UPDATE ICJ Topic A: Ukraine v. Russian - IMUNA
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UPDATE ICJ
PA P E R
2 0 2 1
Topic A: Ukraine v. Russian
Federation
Topic B: The Gambia v. Myanmar
Email: info@imuna.org
Phone: +1 (212) 652-9992
Web: www.nhsmun.org
Secretary-General Dear Judges,
Maura Goss
Welcome to NHSMUN 2021 and the International Court of Justice! My name is Brandon Lin, and
Directors-General
I am delighted to be your Session I Vice President. I was born and raised in San Jose, California, but
Rose Blackwell
I have also lived in Bangkok, Thailand. Currently, I am a first-year at the University College London
JJ Packer
studying Politics and International Relations. I am looking forward to the day we are able to travel
Conference Services the world again, but ultimately, California and the Bay Area will always remain home.
Hannah Lilley
Alisa Wong In my free time, you can find me delving into astrophotography, trying new restaurants, and com-
Delegate Experience pleting the New York Times crossword (or trying to). Though most likely, these days, I will be ex-
Akanksha Sancheti ploring new beaches or playing soccer–ideally, both at the same time. As for where my studies take
John Wood me, I am particularly interested in the application of international law and public policy. Whether
that leads into a career of consultancy, law, diplomacy, or the multitude of other paths that exist
Global Partnerships
Sofia Fuentes remains a vexing question.
Salmaan Rashiq This will be my first NHSMUN as a staff member and my second year attending the conference—I
Under-Secretaries- was a delegate in the UNEP at NHSMUN 2019. However, I’ve participated in MUN for six years
General now, serving on the Secretariat for my high school, chairing several conferences in the ICC, and
Jon Basile
attending committees ranging from Historical Crisis to General Assemblies. The opportunity to
Ankita Bhat
participate in MUN conferences across three continents has been a privilege like no other. With
Beatriz Circelli
Caitlyn Johnson that, my NHSMUN experience was exceptional amidst its collaborative dynamic.
Patrick Leong This year’s cases are both immensely influential legal disputes: Ukraine v. Russian Federation confronts
Kathy Li
a historically complex geopolitical conflict, and The Gambia v. Myanmar approaches an alleged geno-
Pablo Maristany de
cide. In this committee, I challenge you to identify how the alleged actions and evidence within each
las Casas
McCall Olliff case fit into international law. Additionally, I encourage you to develop your arguments surrounding
Abolee Raut the interpretation and consequent application of said international laws. As Judges, you have the
Pranav Reddy unique opportunity to approach a debate that has limited existing analysis!
Clare Steiner
Ann Williams In our Update Papers, Reva and I evaluate the evolving situations in Crimea and the Rakhine State
and consider how changing circumstances will affect legal proceedings. Pay careful attention to
where we suggest new pathways for argumentation and research!
Lastly, I will echo the sentiments of my incredible directors Maria and Laurent. In the ICJ, legality
supersedes all else—therefore, ensure that your arguments have sound legal reasoning. With that
being said, the law has many interpretations, and it is up to you to transform them into arguments!
As always, feel free to contact any of us if you have any questions about NHSMUN, Update Papers,
the ICJ, collegiate life, or anything in-between!
Be well,
Brandon Lin
brandonlin@imuna.org
International Court of Justice
Session I
Email: info@imuna.org
Phone: +1 (212) 652-9992
Web: www.nhsmun.org
Secretary-General Dear Judges,
Maura Goss
Welcome to NHSMUN 2021! I am extremely excited to be the Vice President of the International
Directors-General
Court of Justice for Session II. This is my first year at NHSMUN, but I have been involved in MUN
Rose Blackwell
for the last six years.
JJ Packer
Conference Services I was born in India, but my family moved to the Middle East when I was nine. Since then, I have
Hannah Lilley lived in Bahrain, Qatar, and the United Arab Emirates. I currently live in Canada and study at the
Alisa Wong University of Toronto. I’m a second-year student double majoring in Economics and Criminology
Delegate Experience and minoring in Spanish. When I’m not studying or doing assignments - which is rare - I enjoy
Akanksha Sancheti watching crime documentaries, listening to true crime podcasts, and reading crime novels. To sum-
John Wood marize, I love true crime.
Global Partnerships I was introduced to MUN in eighth grade as a shy and introverted kid. During my first conference,
Sofia Fuentes I barely spoke, stuttering and shivering with stage fright. From being the timid new delegate to
Salmaan Rashiq becoming the head of my high school conference, I developed confidence, charisma, and research
Under-Secretaries- skills. I further got the chance to travel for international conferences and engage in exciting conver-
General sations with people from different global perspectives.
Jon Basile
Ankita Bhat This year the ICJ will be discussing two cases: Ukraine v. Russian Federation regarding the situation in
Beatriz Circelli Crimea and the Donbass region and The Gambia v. Myanmar, which will examine the alleged geno-
Caitlyn Johnson cide of the Rohingya people. This committee will examine the history and geopolitical context of
Patrick Leong conflicts in both cases. The update papers will give you a better idea of the context, allowing you
Kathy Li
to better understand the evidence presented by the advocates and the legal scope of the case. I also
Pablo Maristany de
encourage you to focus a little on the significance of the ICJ in handling legal disputes and evaluate
las Casas
McCall Olliff the credibility of its process. In a committee like the ICJ, legality is the most important facet of our
Abolee Raut topics. I encourage you to focus intensely on grasping the mandate of the ICJ before using that
Pranav Reddy mandate as a lens from which you can view not only the topic as a whole but some of the most
Clare Steiner recent updates.
Ann Williams
I look forward to seeing you all in the virtual court in March! Until then, good luck with the prepa-
ration for the conference and feel free to ask me or my director Maria Olifer any questions.
