The Genocide Convention: The World Court Case Relevant to Myanmar

TRANSCEND MEMBERS, ASIA-UPDATES ON MYANMAR ROHINGYA GENOCIDE, 2 Dec 2019

René Wadlow – TRANSCEND Media Service

2 Dec 2019 – The complaint lodged in November 2019 by The Gambia at the International Court of Justice against Myanmar (Burma) is the first time that rape as a weapon of war will be among the international law violations presented to the World Court.  The World Court case is based on violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The World Court hearings are scheduled for 10-12 December 2019. Sexual and gender-based violence is an important aspect of the genocide accusation and the discussions should be watched closely.

Adama Dieng, United Nations Special Advisor on the Prevention of Genocide, was one of the U.N. authorities to describe early on the situation in Myanmar as genocide.  In a 12 March 2018 statement after a mission to Bangladesh to assess the situation of the some 700,000 Rohingya refugees who have crossed the frontier from Myanmar to Bangladesh after violence in northern Rakhine state in October 2016 and August 2017 said,

“The scorched earth campaign carried out by the Myanmar security forces since August 2017 against the Rohingya population was predictable and preventable.  Despite the numerous warnings I have made of the risk of atrocity crimes, the international community has buried its head in the sand.  This has cost the Rohingya population of Myanmar their lives, their dignity and their homes.

“Let us be clear: international crimes were committed in Myanmar.  Rohingya Muslims have been killed, tortured, raped, burnt alive and humiliated solely because of whom they are.  All the information I have received indicates that the intent of the perpetrators was to cleanse northern Rakhine state of their existence, possibly even to destroy the Rohingya as such, which, if proven would constitute the crime of genocide.  However, whether or not we consider that the crimes committed amount to crimes against humanity or genocide, this should not delay our resolve to act and to act immediately.”

9 December is the anniversary of the 1948 Convention on Genocide, signed at the UN General Assembly held in 1948 in Paris.  The Genocide Convention was signed the day before the proclamation on 10 December 1948 of the Universal Declaration of Human Rights.  The two texts were much influenced by the Second World War.  The crimes of Nazi Germany were uppermost in the minds of those who drafted the Genocide Convention in order to deal with a new aspect of international law and the laws of war. The cry was “Never again!”

The protection of civilians from deliberate mass murder was already in The Hague and Geneva Conventions of international humanitarian law.  However, genocide is different from mass murder.  Genocide is the most extreme consequences of racial discrimination and ethnic hatred.  Genocide  has as its aim the destruction, wholly or in part, of national, ethnic, racial or religious group as such. The term was proposed by the legal scholar Raphael Lemkin, drawing on the Greek genos (people or tribe) and the Latin cide (to kill). (1)

Genocide in the sense of a desire to eliminate a people has nearly always a metaphysical aspect as well as deep-seated racism.  This was clear in the Nazi desire to eliminate Jews, first by forced emigration from Europe and, when emigration was not possible, by physical destruction.

We see a desire to destroy totally certain tribes in the Darfur conflict in Sudan that did not exist in the much longer and more deadly North-South Sudan Civil War (1956-1972, 1982-2005). Darfur tribes are usually defined by “blood lines” — marriage and thus procreation is limited to a certain population, either within the tribe or with certain other groups with which marriage relations have been created over a period of time.  Thus children born of rape — considered ‘Janjaweed babies ‘— after the government-sponsored Janjaweed militias— are left to die or are abandoned.  The raped women are often banished or ostracized.  By attacking both the aged holders of traditional knowledge and the young of child-bearing age, the aim of the destruction of the continuity of a tribal group is clear.

We find the same pattern in some of the fighting in the eastern provinces of the Democratic Republic of Congo where not only are women raped but their sexual organs are destroyed so that they will not be able to reproduce.

As then UN Secretary-General Kofi Annan said at UNESCO in 1998,

Many thought, no doubt, that the horrors of the Second World War − the camps, the cruelty, the exterminations, the Holocaust – could not happen again.  And yet they have, in Cambodia, in Bosnia and Herzegovina, in Rwanda.  Our time − this decade even − has shown us that man’s capacity for evil knows no limits. Genocide − the destruction of an entire people on the basis of ethnic or national origins − is now a word of our time too, a stark and haunting reminder of why our vigilance must be eternal.”

