22 Jul The Gambia v. Myanmar – International Court of Justice Judgment on Preliminary Objections
The International Court of Justice has just read its judgment on preliminary objections in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). This is a brief note based on the reading of the judgment, based on my twitter thread ‘live tweeting’ the judgment and does not delve into the details of the legal argumentation – it is meant to give a quick overview of the judgment of the court.
The case was initiated by The Gambia in November 2019 on behalf of the minority Rohingya population in Myanmar, and the court issued provisional measures by its order of 23 January 2020. From 21 – 28 February 2022, the Court heard the parties on arguments relating to these preliminary objections.
In the time since the provisional measures order, there have been significant developments – a devastating and continuing covid-19 pandemic, as well as a military coup in Myanmar in February 2021 that has resulted in the military junta in power, which has used tactics assessed to fall within the rubric of crimes against humanity and war crimes against the Myanmar population. This case before the ICJ was however instituted before the coup and is in relation to the state responsibility of Myanmar towards the Rohingya population, based on its obligations under the Genocide Convention. This is therefore a legal proceeding before an international court with a specific remit.
This is a critical juncture for the case and will determine the next steps – whether it moves to the merits stage where the substantive arguments based on the Genocide Convention will be heard.
A bit first about preliminary objections before the International Court of Justice – per the Rules of the Court, Subsection 2 (Articles 79, 79bis and 79ter), the Court can separate out arguments relating to the jurisdiction of the court and admissibility of the application from the merits of the case. Pending the resolution of any preliminary objections, the merits stage of the case is suspended. Parties are to submit pleadings based on facts and the law, as well as any related evidence to the court for determination of these objections. After the hearings, per Article 79ter “…the Court shall decide upon a preliminary question or uphold or reject a preliminary objection. The Court may however declare that, in the circumstances of the case, a question or objection does not possess an exclusively preliminary character.”
It is also worth noting that while there has been a previous order of the court on provisional measures on 23 January 2020, based on some similar arguments, a provisional measures order is by its very nature an interim order. In the case of provisional measures, the Court must have prima facie jurisdiction, the party must have standing, there must be “plausible rights” in need of protection and a link to the provisional measures requested, and finally, a risk of irreparable prejudice and urgency that necessitates the order. As evident, there are similarity of arguments based on jurisdiction and admissibility. However, at the previous stage relating to provisional measures, the fulfillment of these criteria is not “definitive”, and it is clear that in the questions brought up at the provisional measures stage are to be litigated subsequently, as is being done in this case.
Broadly, the arguments made by Myanmar (as the party objecting) are: (a) that the ‘real applicant’ in the case is not The Gambia but is the Organisation of Islamic Cooperation (OIC); (b) that The Gambia lacks standing to bring the case under Article IX of the Genocide Convention; (c) that The Gambia cannot validly seise the court due to Myanmar’s reservation to Article VIII of the Genocide Convention; and (d) that there was no ‘dispute’ between The Gambia and Myanmar when filing the application. The Gambia’s response is available here.
Myanmar states that the arguments have been raised by it in the provisional measures stage and these objections fall into two broad categories – that of standing and the ability of The Gambia to bring the case before the court, and barriers emanating from the Genocide Convention relating to Article VIII reservations and the meaning of ‘dispute’ in Article IX.
Standing of The Gambia
Myanmar’s argument – initially stated in the provisional measures filing – is that The Gambia does not have standing to bring the case at the ICJ. Not only this, but that in fact the ‘real applicant’ is the OIC. The argument is that only states can be parties in proceedings before the ICJ and not an international organization such as the OIC. Myanmar in its filing also included the argument that Bangladesh has made a reservation to Article IX and as the contracting party ‘specially affected’, such a reservation to Article IX would preclude The Gambia from filing an application before the court.
Coming to the first leg of the argument – lack of standing – Myanmar’s contention is that The Gambia is not affected by the allegations contained in its application and has no ‘special interest’ in the matter – and therefore should not be allowed to present this case before the ICJ. However, looking at the jurisprudence of the court, the door has been opened to the standing of any member of the international community for jus cogens or peremptory norms, such as genocide. In Belgium v. Senegal (relating to the Convention Against Torture), the ICJ referenced the erga omnes partes nature of the obligations arising from the convention permitting Belgium to bring a claim, and the same argument has been advanced by The Gambia in this case – a first based on the Genocide Convention – and the court has been wise to permit it.
The Court rejected the argument that the OIC was a proxy and referred to the fact that The Gambia was a party in its own right, with a dispute based on the Genocide Convention. That there may be support from an inter-governmental organization is not relevant according to the court. In regard to the argument that there was an abuse of process by The Gambia and therefore the application is inadmissible, the court held that there was no evidence to indicate such a claim, and therefore it was rejected.