Sincerely,
Reva Aggarwal
reva.aggarwal@imuna.org
International Court of Justice
Session IIICJ 4| Table of Contents Table of Contents Ukraine v. Russian Federation 5 The Gambia v. Myanmar 11 Works Cited 16
ICJ
NHSMUN 2021
Topic A:
Ukraine v. Russian Federation
Photo Credit: ParshakoffTopic A: Ukraine v. Russian Federation 6| Introduction The case of Ukraine v. Russia results from a long history of political instability and violence between the two countries. Although the International Court of Justice (ICJ) is not the first court that Ukraine has approached in an attempt to attract attention to the situation, it is the one that is most likely to have a significant international impact on it.1 The ICJ is the only UN-sanctioned court that passes judgments on disputes between countries, and its rulings are binding upon the countries involved in the proceedings.2 Due to the long history of violence and political turmoil between Ukraine and Russia, it is important to differentiate between the overarching and the specific instances of violence discussed in this case’s scope.3 Furthermore, even though the legal scope of this case is limited to violations committed under the Convention on the Elimination of Racial Discrimination (CERD) and the International Convention for the Suppression of the Financing of Terrorism (ICSFT), un- derstanding of the history of the power dynamics between the two states is vital for providing a comprehensive perspective.4 State Responsibility According to the Articles on the Responsibility of States for State responsibility is a fundamental phenomenon in interna- Internationally Wrongful Acts (ARSIWA) released by the In- tional law, which provides that States are liable for the viola- ternational Law Commission (ILC) in August 2001, an illegal tions of international law committed by the States’ organs.5 act or omission of a State will qualify as an “internationally State organs are the three primary divisions of a State’s gov- wrongful act” if two conditions regarding acts and omissions ernment: the executive, the legislature, and the judiciary. Vio- are met. It is important first to understand the difference be- lations of international law are most commonly committed by tween an “act” and an “omission.” For example, an illegal act the executive, including the armed forces and central banks, would be the military actively attacking or committing human which are the two State organs that are the most relevant to rights violations against civilians. An omission is the absence the case.6 Every State is required to make reparations—which or failure of a body performing its duties, such as a military may consist of restitution, compensation, or an apology—for failing to protect civilians from attacks by rebel groups. When any injuries or harm caused by a violation of international determining whether a State committed a wrongful act, the law.7 However, what constitutes a violation of international first condition is whether or not the act or omission was a law depends on the different international obligations of each breach of a binding international obligation.9 Secondly, the State based on their interests, range of subscribed treaties, and act or omission must be “attributable” to the State.10 Most of- other commitments.8 ten, crimes are attributed to the organs of the State that have 1 Iryna Marchuk, “Ukraine Takes Russia to the International Court of Justice: Will It Work?” Blog of the European Journal of International Law, January 26, 2017, https://www.ejiltalk.org/ukraine-takes-russia-to-the-international-court-of-justice-will-it-work. 2 “International Court of Justice,” United Nations, accessed December 14, 2020, https://www.un.org/en/model-united-nations/interna- tional-court-justice. 3 International Court of Justice. Dissenting Opinion Of Vice - President Xue, United Nations, November 8, 2019, https://www.icj-cij.org/pub- lic/files/case-related/166/166-20191108-JUD-01-01-EN.pdf. 4 Marchuk, “Ukraine Takes Russia to the International Court of Justice.” 5 “The Responsibility of States,” Encyclopædia Britannica, accessed January 21, 2021, https://www.britannica.com/topic/international- law/The-responsibility-of-states. 6 “The Elements of State Responsibility,” LawTeacher, July 23, 2019, https://www.lawteacher.net/free-law-essays/international-law/the- elements-of-state-responsibility-international-law-essay.php. 7 “The Responsibility of States.” 8 James Crawford, “State Responsibility,” Oxford Public International Law, last modified September, 2006, https://opil.ouplaw.com/ view/10.1093/law:epil/9780199231690/law-9780199231690-e1093?prd=EPIL. 9 “The Elements of State Responsibility.” 10 “The Elements of State Responsibility.”
Topic A: Ukraine v. Russian Federation
|7
counteracted their instructions or exceeded their authority.11 ICJ’s influence over Russia. Ultimately, this may become prob-
In general, acts committed by private individuals are not at- lematic during the implementation of the ICJ’s ruling after the
tributable to the State unless they act under its instructions case, as the court proceedings may be futile if Russia does not
or if there is a purposeful absence of government authority.12 abide by the ICJ’s ruling.
The ongoing conflict between Russia and Ukraine has caused Russia Offering “Simplified Procedure” Citi-
many injuries and led to several instances of human rights zenship to Residents of Donbas
violations.13 A recent incident occurred in October 2020,
According to the Kharkiv Human Rights Protection Group
when ceasefire violations resulted in the death of two Ukrai-
(KHPG), Russian President Vladamir Putin issued a decree
nian service members and left another two wounded.14 Within
in 2019 that allowed Ukrainians in the Ukrainian provinces of
Crimea, there continues to be widespread repression and po-
Donetsk and Luhansk to receive Russian citizenship accord-
litical suppression of Crimean Tatars—the indigenous peo-
ing to a “simplified procedure.”21 Through this decree, Ukrai-
ples of Crimea.15 Moreover, organizations such as The Novo-
nian Donbas residents are eligible to apply for Russian citizen-
rossiya Humanitarian Battalion and Save the Donbass have
ship regardless of whether they lived in Russian or Ukrainian
solicited donations for their mission of creating “modern,
territory.22 In his statement in April 2019, Putin claimed that
combat ready military units” to fight against Ukraine’s cen-
the issuance of passports “is purely a humanitarian issue” as
tral government.16 These groups rely on social media to direct
a means of easing the suffering of a population trapped in a
donations through state-owned banks in Russia.17 According
conflict zone.23 The decree stated that the people permanent-
to the New York Times, these groups have at least tacit sup-
ly residing in Donbas wishing to obtain Russian citizenship
port from Vladimir Putin’s government.18 Furthermore, when
must submit an application to the Ministry of Internal Affairs
it comes to the aggression by the Russian military and para-
of Russia with an identity document certified by the issuing
military forces, it is important to determine whether an inter-
government authority.24 While Putin continued to back up the
nationally wrongful act has been committed under the Rus-
good intentions behind the decree, the Ukrainian government
sian Federation’s international obligations.19 Only then can the
saw it as a threat to the newly elected Ukrainian president
level of State responsibility for their actions be determined.
