The Gambia v Myanmar Provisional Measures ICJ hearings: It’s a wrap…for now!

The provisional measures hearings between The Gambia and Myanmar, pertaining to alleged violations of the Genocide Convention in respect to the Rohingya, concluded yesterday. Both The Gambia and Myanmar had the opportunity to rebut the others case, and to put forward their final points for the court to take into account. This post will not rehash the arguments but reflect on a few points, and the strategies employed.

Aung San Suu Kyi was the last to address the court, and in her statement made a plea to the court to recall the sensitivities of a conflict affected area, and the efforts made at peace and reconciliation (by showing the pictures of a football match, which justifiably raised some eyebrows). While the larger point – the need for peace and avoiding “reignition of the conflict” – might have been of some persuasive value, the emphasis at the same time on the need to support military justice in Myanmar belied this. The focus on military justice (removal of which was compared to the “removal of a limb”) is problematic at multiple levels, not just for the reasons of lack of investigations and prosecutions, as well as pardons (for which the recent cases in the UK and USA were referenced). In the nod to complementarity, and the willingness and ability to ensure justice in a domestic system, this seemed a more apt argument to try and stave off International Criminal Court proceedings, not this case at the ICJ. Also, good to remember that military justice of the kind meted out in Myanmar would not meet the requirements of ensuring justice. In a volte-face, while the Independent Commission of Enquiry (ICOE) established by Myanmar was not meant to “point fingers”, Aung San Suu Kyi indicated yesterday that there “will be more” court martials after submission of the findings of the ICOE. 

Myanmar’s strategy of focusing on the Organisation of Islamic Cooperation (OIC) and presenting it as the force behind The Gambia was to be honest, irrelevant. Regardless of who was the driving force, if at all, the fact is that the application was filed by The Gambia and not the OIC. While it may be possible to argue that the “dispute” for the purposes of Article 9 of the Genocide Convention extended to the OIC (this was not argued), this does not preclude the existence of the dispute with The Gambia, which has then filed the application. The insistence on interrogating the source of funds for The Gambia was clearly part of the strategy to throw doubt as to the legitimacy of The Gambia – but I doubt it will affect the legality of the position of the state. Worth noting in this context though that states do face difficulties in financing legal actions such as these, and there is in fact a trust fund to support states before the ICJ, though this has been used sparingly.  

The impugning – in not so subtle terms – of the Independent International Fact-Finding Mission on Myanmar (FFM) – from taking issue with ‘typographical errors’ to essentially saying it wasn’t forceful enough in its determinations on the question of genocide and questioning the methodology was clearly a key part of the strategy, given the heavy reliance upon the FFM reports by The Gambia. However, this is certainly a high stakes strategy to call into question a well-respected panel of UN experts that have issued detailed and thorough reports over the past two years. The rebuttal of Myanmar that struck me and that I decided to inquire into – having read the FFM reports in detail previously – was the assertion that the 2019 report was no different from the 2018 report and did not reference a strengthening of an inference of genocidal intent. However, in the words of the FFM itself, specifically para. 9 of the 2019 report (emphasis supplied): 

“Furthermore, having considered the Government’s hostile policies towards the Rohingya, including its continued denial of their citizenship and ethnic identity, the living conditions to which it subjects them, its failure to reform laws that subjugate the Rohingya people, the continuation of hate speech directed at the Rohingya, its prior commission of genocide and its disregard for accountability in relation to the “clearances operations” of 2016 and 2017, the Mission also has reasonable grounds to conclude that the evidence that infers genocidal intent on the part of the State, identified in its last report, has strengthened, that there is a serious risk that genocidal actions may occur or recur, and that Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalizing and punishing genocide.”  

If anything, The Gambia’s argument of urgency is further buttressed with this focus by Myanmar on differences between the 2018 and 2019 report, to the detriment of Myanmar.  

The threshold of genocidal intent was again emphasized by Myanmar – and in great detail, with an exhaustive elaboration of the origin and evolution of genocide and crimes against humanity. All to serve the argument that the specific intent required had not been met. On the seven listed indicators that could result in the inference of genocidal intent in the FFM report, the thrust of Myanmar’s argument seemed to be that other jurisdictions have the same problems too, including hate speech, discriminatory citizenship criteria, and problems with prosecutions. This argument stretched credulity. Also, the focus on intent seems more relevant for the merits of the case and not for the indication of provisional measures, where the test is that “plausible rights” exist and may have been violated.    

In conclusion, Myanmar asked that the case be removed from the list, or in the alternative, the request for provisional measures be dismissed. The court will now deliberate, and we now have to wait for the results of these deliberations. It is hoped the decision of the court in this test case is the right one – an order of provisional measures – in line with its jurisprudence.