On 23 January 2020, the International Court of Justice issued its decision in the request for indication of provisional measures in the case filed by The Gambia against Myanmar. The case was filed by The Gambia invoking the Genocide Convention and alleging that Myanmar had committed/was in the process of committing Genocide on its Rohingya population.
The hearings in the case were held in December 2019, with arguments being presented by barristers Philip Sands and William Schabas on behalf of The Gambia and Myanmar, in addition to submissions being put forth by Myanmar’s de facto head of state Aung San Suu Kyi.
At the outset, Myanmar challenged the jurisdiction of the Court arguing that while Article IX of the Genocide Convention gave jurisdiction to the ICJ, such a dispute did not exist between The Gambia and Myanmar. It submitted that the application moved by The Gambia was on the pretext and behalf of the Organisation of Islamic Countries and therefore did not give rise to a dispute between The Gambia and Myanmar.
The ICJ held that the case was filed by The Gambia in its own name and the support of other States or organisations did not preclude the existence of dispute between the two states. The Court also noted that the Report of the Independent International Fact-Finding Mission on Myanmar, the stand taken by The Gambia at the United Nations (UN) General Assembly, and the Note Verbale issued by The Gambia to the Court manifest a divergence of views on the interpretation and application of the Genocide Convention between the two States.
Finally, the Court held that the allegations raised by The Gambia of inter alia, “killings, rape and other forms of sexual violence, torture, beatings, cruel treatment, and for the destruction or denial of access to food, shelter and other essentials of life, all with the intent to destroy the Rohingya group, in whole or in part” and the denial of the same by Myanmar was sufficient in relation to proceedings on provisional measures as the same only require the prima facie establishment of a dispute.
Myanmar accepted the erga omnes partes nature of the Genocide Convention and agreed that accordingly The Gambia had an interest in pursuing Myanmar’s compliance with the Convention. However, it argued that it could have brought the case before the Court only if it were specially affected by the alleged violations, as for instance, Bangladesh.
The Court declined to entertain the argument on standing by Myanmar that despite the erga omnes partes nature of Genocide Convention The Gambia should have been specially affected by the alleged violations, as for instance, Bangladesh to have a standing in the case. The Court, relying on its previous Advisory Opinion in the Reservations to Genocide Convention case, held that in light of the shared values of the Convention all member states of the Convention have a common interest to ensure compliance with the Convention.
The Gambia requested provisional measures in the case arguing that there was a plausible link between the rights claimed and the measures sought. Myanmar on the other hand argued that the measures could only be granted if there was a plausible claim that the alleged facts did in fact occur with genocidal intent. Further, Myanmar sought to argue that an allegation as grave as that of genocide required a stricter plausible claim standard. Relying on this, Myanmar argued that The Gambia had failed to present sufficient evidence to buttress its argument to establish a crime as grave as genocide.
The Court in its order disagreed that the exceptional gravity of genocide required evidence of the existence of genocidal intent, and consequently held that the facts and circumstances presented to it led to the conclusion that the rights claimed – of the Rohingya group in Myanmar to be protected from the acts of genocide and the right of The Gambia to seek compliance with the obligation not to commit, but to prevent and punish genocide by Myanmar – were plausible.
Irreparable Prejudice or Urgency
Finally, the Court dealt with the issue whether a real or imminent risk of irreparable prejudice existed to justify the provisional measures.
Whereas The Gambia relied on the recent past to argue real risk and urgency in seeking the provisional measures, Myanmar cited the commencement of repatriation initiatives with Bangladesh and other measures undertaken to foster stability in the Rakhine State to downplay any risk or urgency necessitating the passing of provisional measures.
The Court noted the humanitarian purpose and the fundamental values sought to be protected by the Genocide Convention. Additionally, the Court also recalled the report of the UN fact-finding mission which highlighted that the Rohingyas were at a risk of genocide. The Court also noted that the submissions of Myanmar regarding the repatriation and peace reconciliation initiatives were not sufficient to remove the possibility of acts violating the Genocide Convention.
Accordingly, the Court held that there existed a possibility of irreparable prejudice and urgency necessitating the passing of provisional measures.
The Court, therefore, allowed the first two provisional measures as requested by The Gambia and directed Myanmar to “take all measures within its power to prevent the commission of all
acts within the scope of Article II of the Convention” and specifically ensure that its military and supported irregular armed groups do not commit “acts of genocide, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide”. It further directed Myanmar to take measures preventing the destruction of and ensuring preservation of evidence relating to the matter.
Finally, the Court using its powers under Article 78 of the Rules of the Statute instituted a reporting system wherein Myanmar must submit regular reports (first report to be submitted in four months, and thereafter at six-month intervals) highlighting measures taken by it to comply with the provisional measures.
Interestingly, the Court denied to pass the customary non-aggravation of the dispute measure, usually ordered by it in Provisional Measure hearings, despite requests for the same by The Gambia. The Court observed that its specific provisional measures precluded the necessity for such measures.
