February 16, 2020

Bangladesh should file intervention under Article 62 of ICJ Statute


Iffat Sariya Rahman
Saturday, 15 February, 2020
Bangladesh should file intervention under Article 62 of ICJ Statute
The meeting on 4 February 2020 at the United Nations Security Council (UNSC) was interesting for the people who are following what is happening with the International Court of Justice (ICJ) regarding the Rohingya. 

The Council effectively failed to reach an agreement on the provisional measures. One of the questions, a few human rights activists and scholars are wondering what happens if Myanmar fails to comply with the ICJ orders.

International institutions such as the ICJ are expected to deliver too many results with too little power.

Aloysius P. Llamzon, a lawyer specializing in international arbitration and litigation, points out that scholars have long blamed this on the ICJ's 'flawed' jurisdictional architecture, which is based entirely on consent. Anything less than a clear indication of consent by the defendant state in a given case is thought to run serious non-compliance risks. Accordingly, under the United Nations Charter, responsibility for ensuring compliance is not within the ICJ's mandate, but rather, with the principal political organ for maintaining peace and security - the Security Council.
Under Article 94(2), if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

This could clearly mean that the UNSC has full direction whether it will act to enforce ICJ's judgments and, if so, the measures it will take. The Court, thus, has little power to enforce judgments. The UNSC decision not to give a clear statement could indicate what to come in the future. Make no mistake: it requires full cooperation by the entire United Nations Security Council. In an earlier article, Pressure must be mounted on Myanmar: John Packer, John Packer felt that "China would convince Myanmar to abide by the court directives. After all, violating the court orders would amount to challenging the UN convention. China, he said, would not do that."

However, I disagree. China has previously rejected an ICJ's ruling and I do not see why it would not do it again. Thus, the Council may be split on the final decision by the ICJ if the Court rules in The Gambia's favour. Secondly, there is no guarantee that the ICJ will rule in The Gambia's favour.

After the Bosnia and Herzegovina v. Serbia and Montenegro case, the threshold for proving genocide at the ICJ is extremely high. 

Given the grim reality of the UNSC, all is not lost. The activists, international and grassroots organizations must look at individual Members of the UNSC.

The provisional measures were hailed by the European Union. This could have a huge impact on trade with Myanmar. After the ICJ ruling in Bosnia and Herzegovina v. Serbia and Montenegro, the European Union withheld Serbia's admission until Radovan Karadzic and Ratko Mladic were transferred to the Yugoslav Tribunal. 

It was reported the United States also favoured the ruling in The Gambia v. Myanmar. This is a temporary victory for the Rohingya. All this is to say that ICJ can play a big role in bringing some relief.

It should be duly noted that the United States Commission on International Religious Freedom (USCIRF) applauded by the ICJ's ruling. Pressure from the international community and international organizations contribute to ensuring that states comply with ICJ judgments. Furthermore, the reputation, especially for trade purposes, often forces states to minimize the risk of defiance. After the ICJ's decision in Cameroon v. Nigeria: Equatorial Guinea intervening, over aa land and maritime boundary dispute favouring Cameroon, the United States, France and the United Kingdom subjected diplomatic pressure on Nigeria to ensure compliance with the decision. Furthermore, the United Nations played a substantial role in renewing cordiality between Cameroon and Nigeria.
Reputation cost is another reason why Myanmar might want to comply. Here, the Association of Southeast Asian Nations (ASEAN) countries will be pivotal to ensure that Myanmar complies with the judgment. Malaysia could, theoretically, withheld Myanmar's invitation to participate during the ASEAN Summit when Malaysia is the Chair of the organization. Similarly, Indonesia, a member of the Organisation of Islamic Cooperation (OIC), could take a similar position with Myanmar.

In the Ligitan and Sipadan (Malaysia v. Indonesia) dispute, ICJ ruled in Malaysia's favour and opined that both the islands belonged to Malaysia. Indonesia expressed that its positive reception would set a precedent in the region and to demonstrate the importance of compliance to solve future disputes by regional governments. Another case concerning two ASEAN Members also demonstrates that ASEAN Members are willing to cooperate with the Court when the ICJ awarded PedraBranca to Singapore. Malaysian Prime Minister Mahathir Mohamad, then, cited the case to show how ASEAN member states can cooperate despite not seeing eye to eye on every issue.

Furthermore, the Philippines fully understand the importance of compliance of ICJ judgments and could effectively pressure Myanmar to do so. Lastly, activists and international organizations could pressure Singapore to withhold or severe its trade ties with Myanmar. Already, organizations such as the Burma Task Force and International Campaign for the Rohingya are pressuring companies to sever their ties with Myanmar's military. Recently, Burma Campaign UK called on companies in business with the Burmese military to immediately end their business relationships. Some of these campaigns were so successful that Western Union dropped Military Myawaddy Bank as its agent. 

The Gambia is likely to be successful. The case is too distinct from the Bosnia and Herzegovina v Serbia and Montenegro case. In his article, Redrawing Rohingya Strategy, Professor Abrar makes an excellent point: Bangladesh may need to join the case and he is right to point that, "the condition demands that Bangladesh takes a firm stand against its rogue neighbour and actively engages with the ICJ process."

Thus, Bangladesh needs a grand strategy. It is not unusual for governments to take other governments to the ICJ. While the international community is thankful to The Gambia, there is too much at stake for Bangladesh. It is time for Bangladesh to file an intervention under Article 62 of the ICJ statute.

Iffat Sariya Rahman worked at the International Criminal Court, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda and the Khmer Rouge Tribunal

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