What Does the ICJ Decision on The Gambia v. Myanmar Mean?

On Thursday, January 23, 2020, the International Court of Justice (ICJ) issued its decision on the request for provisional measures in the case of The Gambia v. Myanmar. The decision was widely covered in global news outlets and even headlined some websites for several hours, which is notable for an international body normally shunted to the deep recesses of the “world” section. This Insight will address some of the most common questions about the January 23 decision, specifically for those who are not specialists in international law or international dispute resolution. 

What is the International Court of Justice and what does it do?

The ICJ, also known as the World Court, was created by Article XIV of the UN Charter in 1945. It is located in The Hague, the capital of The Netherlands, and it is specifically designed to handle disputes between nations (identified as “states” under international law). The ICJ provides a forum for states to bring their disputes to be settled peacefully, rather than through conflict. A legal finding against a state by the ICJ usually indicates that the Court believes that the state violated international law in some way.

The ICJ is sometimes confused with the International Criminal Court (ICC, also located in The Hague), which adjudicates individual criminal legal responsibility. States’ leaders, foreign ministers, or other senior government officials may be put on trial at the ICC, but never at the ICJ. 

Why is the ICJ the right place for a case about the Rohingya?

Both The Gambia and Myanmar have ratified the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Genocide Convention, as it is generally known, places an obligation on states to prevent and punish genocide. 

Article IX of the Genocide Convention explicitly provides that any dispute between states that have agreed to follow the Convention should be resolved by the ICJ. This jurisdictional clause relates to any dispute on the “interpretation, application, or fulfillment” of the Convention. Since both The Gambia and Myanmar are parties to the Genocide Convention, they have both agreed that any dispute they have about the Convention should be resolved by the ICJ.

The Gambia, an African nation located more than 11,500 kilometers from Myanmar, filed a case at the ICJ claiming that a conflict exists between it and Myanmar regarding the interpretation and application of the Convention based on how the government of Myanmar was treating the Rohingya population, which the Gambia claimed rose to the level of genocidal acts.

What does The Gambia want from the ICJ?

The Gambia is seeking several determinations from the ICJ. These include requests that the Court declare that:

• Myanmar has violated the provisions of the Genocide Convention;
• Myanmar must cease any acts that violate the Convention (in effect, stop committing genocide), but also to implement its obligation to prevent genocide;
• Myanmar must hold individuals who committed acts in violation of the Genocide Convention criminally accountable within its domestic legal system;
• Myanmar must pay reparations to the victims of the Rohingya, including allowing them to return to Myanmar, reinstating their citizenship, and undertaking protection of the group’s human rights; and
• Myanmar must demonstrate its intent to not commit further violations of the Genocide Convention.

The Court will require several years to adjudicate these requests. In the meantime, due to the ongoing threat to the Rohingya population, The Gambia also requested the Court rule on “provisional measures” designed to protect the Rohingya while these legal questions are being considered.

What are “provisional measures” and what do they do?

Provisional measures serve as the equivalent of injunctions or even temporary restraining orders against a country. They are requested when one state believes that there is an ongoing legal violation from which it will continue to suffer some harm while the Court considers the underlying claims. In this case, The Gambia fears further harm to the Rohingya population.

There are very specific circumstances in which provisional measures may be authorized by the Court. Essentially, these relate to the Court’s jurisdiction over the parties and the issue (prima facia jurisdiction), whether there is arguably a link between the rights asserted (which the court must determine are “plausible”) and the requested preliminary measures, and the urgency and scope of the potential harm. 

The Gambia asked for provisional measures designed to:

• Require Myanmar to immediately stop all acts that could possibly be construed as violations of the Genocide Convention; 
• Require Myanmar to exert control over any non-state actors (like militias or paramilitary groups) that might also be committing such acts;
• Require Myanmar to preserve evidence (and explicitly forbid it from destroying evidence) which might relate to genocidal acts; 
• Order both The Gambia and Myanmar not to do anything that would further “aggravate or extend the existing dispute”;  
• Require both states to provide regular written reports to the Court about their compliance with any provisional measures the Court might order; and 
• Require Myanmar to cooperate with the United Nations and any of its bodies that might seek to investigate ongoing violence related to the case.[1]

The Gambia filed the request for provisional measures on November 11, 2019, and requested that the ICJ issue an order as soon as possible, given the urgent nature of the ongoing threat to the Rohingya population. Oral hearings were held on December 10, and the ICJ issued its order on January 23, 2020, which was consistent with the average time needed for the Court to issue an order on provisional measures. 

What did the ICJ decide on January 23?

In its January 23 order, the court did not determine that Myanmar had committed genocide.[2] There remain years’ worth of written submissions and hearings before that issue will be determined. This was an order specifically addressing the short term, urgent request by The Gambia for provisional measures.

