The Gambia VS Myanmar Case at the ICJ
The Gambia VS Myanmar Case at the ICJ
By Aman Ullah
On 11 November 2019, the Republic of The Gambia instituted proceedings against the Republic of the Union of Myanmar before the International Court of Justice, the principal judicial organ of the United Nations, alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide through “acts adopted, taken and condoned by the Government of Myanmar against members of the Rohingya group”.
What is The International Court of Justice (ICJ?)
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The Court is composed of 15 judges elected for a nine-year term by the General Assembly and the Security Council of the United Nations. The seat of the Court is at the Peace Palace in The Hague (Netherlands). The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States (its judgments have binding force and are without appeal for the parties concerned); and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system.
What happened in Myanmar?
In September 2019, the United Nations-backed Independent International Fact-Finding Mission on Myanmar concluded that “Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalizing and punishing genocide.” The fact-finding mission highlighted “the enormity and nature of the sexual violence perpetrated against women and girls” during Myanmar’s military campaign as one of seven indicators of the state’s intent to destroy the Rohingya people. Myanmar rejected the findings, saying it took necessary measures to thwart insurgent attacks. But report after report emerged, outlining horrific abuse in the nation’s western Rakhine state, where about 1 million Rohingya lived.
Though Bangladesh and Myanmar signed a repatriation deal two years ago, practically no refugees have returned to their old homeland, where they faced years of persecution before the bloodshed erupted.
A September U.N. report said Rohingya people in Rakhine still face a “serious risk” of genocide.
Who could bring such a case against Myanmar?
In principle, any contracting party to the Genocide Convention could bring an ICJ case against Myanmar, so long as that state has taken the necessary steps to establish the existence of a dispute between it and Myanmar over the subject-matter of the claim.
Any state or States that are party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide agreed that genocide “whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish” and, by extension, have an obligation not to commit it. The convention permits member states to bring a dispute before the ICJ alleging another state’s breach of the convention, and states can seek provisional measures to stop continuing violations. Myanmar became a party to the Genocide Convention in 1956.
Why is Gambia making a complaint?
Gambia, a small West African country with a largely Muslim population, was chosen to file the suit on behalf of the 57-nation Organization of Islamic Cooperation, which is also paying for the team of top international law experts handling the case.
The filing amounts to a last-ditch effort to impose an international ruling against Myanmar: Despite a wide outcry over cruelty to the Rohingya, no other court has jurisdiction to pursue a genocide case against the country.
For the legal basis of the application, The Gambia asserts that both states are parties to the Genocide Convention, neither have reservations to Article IX, and that there exists a dispute between it and Myanmar – listing a number of instances in which The Gambia has issued statements about and to Myanmar regarding the treatment of the Rohingya, including a note verbal in October 2019. The Gambia asserts that the prohibition of genocide is a jus cogens norm, and results in obligations erga omnes and erga omnes parties, leading to the filing of the application. This is significant as it seeks to cover both bases – which the obligations arise towards the international community as a whole, as well as to parties to the convention.
Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
In 2018, the UN issued a damning report into the violence in Myanmar, saying military leaders should go on trial for genocide. Myanmar's government denies its troops carried out such crimes.
How is Gambia pulling this off?
Such legal endeavors tend to drag on for years and cost millions of dollars, which is a heavy lift for a country with a gross domestic product of about $1.48 billion.
Supporters with deep pockets, though, are helping Gambia. The majority-Muslim nation of 2 million people is backed by the Organization of Islamic Cooperation, a group of 57 states that calls itself the “voice of the Muslim World,” and by the U.S. law firm Foley Hoag.
Why such a tiny player chose to tackle a distant conflict is personal?
Abubacarr M. Tambadou, Gambia’s attorney general and justice minister, read a U.N. report last year that detailed how an army crackdown in Buddhist-majority Myanmar had killed thousands of Rohingya in 2017 and driven more than 700,000 into neighboring Bangladesh.
Investigators described the violence as “crimes against humanity,” and the United States called it an ethnic-cleansing campaign. Myanmar has denied all the allegations, saying it was targeting terrorists.
Tambadou, who worked for years as a lawyer at the U.N. tribunal focused on the 1994 genocide in Rwanda, visited a Rohingya refugee camp in Bangladesh in May 2018.
Conversations with the refugees, and their pain, reminded him of Rwanda’s history of government-led atrocities, which wiped out about 800,000 lives over 100 days in the East African country. An estimated 250,000 women endured sexual assault.
“As I listened to the horrific stories — of killings, of rape, of torture, of burning people alive in their homes — it brought back memories of the Rwandan genocide,” Tambadou said in a phone interview. “The world failed to help in 1994, and the world is failing to protect vulnerable people 25 years later.”
