22 Dec New Mechanism at the International Court of Justice on Implementation of Provisional Measures: Significance for The Gambia v Myanmar
The International Court of Justice has just issued a press release, relating to the implementation of provisional measures orders before the court. This new development is important, and relates directly to The Gambia v Myanmar, before the court currently, and a case in which the ICJ has issued an order for provisional measures on 23 January 2020.
First, a bit about the development. Based on the Rules of the Court, Section D relates to the internal functioning of the court, and Article 19 specifically provides that such internal judicial practice is to be governed by resolutions adopted by the court. In keeping with this provision, the “Resolution Concerning The Internal Judicial Practice of The Court” was adopted on 12 April 1976, and can be amended or expanded from time to time. It is this resolution that has been expanded with the adoption of a new Article 11 – which states:
(i) Where the Court indicates provisional measures, it shall elect three judges to form an ad hoc committee which will assist the Court in monitoring the implementation of provisional measures. This committee shall include neither a Member of the Court of the nationality of one of the parties nor any judges ad hoc.
(ii) The ad hoc committee shall examine the information supplied by the parties in relation to the implementation of provisional measures. It shall report periodically to the Court, recommending potential options for the Court.
(iii) Any decision in this respect shall be taken by the Court.
Why is this important?
This is a significant development for a few reasons.
The first is that there are an increasing number of cases before the court in recent years which have resulted in the issuance of provisional measures orders. In the past five years, there have been provisional measures orders issued in the following cases: Immunities and Criminal Proceedings (Equatorial Guinea v France), Provisional Measures, Order of 7 December 2016; Application of the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), Provisional Measures, Order of 19 April 2017; Jadhav Case (India v Pakistan), Provisional Measures, Order of 18 May 2017; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v UAE), Provisional Measures Order of 23 July 2018; Alleged Violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights (Iran v US), Provisional Measures, Order of 3 October 2018; and most recent, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), Provisional Measures, Order of 23 January 2020.
There is clearly the need for better assurance of implementation in light of the number of cases that result in provisional measures. It is also worth recalling that in the past, there have been blatant violations of provisional measures orders, such as in the death penalty case of LaGrand (Germany v USA), among others.
Relevance to The Gambia v Myanmar
It is worth recalling what the provisional measures order entails in the case of The Gambia v Myanmar. I have written extensively on this case – on the hearings related to provisional measures, day 1, day 2 and day 3 – and specifically on the significance and implications of the order, here.
In brief, the provisional measures order requires compliance with the obligations of the Genocide Convention, the preservation of evidence, and regular reporting by Myanmar to the ICJ, within four months of the order and subsequently every six months thereafter. Thus, there have been two submissions by Myanmar already. There have also been concerted efforts to ensure transparency and publication of the reports to the court, including this excellent post on the issue, at a recent symposium hosted by Opinio Juris.
It is also worth noting that the previous case relating to genocide at the ICJ – Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) – there were two sets of provisional measures ordered – in April 1993, and again in September 1993. Clearly, the genocide in Srebrenica in 1995 indicated non-compliance with the legally binding orders issued by the ICJ.
The question of implementation – while an essential dilemma, constraint and problem of international law in general – needs to be addressed. In moving the needle even a little, this seemingly innocuous change in monitoring these legally binding orders by the court may, it is hoped, result in greater adherence.