Abstract

In November 2019 Myanmar was accused by The Gambia of violating the Genocide Convention in response to the longtime persecution of the Rohingya population. This comes 26 years after Serbia was accused by Bosnia of violating the Genocide Convention in response to reports of ethnic cleansing of the Bosnian Muslim population during the Bosnian War of 1992-1995. The case was tried in the Hague and although the International Court of Justice (ICJ) determined that genocide had occurred, Serbia was acquitted of direct responsibility largely due to questions of “attribution”. This article will employ the concept of “attribution” to explain why the ICJ acquitted Serbia of responsibility, and then it will explore the relevance of attribution to the Myanmar genocide case in order to generate insights into the impact a guilty verdict could have on international law. If Myanmar is found responsible, this verdict would set new and groundbreaking precedent and make a profound impact in the field of international law.

Background 

On November 11, 2019, The Gambia, backed by the Organization of Islamic Cooperation (OIC), filed a case before the International Court of Justice (ICJ) against Myanmar (also known as Burma). The case alleged that the atrocities committed against the Rohingya in Rakhine state violated the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The Rohingya, a small Muslim minority group in Myanmar, have been persecuted by the Burmese regime for decades, while also being denied civil liberties, citizenship, and freedom to travel. Since the Citizen Act of 1982, the UN estimates that almost 720,000 Rohingya have fled from Myanmar to escape the waves of genocidal killings which have already taken well over 25,000 lives (Ellis-Petersen, 2018). Myanmar’s first response to the court case was a set of preliminary objections, which were all rejected by the ICJ in its ruling of July 22, 2022. The next steps require The Gambia to present evidence proving that Myanmar is responsible for the genocidal actions committed by Myanmar’s armed forces.

There are multiple routes the Applicant can take to indicate responsibility, such as determining responsibility based on the application of the theory of attribution.  The theory of attribution, as defined by researcher and practicing attorney Carlo de Stefano, “functions as a legal bridge (a link) between the State and the conduct potentially liable to trigger its international responsibility, so as to complete the physiologic – not the normative – gap between the acts and omissions of State ‘agents’ and the State itself” (Stefano, 2020). The Court’s decision on this case has the potential to be groundbreaking, because the application of the theory of attribution (Carlos De Stefano, 2020, p. 10) suggests the Rohingya Genocide case is fundamentally different from the only two other genocide cases adjudicated by the ICJ, Bosnia and Herzegovina v. Serbia and Montenegro[i] and Croatia v. Serbia[ii]. In Bosnia v. Serbia the court ruled that Serbia is neither responsible for the genocide which occurred in Srebrenica nor was the state complicit in the act. The court did rule that the accused violated the Genocide Convention by neither preventing the genocide nor punishing those who were responsible. In Croatia v. Serbia, the court ruled that there was not sufficient evidence to prove that there was genocidal intent or any other violation of the Genocide Convention. This article will employ the concept of “attribution” to explain why the ICJ acquitted Serbia of responsibility for genocide in order to generate insights into the Myanmar genocide case and the impact a guilty verdict could have on international law.

Attribution in Bosnia and Herzegovina v. Serbia and Montenegro

Minimal precedent is available to advance analysis of the ongoing Gambia v. Myanmar case, and this is a consequence of the fact there have been only two cases adjudicated by the International Court of Justice (ICJ) which involved the Genocide Convention of 1948. The first genocide case was brought to the ICJ in 1993; Bosnia and Herzegovina[iii] accused Serbia and Montenegro[iv] of having armed and supported the Bosnian Serbs of the Army of the Republika Srpska[v] (VRS). The VRS was the violent non-state actor which committed a genocide against the Bosnian Muslim population during the Bosnian War of 1992-1995. The case was filed after the start of the war when evidence of ethnic cleansing began to emerge. The conflict came to a head when, between July 6-11, 1995, “it [was] estimated that between 7,000 and 8,000 Bosniak Muslim men and boys were… systematically murdered by their Bosnian Serb captors and buried in mass graves” (The Wiener Holocaust Library, 2023). Bosnia claimed that Serbia’s alleged relationship with the VRS constituted a violation of the Genocide Convention, the international treaty which criminalizes genocide under international law and obligates its signatories to prevent genocide and punish the perpetrators of genocide. The final judgment in this case was presented after 14 years of litigation. The ICJ provided judgments on various aspects of the case, of which the most noteworthy are: only the massacre that took place in Srebrenica can be classified as genocide; the actions of the VRS aren’t attributable to the Serbian State; Serbia was not compliant to the crime; and Serbia violated its duty to punish the genocidaires (making it the first state to be found in violation of the Genocide Convention). Serbia was required to pay reparations, but they were mostly symbolic.