Volodymyr Zelensky.25 Putin’s decree has proven controver-
On October 28, 2020, Russia approved a bill providing na-
sial, igniting debates of whether the move encroaches upon
tional law precedence over international treaties, meaning that
Ukraine’s sovereignty.
Russia’s national laws would be viewed with more importance
than international treaties.20 This can potentially undermine As the Donbas region spans Ukraine and Russia, the prov-
11 “The Elements of State Responsibility.”
12 “The Elements of State Responsibility.”
13 James S. Gilmore III, “On Russia’s Ongoing Aggression Against Ukraine And Illegal Occupation Of Crimea” (speech, Vienna, Novem-
ber 5, 2020), Organization for Security and Co-operation in Europe, https://osce.usmission.gov/on-russias-ongoing-aggression-against-
ukraine-and-illegal-occupation-of-crimea-11/.
14 Gilmore, “On Russia’s Ongoing Aggression Against Ukraine And Illegal Occupation Of Crimea.”
15 Gilmore, “On Russia’s Ongoing Aggression Against Ukraine And Illegal Occupation Of Crimea.”
16 Jo Becker and Steven Lee Myers, “Russian Groups Crowdfund the War in Ukraine,” The New York Times, June 11, 2015, https://www.
nytimes.com/2015/06/12/world/europe/russian-groups-crowdfund-the-war-in-ukraine.html.
17 Becker and Myers, “Russian Groups Crowdfund.”
18 Becker and Myers, “Russian Groups Crowdfund.”
19 “The Elements of State Responsibility.”
20 Zoe Gujral, “Russia Duma Approves Bill Giving National Law Precedence over International Treaties,” Jurist, October 30, 2020, https://
www.jurist.org/news/2020/10/russia-duma-approves-bill-giving-national-law-precedence-over-international-treaties.
21 Halya Coynash, “Putin Extends Russian Attack on Ukraine, Offering Passports to All Ukrainians in Donbas,” Kharkiv Human Rights
Protection Group, July 19, 2019, http://khpg.org/en/index.php?id=1563477434.
22 Coynash, “Putin Extends Russian Attack.”
23 Anna Trunina and Inna Sidorkova, “Putin Explained Issuance of Passports to Residents of Donbass,” RosBiznesConsulting, April 24, 2019,
https://www.rbc.ru/politics/24/04/2019/5cc06c7a9a79475552321802?from=newsfeed.
24 “Decree on Defining, for Humanitarian Purposes, Categories of Persons Having the Right to Apply for Admission to Russian Citizen-
ship in a Simplified Procedure,” President of Russia, April 24, 2019, http://kremlin.ru/acts/news/60358.
25 Coynash, “Putin Extends Russian Attack.”Topic A: Ukraine v. Russian Federation
8|
inces Donetsk and Luhansk have become disputed territories tion.35 This suggests that not everyone with a Russian passport
between the two countries.26 As a result, Russia considers Do- necessarily agrees with the country’s ideological and cultural
netsk and Luhansk as “republics” of the Russian Federation, views. Many factors may influence the decision to apply for
which is why Putin has felt compelled to offer its residents Russian citizenship, including a new decree issued in the self-
Russian citizenship.27 However, If Zelensky’s administration proclaimed DPR that resulted in the invalidation of Ukrainian
does not accept Moscow’s demand for uncontested control passports within the region.36 Human rights monitors believe
of Donetsk and Luhansk, Ukraine fears that Russia could in- that this was a tactic to force residents to instead use Rus-
tervene under the auspices of protecting Russian citizens.28 sian or unrecognized passports.37 This suggests that not only
Ukraine claimed that this was an act of aggression by Russia, is Russia attempting to undermine the legitimacy of Ukraine’s
taking advantage of the fact that Ukraine does not permit dual government in the area, but it may also be seeking to diminish
citizenship.29 the cultural legacy of Ukraine, as those with Russian passports
may be more easily persuaded into abiding by Russian norms.
A recent study from the Donetsk Information Institute has
shown that the number of Ukrainians who have taken Russian Holding a Ukrainian passport in DPR has proven inefficient.
citizenship in the regions in question is far lower than Mos- When residents in DPR use Ukrainian passports for marriage
cow’s predicted figure.30 While Russia aimed to issue around registration or cross the border between DPR and LPR, the
600,000–800,000 passports by the end of 2020, the number DPR militants will stamp the passport, which immediately
of passports issued is significantly lower, with only around invalidates it because the DPR is not a recognized govern-
seven percent of the relevant population obtaining citizen- ment.38 This presents many issues as citizens with invalidated
ship.31 This is two to three times lower than what Russia had passports cannot travel between the two regions and face dif-
predicted.32 On the other hand, around 29 percent of the pop- ficulty obtaining other official documents.
