Introduction
The International Court of Justice (ICJ) is currently hosting
legal proceedings between The Gambia and Myanmar regarding Myanmar’s alleged
non-compliance with the Genocide Convention. The Gambia considers that
genocidal acts were committed against the Rohingya during the 2016 and 2017
“clearance operations” conducted by the Myanmar military and other security
forces.
This briefing paper gives a short explanation of the ICJ,
the Genocide Convention and the dispute between The Gambia and Myanmar. It
provides a review of the case so far and addresses the issue of Myanmar’s
representation before the ICJ, before offering concluding remarks.
The ICJ
The ICJ is part of the UN and is often called the “World Court.”
It was established in 1945 directly by the Charter of the UN and is located in
The Hague. It is one of the six principal bodies (called ‘organs’) of the UN.
It has fifteen judges, each of whom must be individually elected by a
two-thirds majority of both the Security Council and the General
Assembly.
The ICJ can adjudicate (make a judgement on) disputes
between UN Member States, making decisions that are legally binding on the
States involved in the dispute. It can also provide authoritative advisory
opinions on any legal issue referred to it by the UN. Its opinions and rulings
serve as sources of international law.
The ICJ is not an investigation body or a criminal court. It
is concerned with State responsibility. That means it considers what a State’s
obligations are under international law and whether a State is responsible for
breaching its obligations under international law. The ICJ does not consider
whether individuals have committed international crimes.
The Genocide Convention
The 1948 Convention on the Prevention and Punishment of the Crime
of Genocide (Genocide Convention) is an international treaty that was
unanimously adopted by the UN General Assembly in 1948. UN Member States that
join the Convention confirm that genocide is a crime under international law
which they commit to prevent and to punish. 152 UN Member States have joined
the Genocide Convention.
The Convention provides a definition of genocide and a list
of prohibited acts that are punishable under the Convention. Genocide is
defined in the Convention as “acts committed with intent to destroy, in whole
or in part, a national, ethnical, racial or religious group, as such.”
There is a common misunderstanding that genocide involves
killing or attempting to kill an entire group. In fact, genocide does not
require this. Genocide can include any one or more of the five prohibited acts,
committed with the intent to destroy all or part of a particular group. This
specific intent, or “genocidal intent”, is the most difficult element of the
crime to prove.
The prohibited acts are:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the
group;
(c) deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part;
(d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another
group.
States that have joined the Genocide Convention can be
responsible for breaching their obligations under the treaty if they do not
prevent acts of genocide from taking place in their territory. States can also
be responsible for breaching their obligations if they fail to punish
individuals who commit genocide; conspire to commit genocide; incite genocide;
attempt to commit genocide; or are complicit in genocide.
It is very challenging and complicated for the ICJ to
determine whether genocide has occurred. But the ICJ works on the basis of a
lower “standard of proof” than in criminal trials. Criminal conviction requires
proof “beyond reasonable doubt”. The ICJ does not have a formal standard of
proof but gives individual judges wide scope within which to make their own
decisions. However, for the Court to decide that something as serious as
genocide has occurred, it needs to see and hear evidence that is “fully
conclusive”, meaning that there can be no other explanation (Bosnia and
Herzegovina v. Serbia and Montenegro, 2 ICJ Rep. 209 (2007)). Therefore, it is
very difficult for the ICJ to make a finding of genocide. Many victims’ groups
believe a legal determination is not required to find that genocide took place.
Nonetheless, the hearing of a case under the Genocide Convention in the ICJ is very
significant and very rare. 
The dispute between The Gambia and
Myanmar
The Gambia and Myanmar are both parties to the Genocide
Convention. Myanmar ratified the Convention in 1956 and The Gambia acceded to
the Convention in 1978. The Gambia considers Myanmar to be in breach of its
obligations under the Genocide Convention, which Myanmar denies. This
represents a dispute between the two UN Member States upon which the ICJ must
adjudicate, and this is the basis of the proceedings before the Court.
