Last week, as the international community celebrated Human Rights Day, the iconic Burmese leader and Nobel laureate, State Counsellor Aung San Suu Kyi, appeared in person before the International Court of Justice (ICJ) to defend her State against allegations of genocide. It was the first time the State of Myanmar had been called before an international court concerning its controversial treatment of the Rohingya minority group in the country.

The Gambia brought these ICJ proceedings alleging that Myanmar's actions against the Rohingya Muslim minority population constitute violations of public international law. The Gambia seeks to hold Myanmar to account for violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), to which both States are parties. Starting 10 December 2019, the ICJ held three days of public hearings at The Hague to address the request for provisional measures made by The Gambia in its application against Myanmar.

These proceedings will not only have significant implications for the State of Myanmar and the Rohingya people, but they will also give the ICJ itself an opportunity to address its role in adjudicating such important matters of international law – particularly in the context of a claim brought against one State by a very distant State on the basis of erga omnes obligations. Before the full bench of the ICJ, legal counsel for The Gambia urged: "This Court is the ultimate guardian of the Genocide Convention. It is on you that the eyes of the world are turned today".

Genocide: A crime under international law

Emerging from the end of World War II, the legal concept of genocide became internationally recognised and codified in the Genocide Convention in 1948. Both Myanmar and The Gambia, along with 150 other countries, are parties to this Convention and bound by its terms. The prohibition against genocide and the duty to prevent and punish genocide are in fact generally binding on all States, regardless of their participation in the Convention, as they have become accepted as principles of customary international law.

Genocide is defined in Article 2 of the Genocide Convention as certain acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group". The ICJ has confirmed that establishing genocide requires proof of two elements:

  • physical element: the perpetration of acts which fall within the categories in Article 2 (such as killing members of the group or causing serious bodily or mental harm to such members); and
  • mental element: the intent to destroy the group, in whole or in part.

The ICJ adjudicates claims against States for breaching obligations under international law relating to genocide, including violations of the Genocide Convention. Article 9 of the Genocide Convention specifically provides that disputes relating to the responsibility of a State for genocide are to be submitted to the ICJ. Both Myanmar and The Gambia are parties to the ICJ Statute and have accepted the Court's compulsory jurisdiction, without any relevant reservations.

The ICJ’s role is distinct from that of the International Criminal Court (ICC), also at The Hague, which has a mandate to prosecute individuals for international crimes such as genocide. The ICC Prosecutor has commenced a separate investigation into the alleged crimes of deportation and persecution against the Rohingya people. While the focus of this investigation is not on the crime of genocide, it may fall within its scope as a "sufficiently linked" crime.

The Gambia and Myanmar case marks the first time the ICJ is hearing an application on genocide since the cases concerning the Balkan wars of the 1990s, which concluded with judgments in 2007 (Bosnia and Herzegovina v. Serbia and Montenegro) and 2015 (Croatia v. Serbia).

The Gambia's application

In this proceeding, The Gambia asks the Court to declare that Myanmar "has breached and continues to breach its obligations under the Genocide Convention", specifically under Article 3 (including committing genocide, and incitement, complicity and conspiracy to commit genocide) but also under Articles 1 and 4, 5 and 6 (including failing to prevent or punish genocide). To hear the case, the Court will have to determine it has jurisdiction pursuant to Article 36(1) of the ICJ Statute and Article 9 of the Genocide Convention.

Before it determines whether it will proceed to hear the case on its merits, the ICJ has the mandate to issue certain provisional measures under Article 41 of the ICJ Statute. Those measures are binding orders with respect to the parties to the case. Last week's hearings concerned only The Gambia's request for the ICJ to put in place such provisional measures.

Invoking the ongoing nature of the allegations against Myanmar, as well as the risk of irreparable harm and urgency of the claim, The Gambia seeks the following specific orders (among others):

  • Myanmar should immediately take all measures to prevent any genocidal acts;
  • Myanmar should ensure that military or other armed units do not commit any genocidal acts, including incitement, complicity or conspiracy to commit genocide; and
  • Myanmar should not destroy or render inaccessible any evidence related to the current application.

To persuade the Court to issue the provisional measures, The Gambia has to prove that the Court has prima facie jurisdiction to hear the dispute. It must also establish that there are plausible rights which may have been violated, and that there is an urgent need for the measures in order to prevent irreparable harm.