ulation in these regions have taken advantage of the “pass-
According to the Eastern Human Rights Group, there is a
ports” of the “Donetsk People’s Republic” (DPR) and “Lu-
major ongoing operation in occupied Donbas to integrate the
hansk People’s Republic” (LPR), the unofficially recognized
local population with the Russian Federation. As an addition-
and self-proclaimed states out of the Donetsk and Luhansk
al tactic to diminish Ukraine’s cultural legacy and invalidate
provinces.33 Even though these “passports” do not guaran-
its control over the region, in March 2020, DPR announced
tee visa-free entry into the European Union like a Ukrainian
that Ukrainian would no longer be the State’s official lan-
passport would, they symbolize the desire for independence
guage and that only Russian would remain an official state
of DPR and LPR from Ukraine.34
language.39 Similarly, LPR removed Ukrainian from schools in
Research has shown that one’s decision to obtain Russian June 2020.40 Not only has the Ukrainian language become in-
citizenship does not necessarily reflect one’s ideological posi- validated, but Ukrainian currency is also no longer in use. The
26 Coynash, “Putin Extends Russian Attack.”
27 Coynash, “Putin Extends Russian Attack.”
28 Coynash, “Putin Extends Russian Attack.”; Pavel Kanygin, “Moscow gets out of wide trousers,” Novaya Gazeta, April 18, 2019, https://
novayagazeta.ru/articles/2019/04/18/80271-moskva-dostaet-iz-shirokih-shtanin.
29 Hayla Coynash, “Putin’s Russian Passport Aggression against Ukraine Fizzles in Occupied Donbas,” Kharkiv Human Rights Protection
Group, October 9, 2020, http://khpg.org/en/1601905656.
30 Coynash, “Putin’s Russian Passport Aggression.”
31 Coynash, “Putin’s Russian Passport Aggression.”
32 Coynash, “Putin’s Russian Passport Aggression.”
33 Coynash, “Putin’s Russian Passport Aggression.”
34 Yulia Abibok, “Trapped in Eastern Ukraine,” ReliefWeb, August 28, 2020, https://reliefweb.int/report/ukraine/trapped-eastern-ukraine.
35 Coynash, “Putin’s Russian Passport Aggression.”
36 Halya Coynash, “Russian Proxy Donetsk ‘Republic’ Tries to Eliminate Use of Ukrainian Passports,” Kharkiv Human Rights Protection
Group, September 28, 2020, http://khpg.org/en/index.php?id=1601216885.
37 Coynash, “Russian Proxy Donetsk.”
38 Coynash, “Russian Proxy Donetsk.”
39 Coynash, “Russian Proxy Donetsk.”
40 Coynash, “Russian Proxy Donetsk.”Topic A: Ukraine v. Russian Federation
|9
Eastern Human Rights Group also cites systematic militariza- their voluntary pledges and commitments.47
tion and indoctrination, with children taught from a young age
In October 2020, the United Nations General Assembly
to view Ukraine as an enemy against Russia.41
elected Russia—which ran unopposed in its region—to the
While Ukraine’s current grievances with Russia before the ICJ Human Rights Council for a three-year term.48 This decision
limit CERD violations to Crimea, this invalidation of Ukrai- was met with significant hostility, especially from the United
nian heritage is a possible violation of Articles Two, Four, and States, which had withdrawn from the Council in 2018 af-
Seven of CERD.42 Moreover, the international community, in- ter US Ambassador to the United Nations Nikki Haley ac-
cluding the European Union (EU), has condemned the decree cused the body of being “hypocritical and self-serving.”49 She
regarding ‘simplified procedure’ passports. During a meeting claimed that these elections have allowed supposed human
of the Organization for Security and Co-operation in Europe rights abusers to join the Council, thus solidifying the United
(OSCE) in October 2019, the OSCE stated that Russia’s ac- States’ decision to withdraw from the Council.50 Israeli Am-
tions are “an encroachment on Ukraine’s sovereignty.”43 In bassador to the United Nations Gilad Erdan further criticized
October 2019, the EU further stated that it did not recognize the elections stating that “today’s Human Rights Council elec-
Russian passports issued in DPR and LPR and issued guide- tions prove once again that this council has nothing to do with
lines on how to recognize such documents.44 protecting human rights and everything to do with violating
them” and called on democratic states to resign.51 UN Watch,
Russia’s Election to the United Nations Hu- a non-governmental organization that monitors the United
man Rights Council (UNHRC) Nations’ performance, released a report right before the Oc-
tober 2020 election condemning the UNHRC for electing
The United Nations Human Rights Council (UNHRC) is
countries including Russia, China, Cuba, and Saudi Arabia
an inter-governmental body within the United Nations sys-
to the Council.52 The Executive Director of UN Watch, Hil-
tem that focuses on promoting and protecting human rights
lel Neuer, pointed out that Russia has assassinated journal-
worldwide.45 It addresses human rights issues and violations
ists and poisoned dissidents in the past, stating that “electing
to make recommendations on them. The UNHRC consists of
these dictatorships as UN judges on human rights is like mak-
47 Member States who are elected by the majority of mem-
ing a gang of arsonists into the fire brigade.”53
bers of the General Assembly through a secret ballot.46 The
General Assembly is expected to consider the candidate states’ Russia is currently under international scrutiny for the August
participation in promoting and protecting human rights and 2020 poisoning of opposition leader Alexei Navalny, the 2018
41 Coynash, “Russian Proxy Donetsk.”
42 Office of the United Nations High Commissioner for Human Rights, International Convention on the Elimination of All Forms of Racial Dis-
crimination, (United Nations, December 25, 1965), https://www.ohchr.org/Documents/ProfessionalInterest/cerd.pdf.
43 Organization for Security and Co-operation in Europe, EU Statement on “Russia’s Ongoing Aggression against Ukraine and Illegal Occupation of
Crimea,” (European Union, October 10, 2019), https://eeas.europa.eu/sites/eeas/files/pc_no_1243_eu_statement_on_ukraine.pdf.