The Gambia says that from around October 2016 the Myanmar military
and security forces began widespread and systematic “clearance operations”
against the Rohingya group, and that genocidal acts were committed during these
operations intended to destroy the Rohingya as a group, in whole or in part, by
the use of mass murder, rape and other forms of sexual violence, as well as the
systematic destruction by fire of their villages, often with inhabitants locked
inside burning houses. From August 2017 onwards, the genocidal acts continued
with more “clearance operations” this time on a much larger scale.
The Gambia says that these acts constitute violations of the
Genocide Convention which Myanmar has failed to prevent or punish. The Gambia’s
case is largely based upon facts investigated and published by UN human rights
investigators, including theUN SpecialRapporteur on the situation of human
rights in Myanmar, the UN Independent International Fact-Finding Mission on
Myanmar and the UN Office of the High Commissioner for Human Rights. The UN
Independent Investigative Mechanism for Myanmar has shared information with the
ICJ to inform the proceedings since 2020.
The case so far The Gambia filed an application at the ICJ in
November 2019 to begin proceedings against Myanmar for breaching its
obligations under the Genocide Convention. The case is still in the procedural
stages, meaning that the Court has not yet begun to consider the substance of
the dispute between The Gambia and Myanmar. It has first had to consider The
Gambia’s request for provisional measures and must now consider the preliminary
objections that were made by Myanmar before the illegal military coup began on
1 February 2022 and have been maintained by the junta since.
Provisional Measures
When it filed its application, The Gambia requested that the
Court indicate “provisional measures” that should be taken immediately to
protect Rohingya against further harm, as it considered them to still be at
serious risk in Myanmar. In any dispute, the Court has the authority to order
States to undertake provisional measures to ensure compliance with
international law. This does not constitute a judgement on the substance of the
dispute; it is rather an interim measure. ICJ proceedings can take a long time,
and in the case of genocide any delay may result in a missed chance to address
real and serious situations. (In a Genocide Convention dispute filed by the
Republic of Bosnia and Herzegovina, the ICJ took 14 years to finalise its
judgement). This is why provisional measures can be made, and they can be a
useful tool to address urgent issues such as the situation of Rohingya in
Myanmar.
The Court held public hearings on the request for
provisional measures over three days in December 2019. The Gambia provided
details and testimony of the atrocities inflicted on Rohingya by the Myanmar
military and security forces. Myanmar argued that the events were part of an
internal armed conflict and denied genocidal intent.
The judges deliberated and decided unanimously that the
situation did require provisional measures. They ordered Myanmar to take four
provisional measures: prevent any genocidal acts; ensure the military and other
security forces do not commit any genocidal acts; ensure the preservation of
evidence related to possible acts of genocide; and submit regular reports to
the Court detailing the State’s implementation of these measures. Myanmar
acknowledged the issuance of these provisional measures – but continued to deny
genocide – and has been submitting regular reports (generally every six months)
with information about their implementation. Those reports have not been made
public.
Preliminary objections
Myanmar filed “preliminary objections” in January 2021,
before the illegal coup began. Preliminary objections are procedural issues
that States can raise and ask the Court to adjudicate on before it can consider
the actual dispute. If the Court agrees with the preliminary objections, then
the case may not proceed at all.
Myanmar’s preliminary objections have not been made public,
but they relate to whether the Court has jurisdiction in the case and whether
The Gambia’s application is admissible (acceptable). Like all Member States of
the UN, Myanmar accepts the general jurisdiction of the ICJ as
the world’s highest court. Underlining this point, Myanmar has been represented
in proceedings at the Court by high level officials. The Genocide Convention
states that any disputes can be adjudicated in the ICJ, and Myanmar has
accepted theCourt’s general jurisdiction in relation to such disputes. However,
lawyers for Myanmar have previously argued that The Gambia does not have the
“standing” to submit this dispute to the Court, including because the situation
of Myanmar does not concern The Gambia, a faraway country in West Africa. The
Gambia has disputed this, including by citing its duty under the Convention to
take steps to prevent genocide, anywhere. Initial comments by the judges
suggest that Myanmar’s objections will not be accepted. The Court has announced
that public hearings on the preliminary objections will be held from 21 to 28
February 2022.
