International Court of Justice Granted Preliminary Relief in the Genocide Case Against Myanmar

15 February 2020

On 11 November 2019, The Gambia filed an Application in the International Court of Justice (the “ICJ”) instituting proceedings against Myanmar alleging violations of the Genocide Convention by Myanmar (The Gambia v Myanmar). The Application concerns acts purportedly “adopted, taken and condoned by the Government of Myanmar against members of the Rohingya group, a distinct ethnic, racial and religious group that resides primarily in Myanmar’s Rakhine State. These acts, which include killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births, and forcible transfers, are genocidal in character because they are intended to destroy the Rohingya group in whole or in part.” [paragraph 2 of the Application]

The Gambia also sought interim measures against Myanmar. In its Order dated 23 January 2020, the ICJ rejected Myanmar’s objections to its jurisdiction to indicate such measures. The Court observed that:

• “The Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case”. [16]
• “Article IX of the Genocide Convention makes the Court’s jurisdiction conditional on the existence of a dispute relating to the interpretation, application or fulfilment of the Convention.” [20] The Court found that such a dispute exists between the parties as the “statements made by the Parties before the United Nations General Assembly suggest the existence of a divergence of views concerning the events which allegedly took place in Rakhine State in relation to the Rohingya”. [27]
• “In the view of the Court, the fact that The Gambia may have sought and obtained the support of other States or international organizations in its endeavour to seise the Court does not preclude the existence between the Parties of a dispute relating to the Genocide Convention.” [25]
• “The existence of a dispute is a matter for objective determination by the Court; it is a matter of substance, and not a question of form or procedure”. [26]
• Whether or not to indicate (grant) the provisional measures sought, the Court is not required to decide the dispute on its merits at this stage. The Court is only required to establish whether the acts complained of by The Gambia are capable of falling within the provisions of the Genocide Convention. In the Court’s view, at least some of the acts alleged by The Gambia are capable of falling within the provisions of the Convention. [30]

At the first blush a question arises whether The Gambia has legal standing to bring the case against Myanmar before the ICJ? Myanmar contended that The Gambia has no standing to bring the case before the ICJ as it has not been “specifically” affected by the alleged reaches of the Genocide Convention by Myanmar. The attractive simplicity of this argument proved to be defective. The Court dismissed this objection and held that:

“In view of their shared values, all the States parties to the Genocide Convention have a common interest to ensure that acts of genocide are prevented and that, if they occur, their authors do not enjoy impunity. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention. In its Judgment in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the Court observed that the relevant provisions in the Convention against Torture were “similar” to those in the Genocide Convention. The Court held that these provisions generated “obligations [which] may be defined as ‘obligations erga omnes partes’ in the sense that each State party has an interest in compliance with them in any given case” (Judgment, I.C.J. Reports 2012 (II), p. 449, para. 68). It follows that any State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end.” [41]

The ICJ found that there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia. [75]

The Court unanimously indicated (granted) the interim measures that Myanmar shall, in accordance with its obligations under the Genocide Convention, in relation to the members of the Rohingya group in its territory [86]:

• Take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention.
• Ensure that its military, any irregular armed units and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts in breach of the Genocide Convention, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide.
• Take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of (genocide) acts.
• Submit a report to the ICJ on all measures taken to give effect to the Order indicating interim measures within four months of the date of the Order, and thereafter every six months, until a final decision on the case is rendered by the ICJ.

The ICJ’s Order is immediately binding upon Myanmar. Whether Myanmar adheres to this Order is yet to be seen. At the next stage in the proceedings, the Court will determine whether it has the jurisdictions to decide the case on its merits.

We will keep the readers of this Blog updated of any progress to be made in this case.

Author

Zafar Abbas
Director
Averroes solicitors