44 Coynash, “Russian Proxy Donetsk.”
45 “Welcome to the Human Rights Council,” Office of the United Nations High Commissioner for Human Rights, accessed November 30,
2020, https://www.ohchr.org/en/hrbodies/hrc/pages/aboutcouncil.aspx.
46 “Welcome to the Human Rights Council.”
47 “Welcome to the Human Rights Council.”
48 Clyde Hughes and Darryl Coote, “China, Russia Elected to U.N. Human Rights Council,” United Press International, October 13, 2020,
https://www.upi.com/Top_News/World-News/2020/10/13/China-Russia-elected-to-UN-Human-Rights-Council/4041602586896.
49 “China, Russia, Cuba Getting Seats On UNHRC A Win For Tyrants, Embarrassment For UN: Pompeo,” The Economic Times, October 15,
2020, https://economictimes.indiatimes.com/news/international/world-news/china-russia-cuba-getting-seats-on-unhrc-a-win-for-tyrants-
embarrassment-for-un-pompeo/articleshow/78674936.cms?from=mdr.
50 “China, Russia, Cuba Getting Seats On UNHRC.”
51 Jacob Magid, “Erdan slams UN Human Rights Council after Russia, China, Pakistan, Cuba elected,” The Times of Israel, October 14, 2020,
https://www.timesofisrael.com/erdan-tears-into-un-human-rights-council-after-russia-china-elected-as-members.
52 “UN Watch: Homepage,” United Nations, accessed January 4, 2020, https://unwatch.org ; UN Watch, Report: China, Russia, Cuba, Saudi
Arabia & Pakistan to win top U.N. human rights posts, United Nations, October 5, 2020,
https://unwatch.org/report-china-russia-cuba-saudi-arabia-pakistan-to-win-top-u-n-human-rights-posts.
53 UN Watch, Report: China, Russia, Cuba, Saudi Arabia & Pakistan.10|T opic A: Ukraine v. Russian Federation
poisoning of a former spy and his daughter, and the annexa- treatment of cases.
tion of Crimea in 2014.54 Before the election, 41 UNHRC
The judges of the ICJ must work diligently in this case to
members, including the United Kingdom of Great Britain
resist any potential bias towards one side or the other On one
and Northern Ireland, Turkey, Germany, France, and Japan,
hand, the Court may be likely to support Ukraine to avoid
signed a statement expressing concern regarding the human
backlash from the international community for ruling in favor
rights violations in Crimea.55 Although these statements refer
of a global superpower. This may especially be the case giv-
to alleged violations, many Member States have opposed the
en the international criticism of Russia’s aggression towards
addition of a State accused of severe crimes becoming a part
Ukraine.61 On the other hand, Russia’s status as one of the per-
of the UNHRC.56
manent five members of the Security Council can restrict the
Conclusion actual implementation of ICJ’s ruling.62 The Security Council
has been given the power to enforce ICJ decisions by making
As much as they depend on evidence, the rulings of the Court recommendations and taking necessary measures.63 In Nicara-
are also influenced by the power dynamics between states and gua v. The United States of America, although the judgments were
the United Nations. In the 1980s, numerous scholars came made in favor of Nicaragua, the United States refused to com-
together to accuse the ICJ of being unfair towards developing ply.64 Because the United States is a permanent member of the
countries due to Western influence over the Court’s norms Security Council, it could block any UN-initiated enforcement
and procedures.57 In Nicaragua v. The United States of America, mechanism.65 As delegates prepare for committee, they must
the Court ruled in favor of Nicaragua, which appeared to consider the extent to which these dynamics will apply to this
counter the accusations of unfairness. However, the Court case and how subversions of the ICJ’s rulings can be avoided.
was also believed to have advised against admitting evidence
that could have changed the final judgment.58 Following Nica-
ragua v. United States of America, Judge Schwebel criticized the
Court for unevenly dealing with the parties, alleging that the
Court depreciated one side’s evidence to omit any consequen-
tial statement of law limiting the scope of their arguments.59
Other judges further challenged the Court for misjudging
its jurisdiction over the case and the Court’s inadequacy in
acknowledging violations committed by both sides.60 These
events imply a possibility of unintentional bias in the Court’s
54 Hughes and Coote, “China, Russia Elected to U.N. Human Rights Council.”
55 112 Ukraine, “41 Countries Support Joint Statement On Crimea’s Situation At 45th UN Human Rights Council Session,” 112 Internation-
al, September 16, 2020, https://112.international/politics/41-countries-support-joint-statement-on-crimeas-situation-at-45th-un-human-
rights-council-session-54762.html.
56 “China, Russia, Cuba Getting Seats On UNHRC.”
57 J. Patrick Kelly, “The Changing Process of International Law and the Role of the World Court,” Michigan Journal of International Law 11,
no. 1 (1989): 129-166, https://repository.law.umich.edu/mjil/vol11/iss1/5.
58 International Court of Justice, Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of
America), (United Nations. June 27, 1986). https://www.icj-cij.org/public/files/case-related/70/6505.pdf.
59 International Court of Justice, Dissenting Opinion Of Judge Schwebel. (United Nations, June 27, 1986), https://www.icj-cij.org/public/files/
case-related/70/070-19841126-JUD-01-07-EN.pdf.
60 International Court of Justice, Case Concerning the Military and Paramilitary Activities.
61 112 Ukraine, “41 Countries Support Joint Statement.”
62 “Current Members,” United Nations Security Council, accessed January 4, 2020, https://www.un.org/securitycouncil/content/current-
members.
