13 Nov The Gambia v Myanmar at the International Court of Justice: Points of Interest in the Application
This legal step has been in the works for some time now, with the announcement by the Gambian Minister of Justice that instructions had been given to counsel in October to file the application. As a result, the application has been much anticipated. I will briefly go over some legally significant aspects of the application.
On methodology, the application relies heavily on the 2018 and 2019 reports of the Independent International Fact-Finding Mission on Myanmar (FFM) for much of the factual basis of the assertions – placing emphasis on the conclusions of the FFM in regard to the question of genocide. What struck me particularly is the timeline of events as the underlying factual basis of the application, commencing with the ‘clearance operations’ in October 2016 and continuing to date. This is the same timeframe under scrutiny at the International Criminal Court, but different from the FFM (which has now completed its mandate), and the Independent Investigative Mechanism for Myanmar (IIMM). The IIMM was explicitly mandated to inquire into events from 2011 onwards, while the FFM interpreted its mandate to commence from 2011. While these are clearly distinct institutions with vastly different mandates, there may well be points of overlap and a reliance on some of the institutions in the course of the ICJ case. (See my previous Opinio Juris post on potential interlinkages).
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. (paras. 20 – 23) The Gambia asserts that the prohibition of genocide is a jus cogens norm, and results in obligations erga omnes and erga omnes partes, leading to the filing of the application. (para. 15) This is significant as it seeks to cover both bases – that the obligations arise towards the international community as a whole, as well as to parties to the convention.
On the substance of the allegations of genocide, the application lays the groundwork – the persecution of the Rohingya, including denial of rights, as well as hate propaganda, and then goes on to address the commission of genocidal acts. The application emphasizes the mass scale destruction of villages, the targeting of children, the widespread use of rape and sexual assault, situated in the context of the clearance operations of October 2016, and then from August 2017 onwards. It also details the denial of food and a policy of forced starvation, through displacement, confiscation of crops, as well as inability to access humanitarian aid.
Violations of the following provisions of the Genocide Convention are alleged: Articles I, III, IV, V and VI. To paraphrase, these include committing genocide, conspiracy to commit, direct and public incitement, attempt to commit, complicity, failing to prevent, failure to punish, and failure to enact legislation). (para. 111)
As part of the relief asked for, The Gambia has asked that the continuing breach of the Genocide Convention obligations are remedied, that wrongful acts are ceased and that perpetrators are punished by a competent tribunal, which could include an international penal tribunal – clearly leaving the door open to the ICC or an ad hoc tribunal. In addition, as part of the obligation of reparation, The Gambia asks for safe and dignified return of the Rohingya with full citizenship rights, and a guarantee of non-repetition. (para. 112) This is significant in linking this to a form of reparations, and reflects the demands of many survivors.
The Gambia makes detailed submissions in its request for provisional measures, in keeping with the evolving jurisprudence of the court. It addresses the compelling circumstances that necessitate provisional measures and cites the 2019 FFM report in assessing a grave and ongoing risk to the approximately 600,000 Rohingya that are in Myanmar. Importantly, it also cites the destruction of evidence as part of the argument (para. 118), indicating the necessity of the work of the IIMM in this regard.
In addressing ‘plausible rights’ for the purpose of provisional measures, the application draws upon the case ofBelgium v Senegal, applying mutatis mutandis the comparison to the Convention against Torture. In that case, the court held that obligations in relation to the convention for the prohibition of torture would apply erga omnes partes – thereby leading to the necessary argument that in fact the rights of The Gambia also need to be protected by the provisional measures order. (para. 127) (For more on this distinction between erga omnesand erga omnes partes, see this post) The Gambia requests the courts protection in light of the urgency of the matter.
As a last point, The Gambia has appointed Navanethem Pillay as an ad hoc judge. (para. 135) With her formidable prior experience as President of the ICTR, a judge at the ICC, and head of the OHCHR, this experience will be a welcome addition to the bench. (And no, as I’ve been asked many times, unfortunately we are not related!)
The filing of the application by The Gambia is a significant step in the quest for accountability – this is the route of state accountability, while for individual responsibility, proceedings continue at the ICC, as well as with emerging universal jurisdiction cases. Success at the ICJ is far from guaranteed, but this is an important first step in the process.