Genocide, the duty to protect and complicity: Is Australia sailing close to the wind in Myanmar?

Written by Felicity Gerry QC, Eva Buzo and Anna McNeil

 

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As Canada and the Netherlands announce their intention to intervene in proceedings against the Republic of the Union of Myanmar (hereinafter “Myanmar”) concerning alleged violations of the Genocide Convention before the International Court of Justice in order “to prevent the crime of genocide and hold those responsible to account”, this article considers whether Australia should do the same, particularly as Australia has not adopted all the recommendations of the Independent International Fact Finding Mission on Myanmar (IIFFM) report of 12 September 2018 and has maintained both diplomatic and military relationships with Myanmar.

Background

On 11 November 2019, the Republic of The Gambia (hereinafter “The Gambia”) filed an Application instituting proceedings against Myanmar concerning alleged violations of the Genocide Convention. The Gambia asked the Court to indicate a set of provisional measures, to take immediate effect, until a final decision is reached. On 23 January 2020, the International Court of Justice (ICJ) accepted The Gambian request for provisional measures and held, unanimously, that Myanmar:

  • (1) Take all measures within its power to prevent the commission of genocidal acts, in particular:
    • (a) killing members of the group;
    • (b) causing serious bodily or mental harm to the members of the group;
    • (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
    • (d) imposing measures intended to prevent births within the group;
  • (2) Ensure that its military, as well as any irregular armed units, organizations or persons subject to its control, direction or influence, do not commit, conspire to commit, incite, attempt to commit or be complicit [emphasis added] in any act of genocide;
  • (3) Take effective measures to ensure the preservation of evidence of genocide;
  • (4) Submit a report to the Court on all measures taken to give effect to the Provisional Measures within four months, and then every six months, until a final decision is rendered by the Court.

The ICJ’s order provides a form of primary relief. On 22 May 2020, Myanmar submitted to the Court, the first report on its compliance with the provisional measures. This report has not been publicly released but news agencies have suggested that the report was based on three directives issued by Myanmar President Win Myint’s office in April, none of which refer to preventing conspiracy or complicity by third party groups that may be subject to its control, direction or influence. The Directives focus only on the Myanmar Armed Forces.

The proposed intervention by Canada and the Netherlands has been expressed to specifically relate to providing assistance to the Court “with the complex legal issues that are expected to arise and will pay special attention to crimes related to sexual and gender-based violence, including rape” which leaves scope for Australia to intervene to assist on interpretation of the duty to prevent and issues of complicity.

Framework

The Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) is above all a matter of state obligations, where breaches engage state responsibility. The prohibition on genocide has long been regarded as one of the few undoubted examples of jus cogens, a peremptory norm from which no derogation is permitted, and is also an erga omnes (towards all) obligation of states. The Convention establishes a duty on State Parties to take measures to prevent and to punish the crime of genocide, including by enacting relevant legislation and punishing perpetrators. Prevention must include averting any preparation or any complicity in, or commission of, genocide. This is not merely an idealistic aim, but requires practical application by states. This has been described as a ‘result-orientated approach’. The process thus far has been precautionary, in the sense of domestic legislation to criminalise and punish genocide with extra territorial jurisdiction, adopted by most parties. The Gambia application against Myanmar at the ICJ, and the subsequent ICJ Order on provisional measures engages with the obligation to prevent, thus allowing for a discussion as to how the duty to prevent can be fulfilled, what steps are reasonable or proportionate in terms of intervention and whether Australia has failed to prevent, and become complicit in Myanmar’s alleged actions of genocide through their trade and military support. Whilst the order is directed at Myanmar, the case brought before the ICJ is capable of bringing to light what states have been doing to prevent the genocide or if they have been or could be complicit. Arguably one action to fulfil the duties under the Convention is to seek judicial confirmation that genocide has actually occurred, and what  measures are necessary for other states.

