Third-State Intervention in the Rohingya Genocide Case: How, When, and Why? [Part II]

[Brian McGarry is Assistant Professor of Public International Law at Leiden University.]

On 2 September, Canada and the Netherlands issued a Joint Statement indicating their intention to intervene in the ongoing ICJ proceedings instituted by The Gambia against Myanmar. The Joint Statement is ambiguous in regards to certain details which are key to understanding the intervention’s likelihood of success. While it remains to be seen whether the two States will take further action—the Maldives has yet to file an intervention following its own statement in February—this provides a timely opportunity to address broader institutional questions in this case, and to raise practical considerations for these States.

While Part I of this post analyzed the requirements to intervene in ICJ cases in light of the specific facts of The Gambia v. Myanmar, Part II queries the timing and relative value of intervention in this case.

The Timing of Intervention by Canada, the Netherlands, and Other Third States

A State has until “the date fixed for the closure of the written proceedings” to file an Article 62 application, and until “the date fixed for the opening of the oral proceedings” to file an Article 63 declaration (as set out in Articles 81 and 82 of the Rules of Court, respectively). Based on the Court’s May 2020 Order, and pending further extensions, rounds of pleadings, and incidental proceedings, a third State has until at least July 2021 to file an Article 62 application.

Pursuant to the same Order, The Gambia has until 23 October 2020 to file its Memorial in this case. In accordance with Article 79bis of the Rules of Court, Myanmar retains the right to raise preliminary objections to the Court’s jurisdiction—and thus to initiate the automatic bifurcation of these proceedings—within three months of receiving the Memorial.

Filing for an intervention in The Gambia v. Myanmar prior to Myanmar’s January 2021 deadline would unnecessarily return the Court to a position it has not relished in past cases. In Nuclear Tests, the Court deferred consideration of Fiji’s Article 62 application without a hearing, finding that the request “by its very nature presupposes that the Court has jurisdiction to entertain the dispute”. As with the ‘sequel’ to that case—Request for Examination, which attracted five Article 62 applications and four Article 63 declarations—the Court treated these incidental proceedings as branches on a felled tree, dismissing them as a natural consequence of dismissing the case for lack of jurisdiction or admissibility.

The Court’s disinclination toward intervention while jurisdictional questions remain unresolved is evident as well in another case invoking the Genocide Convention, Pakistani Prisoners of War. In the provisional measures phase of that case, Judge Petrén recalled that the Court had “even opposed considering the question of notification in respect of the Genocide Convention” while it determined its prima facie jurisdiction—despite Article 63’s mandate that “the Registrar shall notify all such states forthwith” of the right to intervene. Indeed, according to sources in The Hague’s diplomatic corps, a similar approach was taken in the present case. Embassies received invitations to intervene under Article 63 on the day after the Court delivered its Order on provisional measures (74 days after the institution of the proceedings).

In that January 2020 Order, the Court addressed on a prima facie basis the existence of a dispute relating to the “interpretation, application or fulfilment” of the Genocide Convention (according to the text of Article IX), as well as Myanmar’s reservation to Article VIII. In this author’s view—and arguably as well in the view of Judge Nagendra Singh—the Court’s case law can support the prospect of Article 62 or 63 intervention based on an interest in the Court’s final determination of these interpretative questions of treaty-based jurisdiction. And as the PCIJ observed in German Interests in Polish Upper Silesia, this determination of jurisdiction may “involv[e] touching upon subjects belonging to the merits”.

But that prospect appears to be a far cry from the stated aims of the Joint Statement and that of the Maldives, which directly concern the merits of the present case and their underlying proceedings. Despite the general policy in Article 84 of its Rules to decide upon intervention filings “as a matter of priority”, the Court thus appears likely to leave dormant any Article 62 applications or Article 63 declarations filed before the deadline for Myanmar to raise preliminary objections, or prior to the conclusion of any resulting preliminary objections phase.

