03 Sep Canada and The Netherlands: New Intervention in The Gambia v Myanmar at the International Court of Justice
Yesterday, the Netherlands and Canada announced that they would be supporting The Gambia formally, in its application before the International Court of Justice. The full statement can be found here.
This does not come as a complete surprise. There have been discussions regarding the role that other states may play for sometime now, and this is a welcome development. The last state to announce that it would formally support the case is the Maldives – but since its announcement, there seems to have been very little indication of progress. Certainly, no official intimation at the ICJ that has been made public.
In this case, of particular significance in the joint Canadian Dutch statement:
“Canada and the Netherlands consider it our obligation to support these efforts which are of concern to all of humanity. As part of this intervention, Canada and the Kingdom of the Netherlands will assist with the complex legal issues that are expected to arise and will pay special attention to crimes related to sexual and gender based violence, including rape.”
The first point to highlight is the indication of the obligation to support efforts, invoking humanity and essentially, the erga omnes nature of the obligations as argued by The Gambia. The second is the reference to sexual and gender based crimes – a glaring omission in the arguments of Myanmar, and a near complete dismissal of the gravity of these allegations, including by the domestic processes within Myanmar, such as the International Commission of Enquiry – problematic for many other reasons as well, apart from this.
So what does this mean per the Statute and rules of the court? Does this impact proceedings? Is there a time limit? And what are the larger implications of this intervention?
When Maldives indicated its intent to intervene at the beginning of the year, some of us had a discussion on twitter as to the mode of intervention – whether this would follow the route of Article 62, which I think is preferable, or that of Article 63. While there seems to be disagreement, this has actually not been indicated by Canada, the Netherlands, or indeed, Maldives. The difference essentially is this – under Article 62, the state indicates it has an “interest of a legal nature” in the case and asks the courts permission to intervene. Article 63 – used previously – relates to the construction of the convention to which states “other than those concerned in the case” are parties, the registrar is to notify states which if they intervene, will then be bound by the interpretation.
The latter – Article 63 – would seem to have a lower threshold, but I would argue that given the erga omnesnature of the convention, a state may well argue that the case gives rise to an interest of legal nature – however this is then subject to the court granting it permission to intervene. It is constructive to read Judge Abraham’s statement to the 6th Committee on this very distinction – and the four declarations of intervention under Article 63. Clearly, Article 62 has not been used – and would indeed be breaking new legal ground should it be the preferred route. While it will be the more difficult provision to get permission to intervene, I think it can be argued that these states – as indeed many other states now – “ha[ve] an interest of a legal nature which may be affected by the decision in the case”? (Continental Shelf case, Libyan Arab Jamahiriya/Malta) (quoting Judge Abraham’s statement referenced above). Here, it is not a right but an interest, and which would not have to be definitely affected by the outcome of the case – merely that it could be impacted. Much turns on the phrase “interest of legal nature” – this case revolves around the obligations and interpretation of the Genocide Convention, and in the erga omnes argument may lie the basis to use Article 62. This is an area to be explored further. This may well be the more risky route, given the higher threshold and previous dismissals by the court. Nonetheless, I think this is an option to consider seriously, in terms of strategy.
The other aspect of the interventions relates to time – and the extension of the proceedings before the ICJ – and greater coordination. Invariably, there will be additional hearings and submissions in relation to the intervention – but given the seriousness of the engagement of Canada and the Netherlands, it is hoped that the value of the legal arguments will compensate. More than the legal, this is also a powerful message to Myanmar, to the Rohingya as well as the rest of the international community – that this is not a forgotten issue, and there are still legal avenues and strategies to explore.