It has been over two years since the UN Human Rights Council urgently dispatched an Independent International Fact-Finding Mission (“FFM”) to report on the ongoing persecution of Rohingya Muslims, as part of “clearance operations” carried out by Myanmar’s security forces, with “genocidal intent”. While the UN Security Council (“UNSC”) remains silent on the more than 700,000 Rohingya refugees who have fled into neighbouring Bangladesh, The Gambia has filed an application at the International Court of Justice (“ICJ”). The Gambia allege Myanmar is violating the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”), to which it signed in 1957. There is a growing push amongst the international community to hold Myanmar’s military leaders to account. Why is this being led by the smallest country in continental mainland Africa? How can the ICJ help Myanmar? And why might the connection between The Gambia and Myanmar be a key factor in determining the ICJ’s jurisdiction?
Why The Gambia?
The Gambia is a tiny, majority-Muslim nation, emerging from its own violent past. While not on the same scale as the situation in Myanmar, the Truth, Reconciliation and Reparations Commission commenced this year, to investigate human rights violations committed under the presidency of Yahya Jammeh. Vice-President Isatou Touray stated this year The Gambia is,
“a small country with a big voice on matters of human rights on the continent and beyond. […] The Gambia is ready to lead the concerted efforts for taking the Rohingya issue to the International Court of Justice on behalf of the Organisation of Islamic Cooperation” (UN General Assembly, 26 September 2019, at pg. 28).
The Organisation of Islamic Cooperation (“OIC”) backing The Gambia’s application, is a group of 57 states (including The Gambia) representing “the collective voice of the Muslim world”. The 2018 OIC Conference was pointedly held in Bangladesh, where also visiting at the same time was a personal driving force of The Gambia’s application – Justice Minister, Abubacarr Tambadou. Tambadou, who previously worked for the Prosecutor of the International Criminal Tribunal for Rwanda, was reminded of the Rwandan genocide as he visited Rohingya refugees whom “the world is failing to protect”.
Why are International Crimes not being heard in the International Criminal Court (“ICC”)?
Just three days after The Gambia lodged its application to the ICJ, Pre-Trial Chamber III of the ICC authorised the Prosecutor to proceed with an investigation into the situation in Bangladesh/Myanmar. As Myanmar is not a party to the Rome Statute, the ICC’s founding treaty, the court only has jurisdiction to hear crimes in the geographical scope of Bangladesh. The Prosecutor asserts the crime of deportation requires cross-border conduct — namely, that it is completed when the Rohingya cross into Bangladesh (at para. 73).This geographical scope limits the investigation principally to the crime of deportation, but not genocide. A UNSC referral to the ICC, as repeatedly urged by the FFM (at para. 123) could plausibly lift this limitation. Any possible referral appears unlikely, however, since it is hamstrung by the boycott of permanent members China and Russia.
How can the ICJ help?
Also known as the ‘world court’, the ICJ first provides a court that both The Gambia and Myanmar are parties to. Second, the ICJ adjudicates between states not individuals, providing a path to state accountability of Myanmar as a whole. This potentially shines the international spotlight on the situation in Myanmar, raising the political burden for the State and a ruling in favour of the applicant would be raised to the UNSC.
Third, the ICJ can issue its final decision, but can also order provisional measures—which could make a big difference to the 600,000 Rohingya still in Myanmar living with the ongoing threat of genocide. The ICJ has previously handled an application for violation of the Genocide Convention, reaching its judgment in Bosnia and Herzegovina v Serbia and Montenegro after fourteen years. Once a matter comes before the ICJ, though, as is scheduled for 10 December 2019, provisional measures can be issued in a matter of days. In Bosnia and Herzegovina v Serbia and Montenegro, orders were made within 19 days “to prevent commission of the crime of genocide”.
Fourth, the ICJ provides the only path for an international judicial determination of genocide. This carries not only legal importance but crucially from a victim’s point of view provides a path to justice. This is a path to have the suffering of the Rohingya heard in court, and the creation of a robust historical record of alleged crimes committed.
Legal Basis – The Claim and Provisional Measures Requested
The Gambia applies on the merits that Myanmar “has breached and continues to breach” the Genocide Convention, and also makes detailed submissions for provisional measures – effectively seeking an injunction on Myanmar committing new acts of genocide and the protection of evidence (Application of 11 November 2019, paras 112, 132).