In regard to the argument that a reservation by Bangladesh would bar a non-injured state from invoking responsibility, this was rejected by the court. The Court emphasized the Advisory Opinion of the Court on the Genocide Convention – that contracting states have a common interest and that obligations are owed by a state party to all states parties i.e. erga omnes partes. This responsibility can be invoked regardless of special interest, and therefore Bangldesh’s reservation could not impact the ability of The Gambia to approach the court. The Court also emphasized that victims of genocide are often nationals of the state responsible, and therefore there is no bar relating to nationality either.
Article VIII Reservation under the Genocide Convention
Myanmar’s argument here is that it has entered a reservation in relation to Article VIII of the Genocide Convention – which refers to contracting parties calling upon the “competent organs of the United Nations” to take such action as appropriate under the UN Charter for the prevention and suppression of acts of genocide. The argument by Myanmar is that this is in fact the operative article that permits the seisin of the court and this is precluded by Myanmar’s reservation to the provision. This argument is notwithstanding the fact that Article IX directly relates to disputes and to which Myanmar did not enter any reservation.
The court used the Vienna Convention on Law of Treaties and customary law interpretation to address this argument regarding the seisin of the court. It held that the functions under Article VIII were different from the legal functions of the court under Article IX. The former were political and not related to legal responsibility. With this interpretation, there was no requirement to delve into the travaux preparatoires of the Genocide Convention. Accordingly, this argument was also rejected.
Article IX “Dispute” under the Genocide Convention
The argument by Myanmar is that there was no ‘dispute’ as required by Article IX of the Genocide Convention at the time of filing of the application.
Article IX states: “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
The basis of the argument is that there were third party statements/resolutions/reports relating to the atrocities in Myanmar which The Gambia relied upon, and that only one note verbale sent in October 2019 prior to the filing of the application was insufficient to indicate the existence of a ‘dispute’. In particular, Myanmar points out that the failure to respond to the note verbale – as it did – did not mean the existence of a dispute.
The Court referenced the importance of the conduct of the parties at the time of filing as well as subsequently in some cases. Here, four relevant statements before the UN General Assembly were emphasized, as well as extensive reliance on the Fact-Finding Missions reports – which in turn The Gambia used as a basis to argue for an accountability mechanism. In particular, the court addressed the argument of Myanmar regarding ‘mutual awareness’ – that an express response was required in regard to the note verbale to constitute a dispute. The Court held that Myanmar could not have been unaware of The Gambia championing the accountability mechanism. Failure to respond to the note verbale could also be inferred to mean rejection of the allegations. Therefore this objection was also dismissed.
Operative Part of the Judgment
The Court in its reading has rejected all four preliminary objections by Myanmar.
Unanimously rejected the First Preliminary Objection
Unanimously rejected the Fourth Preliminary Objection
Unanimously rejected the Third Preliminary Objection
15 votes to 1 – rejected the Second Preliminary Objection (against – Judge Xue)
Finding of jurisdiction and admissibility of the application – 15 votes to 1 (President Donoghue; Vice-President Gevorgian; JudgesTomka, Abraham, Bennouna, Yusuf, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth; Judges ad hoc Pillay, Kress. Against: Judge Xue.)
Implications of Judgment – and Next Steps
The first aspect of this judgment is that clearly, the case now proceeds onto the merits stage, i.e. the substantive arguments based on the Genocide Convention. This is crucial for a few reasons – this is the first case since the Balkans cases before the ICJ relating to the Genocide Convention (Ukraine has also recently instituted proceedings based on the same convention).
It is a case relating to accountability for the Rohingya – who have been persecuted and have had a genocidal campaign waged against them for years – and is the result of efforts to ensure accountability for the atrocities at different legal venues. It is important to highlight the efforts of the community to get to this stage, and the impact that litigating such mass atrocities for state responsibility may have, in addition to potential cases of individual criminal responsibility.
Another point to make relates to the participation of the military government representatives in the proceedings. While this has been perceived as ‘recognition’ of the military, this is not the case. The political question of recognition is not something that the ICJ has waded into, given its purview of addressing state disputes (and not government). The emphasis on this point serves only to give the military junta the semblance of a public relations ‘win’, which is completely unwarranted. It would be preferable to focus on the substance of the case moving forward now – the actual allegations of genocide of the Rohingya, as well as the views articulated by the community itself, for the need to see some form of legal accountability including before the International Court of Justice.
And the last potential fallout of this case – given it is in favour of The Gambia – may well be the withdrawal of Myanmar in subsequent proceedings. This has happened previously in Nicaragua v. USA (1986), with the US refusal to participate in proceedings after the judgment on jurisdiction. This is possibility here given the military regime in power and its calculation of the costs (monetary, diplomatic and legal) of a final ICJ judgment finding in favour of The Gambia. And of course, also important to understand that even if Myanmar does a ‘no show’ henceforth, this will not result in the cessation of the case – it will proceed, and the only impact of this course of action will be the inability of Myanmar to present its arguments and defend itself. We now need to wait and see how the next stage of this case unfolds.