Sexual and Reproductive Violence as Genocide in The Gambia v. Myanmar

[Marianne Crielle G. Vitug is a Legal Fellow at the Global Justice Center (GJC)]

In January 2026, the International Court of Justice held hearings on the merits in the case concerning the Application on the Convention Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). While the proceedings are historic in many respects, one notable yet often overlooked aspect of the case is The Gambia’s arguments on sexual and gender-based violence (SGBV) in the commission of genocide by Myanmar’s military forces against the Rohingya community.

The ICJ has previously dealt with allegations of SGBV in Bosnia Herzegovina v. Serbia and Montenegro and Croatia v. Serbia. In both Bosnia and Croatia, the ICJ found that SGBV was committed. However, the Court concluded that these acts were not violations of the Genocide Convention, as they were not done with the specific intent to destroy the group, in whole or in part, as required by Article 2 of the Convention. In The Gambia v. Myanmar, The Gambia has expressly argued that the acts of SGBV committed against the Rohingya were done with the specific intent to destroy the group, in whole or in part, so as to constitute genocide under the Convention. These arguments take account of the manner in which the Court rejected the SGBV-related arguments in the earlier cases and encompass the distinct harm of reproductive violence, which offers significant opportunities for new judicial findings on SGBV in genocide by the ICJ.

The Role of SGBV in the ICJ’s Previous Genocide Rulings

The Gambia’s contentions on SGBV bear notable similarities to and crucial distinctions from those made in Bosnia and Croatia.

The provisions relevant to SGBV and invoked in these cases are Articles II(b), II(c), and II(d), which list acts constituting the actus reus of genocide. Article II(b) provides that genocide may be committed by causing serious bodily or mental harm to members of a protected group. Article II(c) pertains to the commission of genocide by deliberately inflicting conditions of life calculated to bring about the physical destruction of a group in whole or in part, while Article II(d) covers the commission of genocide by imposing measures to prevent births within a protected group. Both the actus reus and dolus specialis (specific intent) must be established in order to make a finding of genocide.

In Bosnia, the applicant contended that the systematic rapes committed against Muslim women were perpetrated as part of the genocide, thus constituting violations of Article II(b) of the Genocide Convention, which the respondent denied (paras. 298-99). The Court noted that both parties were in agreement that rapes and sexual violence could constitute acts of genocide if done with the specific intent to destroy the protected group (para. 299), quoting the International Criminal Tribunal for Rwanda (ICTR) in Prosecutor v. Akayesu and the International Criminal Tribunal for the former Yugoslavia in Prosecutor v. Stakić (para. 300), as well as noting the resolutions of the Security Council and General Assembly referring to sexual violence (paras. 301-03). Despite this, the Court found that it had not been conclusively established that those atrocities were committed with the specific intent to destroy the protected group so as to make a finding of genocide (para. 319).

With regard to Article II(d), the applicant submitted that rape and sexual violence against women resulted in physical trauma that impaired their reproductive functions and even led to infertility (para. 356), that the sexual violence against men prevented them from procreating (para. 357), and that the Bosnian Muslim women who were victims of sexual violence might be rejected by their husbands or unable to find husbands (para. 359). Each of these arguments was found by the Court to be insufficiently substantiated by evidence, and thus did not constitute the actus reus of genocide.

With regard to Article II(e), the applicant contended that “procreative rape” wherein Muslim women were impregnated with the sperm of Serb males constituted an act of genocide, as the children born out of these forced pregnancies would not be considered part of the protected group (para. 362). The Court found that the applicant failed to establish a policy of forced pregnancy or that there had been an aim to transfer children of the protected group to another group (para. 367), and therefore no actus reus was established.

In Croatia, the Court reiterated that rape and acts of sexual violence may constitute the actus reus of genocide under Article II(b) of the Genocide Convention (para. 158). While the Court found that the acts of sexual violence and rape that had been committed constituted the actus reus of genocide under Article II(b) (para. 360), it concluded that they were not committed with the necessary specific intent required to be characterized as acts of genocide (para. 440).

The Court further stated that rape and sexual violence can also fall within Article II(c) or II(d) (para. 166). For Article II(d), it is necessary that the capacity of the members of the group to procreate be affected, and the systematic nature of the acts must be considered to determine whether genocide has been committed (para. 166). However, it found that Croatia failed to establish that such acts were capable of constituting the actus reus of genocide within the meaning of Article II(c), as they had not been committed at a scale that would amount to inflicting conditions of life capable of bringing about a group’s physical destruction (paras. 364 & 394), or Article II(d), as it was not shown that they were committed in order to prevent births within the group (para. 400).

