Last week, the International Court of Justice (ICJ), the principal judicial organ of the United Nations, unanimously issued its provisional measures Order in the case brought by The Gambia against Myanmar under the Genocide Convention.
In its Application, the Gambia argues in particular that Myanmar has committed and continues to commit genocidal acts against members of the Rohingya group, which it describes as a “distinct ethnic, racial and religious group that resides primarily in Myanmar’s Rakhine State”.
The Gambia’s request to the ICJ contained these provisional measures, seeking to preserve, pending the Court’s final decision in the case, the rights of the Rohingya group in Myanmar, of its members and of the Gambia under the Genocide Convention.
Under the rules of the ICJ, member states of the UN can bring actions against other member states over disputes alleging breaches of international law, notably 1948 on the prevention and punishment of the crime of genocide.
In favour of the Gambia, the Court ordered provisional measures and did so unanimously is obviously a win for the Gambia, as well as the Rohingya.
In filing the case to the Court, the Gambia relied heavily on the 2018 Independent International Fact-Finding Mission on Myanmar established by the Human Rights Council of the United Nations (“Fact-Finding Mission”), which published a report affirming that Myanmar incurs State responsibility under the prohibition against genocide as well as detailed findings of the Independent International Fact-Finding Mission on Myanmar dated 16 September 2019.
The report highlights the situation of the Rohingya, the armed conflict between the Arakan Army and the Tatmadaw, and the situation in northern Myanmar.
It also documented violations and abuses under international human rights law and violations of international humanitarian law, principally by the Myanmar military, known as the Tatmadaw, and also by ethnic armed organizations.
In relation to the Genocide Convention, the Court first observed that the provisions of the Genocide Convention are intended to protect the members of a national, ethnical, racial or religious group from acts of genocide or any other punishable acts enumerated in Article III (i.e. genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide).
Again, in the Court’s view, the Rohingya in Myanmar appears to constitute a protected group within the meaning of the Genocide Convention.
It’s noteworthy that both The Gambia and Myanmar are parties to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Under the Genocide Convention, States parties have an implicit obligation not to commit genocide and express obligations to prevent and punish genocide crimes.
For a State to be in breach of the genocide prohibition, it must be shown that State organs, or persons or groups whose acts are attributable to the State, committed one or more specific acts “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.
According to the Report, there’re reasonable grounds to believe that there is a serious risk that genocidal actions may occur or recur and that Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalizing and punishing genocide.
More specifically, the Court ordered, in accordance with its obligations under the Genocide Convention, the provisional measures against Myanmar as follows: take all measures within its power to prevent the commission of all acts the Rohingya group in its territory; ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence from committing punishable acts against the Rohingya group; take effective measures to prevent the destruction as well as the preservation of evidence related to allegations of acts; and submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court.
Perhaps, the Court will not have the luxury to investigate genocide claims on its own without relying on the findings of other tribunals, such as the international criminal tribunal for the former Yugoslavia, which it consulted for claims against Serbia and Croatia.
The Gambia, a member of the Organisation of Islamic Cooperation, took this legal action with the support of other Muslim states. Equally, this legal action depicts Africa’s commitment to fighting genocide no matter where it is committed.
However, the Gambia has a burden to make the case that Myanmar has committed genocide purely by relying on the UN report. Genocide, according to international law, is a very specific crime.
Gambia would have to prove that Myanmar had the intent to annihilate parts of or the entire Rohingya community. Such intent must be inferred from events that transpired in Rakhine state.
And, to make a plausible case, Gambia must show that the only explanation for these events was that Myanmar planned a genocide. Good luck to the Gambia!
The writer is a law expert.