The ICJ may order provisional measures if the application is prima facie under the jurisdiction of the ICJ; the provisional measures are linked to the applicants main claim and have at least a plausible chance of being decided in favour of the applicant on the merits; and there is urgency requiring an order.
Question of Jurisdiction
To establish prima facie jurisdiction of the ICJ, a dispute where the States are “positively opposed” must exist (South West Africa Cases, Judgment of 21 December 1962, p 328). This is determined by an examination of the facts as a matter “of substance, not of form” (Georgia v Russian Federation, Judgment of 1 April 2011, para. 30) and can be satisfied if a party “was aware or could not have been unaware, that its views were “positively opposed” by the applicant” (Marshall Islands v India, Judgment of 5 October 2016, para 38).
The Gambia submits one instance of direct contact with Myanmar, and a number of instances where they have “repeatedly expressed concerns”. (Application of 11 November 2019, para. 21). Direct contact was made through a note verbale to Myanmar’s Permanent Mission to the UN, which has not been responded to – nonetheless, the existence of a dispute may still be inferred “from the failure of a State to respond to a claim in circumstances where a response is called for” (Georgia v Russian Federation, Judgment of 1 April 2011, para. 30). Statements at the UN General Assembly, of the FFM and by the OIC, have been submitted to indicate the dispute with Myanmar.
The character of The Gambia’s application not being essentially bilateral in nature, nor arising out of direct physical conflict, complicates the question of determining the existence a “positively opposed” dispute. This will likely form a challenging legal issue for the ICJ to determine whether jurisdiction is established.
The Gambia submits by order of provisional measures to protect the rights of the Rohingya and that its erga omnes rights under the Genocide Convention be protected (Application of 11 November 2019, paras 121-127). The ICJ resolves disputes between States regarding their mutual rights and obligations – it is difficult to argue the rights of the Rohingya plausibly fall within this scope. Erga omnes rights though, meaning the interests owed to and enforceable by all parties to the Genocide Convention, should be considered.
The ICJ has ruled in relation to the Convention against Torture, that each party to the convention has standing “to make a claim concerning the cessation of an alleged breach by another State party”, without the requirement of any “special interest” (Belgium v Senegal, Judgment of 20 July 2012, paras 68-70). The rights under the Genocide Convention Article IX give The Gambia standing to invoke the responsibility of Myanmar (another State Party to the convention) to fulfil their obligations, which is clearly linked to the applicant’s main claim, likely satisfies the plausibility requirement.
Urgency requires a real and irreparable risk of damage to the rights the applicant seeks to protect, before the Court will reach its final decision (Costa Rica v Nicaragua, Order of 8 March 2011, paras 49-64). While the FFM has found “clearance operations” to have been carried out for over two years, it was reported in September 2019 “the Rohingya remain the target of a Government attack aimed at erasing the identity and removing them from Myanmar”. This ongoing threat of genocide, in conjunction with the time the ICJ may take to reach its final decision (i.e.. Bosnia and Herzegovina v Serbia and Montenegro), likely satisfies the urgency requirement.
The Gambia, even with the backing of the OIC, is an out of the ordinary source to lead the path to justice for the Rohingya. The application brought to the ICJ is in its nature, however, out of the ordinary as it is not clearly bilateral in nature. This is intrinsically linked with likely the most significant challenge for the application, to outline the existence of a dispute in order to establish jurisdiction. If decided in favour of the applicant, however, the order of provisional measures could have immediate effect on the ongoing genocide. In doing so, the ICJ may recognise and seek to stop ongoing mass killings, exodus and sexual violence: a path to justice for the Rohingya which starkly requires far more global support.
Ryan Bocock is admitted as a Barrister and Solicitor of the Supreme Court of South Australia. His experience includes an internship at the Extraordinary Chambers in the Courts of Cambodia (Khmer Rouge Tribunal) and work with the Crown Solicitor’s Office. He holds a Bachelor of Laws at the University of South Australia and is a member of the Law Society of South Australia. His research areas of interest include International Law, Public Law and Human Rights.