By Payam Akhavan and John Packer
Twenty-five years ago, as young UN human rights officers working together in Geneva, we witnessed how the world watched and did nothing as close to a million Rwandan Tutsis were exterminated. Brimming with idealism and faith in international law, we were shocked at this catastrophic failure of political will. Since then, world leaders have repeatedly expressed regret for their inaction and reflected on lessons learned.
Yet this month, just as we commemorate the 25th anniversary of the Rwandan genocide, we now witness how the world watches and does nothing as Myanmar commits what a UN Fact-Finding Mission has called “genocide” against the Rohingya minority. The least we can do is to hold Myanmar accountable under international law. Canada, in particular, has promoted a rules-based international order and once-upon-a-time championed the doctrine of Responsibility to Protect civilians against mass atrocities. One simple, cost-effective, but far-reaching measure that Canada could take is to put Myanmar on trial for genocide before the International Court of Justice (ICJ) at The Hague.
The prosecution of perpetrators ordinarily comes before the International Criminal Court (ICC). The ICJ is only for disputes between governments. Myanmar, however, does not recognize the jurisdiction of the ICC. A September 2018 decision, which at least recognizes the ICC’s jurisdiction, held that, at best, the ICC could investigate the crime of deportation across an international boundary because of the mass exodus of Rohingya refugees into Bangladesh. This, however, excludes the crime of genocide and its exceptional gravity in international law. Furthermore, the ICC has serious resource constraints, is notoriously slow, and could not arrest any Myanmar officials.
The ICJ, on the other hand, has jurisdiction over the crime of genocide, and Canada could immediately begin a case against Myanmar based on the available evidence. Canada and Myanmar are both signatories to the 1948 Genocide Convention, having ratified it in 1952 and 1956, respectively. Adopted in the wake of the Nuremberg judgment, criminalizing the archetypal collective destruction of human groups represented by the Holocaust, Article IX of the treaty confers jurisdiction on the ICJ to determine the responsibility of governments, including their failure to prevent or punish perpetrators of genocide. Such a case would provide a unique and important platform for victims and witnesses to testify about these shocking atrocities, and for the court to issue an authoritative judgment against Myanmar. At the very least, exposing the truth in this way would increase pressure on Myanmar and perhaps achieve some measure of deterrence against ongoing atrocities.
In 2018, both the Canadian Senate and House of Commons adopted resolutions recognizing the Rohingya Genocide. In the coming days, both chambers will consider parallel motions calling on Canada to bring a genocide case against Myanmar before the ICJ. This is consistent with the recommendation of Prime Minister Trudeau’s Special Envoy, Bob Rae, to pursue accountability for the atrocities against the Rohingya. It is also consistent with a recent resolution of the Organization of Islamic Cooperation (OIC) to take similar action among its 57 member states.
This is a unique opportunity for Canada to exercise moral leadership on the global stage, to demonstrate its commitment to a rules-based international order, and to uphold universal respect for fundamental human rights. Since genocide is the most heinous crime imaginable, there should be no question about our moral duty as a nation to speak truth to power. Beyond our collective conscience, moreover, Canada is competing for a seat in the 2022 UN Security Council elections, and its principled leadership on this pressing issue would certainly help win favour with the 57 OIC members, which constitutes the largest voting bloc in the UN.
There will always be political reasons not to do anything, to remain as bystanders rather than taking a risk to achieve justice. But what do we as Canadians want to remember when we commemorate the 25th anniversary of the Rohingya genocide? Can we enter the ranks of good Samaritans like Raoul Wallenberg, who helped rescue Jews during the Holocaust, or General Roméo Dallaire, who rescued Tutsis in Rwanda in 1994? Surely Canada can and should be on the right side of history.
Payam Akhavan and John Packer are Professors of International Law at McGill University and the University of Ottawa respectively. They served as UN human rights officers in Geneva in 1993–1994.