63 Amuda-Kannike Abiodun and Abila Sylvanus, “A Critical Examination of the Enforcement of ICJ Decisions through the Organs of the
United Nations,” Journal of Law and Criminal Justice 6, no. 1 (June 2018): 21-46. https://doi.org/10.15640/jlcj.v6n1a3.
64 Gabriela Echeverria, Terrorism, Counter-terrorism and Torture, London: Redress, July 2004, https://web.archive.org/web/20070810033633/
http://www.redress.org/publications/TerrorismReport.pdf.
65 Echeverria, Terrorism, Counter-terrorism and Torture.ICJ
NHSMUN 2021
Topic B:
The Gambia v. Myanmar
Photo Credit: Kevin Frayer12|T opic B: The Gambia v. Myanmar
Introduction
The Gambia v. Myanmar is a nuanced judicial case with widespread humanitarian and legal implications.
In 2017, the forced exodus of over 700,000 Rohingya refugees from Rakhine State, documented by
international media and non-governmental organizations, captured global attention and immediately
drew condemnations of ethnic cleansing and genocidal comparisons.1 Since then, the United Na-
tions Independent International Fact-Finding Mission on Myanmar (FFM) has identified significant
evidence of gross human rights violations and abuses.2
However, The Gambia still faces a difficult road ahead to con- acts.5 The Arakan Army—a Rakhine armed group—who re-
nect the actions committed in Myanmar’s Rakhine State with corded the testimony in July 2019 stated that the soldiers were
the legal definition of genocide. Notably, The Gambia needs deserters from the Tatmadaw.6 However, a Burmese military
to establish International Court of Justice (ICJ) jurisdiction, spokesman disputed that the soldiers were deserters, arguing
demonstrate the legitimacy of third-party fact-finding mis- they had been unwillingly arrested and that their testimony
sions or other forms of evidence, and satisfy both the “in- was procured under duress.7 The soldiers have since entered
tent” and “act” element of the crime—three principles that into a global witness protection program in The Hague, Neth-
Myanmar has refuted.3 erlands.8
Judges should place instrumental importance on the different Importantly, their testimony is the first time that Tatmadaw
methods used to discern genocidal intent, as evidence must be members have openly confessed to taking part in the crimes
analyzed contextually within a specific approach. committed against the Rohingya people. Specifically, within
On a global scale, further proceedings within The Gambia v. their first-hand account of the crimes committed, the soldiers
Myanmar will offer clear indications regarding the international stated that they were directly ordered by military superiors to
community’s legal capacity to prosecute genocidal actions. “kill all you see” and to “wipe out the Rohingya”—following
commands from Burmese military leaders.9
Tatmadaw Soldiers in Custody
These soldiers’ testimonies contradict Myanmar’s claims of
On September 14, 2020, The New York Times reported on re- isolated missteps by select soldiers in a few Rohingya villag-
leased video testimony from Privates Zaw Naing Tun and es.10 Instead, they could indicate a systematic decision to de-
Myo Win Tun of the Myanmar Armed Forces, or Tatmadaw.4 stroy the Rohingya people, providing a direct link between
In their testimony, the soldiers disclose that they have per- the allegations of crimes committed against the Rohingya
sonally executed Rohingya men, women, and children, as well and direct commands from leaders in the Burmese military.
as burned villages, dug mass graves, among other disturbing Consequently, this evidence’s emergence will be extremely in-
1 “Myanmar Military Leaders Must Face Genocide Charges – UN Report,” UN News, August 27, 2018, https://news.un.org/en/sto-
ry/2018/08/1017802.
2 UN General Assembly, Report of the Independent International Fact-finding Mission on Myanmar, A/HRC/39/64, 2, (September 12,
2018), https://undocs.org/en/A/HRC/39/64.
3 “Questions and Answers on Gambia’s Genocide Case Against Myanmar before the International Court of Justice,” Human Rights Watch,
December 5, 2019, https://www.hrw.org/news/2019/12/05/questions-and-answers-gambias-genocide-case-against-myanmar-internation-
al-court.
4 Hannah Beech, Saw Nang, and Marlise Simons, “’Kill All You See’: In a First, Myanmar Soldiers Tell of Rohingya Slaughter,” The New York
Times, September 8, 2020, https://www.nytimes.com/2020/09/08/world/asia/myanmar-rohingya-genocide.html.
5 Beech, Nang, and Simons, “’Kill All You See.’”
6 “Myanmar Military Demands Return of Two Soldiers Who Confessed to Rohingya Atrocities,” The Irrawaddy, September 14, 2020,
https://www.irrawaddy.com/news/burma/myanmar-military-demands-return-two-soldiers-confessed-rohingya-atrocities.html.
7 “Myanmar Military Demands.”
8 “Myanmar Military Demands.”
9 Beech, Nang, and Simons, “‘Kill All You See.’”
10 Beech, Nang, and Simons, “‘Kill All You See.’”Topic B: The Gambia v. Myanmar
|13
fluential when determining the mens rea or “intent” aspect of 2020 Parliamentary Election in Myanmar
genocide, codified under Article 2 of the Genocide Conven-
Since the country adopted a power-sharing agreement with
tion.11 Judges will need to determine whether the objective
the military in 2015, Aung San Suu Kyi’s National League of
was to destroy in whole or in part—an necessary component
Democracy won decisively for the second election.15 Notably,
of genocide within the Genocide Convention—in addition to
this election took place amidst increased international scru-
these soldiers’ testimonies.12
tiny of the Myanmar government and military’s role in the
The soldiers’ testimonies further create a new method by Rohingya refugee crisis.