Inevitably, The Gambia's arguments during these preliminary hearings touched on some substantive issues. In particular, Counsel for The Gambia addressed evidence of genocidal acts against the Rohingya people by Myanmar's military and security forces and of Myanmar's intent to destroy the group. It largely relied on the recent report of a UN Independent International Fact-Finding Mission, which made findings of "continuing genocidal intent" by Myanmar and the "serious risk of genocidal actions recurring", to show there is a plausible case and an urgent need for the requested provisional measures.

Myanmar's defence

State Counsellor Aung San Suu Kyi opened and closed the defence for Myanmar, addressing the Court in her capacity as Union Minister for Foreign Affairs. It was a rare moment for the Court to hear directly from a State leader. In her address, the State Counsellor sought to correct the "incomplete and misleading factual picture" painted by The Gambia. She referred to Myanmar's so-called "clearance operations" as counter-insurgency measures taken by the military in response to attacks by insurgents in the Rakhine state within the country, where the Rohingya population predominantly live.

The State Counsellor stressed that, if the military had not acted in accordance with humanitarian law, the national system was capable of prosecuting any violations: "The emerging system of international criminal justice rests on the principle of complementarity... Only if domestic accountability fails, may international justice come into play." This last point could seem somewhat misplaced in front of the ICJ and was perhaps more of a comment intended for the ICC Prosecutor. Failure to exhaust domestic remedies is not a bar to the ICJ's jurisdiction relating to genocide, although it is relevant to the scope of ICC proceedings.

Counsel for Myanmar challenged the legal bases for the ICJ to order provisional measures under Article 41. First, they argued that The Gambia has not met the high bar of establishing a "plausible claim" to be heard; in particular, by proving that genocidal intent is the "only inference that can reasonably be drawn from the acts in question." Myanmar rejected The Gambia's sources of evidence on acts of genocide and the numbers of those affected, and specifically dismissed the UN Fact-Finding Mission's report as "flawed".

Secondly, in relation to whether the Court has prima facie jurisdiction, Myanmar argued that The Gambia does not have standing to bring the claim on behalf of an international organisation (the Organisation of Islamic Cooperation) and is also not "specially affected" by the alleged genocide (see below). Relatedly, it submitted there is no genuine "dispute" between The Gambia and Myanmar concerning the Genocide Convention, as is required to establish jurisdiction under Article 9 of the Convention.

Finally, Myanmar highlighted the measures taken by the State to de-escalate the conflict and the humanitarian assistance provided to those in the Rakhine state, in order to demonstrate the lack of risk of irreparable harm and lack of urgency to warrant making provisional measures.

Why The Gambia?

This is the first time that the ICJ is hearing a genocide case brought by a country which is not a neighbour of the accused State. A Muslim majority nation, The Gambia brought its application with the support of the 57 member states of the Organisation of Islamic Cooperation, which has been openly critical of Myanmar's treatment of the Rohingya minority group.

The Gambia framed its legal standing in light of the erga omnes (and erga omnes partes) nature of the obligations owed under the Genocide Convention; that is that all States (and indeed all parties to the Convention) have an interest in ensuring compliance with its obligations, which gives rise to an entitlement for any party to make a claim concerning an alleged breach by another party. The Gambia has further proposed that, as the prohibition of genocide is a jus cogens norm (that is, a fundamental, peremptory and non-derogable norm), the obligations arising under the Genocide Convention are owed to the international community as a whole.

Significance of the Proceedings

The ICJ is expected to make a decision shortly on the requested order for provisional measures. However, it remains to be seen whether the Court will accept jurisdiction to proceed to a full hearing on the merits. If it does, it could take several years for the Court to hear and decide the claims relating to genocide.

For the State of Myanmar, there is much at stake. Myanmar's economy has been progressively liberalised since the end of rule by military junta in 2011, and it has become heavily reliant on foreign investment, particularly in the transport, communication and oil and gas sectors. There are reports that foreign direct investments, which peaked at USD9.5 billion in 2015/2016, have since been in steady decline. The timing of this decline coincides with global attention turning to the events in the Rakhine state.

While they have not appeared before the Court, the anticipated decision of the ICJ holds the most weight for the Rohingya who are ultimately the subject of the proceedings. If the Court decides to impose provisional measures on Myanmar, they will be immediately binding on the State. Further, the substantive application of The Gambia seeks remedies such as reparations for victims of genocide.

As the issues in the Rakhine state continue, the ICJ serves as the only independent legal forum for Myanmar to respond publicly to the allegations of genocide and for States to seek a quick and binding intervention to prevent any genocidal conduct. Over the coming weeks, as the Court determines the proper application of the Genocide Convention and international law, the eyes of the world will indeed be watching.

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