to be taken by the incumbent government of Ethiopia when it entered into the new leadership.Truth and reconciliations, transitional justice and constitutional amendments, were some of the issues.But, the country seems marching to the 2020 election without addressing those acute problems.

The Ethiopian government is enervate to make justice to the victims of mass human rights violations done for the last 28 years by the orchestration of the regime.This reluctance turns down the hopes of Ethiopians conjectured on the new leadership.The new leadership, let alone making justice for violations in the past, is unable to control the ongoing massive human rights violations taking place in its existence.This is a bitter truth to be swallowed.Serious human right violations which can establish individual’s criminal responsibility on the counts of crimes against humanity and genocide are allegedly committed in both the past and present leaderships. But no justice is made at home for such cruelties.

Hence, the ignorance move of the government to make justice at home may trigger us to look for international mechanisms.It’s this point which links us to the Gambia’s move to defend the rights of the Rhonigya Muslims against their government. Lessons should be drawn from the Gambia’s move in defence of the Rohingyas.The infamous human right violations recorded in Ethiopia for the last two and more decades qualify the standard of crimes against humanity and genocide.Both individual criminal accountability and state responsibility must be done through the international criminal justice apparatus to make impunity a history in Ethiopia.Thus, the Gambia’s route works for us too.This, however, require a stanch effort of us.We should walk extra miles to heal the souls lost in ruthlessness and to stop further agonies from the land of Ethiopia.Do we have such a valor? Time may respond though.       

Forwards:Civil Society Organizations  and Intellectuals have assignments

Thinking of the international mechanisms there are bottlenecks to bring the Government of Ethiopia and individuals to the international judicial façade. Ethiopia’s non-signatory status to the Rome Statute and other vital human rights instruments can be mentioned.But there are still options to pursue.   

Two solutions can be suggested towards the attainment of criminal justice at the international level.The first and quick solution is approaching the international community for redressing the massive human rights violations taking place in Ethiopia.This can be done either through finding countries who may take the case before the ICJ against the Ethiopian government for failing to respect and discharge its erga-omnes obligations owed by international customary laws.May Gambia help us too in this regard? Whosoever country may stand with the victims of serious human rights violations in Ethiopia.Gambia’s prudence in the fight for humanity can be a good lesson for others to march to the peace palace.The other way is to request the UNSC to make a referral to the ICC’s prosecution office for investigations of crimes committed in Ethiopia, from past to present days of the regime.The quick ways will play a role in halting the ongoing crisis at home as the government will be proactive in controlling the non-state actors who are driving the internal conflicts leading to massive human rights violations.

The long-term solutions are pushing Ethiopia to accede for instruments which establish human rights enforcement mechanisms.Both solutions can be expedited through the domestic and international civil society organizations.The national civil society organizations, who are in a better bargaining power than the old times, should push the Ethiopian government to accede memberships to the protocol on the African Court on Human and Peoples Rights including the individuals and NGOs access to its jurisdiction; to accept the mandates of special committee’s established in each core human treaties and to accede the 1998 Rome statute of the ICC. Intellectuals should wake-up from their deep sleep and join the long walk for justice and fight for impunity. Avery futile culture of political partisanship and free riding should be removed to this end.    



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