which genocide can be determined within the case. The failure Leading up to the election, allegations of discriminatory poli-
to prevent extrajudicial violence is an act of omission, violat- cies began to arise. For example, the voter information app
ing the Genocide Convention.13 If Judges assess that Myan- created by Myanmar’s election commission called “mVoter
mar has failed to adequately stop, investigate, or punish these 2020” refers to Rohingya candidates by the term “Bengali.”16
soldiers’ actions, Myanmar may be held accountable for the While not derogatory in itself, when used towards Rohingya,
actions revealed from the testimony. “Bengali” implies that they are simply immigrants from Ban-
gladesh. Rohingya Muslims often reject this term when used
The soldiers’ arrival in Dutch custody also affects the Court’s about their own identity.17 Further, the app also listed candi-
evidentiary assessment. The ICJ has traditionally valued “evi- dates by ethnicity, religion, and ancestry, factors that Myanmar
dence obtained by examination of persons directly involved, has deemed an integral part of its electoral process.18 There-
and who were subsequently cross-examined by Judges skilled fore, when considering genocidal intent through fact-based
in examination and experienced in assessing large amounts approaches, the Burmese government’s systematic discrimina-
of factual information” over other forms of evidence such tion against the Rohingya people in these recent elections may
as third-party independent fact-finding missions, which may demonstrate a systemic pattern that has been previously used
have biases.14 At the moment, much of The Gambia’s case to satisfy intent in earlier cases. Primarily, the International
rests on testimony and interviews from victims of crimes Criminal Tribunal for the 1994 Rwandan Genocide, in Pros-
committed in Rakhine State produced through these third- ecutor v. Akayesu, attributed genocidal intent from a multitude
party independent fact-finding missions. This testimonial of factors including: “the general political doctrine” and “the
repetition of discriminatory acts,” along with violent factors
deviation from the alleged perpetrators should change how
to conclude that Rwandan politician Jean-Paul Akayesu had
Judges weigh evidence in the Court, given that this is one of
committed genocide.19
the first instances where the Court can hear testimony from
alleged perpetrators rather than from victims Additionally, the systematic prevention of Rohingya political
11 Office of the United Nations High Commissioner for Human Rights, Convention on the Prevention and Punishment of the Crime of Genocide,
United Nations, accessed November 29, 2020, https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx.
12 Prevention and Punishment of the Crime of Genocide.
13 Prevention and Punishment of the Crime of Genocide.
14 Michael A. Becker, “The Challenges for the ICJ in Reliance on UN Fact-Finding Reports in the Case Against Myanmar,” Blog of the Eu-
ropean Journal of International Law 2019 (December 14, 2019): 6-7, https://dx.doi.org/10.2139/ssrn.3505272.
15 Hannah Beech and Saw Nang, “Myanmar Election Delivers Another Decisive Win for Aung San Suu Kyi,” The New York Times, Novem-
ber 11, 2020, https://www.nytimes.com/2020/11/11/world/asia/myanmar-election-aung-san-suu-kyi-results.html.
16 “Myanmar Releases Voter App Criticised for Rohingya Label, despite EU Objection,” Reuters, October 7, 2020, https://www.reuters.
com/article/us-myanmar-election/myanmar-releases-voter-app-criticised-for-rohingya-label-despite-eu-objection-idUSKBN26S1M6.
17 “Myanmar Releases Voter App.”
18 UN General Assembly, Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, A/75/355, 7, (September 1,
2020), https://undocs.org/A/75/335.
19 International Criminal Tribunal for Rwanda, The Prosecutor v. Jean-Paul Akayesu (United Nations, September 2, 1998), https://unictr.irmct.
org/sites/unictr.org/files/case-documents/ictr-96-4/trial-judgements/en/980902.pdf.14|T opic B: The Gambia v. Myanmar
participation persisted in the 2020 Parliamentary elections. violence, with Myanmar’s November elections.
In November, international media reported limited polling
places in Rakhine State, hateful propaganda against Muslims, Myanmar’s compliance with January ICJ
and prohibition of ethnic Rohingya from voting.20 Histori- Court Order
cally, Rohingya have been denied citizenship and the right to In January 2020, the ICJ issued a legally binding provisional
participate in public affairs by the Myanmar government.21 In order requiring the government to “take all measures with-
a series of reports, the Simon-Skjodt Center has argued this in its power” to prevent genocidal acts, ensure military and
failure to mitigate genocidal risk factors and the denial of the
police forces do not commit genocide, preserve evidence of
right to citizenship and the right to participate in public affairs
genocidal acts, and report back on its compliance within four
for Rohingya people have amounted to a Burmese violation
months.25 Since this provisional order was legally binding,
of the Genocide Convention’s “obligation to prevent.”22
Judges should carefully analyze Myanmar’s actions as a lack of
The 2014 UN Framework of Analysis for Atrocity Crimes compliance could result in additional charges in the Court. It
(FAAC) outlined a list of actions that suggested genocide, is also important to note that the provisional order does not
even if the definition of genocide in international law does imply that Myanmar has already committed genocide in the
not include that specific action.23 These risk factors include: Rakhine State.
“present serious discriminatory, segregational, restrictive or
In April 2020, Myanmar passed domestic directives issued
exclusionary practices, policies or legislation against protected
by the Office of the President of Myanmar.26 Respectively:
groups,” “widespread or systematic discriminatory or targeted
Directive 1/2020 prohibiting acts contrary to the Genocide
practices or violence against the lives, freedom or physical and
moral integrity of a protected group, even if not yet reaching Convention; Directive 2/2020 ordering the preservation of
the level of elimination,” and “lack of national mechanisms evidence and property in Northern Rakhine; and Directive
or initiatives to deal with identity-based tensions or conflict.”24 3/2020 prohibiting hate speech and incitement to violence.27
Within the Genocide Convention, Myanmar, like all states, has These Directives could be viewed as substantial evidence that
an obligation to prevent genocide. Given the high-risk factors Myanmar has followed the Provisional Order through legisla-
outlined by the FAAC and perpetuated by the Myanmar gov- tive means. However, Judges should also carefully analyze the
ernment in these elections, Judges should consider whether continued enforcement and application of these Directives to
these actions could supplement The Gambia’s legal argu- evaluate Myanmar’s compliance.
ments.