The Court thus rejected the applicants’ arguments relating to SGBV in both cases, either due to a lack of specific intent to destroy the protected group or a lack of evidence establishing that a pattern of conduct had existed. 

The Gambia’s Case 

In its arguments, The Gambia contended that the government had established a “comprehensive legal, administrative and coercive system to reduce and eliminate the Rohingya in Rakhine State” (Compte Rendu 2026/2, para. 2). This consisted in, inter alia, enacting the 1962 Citizenship law, which excluded the Rohingya from the “national races” listed therein in order to pave the way for mass denationalization and justify the removal of their rights as citizens (CR 2026/2, paras. 13-20). This later escalated when the Rohingya were made to obtain marriage permits, observe child limits, and denied birth registration (CR 2026/2, paras. 21-25). It culminated in their confinement in camps and ghettos and other severe movement restrictions (CR 2026/2, paras. 25-33).

In their oral pleadings, The Gambia extensively cited the findings of the United Nations (UN) Independent International Fact-Finding Mission on Myanmar (FFM), the UN Office of the High Commissioner for Human Rights, and the United States Department of State, and various reports of non-government organizations, which all described widespread SGBV during the military’s “clearance operations” in the villages of Min Gyi, Chut Pyin, and Maung Nu, among several other locations.

The Gambia’s Arguments on SGBV

Similar to the applicants in the prior genocide cases, The Gambia’s contentions focused specifically on how sexual violence evidences genocidal intent under Articles II(b), II(c), and II(d) of the Genocide Convention. They relied on the findings of the ICTR in Akayesu to identify five patterns of sexual violence that reveal genocidal intent, as follows: first, the raping of women and killing their children; second, rape accompanied by threats to kill, or by killing; third, public and humiliating violence; fourth, the deliberate targeting of women and girls of reproductive age, including pregnant women; and fifth, scarring that “brands” survivors (CR 2026/4, para. 4). They argued that all five patterns were fulfilled by Myanmar in this case.

Integrated into The Gambia’s arguments on sexual violence was the commission of reproductive violence, a form of SGBV that is comprised of:

“intentional acts or omissions that cause harm by interfering with reproductive autonomy and rights, or violence directed at people because of their actual or perceived reproductive capacity.”

The importance of expressly acknowledging reproductive violence as a distinct harm is increasingly recognized among experts, international tribunals, and investigative mechanisms.

The fourth and fifth patterns described above relate most directly to reproductive violence. The fourth pattern focuses on reproductive injury brought about by the assaults against women and girls of reproductive age, which led to miscarriage, infertility, and trauma (CR 2026/4, para. 10). Many of the survivors were said to have experienced difficulties in resuming sexual relations and bearing children as well as fear of marital rejection and social stigma. The Gambia argued that these attacks are the “measures intended to prevent births” contemplated in Article II(d), as recognized in Akayesu.

The fifth pattern pertains to the branding of survivors through acts of violence (CR 2026/4, para. 11). The Gambia cited reports of the UN FFM and medical professionals on “distinctive bite marks” found on the cheeks, breasts, and thighs of rape victims. They emphasized that a “substantial portion” of women and girls were intentionally branded with these bite marks. Moreover, they referred to other incidents, such as genital stabbing, cutting off breasts, and other mutilations that were akin to being “raped to death.”

The Gambia emphasized that these patterns of sexual violence led to “the destruction of group life.” Victims suffered from long-lasting emotional, mental, and social consequences. As a result, they were found to be less likely to marry and procreate, due in large part to stigma and exclusion as well as the rejection of partners (CR 2026/4, para. 14). More broadly, these acts intentionally eroded the social fabric of the Rohingya community by virtue of the ostracism of the survivors, the men’s inability to protect the women, and the forced reorganization of familial structures (CR 2026/4, para. 15).

The Gambia’s Taking Account of the ICJ’s Prior Rulings

The Gambia’s arguments carefully addressed and preempted the manner in which the Court rejected the SGBV-related arguments in the previous genocide cases. First, they repeatedly highlighted the presence of a specific intent to destroy the protected group, in whole or in part, accompanying the acts of rape and SGBV (CR 2026/4, paras. 5, 7, 9, 10, 11, 16), in order to characterize them as genocide. They argued that these acts were “purposefully destructive of the Rohingya’s physical integrity, reproductive capacity and social cohesion”, revealing the specific intent required by Articles II(b), II(c), and II(d) (CR 2026/4, para. 18). The Gambia then proceeded to analyze each of these provisions of the Genocide Convention separately, demonstrating that the alleged acts, including those of rape and SGBV, were committed with the requisite specific intent that would qualify them as actus reus in the commission of genocide (CR 2026/5, paras. 15, 20, 31, 38). They also arguably placed more intentional emphasis on the reproductive impacts of these acts of sexual violence, the non-sexual acts of reproductive violence committed, and the broader societal consequences of these SGBV acts on Rohingya society.