What does The Gambia argue in its Application?
In its Application, The Gambia argues that,
“From around October 2016 the Myanmar military (the ‘Tatmadaw’) and other Myanmar security forces began widespread and systematic ‘clearance operations’ --the term that Myanmar itself uses-- against the Rohingya group. The genocidal acts committed during these operations were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses. From August 2017 onwards, such genocidal acts continued with Myanmar’s resumption of ‘clearance operations’ on a more massive and wider geographical scale.”
The Gambia contends that these acts constitute violations of the Genocide Convention. It states that it has made this claim known to Myanmar since September 2018, but that Myanmar has continued to deny any wrongdoing.
What does The Gambia seek in its Application?
The Applicant seeks to found the Court’s jurisdiction to entertain this dispute on Article 36, paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention, to which both States are parties.
What does The Gambia asked for in its Application?
In its Application, The Gambia “respectfully requests the Court to adjudge and declare that Myanmar:
• has breached and continues to breach its obligations under the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI;
• must cease forthwith any such ongoing internationally wrongful act and fully respect its obligations under the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI;
• must ensure that persons committing genocide are punished by a competent tribunal, including before an international penal tribunal, as required by Articles I and VI;
• must perform the obligations of reparation in the interest of the victims of genocidal acts who are members of the Rohingya group, including but not limited to allowing the safe and dignified return of forcibly displaced Rohingya and respect for their full citizenship and human rights and protection against discrimination, persecution, and other related acts, consistent with the obligation to prevent genocide under Article I; and
• must offer assurances and guarantees of non-repetition of violations of the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI.”
What does The Gambia ask the court to implement an injunction to make sure Myanmar immediately?
The Gambia thus asks the Court to indicate the following provisional measures:
• “Myanmar shall immediately, in pursuance of its undertaking in the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, take all measures within its power to prevent all acts that amount to or contribute to the crime of genocide, including taking all measures within its power to prevent the following acts from being committed against member[s] of the Rohingya group: extrajudicial killings or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or in part;
• Myanmar shall, in particular, ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any act of genocide, of conspiracy to commit genocide, or direct and public incitement to commit genocide, or of complicity in genocide, against the Rohingya group, including: extrajudicial killing or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or in part;
• Myanmar shall not destroy or render inaccessible any evidence related to the events described in the Application, including without limitation by destroying or rendering inaccessible the remains of any member of the Rohingya group who is a victim of alleged genocidal acts, or altering the physical locations where such acts are alleged to have occurred in such a manner as to render the evidence of such acts, if any, inaccessible;
• Myanmar and The Gambia shall not take any action and shall assure that no action is taken which may aggravate or extend the existing dispute that is the subject of this Application, or render it more difficult of resolution; and Myanmar and The Gambia shall each provide a report to the Court on all measures taken to give effect to this Order for provisional measures, no later than four months from its issuance.”
What could an ICJ case hope to achieve?
First, objective of an ICJ case would be to compel Myanmar to respond to genocide allegations in a formal and adversarial judicial setting.
Secondly, a case at the ICJ might afford some measure of dignity to victims. The proceedings would be an opportunity to shine a light on the totality of Myanmar’s policies and practices in relation to the Rohingya, including the regime’s efforts to rewrite the history of the Rohingya people and to strip them of citizenship and other fundamental rights.
Thirdly, if the ICJ were to find that the State responsibility of Myanmar has been engaged, the question of reparations would arise. While the ICJ has often taken a conservative approach to remedies, there may be scope to seek more wide-ranging relief in this case (ranging from financial compensation for victims to structural reforms aimed at granting the Rohingya full citizenship and ending a range of discriminatory practices).
Moreover, unlike an ICC prosecution, the ICJ affords the possibility of seeking provisional measures. If there are credible reports that Myanmar is continuing to act in breach of its obligations under the Genocide Convention or is seeking to destroy evidence of past crimes (for example, by bulldozing and clearing Rohingya villages that were previously burned down), an applicant state could seek interim relief. A decision on the merits would take several years, so provisional measures might contribute to broader efforts to curb continuing abuses. This possibility might take on greater importance if the repatriation of Rohingya refugees from Bangladesh to Myanmar gets underway soon, despite serious concerns about the conditions attached to repatriation and whether it is safe to return.
This is an extremely welcome development for everyone. Gambia has had its fair share of humanitarian issues in its post-colonial history, so it is wonderful to see it embrace the principles and values of international humanitarianism. This firm commitment can be reasonably expected to have meaningful consequences for the local political culture within the country. The filing of the application by The Gambia is a significant step in the quest for accountability – this is the route of state accountability.