Simultaneously, the ICJ lacks the legal framework used to
Judges should also consider the less-pronounced actions that evaluate and enforce Myanmar’s compliance. The oversight
constitute genocide, such as state-sanctioned discrimination, role envisioned for the Security Council under Article 41(2)
the perpetuation of risk factors, and the failure to prevent of the ICJ Statute and Article 77 of the Rules of the Court,
20 Beech and Nang, “Myanmar Election.”
21 Erin Rosenburg, “Denying Rights to Citizenship and Participation in Public Affairs: Genocide Risk Factors in Burma,” United States
Holocaust Memorial Museum, November 20, 2020, https://www.ushmm.org/genocide-prevention/blog/denying-rights-to-citizenship-and-
participation-in-public-affairs-genocide.
22 Rosenburg, “Denying Rights.”
23 Rosenburg, “Denying Rights.”
24 Framework of Analysis for Atrocity Crimes, (New York: United Nations, 2014), 18, https://www.un.org/en/genocideprevention/docu-
ments/about-us/Doc.3_Framework%20of%20Analysis%20for%20Atrocity%20Crimes_EN.pdf.
25 International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar)
23 January 2020 Order (United Nations, January 23, 2020), 1, https://www.icj-cij.org/public/files/case-related/178/178-20200123-ORD-02-
00-EN.pdf.
26 “Myanmar Submits First Report on Rohingya to UN’s Top Court,” Al Jazeera, May 24, 2020, https://www.aljazeera.com/news/2020/5/24/
myanmar-submits-first-report-on-rohingya-to-uns-top-court.
27 “Myanmar’s Compliance with the ICJ Provisional Measures Order and the Road Ahead,” UK Human Rights Blog, September 3, 2020,
https://ukhumanrightsblog.com/2020/09/03/myanmars-compliance-with-the-icj-provisional-measures-order-the-road-ahead.Topic B: The Gambia v. Myanmar
|15
which requires that the Security Council be informed of any risk factors for genocide and could be used with other forms
ordered provisional measures, does not include the authority of evidence to satisfy genocidal intent. Judges should recall
to enforce the Court’s orders.28 Judges should be aware of this the aforementioned discussions regarding genocidal risk fac-
judicial discontinuity within their analysis. tors outlined in the FAAC, a States’s role in preventing geno-
cide, and the act of omission in the Genocide Convention.
Furthermore, Myanmar has continued its International Com-
mission of Inquiry (ICOE) to investigate the 2017 Tatmadaw Conclusion
actions in Rakhine State. Notably, in October 2020, a spokes-
person for the Myanmar government stated that State Coun- The Gambia v. Myanmar is a defining case for both the inter-
selor Aung San Suu Kyi regretted the “premature” release of national community and international law. With the ongoing
13 prisoners convicted by the ICOE of war crimes in two humanitarian crisis occurring in Rakhine State and surround-
Rohingya villages.29 Additionally, Myanmar emphasized that ing areas, this case’s legal proceedings will be an important test
“in subsequent cases, there will be no premature release of for legal institutions and whether international law can serve
convicted persons.”30 In earlier ICJ proceedings, Myanmar has as an effective body to prevent, prosecute, and punish human-
repeatedly stressed that it has the right to prosecute and pun- ity’s most heinous actions. The case will focus on a multitude
ish its own soldiers domestically.31 Judges should consider that of legal disputes, including the ICJ’s jurisdiction, the interpre-
the ICJ is supposed to supplement existing domestic courts tation of fact-finding missions, and, above all, the definition
and evaluate the effects of Myanmar’s actions towards legiti- of genocide within international law. Importantly, with both
mizing their judicial processes. Judges should also consider a mental and physical element, genocide under the Genocide
the continuation of ICOE investigations in assessing compli- Convention is a difficult legal definition to satisfy.
ance with the Provisional Order.
In October 2020, Human Rights Watch reported that Myan-
mar-controlled mass-detention centers in Rakhine State main-
tained conditions that closely resembled genocide.32 The re-
port stated, “the part played by the Myanmar Government
in restricting Rohingya reproductive rights, and in the high
morbidity and mortality of the Rohingya people could argu-
ably be advanced as a charge of genocide, or at the very least
as ethnic cleansing.”33
This report is separate from the FFM or other third-party
fact-finding missions as it focuses explicitly on camps created
by Myanmar for displaced Rohingya people. Although many
of these camps have existed for years, the conditions within
these camps have persisted after the January 2020 Provisional
Order by the ICJ, potentially indicating Myanmar’s noncom-
pliance. Additionally, these camps’ existence also perpetuates
28 UK Human Rights Blog, “Myanmar’s Compliance with the ICJ.”
29 Min Wathan, “Myanmar Vows No More Premature Release of Military Offenders,” The Myanmar Times, October 2, 2020, https://www.
mmtimes.com/news/myanmar-vows-no-more-premature-release-military-offenders.html.
30 Wathan, “Myanmar Vows.”
31 “Aung San Suu Kyi Defends Myanmar from Accusations of Genocide, at Top UN Court,” UN News, December 11, 2019, https://news.
un.org/en/story/2018/08/1017802.
32 “An Open Prison without End” Myanmar’s Mass Detention of Rohingya in Rakhine State (Human Rights Watch, October 2020), https://www.
hrw.org/sites/default/files/media_2020/09/myanmar1020_web.pdf.
33 “An Open Prison,” 34.16|ICJ
W orks Cited
Works Cited
Topic A
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Works Cited |17
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