Strategic Considerations and Alternatives to Intervention

The breadth of Article IX of the Genocide Convention recalls that the treaty interpretation function of Article 63 of the Statute may be too narrow to accommodate intervention by States with interests arising from clear violations of treaty rules. If Canada and the Netherlands can frame their interests as strictly concerning the “construction of a convention”, however, they would have little incentive to file for intervention under Article 62. The limited procedural rights given to non-parties under Articles 62 and 63 are essentially the same.

In terms of obligations, the Statute does mandate that “the construction given by the judgment will be equally binding upon” Article 63 interveners. But as a practical matter, the Court’s system of self-referential citation imbues its normative pronouncements with third-party effect regardless of whether they are de jure binding, and despite the res inter alios acta safeguard suggested in Article 59 of the Statute. The very raison d’être of Article 63 presupposes this.

If intervening under Article 62 as a full party to the case, however, Canada and the Netherlands would in principle have the right to appoint Judges ad hoc, to raise further incidental proceedings, and to participate in framing the scope of issues before the Court. Because the Genocide Convention serves as both a source of applicable law and a source of ICJ jurisdiction, both States possess the additionally required jurisdictional link for this purpose.

Therefore, if Canada and the Netherlands meet the statutory requirements of Article 62 and wish to moreover become parties to the case, they will be entitled to do so. Pursuing that long-untested path, however, would substantially slow the justice they are seeking. Indeed, as the late Professor Thirlway (a former Principal Legal Secretary of the Court) wryly noted, “the text [of Article 62] is by way of a blank cheque, to be filled in by the Court as and when applications might be made to it”.

While the expression of a “joint intention to intervene” underscores the absence of legal interests uniquely held by either State, it is worth noting as well that Canada and the Netherlands issued a “call to all States Parties […] to support the Gambia in its efforts to address these violations”. For its part, the Maldives has confirmed that it “has held consultations with The Gambia, in order to streamline efforts”, and that it “looks forward to similarly collaborating” with Canada and the Netherlands on their “common objective”.

If intervening as full parties to the case, this express support for one of the initial litigants would raise questions under Article 31(5) of the Statute (“Should there be several parties in the same interest, they shall, for the purpose of the [appointment of Judges ad hoc] be reckoned as one party only”). In the Court’s practice, enforcing this rule has relied upon the mutual generosity of parties, such as the agreement of Denmark and the Netherlands to appoint a ‘shared’ Judge ad hoc in North Sea. Judge Owada underscored related questions of party equality in Whaling in the Antarctic, finding it “regrettable” that joint media releases published by Australia (as the applicant) and New Zealand (as an Article 63 intervener) “could be perceived as active collaboration in litigation strategy to use the Court’s Statute and the Rules of Court for the purpose of promoting their common interest”.

As an alternative to intervention, Canada and the Netherlands could each institute new cases against Myanmar, in keeping with Judge Crawford’s observation in Nuclear Disarmament that “a multilateral disagreement can crystallize for adjacent purposes as a series of individual disputes coming within the Statute”. In accordance with Article 47 of its Rules, the Court may join these cases together (or join them to the present case) at its sole discretion. While the Court has shown a willingness to join cases in the face of procedural difficulties—such as in the Caribbean Sea and Pacific Ocean and Isla Portillos cases, in which Costa Rica had appointed different Judges ad hoc in either case—the ten Use of Force cases may suggest a reluctance to join higher numbers of proceedings, or simply a reluctance to do so when instituted by a common applicant (rather than against a common respondent).

The Joint Statement’s indication of support for The Gambia also recalls that non-intervening States have remained free to collaborate with litigants ‘behind the scenes’ since the first ICJ case. In Corfu Channel, Yugoslavia (a non-party) made documents available to the Court by way of Albania’s submissions. It may be already assumed that Canada and the Netherlands anticipate collaboration with The Gambia, as the Court affirmed in Pulau Ligitan and Pulau Sipadan that third States do not have a right of access to the parties’ written pleadings while drafting their Article 62 applications or Article 63 declarations.

In contrast to intervening, marshaling resources to directly assist The Gambia with the “complex legal issues” outlined in the Joint Statement raises few concerns. Indeed, in its January 2020 Order, the Court showed little interest in “the fact that The Gambia may have sought and obtained the support of other States or international organizations” in bringing the present case.