A tale of two international law principles

Abstract

The International Court of Justice (ICJ), in its judgement of the Armed Activities (Democratic Republic of Congo v. Rwanda) case, highlighted the fact that the lack of jurisdiction of the international adjudicative bodies does not necessarily imply that there is no violation of obligations under international law. The same is equally valid for other international judicial institutions, including the International Criminal Court (ICC). The consent-based international adjudicative system made the initial impression that the events of large-scale atrocity crimes and gross violation of human rights allegedly committed against the Rohingya are out of the ambit of both the ICC and the ICJ. Several reasons contributed to this conjecture. First, Myanmar is not a party to the Rome Statute of the International Criminal Court. In addition, given the political allies of Myanmar, a United Nations Security Council resolution is highly unlikely. Second, though Myanmar did not make any optional clause declaration of the ICJ Statute, Bangladesh—the State directly affected following the Rohingya exodus—made a declaration for Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide. Moreover, the fact that the alleged violation of the Genocide Convention took place in the territory of Myanmar rendered the possibility of an inter-State adjudication more challenging. At this juncture, the application of two principles of international law—the principle of objective territoriality at the ICC and the principle of obligation erga omnes partes at the ICJ—paved the way to ensure accountability and justice at the international plane.