Second, The Gambia extensively detailed and reiterated the evidence from UN, NGO, and government reports establishing the pattern of conduct in the commission of these acts throughout their submissions, in order to avoid a finding that genocide cannot be established by virtue of insufficient substantiation.

Myanmar’s Responses and Judges’ Questions

Myanmar addressed the allegations of sexual and reproductive violence by The Gambia stating that it is “difficult […] to discount the possibility of incidents of serious sexual assault” (CR 2026/9, para. 12). They acknowledged that such sexual violence cannot form part of legitimate counter-terrorism operations, and their military forces were not authorized to conduct any form of sexual violence. However, they alleged that there is no reliable evidence on its widespread nature (CR 2026/9, paras. 13-14).

Following the first round of oral arguments, nine judges posed questions, two of which addressed the issue of sexual violence directly. Judge Charlesworth sought clarification from The Gambia on the locations of the “hundreds of instances” of sexual violence alleged to have occurred. Judge Charlesworth and Judge ad hoc Pillay further noted Myanmar’s concession on the possibility of incidents of sexual assault, and asked what measures it had taken to investigate whether such incidents took place and the results of any such investigations.

In its response to the first question, The Gambia presented a chart demonstrating that sexual violence had been committed in at least ten village tracts in the 2017 clearance operations, throughout almost the entire northern Rakhine region, with the UN FFM citing a figure of 1,834 victims (CR 2026/19, paras. 22-24). On the second question, Myanmar responded by alleging that judicial investigations into allegations of sexual violence were progressing slowly because there were no complaints from victims (CR 2026/22, para. 46). However, Myanmar listed certain instances of investigations that allegedly led to disciplinary action against, or to the dismissal of, the military personnel involved (CR 2026/22, paras. 47-48).

The Significance of the Case Relating to SGBV

The Court’s findings on SGBV in this case could be groundbreaking in two ways. In terms of the actus reus, this could be the first decision by the ICJ demonstrating how SGBV can constitute the genocidal acts described in Articles II(b), II(c), or II(d) of the Genocide Convention. In terms of the dolus specialis, the Court could likewise find, as contended by The Gambia, that SGBV is in itself indicative of genocidal intent in light of the five patterns described above, the manner in which it was committed, and the targeting of certain victims by the perpetrators, regardless of the specific characterization of each act.

The joint intervening States of Canada, Denmark, France, Germany, the Netherlands, and the United Kingdom have recognized these potential impacts, emphasizing how sexual violence is a “cornerstone of genocidal campaigns” because of its effects on women, families, and communities. They explained how the violence may fall under Article II(a), II(b), II(c), or II(d) of the Genocide Convention. Ireland and the Democratic Republic of the Congo also highlighted sexual violence as a means of commission of genocide in their respective submissions. While the intervenors did not make oral arguments to the Court, their written submissions demonstrated their unified appreciation of the magnitude of such a ruling.

At the same time, both The Gambia and the intervenors have focused largely on sexual violence, without making significant distinctions between reproductive violence and other forms of SGBV. The wording of Articles II(b), II(c), and II(d) shows that acts of reproductive violence can in themselves constitute violations of these provisions of the Genocide Convention, regardless of whether or not they also comprise sexual violence.

How the ICJ will appreciate such arguments on SGBV by The Gambia is intertwined with other central questions raised in the case. The Bosnia case provided that the evidence must be “fully conclusive” to make a finding of genocide (para. 319), while the Croatia case established a standard of genocide being the “only reasonable inference” in light of the facts of the case (para. 417), both stringent standards that are difficult to meet. Moreover, Myanmar has repeatedly questioned the probative value of the UN, NGO, and government reports cited by The Gambia (despite its own reliance on some of these reports), and the ICJ’s evaluation of their reliability will be crucial to the finding that genocide was committed through SGBV.

In conclusion, it is clear that SGBV has consistently been utilized as a weapon in the commission of mass atrocities. A landmark finding that acts of SGBV – and reproductive violence in particular – were committed with the requisite dolus specialis in The Gambia v. Myanmar would certainly be consequential in the ICJ’s pending and future cases concerning the application of the Genocide Convention.

Acknowledgements: The author would like to thank GJC’s Legal Adviser Ashita Alag and Senior Legal Adviser Grant Shubin for their valuable contributions and GJC Executive Director Elise Keppler for her review and Kristen Adolf for her research assistance.