The ICJ first determined that it has “prima facie jurisdiction,” to justify issuing an order for provisional measures, meaning that The Gambia has made an initial showing sufficient to satisfy the Court, on a basic level, that it has the authority to adjudicate the dispute.[3]

The Court also evaluated whether the provisional measures requested are necessary to prevent “irreparable harm.” The Court referenced the arguments from both states, but also took note of the report of the Independent International Fact Finding Mission on Myanmar, issued in 2018, which found that “the Rohingya in Myanmar have been subjected to acts which are capable of affecting their right of existence as a protected group under the Genocide Convention, such as mass killings, widespread rape and other forms of sexual violence, as well as beatings, the destruction of villages and homes, denial of access to food, shelter and other essentials of life.”[4] It also referenced the IIFFMM report in September 2019to the UN Human Rights Council, which concluded that “the Rohingya people remain at serious risk of genocide under the terms of the Genocide Convention.”[5]

Having reviewed the submissions from both states and the independent evaluations of the situation on the ground in Myanmar, the Court held that “there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia.”[6] Accordingly, the Court found that it was justified in issuing provisional measures. 

In determining which of the measures proposed by The Gambia to adopt, the Court held that Myanmar must take steps to prevent further genocidal acts by its own forces or by groups or forces acting within its territory over which it has any “control, direction, or influence.”[7] It also held that Myanmar must take steps to preserve any evidence of wrongdoing under the Genocide Convention.[8] The Court required Myanmar to submit a report to the ICJ within four months on the steps it is taking to comply with these orders. The Gambia is entitled to submit comments on Myanmar’s report.[9]

So what happens now in the case?

The ICJ has released the schedule for both sides to submit their legal briefs addressing the issues on the merits that are in dispute. The Gambia must submit its written memorial by July 23 and Myanmar must submit its response by January 23, 2021.

The ICJ Statute requires that the order for provisional measures be transmitted to the U.N. Security Council for review.[10] U.N. Secretary-General António Guterres issued a statement taking official notice of the ruling and expressing that he “trusts that Myanmar will duly comply.”

What does this mean for the Rohingya people?

Radio Free Asia has a video of Rohingya refugees watching the Court’s reading of the Order and an article with some on-the-ground interviews of those refugees discussing their feelings. There’s definitely a sense of hope that official international mechanisms are finally taking action on behalf of the Rohingya population. 

And yet, the actual effect depends on whether Myanmar chooses to follow the Court’s provisional measures order. If the Court’s orders are followed, this ruling would have a very positive impact on the situation on the ground in Myanmar. The critical provisional measures ordered by the Court would either contribute directly to a reduction in violence targeted towards the Rohingya or preserve evidence for later accountability. Regardless of whether the Court ultimately finds that genocide actually occurred in this case, the day-to-day life of the Rohingyan people would be immeasurably improved and the actors implicated in wrongdoing could potentially face individual criminal accountability. That promise of the cessation of wrong acts targeted at an at-risk population is the core goal behind the Genocide Convention.

Unfortunately, while the Myanmar military has said it won’t destroy any evidence, Myanmar political leadership has already said they don’t think they need to implement any special procedures to comply with the Court’s Order, arguing they have not committed genocide and thus do not need to change anything they are doing.

At the same time, military strikes against Rohingya populations continued even after the Court’s ruling, such as the artillery fire alleged to have killed two women in a Rohingya village.

Is there any way to ensure that Myanmar complies with the Court’s order (for example, through police or peacekeepers)?

No, and that is the concern of many non-governmental organizations and governments who know that compliance with international law relies in large part on the cooperation of concerned states. The Myanmar civilian government’s press response to the order did not engender confidence that it was going to comply with the requirements set out. 

In its own press release The Gambia called on the U.N. Security Council “to fulfill its role in ensuring compliance with the Court’s Order.” However, several years ago China threatened a veto in the U.N. Security Council to prevent statements, resolutions, or meetings on the situation in Myanmar,[11] which could hinder any further action by the international community. International law is hardest to enforce against states which do not want to comply with it and which have powerful political allies, especially ones with U.N. veto power, to protect them from official sanction.

The future of the conflict in Myanmar, and the protection of the Rohingya population, is still very much in question. An ICJ Order is a significant decision under international law and should play a critical role in protecting a group under serious threat. However, it is only as significant as the political will of the international community, a longtime challenge regarding human rights under international law. The impact of the Order will be decided in the months and years to come.

About the Author: D. Wes Rist is the Deputy Executive Director at the American Society of International Law and a member of the civil society Prevention and Protection Working Group that engages on atrocity prevention issues.