The duty to prevent

Whilst the Genocide Convention is silent as to how states should prevent future acts, the ICJ has held that Myanmar, with regard to the situation at hand, has a duty to comply with its obligations under the Genocide Convention: that it must take all measures within its power to prevent the commission of all acts within the scope of Article II of the Convention [at 79]. That Myanmar must take all measures to prevent genocide occurring is a useful steer to other states that this is the practical implication of the commitment to the Convention [emphasis added]. The universal nature of the Convention means that states must not only take measures internally but must also apply their obligations externally so as not to be complicit in genocide wherever it occurs. What measures are reasonable will depend on the particular situation, particularly its gravity, proximity and specificity but it is clearly the duty of all states not to promote or be ‘complicit in’ aspects of ‘preventing’ that apply to states who have such contacts and relationships. The situation in Myanmar is a known, not abstract danger, which requires tangible reactions. Here,  States who remain  in diplomatic  contact and  maintain military and  trade relationships with Myanmar, have a duty not to promote or be complicit in Myanmar’s alleged genocidal acts. If reasonable measures are not taken to prevent or punish genocidal actions, then States may be in breach of the Convention obligations and  questions as to complicity may be legitimately raised.

Intervention

Amnesty International has questioned Myanmar’s transparency around reporting on their compliance with the ICJ Order. Human Rights Watch has argued that the Directives  do not go far enough to fulfil the duty to prevent genocide. However, there is more to it than that: than that: if Myanmar is purporting to comply with the provisional measures, the released Presidential Directives, if accurate, by not  addressing the conspiracy or complicity requirements of the provisional measures amount to both legal and factual non-compliance with the Order. The Gambia may seek to raise this issue before the ICJ, but any lack of compliance should also be a concern for other states that remain in diplomatic contact and maintain military and/or trade relationships.

Ongoing risks

All States’ who are party to the Convention have effectively been put on notice by the Independent International Fact Finding Mission on Myanmar (IIFFM) report of 12 September 2018, and if a State has available to it means that would have a deterrent effect on those suspected of preparing genocide, or harbouring specific intent, they are under a duty to make use of those means. To avoid this risk of contravening the duty to prevent genocide, Australia is in an awkward position. Third party intervention requirements under the ICJ Statute are limited (SeeArticles 62 and 63)). Australia should consider joining Canada and the Netherlands in supporting The Gambia in their action against Myanmar to add international pressure and exercise influence. Increased international pressure could ensure the orders on complicity are complied with. The ICJ is clear that the discharge of the duty to prevent requires more than engagement and collective effort – it can engage a state’s capacity to influence (See Bosnia and Herzegovina v Serbia and Montenegro 2007 at 430).

If Myanmar is not complying fully with the ICJ Order, this puts Australia in a sticky position. Australia has maintained ongoing military and trade relationships with Myanmar. The question this raises is how is Australia exerting its influence on Myanmar?

What risks of violating the duty to prevent genocide or potentially encouraging Myanmar are being taken by individuals who represent Australia in maintaining diplomatic relationships, and does this amount to complicity if it is negligible in preventing genocide, bearing in mind that, in Australia, genocide is a crime contrary to Division 268 of the Criminal Code (Cth) and there are statutory conditions for individual conspiracy and  complicity.

Australia’s position is currently evidenced through ministerial statements. A statement followed the release of the IIFFM report in 2018 stating that Australia has been a “strong supporter” of the IIFFM and that that perpetrators of crimes committed in Myanmar “must be held to account”. In a subsequent media release, the Minister for Foreign Affairs and Trade, Senator the Hon. Marise Payne referred to the imposition of targeted financial sanctions and travel bans against five military officers responsible for human rights violations committed by units under their command. It is notable that those sanctions did not include Senior General Min Aung Hlaing, the Commander-in-Chief of the Tatmadaw. In addition, on 29 January 2020, Aung Hlaing received the Ambassador of Australia to Myanmar H.E. Ms. Andrea Faulkner for a diplomatic visit, during which they exchanged gifts and discussed various topics. A press release from General Aung Hlaing stated “improved relations between Myanmar and Australia” and “defence cooperation between the two armed forces” of both states were discussed, including the sending of trainees. Such defence cooperation may be productive if it were preventive of genocidal conduct but, here, we have a need for post genocidal accountability. There is therefore a potential that continued significant engagement assists and encourages those in power in Myanmar, including those identified as responsible for genocidal  activity in the IIFFM. It is surprising that there is not a total arms embargo and that

Australia has not included either the Tatmadaw controlled companies or the foreign-owned companies on its sanction list, as recommended by the IIFFM Report.

