While the Rohingya continue to endure an ongoing genocide both inside and outside their homeland, several international legal mechanisms churn slowly in parallel.

The last two weeks have seen moments of progress. First, an Argentinian court decided to consider an international criminal law action against Myanmar’s State Counsellor and some Generals. Then the UN’s International Investigative Mechanism for Myanmar (IIMM) declared that they’re “watching” Myanmar. Finally Myanmar submitted its first report to the International Court of Justice (ICJ) on compliance with Provisional Measures. This is not to mention an innovative case at the International Criminal Court.

However, none of these hold the prospect of quick or tangible relief for the refugees now at sea or those languishing in camps near Sittwe or Cox’s Bazar. Indeed, neither the work of the IIMM nor review by the ICJ of Myanmar’s recent report is even open to public scrutiny, meaning that Myanmar is, to some extent, shielded from outside pressure.

For its part, Canada last “acted” in December 2019 by sending the Prime Minister’s Special Envoy, Bob Rae, to witness the oral hearings on Provisional Measures at the ICJ in The Hague. At the same time, Canada issued a joint statement with The Netherlands by which they expressed “their intention to jointly explore all options to support and assist the Gambia” as applicant in the current case. Thus it is past-due for Canada to act in this regard.
If Canada is as committed to upholding the rules-based international order as it claims, Ottawa, could and should now join the case of The Gambia v Myanmar concerning the Rohingya genocide. Rohingya representatives have been calling for such action by states like Canada from well before The Gambia brought the case last November. The issue was also the focus of a parliamentary resolution though this was not subject to a vote before dissolution for the October 2019 federal elections.

There are several options available for Canada to act at the ICJ. Canada could bring its own action at the ICJ on the grounds that Myanmar committed genocide against the Rohingya. This would be consistent with both the unanimous 2018 declaration of both chambers of Parliament that a Genocide had taken place (with ongoing effects) and Canada’s responsibilities under Article IX of the UN Genocide Convention (to which Canada is a State Party).

While it is likely that the Court would join Canada’s case with that commenced by The Gambia, this strategy would still allow Canada to stand before the Court and engage fully in a judicial process. Ideally, Canada would invite other States, from all regions of the world, to join in the action. This would increase the weight of the case substantially and add considerable resources in support of the applicants. It would also eliminate the unfortunate optic of “the Muslim world against Buddhist Myanmar” – a narrative that Myanmar has promoted as The Gambia is acting with the express support and funding of the 57-member States Organisation of Islamic Cooperation.

There are other alternatives for Canada. Aside from an intervention under Article 63 of the Statute of the Court (of which Canada has a right as a State Party to the Genocide Convention, but for which it is limited in what it may address and may not contribute oral argument), Canada could consider intervening under Article 62 of the Statute which is available to a State Party which has an interest of a legal nature which may be affected by the decision in the case.

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An Article 63 intervention seems highly justified not least with regard to matters of sexual violence and the need for a gendered perspective which appears in this case central to understanding and establishing the genocide itself fully as well as to informing possible reparations. Championing a “feminist foreign policy,” and knowing the facts of the case, Canada can hardly stand aside or decline to make the feminist argument.

By contrast, there is no right to intervene under Article 62, and the Court may not be persuaded that Canada possesses sufficient legal interest to merit the Court’s approval. However, in so far as the Court has in its jurisprudence definitively established that genocide is a matter of interest for the international community as a whole and is a peremptory norm, it may equally prove challenging for the Court to find in favour of The Gambia’s standing based on these very norms and then deny another State Party the right to intervene on the same basis. Arguably, in so far as Canada at least has taken some Rohingya refugees and has relations both with Myanmar and Bangladesh (which is severely affected by the genocide), Canada has a greater connection with the matter before the Court than does The Gambia (to the extent any such link is relevant).

Finally, there are ways in which Canada could act with other States Parties through international public organizations to stimulate and contribute to submissions before the Court, notably according to Article 34 of the Court’s Statute. This may take more diplomatic effort and some creativity, but it could yield substantive and valuable contributions for consideration of the Court both with regard to the Rohingya case and to the application of the Genocide Convention hereafter.

There is no doubt that there are significant issues before the Court arising under the Rohingya genocide case. This is a rare opportunity to address them – of course for the Rohingya themselves, but also regarding State-sponsored sexual violence as genocide, the content of the duty to prevent genocide (“never again”), possible reparations, etc. It would be a shame if Canada, having taken the lead and expressed itself unequivocally on the situation, declines to engage actively and substantially in the judicial consideration of it. Undoubtedly, Canada can and should help.

At the same time, it is true that the engagement of Canada (and possibly other States) in the case would add elements of complexity and some time in terms of process. These are real concerns that merit careful examination. However, the risks or costs must be weighed against the possible benefits, not least of this unique opportunity and at this particular time of uncertainty in international relations with challenges to international law.

In evaluating the risks, Canada should seek the views of the Rohingya, who are the ultimate subjects of the case and arguably have the most to lose. Based on experience, it is highly unlikely that another such opportunity will present itself any time soon and, to the contrary, in the event the case should fail, this might be the end of the Genocide Convention as a credible instrument and cornerstone of contemporary international law. Canada should want to weigh-in on this in accordance with our purported values and assertions of our place in the world.

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