It must be noted that the Court also refused to pass Provisional Measures requesting direction to Myanmar allowing access and cooperation with the UN Fact Finding bodies to investigate genocidal acts against Rohingya.
The Order of the Court is along predictable lines considering the interim nature of provisional measures and the fact that such measures do not pre-judge the case on merits. It is also likely that subsequent to the concession by Myanmar that excessive violence and violations of international humanitarian law may have been committed, the present Order was a foregone conclusion considering that the Court was not required to seek evidence establishing genocidal intent.
However, one wonders whether the first two provisional measures add any obligation in addition to those that already exist under the Genocide Convention and customary international law. In other words, whether the first two provisional measures preclude Myanmar from committing an act that would otherwise be unimpeachable. The obligation to prevent the commission of genocide against the Rohingya population, and to prevent the military or armed units under its control from committing the acts underlying genocide is an obligation existent regardless of any provisional measures.
Contrary to the present case, in other provisional measure orders such as the Jadhav Case, the provisional measures suspending his death sentence were necessary for two reasons. Firstly, the Court passed the provisional measure to proscribe an otherwise permissible act, i.e. an act that would be permitted in the absence of a prima facie holding of lack of consular access. Secondly, the refusal to pass such measures would have rendered the final remedy otiose due to the execution of Jadhav by the concerned State (Pakistan).
Unlike genocide which is prohibited under customary international law and the Genocide Convention and whose prohibition is a jus cogens norm, execution of the death sentence against Jadhav during the pendency of the Case would have been permissible owing to the absence of any prohibition on Pakistan from acting in accordance with its domestic law. Therefore, in the present case whereas one understands the necessity of stopping genocide such an obligation to not commit genocide exists upon Myanmar regardless of any prima facie finding of plausible rights. Myanmar, in the absence of such provisional measures, could still not have argued that it was never precluded from committing genocide.
At best, it could argue that genocide did not occur in the first place. In contrast, Pakistan in the absence of provisional measures could have gone ahead and executed Jadhav, and therefore the necessity of passing provisional measures prohibiting the same. To that extent, it is questionable what further acts the first two provisional measures forbid that are not already prohibited under the Genocide Convention.
On the other hand, it is possible that the Court may have passed such provisional measures to reiterate the law considering the immediacy of its effects and obligations. Further, the conspicuous absence of the reference to even the term “Rohingya” in Myanmar’s submissions may have persuaded the Court to note the Rohingya population in particular to provide further specificity to the legal obligations imposed upon Myanmar.
The measure directing Myanmar to not destroy and preserve evidence is more urgent and important as it seeks to halt any measures that could directly or even indirectly mar evidence, for instance, through commencement of redevelopment projects in the Rakhine State aimed at covering up evidence. The Genocide case between Bosnia & Herzegovina and Serbia & Montenegro manifested the extremely high evidentiary requirements for proving genocidal intent and therefore shows the importance of preserving such evidence. In the present case, with the alleged state, Myanmar, in possession of all evidence (barring Bangladesh to some extent) relating to the alleged acts, obtaining requisite evidence would be even more difficult.
In this light, the denial of an UN Fact Finding body to access and investigate the alleged genocidal sites in Myanmar while understandable is unfortunate. It is likely that the Court, without spelling out clearly, refused the Measure requesting permission to access the alleged genocidal sites owing to sovereignty concerns that may be raised by Myanmar against such access to be provided to third parties. However, in the absence of such a UN monitored body, the Court is left entirely dependent upon Myanmar for all exculpatory and condemnatory evidence.
The Road Ahead
With the commencement of repatriation initiatives, the possibility of evidence getting destroyed due to the passage of time, and the lack of any formal investigation mechanism allowed to be put in place by the Court, the collection, preservation and presentation of evidence remains a herculean task. In that light, the reporting obligations imposed upon Myanmar may be helpful. However, a lot depends on the rigour with which the Court will adjudicate Myanmar’s compliance.
Previously the Bosnia v. Serbia Genocide case had the fortune of relying on evidence collected and facts established in the trial of individuals before the International Criminal Tribunal for former Yugoslavia (ICTY) for the crime of genocide. Despite the existence of such a body of evidence the Court did not find sufficient proof to attach state responsibility for Genocide upon Serbia.
Therefore, in spite of the findings in favour of The Gambia at this stage, it is difficult to imagine how the evidence in the present case would match up with the carefully collected and archived evidence in the Yugoslav Trials and whether such evidence would stand scrutiny to make a final case against Myanmar.
Associate, Khaitan & Co., India
Chevening Cambridge Trust Scholar (2018-19)
LL.M. [Cambridge] | B.A. LL.B. (Hons.) [NLU Delhi]
Former Inner Temple Pegasus Mini-Pupil, Lamb Chambers
17 February 2020