Mr Nicodene Ruhashyankiko of the Sub-Commission on Prevention of Discrimination of Minorities wrote in his study of proposed mechanisms for the study of information on genocide and genocidal practices,

A number of allegations of genocide have been made since the adoption of the 1948 Convention. In the absence of a prompt investigation of these allegations by an impartial body, it has not been possible to determine whether they were well founded.  Either they have given rise to sterile controversy or, because of the political circumstances, nothing further has been heard about them.”

Article VIII of the Genocide Conventions provides that “Any Contracting Party may call upon the Competent Organs of the United Nations to take such action under the Charter of the UN as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III”. Unfortunately no State has ever done so.

Thus we need to heed the early warning signs of genocide.  Officially-directed massacres of civilians of whatever number cannot be tolerated, for the organizers of genocide must not believe that more widespread killing will be ignored.  Yet killing is not the only warning sign.  The Convention drafters, recalling the radio addresses of Hitler and the constant flow of words and images, set out as punishable acts “direct and public incitement to commit genocide.” The Genocide Convention, in its provisions concerning public incitement, sets the limits of political discourse.  It is well documented that public incitement − whether by Governments or certain non-governmental actors − including political movements − to discriminate against, to separate forcibly, to deport or physically eliminate large categories of the population of a given State because they belong to certain racial, ethnic or religious groups, sooner or later leads to war. Therefore, the Genocide Convention is also a constant reminder of the need to moderate political discourse, especially constant and repeated accusations against a religion, ethnic and social category of persons.  Had this been done in Rwanda, with regard to the radio Mille Collines perhaps the premeditated and announced genocide could have been avoided or mitigated.

For the United Nations to be effective in the prevention of genocide there needs to be an authoritative body that can investigate and monitor a situation well in advance of the outbreak of violence.  As has been noted, any Party to the Genocide Convention (and most States are Parties) can bring evidence to the UN Security Council, but none has.  In the light of repeated failures and due to pressure from non-governmental organizations, the UN Secretary-General has named an individual advisor on genocide to the UN Secretariat. The current Special Advisor is the Senegalese lawyer Adama Dieng with whom I worked closely when he was active in human rights issues in Geneva as a representative of the International Commission of Jurists.

Therefore, a relevant existing body must be strengthened to be able to deal with the first signs of tensions, especially “direct and public incitement to commit genocide.” The Committee for the Elimination of Racial Discrimination (CERD) created to monitor the 1965 International Convention on the Elimination of All Forms of Racial Discrimination would be the appropriate body to strengthen, especially by increasing its resources and the number of UN Secretariat members which service CERD.  Through its urgent procedures mechanisms, CERD has the possibility of taking early-warning measures aimed at preventing existing strife from escalating into conflicts, and to respond to problems requiring immediate attention.  A stronger CERD more able to investigate fully situations should mark the world’s commitment to the high standards of world law set out in the Genocide Convention.

Notes:

(1) Raphael Lemkin. Axis Rule in Occupied Europe (Washington: Carnegie Endowment for World Peace, 1944)

For good overviews see: Walliman and Dobkowski (Eds) Genocide and the Modern Age (New York: Greenwood Press, 1987)

F. Chalk, K. Jonassohn. The History and Sociology of Genocide (New Haven: Yale University Press, 1990)

G. J. Andreopoulos (Ed) Genocide: Conceptual and Historical Dimensions (Philadelphia: University of Pennsylvania Press, 1994)

Samantha Power A Problem from Hell: America and the Age of Genocide (New York: Basic Books, 2002)

John Tirman The Death of Others (New York: Oxford University Press, 2011)

William Schabas Genocide in International Law (Cambridge: Cambridge University Press, 2000)

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René Wadlow is a member of the TRANSCEND Network for Peace Development Environment. He is President of the Association of World Citizens, an international peace organization with consultative status with ECOSOC, the United Nations organ facilitating international cooperation and problem-solving in economic and social issues, and editor of Transnational Perspectives.


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This article originally appeared on Transcend Media Service (TMS) on 2 Dec 2019.

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