Rohingya Symposium: Why So Secret? The Case for Public Access to Myanmar’s Reports on Implementation of the ICJ’s Provisional Measures Order

[Kingsley Abbott (@AbbottKingsley) is the Coordinator of the International Commission of Jurists’ Global Accountability Initiative. Michael A Becker is an Adjunct Assistant Professor of Law at Trinity College Dublin. Bruno Gelinas-Faucher is a PhD Candidate at the University of Cambridge and an Adjunct Lecturer at the Université de Montréal.]

Rohingya all over the world are following closely the International Court of Justice (ICJ) proceedings in The Gambia v Myanmar.  It is the first time an international court has addressed the plight of the Rohingya and placed the protection of their rights under judicial supervision by requiring Myanmar to submit periodic reports “on all measures taken to give effect to” the ICJ’s order on provisional measures. In that decision, the Court described the Rohingya in Myanmar as ‘extremely vulnerable’ (para 72) and found “a real and imminent risk of irreparable prejudice” to the rights at issue under the 1948 Genocide Convention (para 75). Without prejudice to the question of whether genocide has already taken place, the Court ordered Myanmar to “take all measures within its power” to prevent the commission of genocidal acts and to take “effective measures” to prevent the destruction of evidence (para 86).

What Myanmar is doing—or not doing—to implement the Court’s order is of more than passing interest to the Rohingya; it is of existential concern. The matter at the heart of the case is whether Myanmar has committed genocide against the Rohingya and whether acts of genocide continue to take place. Setting aside questions about the precise scope of the Court’s order, there is real concern that the situation in Rakhine State, the home of the Rohingya and other minority groups including the ethnic Rakhine, has worsened in recent months.

Myanmar submitted its first report to the ICJ on 22 May 2020, one day ahead of schedule. However, the report was confidential (as was any response from The Gambia). It is standard practice at the ICJ for such reports to be non-public, and the confidentiality of the reports should not be interpreted to reflect anything about the Court’s view of the situation. Nonetheless, the Court’s decision not to impose a public reporting requirement upon Myanmar was a missed opportunity, and some of the impact of the report’s confidential nature has begun to emerge.

Impact on the ground

Rohingya have called for Myanmar’s reports to be made public. For example, Tun Khin, the President of the Burmese Rohingya Organisation UK, has urged  the Court to act ‘as soon as possible’ to make Myanmar’s initial report accessible: “Rohingya should not be kept in the dark about our own fate—we have a right to know what the world is doing to pressure Myanmar to end these crimes.”

An open discussion the International Commission of Jurists held recently with nearly 40 Rohingya living inside the refugee camps in Cox’s Bazar provided a sense of the confusion and distress that non-publication of Myanmar’s first report generated. One participant asked, without prompting:

“What is the reason behind keeping Myanmar’s four-month report to the ICJ confidential? Do you know that this has had a really bad effect on the Rohingya community? The Rohingya community was enthusiastically waiting to hear a positive outcome [of the ICJ provisional measures ruling] in Myanmar’s report. When the report’s contents were not announced, most people’s expectations and hopes were lost. They have started focusing on seeking asylum in other countries. Many people have now decided to go to Malaysia by boat, because they no longer think there is any other option for a better life. Some others are going back to Myanmar where there is no safety and where conflicts are still taking place between armed groups. Some other youth were persuaded by rebels to combat Myanmar, even without weapons.” 

It is far from certain that publication of Myanmar’s first report would have allayed these concerns; the report might just as well have provoked frustration, disillusionment, or anger. But the reaction described above suggests that Rohingya communities may misperceive the non-disclosure of Myanmar’s report to mean that the Court accepts Myanmar’s assertions and approves of its implementation of the provisional measures, or, more generally, that the Court has become disengaged.

When the Court unanimously indicated provisional measures against Myanmar in January, the inclusion of the reporting requirement—in exercise of Article 78 of the Rules of Court—was rightly seen to reflect an acknowledgement of the gravity and precariousness of the situation. Notably, the Court imposed an on-going reporting requirement (an initial report within four months and further reports every six months thereafter) that went beyond The Gambia’s request for a single initial report. The Court’s decision to impose some type of reporting requirement was not especially unusual, however. By our count, this was the tenth occasion on which the Court has included a reporting obligation in a provisional measures order; it has done so in eight out of thirteen provisional measures orders since 2003 (beginning with Avena).But the Court did not impose reporting requirements in three recent cases where it would have made sense to do so—namely, in the Ukraine v Russia, Iran v US (sanctions), and Qatar v UAE cases. Incidentally, neither Ukraine nor Qatar asked the Court to require reports on implementation; Iran did make such a request, which the Court rejected without explanation. The omission of any reporting requirement in those high-profile cases amplified the apparent significance of the Court’s decision to include one in the January order.

But if the Court’s purpose in imposing the reporting requirement was to deter unlawful activity by Myanmar and to alert the Court (and The Gambia) to acts or omissions that suggest a failure by Myanmar to abide by the provisional measures, it bears considering whether that purpose would be better served by making such reports accessible to the public at the time of their submission. 