Senator Payne released a statement on her visit to Myanmar in December 2018. In it she referred to the provision of humanitarian relief and working together with Myanmar and ASEAN partners “to strongly encourage efforts towards peace and reconciliation across Myanmar”.

Conclusion

In principle, communication, compromise and opportunities to assess willingness to comply with the Genocide Convention, and in this situation, the ICJ Order, can be useful methods of influence. This would mean that Australia’s continuation of important, high level diplomatic relationships with Myanmar and its military leaders is instrumental in exercising influence on Myanmar to comply with the provisional measures of the ICJ. Australia would be unlikely to breach its obligations under the Genocide Convention by maintaining diplomatic relationships with Myanmar. Diplomatically there is an inevitable tension between access and negotiation and legal duties but a duty to prevent genocide is a duty nonetheless. It could also be argued that providing support in the form of military aid and the economic benefits of trade could compromise Australia’s duty to employ all reasonable means to prevent genocide, where that support is provided directly to those about whom it is said are acting with impunity. This is supported by the ICJ’s decision in the Bosnia Genocide Case where it held that complicity always requires that some positive action be taken to furnish aid or assistance to the perpetrators of genocide.

Australia is obligated to exert its influence to prevent genocide. Discussions and media releases appear inadequate in the face of genocidal acts. Australia should embrace its regional and cooperative position to uphold the rule of law and its duty to prevent the commission of genocide in its own backyard. Without positive steps, Australia risks sailing very close to behaving relatively normally in a storm of egregious human rights abuses – which can be otherwise put as ‘sailing very close to the wind’.

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Image credit: Steven Biak Ling via Unsplash

Felicity Gerry QC
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Felicity is on the lists of counsel for the ICC and KSC having come to international practice now her children are older. She is admitted in England and Wales and Australia (Victoria and the High Court Roll) and specialises in complex criminal law cases, generally involving an international element including terrorism, homicide, biosecurity and human trafficking. She has a particular interest in complicity as leading counsel in the UK Supreme Court decision in R v Jogee [2016] UKSC 8 and having led an amicus brief on CIL and complicity in the ICTY. She is Professor of Practice at Deakin University where she teaches a unit on Contemporary International Legal Challenges. She is widely published in areas including women & law, technology & law and reforming justice systems. Her current PhD candidature is on Transnational Feminisms and the Human Trafficking Dilemma.

Eva Buzo
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Eva Buzo is a Sydney-based barrister and the Executive Director of Victim Advocates International. Prior to coming to the bar Eva worked internationally with victims of human rights violations in East Africa, South Asia and Australia for both grassroots and international organisations. Eva has a BA from University of New South Wales, MA from Hamburg University and a JD from Australian National University. She is currently completing her PhD in law at Queensland University of Technology on victim representation in international accountability mechanisms. Eva is on the Justice Rapid Response roster as an international criminal investigation expert.

Anna McNeil
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Anna McNeil is a highly experienced lawyer with significant experience in Australia and internationally. She has defended in various high-profile cases before the Extraordinary Chambers in the Courts of Cambodia, the United Nations International Residual Mechanism for Criminal Tribunals, and the International Criminal Tribunal for the former Yugoslavia. Currently, Anna is a Solicitor at the Victorian Office of Public Prosecutions and has previously worked at the Victorian Department of Justice and the Commonwealth Attorney-General’s Department. Anna has particular expertise in genocide, crimes against humanity, and joint criminal enterprises in an international context. Her interests lie in international criminal law, international humanitarian law and international refugee law, with her pro-bono work assisting refugees in Australia and overseas.

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