Provisional Order of the ICJ in The Gambia vs Myanmar (Genocide Case)
In November 2019, The Gambia instituted proceedings in the International Court of Justice (ICJ) against Myanmar over the alleged violations of the Genocide Convention. In its application, The Gambia specifically mentioned that since October 2016, military and security forces of Myanmar had initiated against the Rohingya group “clearance operations”, during the course of which murder, rape and arson had been committed on a massive scale.
The Gambia pleaded for the ICJ to declare that Myanmar had violated its obligations under the Genocide Convention and for perpetrators to be penalized by an international penal tribunal. It also prayed for reparations to be made to the Rohingya victims, including safe and dignified return of forcibly displaced persons, and for Myanmar to offer assurances of non-repetition of such heinous violations of the Genocide Convention.
The Gambia also made a request for provisional measures. After a round of oral hearings (held from 10 to 12 December 2019), the ICJ recently gave a provisional order calling Myanmar to take all measures to prevent genocidal actions by its armed forces on the Rohingya group, ensure preservation of evidence and submit periodical reports to the ICJ till its final decision. The purpose of giving provisional measures is to preserve the rights claimed by parties, the decision of which is still pending on merits, lest an irreparable prejudice might occur. Needless to say, even provisional orders of the ICJ are binding upon Myanmar and their violation entails international responsibility. However, the provisional order does not in any way prejudge the question of jurisdiction of the ICJ and other questions on the merits of the case. All these issues will be considered in detail during the main hearing of the case.
In order to decide the question of jurisdiction, the ICJ inquires whether there exists a dispute between the parties in the first place. A dispute between parties is said to exist when they hold clearly opposite views. Particularly, the ICJ takes into account any statements or documents exchanged between the parties as well as exchanges made in multilateral settings. In addition to a note verbale sent in October 2019, The Gambia’s statement during the 74th UN General Assembly calling Myanmar to stop violations of the Genocide Convention and the rebuttal given by Myanmar had also been considered by the ICJ as evidence of existence of a dispute, thus establishing its jurisdiction.
At a provisional stage, the ICJ only looks at whether it has prima facie jurisdiction in a case; it does not need to factually ascertain whether violations of the Genocide Convention have actually happened – that would be looked at during the main hearing of the case later. The case at hand had been brought under Article IX of the Genocide Convention, giving jurisdiction to the ICJ for resolving disputes. As neither Myanmar nor The Gambia had put reservations on the said article, the ICJ held that it had prima facie jurisdiction.
Interestingly, Myanmar had made a reservation to Article VIII of the Genocide Convention according to which,
“[a]ny Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the preservation and suppression of acts of genocide.”
Myanmar argued that third parties (states not directly affected by the violations of the Genocide Convention) could only bring a case before the ICJ under Article VIII. Since Myanmar had made a reservation to Article VIII, The Gambia, a third party (since it had not claimed to be directly affected by the alleged violations) could not bring a claim before the ICJ, a competent organ of the United Nations (UN).
The Gambia rebutted by arguing that Article IX of the Genocide Convention vested jurisdiction with the ICJ and if Myanmar’s reasoning were to be followed, it would make Article IX of the Convention redundant. The ICJ agreed with The Gambia’s reasoning and stated that Article VIII and Article IX of the Convention had distinct areas of application. The ICJ’s jurisdiction was enabled under Article IX of the Convention, to which Myanmar had not made any reservation.
An important, and rather controversial, issue arising in the case was the standard of plausibility. According to this standard, for the purposes of issuing provisional orders under Article 41 of the Statute of ICJ, the ICJ looks at whether the rights which have been requested to be protected are at least plausible. The Gambia argued that ‘plausibility’ did not mean that the ICJ could ascertain genocidal intent at that stage for the purposes of issuing provisional orders, otherwise it would be tantamount to making a determination on the merits of the case at a preliminary stage. Myanmar put forth a strong argument that owing to the exceptional gravity of the alleged violations, ‘plausibility’ under the Genocide Convention should have included the proving of genocidal intent. The Court, accepting the arguments of The Gambia, decided that it ought not to determine genocidal intent at a provisional stage. In other words, it applied a low standard of plausibility.
It was at this point that the ad hoc Judge Clauss Kress, nominated by Myanmar, made a declaration (additional note) on the standard of plausibility. He mainly argued that since allegations of exceptional gravity had been involved, the ICJ should have applied a stricter standard of plausibility which inlcuded the proving of genocidal intent.
The Court also looked into whether The Gambia had locus standi to bring the case. Myanmar argued that an injured state party had the right to invoke state responsibility under the Genocide Convention. Bangladesh could have been a state party affected by the events forming the subject matter of the incumbent proceedings, but it had been prevented owing to its declaration made under Article IX of the Convention. The Gambia responded that obligations under the Genocide Convention were erga omnes partes and any state party could bring a claim without specifically proving special interest or effect. The ICJ concluded that all the states party to the Genocide Convention had a common interest to prevent acts of genocide and ensure the prosecution of perpetrators, even if there had been no direct effect of the alleged violations.
Under the Genocide Convention, it is not only necessary to prove that genocide has happened, it also needs to be proved that there has been an intent to commit genocide. This differentiates genocide from crimes against humanity (which do not require the element of intent). Although the ICJ has alluded in its provisional order that evidence of ‘genocidal intent’ can be inferred from the pattern of conduct, a robust legal fight is going to come from Myanmar on this issue during the main hearing of the case.
The definition of genocidal intent, like other important concepts in international law, is not carved in stone. It is dynamic, changing and shifting, based on international legal-political developments. While it is important to consider how the ICJ would take a fresh look over the definition during the main case, an in-depth study from our perspective ought to be done as to whether the threshold is becoming higher or lower with every case.
A crucial role has been played by the Independent International Fact-Finding Mission on Myanmar established by the Human Rights Council. The ICJ has relied heavily on its August 2018 report as well as subsequent UNGA resolutions which have concluded that Myanmar “incurs state responsibility under the prohibition against genocide”.
In cases like this one, it is important to consider whether a country has made a declaration under Article IX of the Genocide Convention. Even if the ICJ’s jurisdiction has been ousted through the making of a declaration under Article IX, the issue can still be taken up and other UN organs can still be asked to play their role mandated under Article VIII of the Genocide Convention.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.