The legal basis for publication of the reports

Legally, there is nothing in its Statute or the Rules of Court to prevent the ICJ from deciding to make reports submitted pursuant to a provisional measures order accessible to the public. Article 53 of the Rules of Court authorizes the Court, after ascertaining the views of the parties, to make the pleadings in a case accessible to the public on or after the opening of the oral proceedings. But Article 45 of the Rules makes clear that the pleadings consist of the Memorial, Counter-Memorial, Reply, and Rejoinder. There is no reason to interpret “pleadings” in Article 53 to extend to party reports on the implementation of provisional measures. Article 21 of the Rules refers to the confidentiality of the Court’s deliberations and cryptically authorizes the Court to publish any part of its deliberations “on other than judicial matters”. But party-produced reports are not “deliberations”. The reports (and The Gambia’s responses) could potentially be made public upon the opening of the oral proceedings, if either party were to include them as annexes to the pleadings. They might also eventually appear in the ICJ Pleadings, Oral Arguments, Documents series (as ‘selected correspondence’), but these volumes would be published only after the termination of the case.

The approach of the International Tribunal for the Law of the Sea (ITLOS) offers a basis for comparison. ITLOS has a standing requirement that parties must inform the Tribunal “as soon as possible” about compliance with provisional measures (see Rules of the Tribunal, art 95(1)), but the rules do not address publication. In practice, however, such reports are made public—either immediately on the Tribunal’s website with party consent, or later as part of the Tribunal’s official publications (Pleadings, Minutes of Public Sittings and Documents). Even in the latter scenario, the reports are sometimes made accessible during the pendency of a case. At a minimum, there is a clear expectation that compliance reports will be made public in one form or another, and there is no principled reason that disclosure cannot take place prior to the termination of a case.

Since there is no clear legal obstacle in the Statute or the Rules to the ICJ making Myanmar’s reports publicly accessible, it makes sense to consider whether the goals behind the reporting requirement in The Gambia v Myanmar are better advanced by publication or secrecy. In some cases, there may be reasonable grounds to keep such reports confidential (for example, to encourage greater candour). Where compliance requires a party to take a specific, well-defined action, there may also be little benefit to making a report public. But neither rationale is convincing in the case against Myanmar, where the Court left it open to Myanmar to determine how to comply with its broad instruction. As it stands, Rohingya communities, as well as other individuals or groups with relevant information and expertise (such as human rights monitoring bodies), are unable to examine Myanmar’s reports and, where appropriate, highlight misrepresentations or omissions. Myanmar is not co-operating with UN investigators, and it imposed an internet ‘blackout’ over much of Rakhine State during 2020. Public scrutiny of the reports may be the best means to ensure that the reporting requirement serves the overall purpose of provisional measures—the protection of the rights at issue in the case.

In principle, the reporting requirement should be a powerful reminder to Myanmar that its conduct is subject to on-going scrutiny and that it must take positive steps to prevent, at a minimum, a recurrence of the types of events alleged to have taken place in 2016 and 2017. If the reports are also meant to help The Gambia and the Court to assess whether Myanmar is taking adequate steps in that direction, and to ensure that evidence is being preserved, it would be useful to give third-parties the opportunity to evaluate Myanmar’s reports, as well. And if there are reasons to maintain the confidentiality of the reports despite these considerations, the Court should set forth those reasons as a matter of transparency.

Final considerations

Close observers will note that The Gambia did not ask the Court in its request for provisional measures to require that any reports on implementation be made public. Nor it is entirely clear that The Gambia is eager to have Myanmar’s reports—and its own responses—made available. Publication might shed light on how each side interprets the January order and put additional pressure on The Gambia to seek modified or new provisional measures. There is potential for disagreement between Rohingya activists or civil society groups that would like to see The Gambia press for the broadest possible interpretation of the provisional measures, and The Gambia’s own litigation strategy and possible concerns about overreach. Whether Myanmar’s reports are public or confidential, it rests primarily with The Gambia to decide whether to use those reports—their contents and their omissions—to make the case to the Court for further action, presumably in the form of new or modified measures that are more targeted than the provisional measures already in place.

But whether or not the reports should be made public is not necessarily a question that the preferences of the parties—as opposed to the requirements of the judicial function—should control. For better or for worse, Rohingya communities have placed considerable stock in the reporting requirement having teeth. Making the reports accessible on the Court’s website, at least on a going-forward basis, stands a better prospect of realising that expectation than does secrecy. In a case that combines the enforcement of obligations erga omnes partes with conditions that make information-gathering and risk assessment a challenge, the Court should strongly consider the value of opening up these reports to public scrutiny. Doing so might not only bolster the interim protection of the rights at issue in this case, but mark a positive step in the Court’s engagement with the perennial question of how to enhance compliance with provisional measures. It would also serve to reinforce the integral role of transparency to the rule of law.