In light of the Rohingya genocide case, the aspect of the ICJ’s ruling which is most relevant for the sake of comparison to the Myanmar case is the judgement made regarding whether the crimes committed by the Bosnian Serbs were attributable to Serbia. Under international law, attribution, a precondition to determining responsibility, links responsibility to a State if the alleged crime was committed by an organ of the State or a non-State organ controlled and directed by the State. A State organ “includes any person or entity which” holds a position in the organization of the State and is “in accordance with the internal law of the State” (International Law Commission, 2001). Through the proceedings it was established that the VRS were, in fact, the perpetrators of the genocide that took place at Srebrenica. The important question for the ICJ was whether the Bosnian Serbs were a state organ, or a non-State organ controlled and directed by Serbia. This put Bosnia in a difficult position: it needed to present clear and conclusive evidence indicating Serbia knew enough about the plans for Srebrenica prior to the genocide to suggest its involvement. This was integral to building a case against Serbia: after all, it would be difficult to warrant holding Serbia responsible for a crime which it wasn’t aware of.   

In an attempt to prove a level of control or complicity in the operation, Bosnia provided evidence pointing to relations between Serbia and the VRS. Bosnia demonstrated financial connections between the former Federal Republic of Yugoslavia (FRY) and the VRS commanding officers to prove that the Bosnian Serbs in the VRS were acting under the authority of the state of Serbia. The court decided that financial support was not a concrete indicator that the VRS was an organ of the state, especially when there is evidence detailing that VRS “officers were appointed to their commands by the President of Republika Srpska” so they must “have received their orders from the Republika Srpska or the VRS, not the FRY” (Bosnia and Herzegovina v. Serbia and Montenegro, 2007). Bosnia was not able to present sufficient evidence that Serbia held control over the paramilitary forces that carried out the massacre at Srebrenica. Therefore, the ICJ found “that the acts of genocide at Srebrenica cannot be attributed to the Respondent as having been committed by its organs or by persons or entities wholly dependent upon it, and thus do not on this basis entail the Respondent’s international responsibility” (Bosnia and Herzegovina v. Serbia and Montenegro, 2007).  While Serbia breathed a sigh of relief, Bosnia was sorely disappointed. Bosniaks felt that it denied justice to the victims and their families and failed to punish the perpetrators.

The decision to exonerate Serbia of direct responsibility for genocide was unanticipated because the ICJ deviated from the judgments made in 1999 by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Prosecutor v. Tadic case. The ICJ rejected the ICTY’s method for determining “overall control” (Mennecke & Tams, 2007), claiming that the ICTY insufficiently defined the limits of attribution. The ICTY took the stance that “States were responsible for conduct of non-State organs over which they exercised a general ‘overall control’” whereas the ICJ took the stance that a State is only responsible if it “directs and controls the specific conduct for which responsibility is alleged” a threshold that is harder to establish (Mennecke & Tams, 2007). By applying a stricter interpretation of the rules of attribution, the ICJ implied that the difference between a defensible and non-defensible conclusion is the level of control a state must have over a non-state organ to be held responsible for its actions.

It is worthwhile to examine the difficulties Bosnia faced in gathering sufficient evidence to convict as The Gambia may also face the same difficulties. Since Bosnia was the Applicant in the case against Serbia, the burden of proof fell to them, and Bosnia found it difficult to “compel Serbia to disclose sensitive pieces of evidence” (Mennecke & Tams, 2007). The intricacy of this issue lies in the fact that it involves a sovereign state being asked to give up classified information. Bosnia was at a disadvantage from the start considering they would have needed to impede upon Serbia’s state sovereignty in order to build a fact-intensive case, consisting of classified Serbian documents. As a result, the Applicant’s case was primarily built on inferences made using what information was more publicly available. The court could only make a judgement using the evidence presented in court, and unfortunately for the Applicant, there wasn’t enough evidence to rule in their favor on the issue of international responsibility and attribution. The difficulties Bosnia experienced while building their case could potentially affect The Gambia in the same way if they aren’t able to access enough conclusive evidence or if the court is not “more willing to accept reasoning based on inferences” (Mennecke & Tams, 2007).