However, the National Unity Government of Myanmar (NUG)
announced on 2 February 2022 that it has told the ICJ that Myanmar withdraws
all preliminary objections and accepts the jurisdiction of the Court in the
case. The NUG explained that the reason for withdrawing the preliminary
objections is that they are procedural matters that do not address the
substance of the case, and Myanmar no longer views them as appropriate. The
Court has not yet indicated its response to this notification. If the
notification is accepted, the hearings from 21 February 2022 may not proceed as
they will be unnecessary.
The ICJ is not an investigation body or a criminal court. It is
concerned with State responsibility. That means it considers what a State’s
obligations are under international law and whether a State is responsible for
breaching its obligations under international law. The ICJ does not consider
whether individuals have committed international crimes. 
Myanmar’s representation
Only States can be parties to a case before the ICJ. States
are represented by their governments. The coalition government of the National
League for Democracy and the military, in which Daw Aung San Suu Kyi was State
Counsellor and Foreign Minister, represented Myanmar in the case before the ICJ
from 2019 until January 2021. Following the Myanmar military’s attempted coup
on 1 February 2021, both the National Unity Government (NUG) and the illegal
junta have communicated to the Court that they will now be representing Myanmar
in the proceedings.
The junta is not the government of Myanmar and should not
represent Myanmar before the Court. The UN General Assembly, which was also
established by the UN Charter and is another principal organ of the UN, has
already rejected the junta’s attempts to represent Myanmar in the General
Assembly. Myanmar continues to be represented by Ambassador U Kyaw Moe Tun in
the UN General Assembly, the appointee of the NUG. The NUG should be recognised
internationally as the legitimate government of Myanmar (see, SAC-M Briefing
Paper: Recognition of Governments) and is the only entity with the authority to
represent Myanmar in the ICJ.
When States are party to a case before the ICJ, their
governments appoint an “agent” to the Court. In public hearings the agent opens
the argument on behalf of the government and lodges the submissions. Agents are
sometimes assisted by co-agents, deputy agents or assistant agents and always
have legal counsel or advocates to assist them in preparing the “plea” (a
formal statement to the Court) and delivering oral arguments. In December 2019,
Myanmar appointed Daw Aung San Suu Kyi as agent to the Court and U Kyaw Tint
Swe as alternate agent. Both Daw Aung San Suu Kyi and U Kyaw Tint Swe are being
arbitrarily detained by the military and so are unable to represent Myanmar in
the ICJ. Therefore, a new agent is needed to appear before the Court for
Myanmar. Ambassador U Kyaw Moe Tun has been appointed as a second alternate
agent by the NUG. The illegal junta has also purported to appoint new
agents.
Conclusion
Cases in the ICJ can take a long time, and the timing of
judgements is hard to predict. Disputes involving the Genocide Convention
typically take longer than other cases, because there are particularly complex
factual and legal considerations. A final judgement could determine whether
genocide took place in Myanmar. Or it could determine whether Myanmar was
meeting its obligations to prevent genocide. There are many possible scenarios
for a judgement. As genocide is very hard to prove, it is possible that the
Court is unable to make a legal determination that genocide occurred.
The main legal proceedings still need to take place to
adjudicate the dispute between TheGambia and Myanmar. As noted above, the case
is still in the early procedural stages. If it progresses and Myanmar continues
to defend the case and deny genocide, the full proceedings could be lengthy and
expensive .
Justice for the Rohingya and an end to acts of genocide committed
against them are the most important outcomes to be gained from the proceedings.
The National Unity Government has expressed its commitment to this. The most
straightforward option would be for Myanmar to accept The Gambia’s submissions
and take meaningful steps to prevent further genocide against the Rohingya and
punish the perpetrators.
The Special Advisory Council for Myanmar is a group of independent
international experts, who came together in response to the February 2021
military coup in Myanmar, to support the peoples of Myanmar in their fight for
human rights, peace, democracy, justice and accountability. For information
about SAC-M and details of our work, please visit - https://specialadvisorycouncil.org/
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