Conclusion 

The International Court of Justice has never found a state responsible for violating the duty to prevent the crime of genocide as mandated by the Genocide Convention, meaning that the court has acknowledged the occurrence of a genocide but has not found an accused State responsible. In Bosnia and Herzegovina v. Serbia and Montenegro there wasn’t enough evidence to prove that Serbia had direct control over the Bosnian Serbs or the VRS’s plans to target the Bosnian Muslim population in Srebrenica. As a result, the rules of attribution, according to the ICJ, dictated that the Respondent is not responsible for the genocide carried out by the VRS (a non-State organ). What does this mean for the ongoing Gambia v. Myanmar case?  

A distinct difference between the past cases and current Myanmar case is the nature of the perpetrators. Assuming the court finds that a genocide has taken place, as it did in the case of Srebrenica, the next question to answer is whether the rules of attribution would assign responsibility to Myanmar. A report released by the Independent International Fact-Finding Mission on Myanmar (IIFFMM) stated that a confidential list has been created of individuals suspected to have been involved in crimes violating international law, including genocide. The list includes several high-ranking generals in the Burmese military (The Tatmadaw). The report also indicates “a strong inference of genocidal intent on the part of the State” and asserts “that Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalizing and punishing genocide” (United Nations Human Rights Council, 2019). Unlike the Serbia case where the genocide was organized and carried out by a separatist paramilitary force in a neighboring state, the Tatmadaw is an established organ of the State of Myanmar. According to the ICJ’s interpretation of the rule of attribution, this relationship designates responsibility for the Tatmadaw’s wrongdoings to the State of Myanmar.  

If sufficient evidence is presented to find Myanmar responsible for violating the Genocide Convention, it would set new and groundbreaking precedent and make a profound impact in the field of international law. Although the United States, in agreement with a number of other influential countries, holds Myanmar responsible for “genocide, crimes against humanity, and ethnic cleansing,” (US Department of State, 2022) its policy does not establish international law. Having established case law as precedent would significantly impact how genocide is prosecuted in future cases, ideally preventing such atrocities from occurring altogether. Additionally, this would open the door to a discussion on reparations for the Rohingya people and changes to Burmese policy towards the Rohingya.  In other words, the Rohingya would finally get a measure of justice for the atrocities they have been burdened with for decades. A guilty verdict, in conjunction with appropriate reparations, could serve as the necessary deterrence to prevent future occurrences of genocide.

Arianne Barlowe is earning her B.S. in Global Conflict Studies from the Department of Security Studies and International Affairs at Embry-Riddle Aeronautical University in Daytona Beach, Florida.

References

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43

Carlo De Stefano. (2020). Attribution in International Law and Arbitration. (pp. 5–47). Oxford University Press.

Ellis-Petersen, H. (2018, August 27). Myanmar’s military accused of genocide in damning UN report. The Guardian; The Guardian. https://www.theguardian.com/world/2018/aug/27/myanmars-military-accused-of-genocide-by-damning-un-report

International Law Commission, & United Nations. (2001). Articles on State Responsibility.

Mennecke, M., & Tams, C. (2007). The Genocide Case Before the International Court of Justice. Security and Peace, 25(2), 71–76.

The Wiener Holocaust Library. (2023). What is Genocide? - The Srebrenica Genocide. The Holocaust Explained. https://www.theholocaustexplained.org/what-was-the-holocaust/what-was-genocide/the-srebrenica-genocide-1995/

United Nations Human Rights Council. (2019). Report of the Independent International Fact-Finding Mission on Myanmar (pp. 14–15). United Nations General Assembly.

US Department of State. (2022, April 4). Burma Genocide - United States Department of State. United States Department of State. https://www.state.gov/burma-genocide/

[i] The case was filed in 1993 and the final judgement was issued in 2007.

[ii] The case was filed in 1999 and the final judgement was issued in 2015.

[iii] Hereinafter, referred to as “Bosnia”.

[iv] The successor republics of the Republic of Yugoslavia (FRY), and hereinafter referred to as “Serbia”.

[v] Military Force of the self-proclaimed Serbian secessionist republic within Bosnia and Herzegovina, Republika Srpska.