On Friday, July 22, 2022, the International Court of Justice (ICJ) delivered its Judgment on the preliminary objections raised by Myanmar in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). Myanmar raised four preliminary objections regarding the Court’s jurisdiction over the case and the admissibility of the case.
With regard the first preliminary objection, Myanmar argued that the Court lacks jurisdiction, or alternatively the application is inadmissible, as the real applicant in these proceedings is the
Organisation of Islamic Cooperation. As to jurisdiction, the Court held that The Gambia instituted proceedings in its own name as a state party to the Genocide Convention. A state accepting a suggestion from an organization to bring a case does not detract from its status as the applicant state. The motivation to commence proceedings is not relevant to establish jurisdiction. There is no reason why the Court should look beyond fact that The Gambia has instituted proceedings in its own name. The Court is satisfied that the applicant is The Gambia.
Myanmar also argued that, even if the Court has jurisdiction, the application is inadmissible because it is an abuse of process. The Court reiterated that it has already found that the applicant in the case is The Gambia. The Gambia is a party to the Court and the Genocide Convention. Only in exceptional circumstances should the Court reject a claim with valid jurisdiction based on an abuse of process. There is no evidence showing that The Gambia’s conduct amounts to an abuse of process or any other grounds of inadmissibility.
The first preliminary objection is rejected.
The Court then went on to consider Myanmar’s fourth preliminary objection regarding its argument that there is no jurisdiction because there was no dispute between the parties on the date of the filing of the application instituting proceedings (November 11, 2019).
The existence of a dispute between parties is a requirement under Article 9 of the Genocide Convention. It must be shown that the claim of one party is positively opposed by the other and that the parties have clearly opposite views regarding the performance or non-performance of certain international obligations. This is a matter of substance and not form or procedure. In addition, subsequent conduct may be relevant for various purposes, i.e., to confirm the existence of a dispute.
In making its determination, the Court considers any statements or documents exchanged between the parties or in multilateral settings. In this case, there were four relevant statements made before the UN General Assembly in September 2018 and September 2019 (during general debates), as well as a note verbal from The Gambia to Myanmar in 2019. Myanmar argues that the statements made before the UN General Assembly and the note lacked sufficient particularity because The Gambia did not specifically articulate its legal claims. Myanmar further argued that the requirement of mutual awareness was not satisfied because Myanmar had never rejected specific claims by The Gambia.
With regard to the issue of mutual awareness, the Court held that mutual awareness is not required. Such a requirement would allow parties to avoid a legal dispute simply buy remaining silent. Moreover, if a respondent fails to reply, it may be inferred from its silence that it rejects the claims and that therefore a dispute exists. The Court is of view that requirement of mutual awareness as put forward by Myanmar has no basis in law.
On sufficient particularity: though it is true that the statements made at the General Assembly did not specifically mention the Convention, no specific reference to a treaty or treaty provisions is required. The exchanges between the relevant states must refer to the subject matter of the treaty with sufficient clarity to enable the respondent to identify that there is or may be a dispute with regard to that subject matter. The Court noted that The Gambia statements made in 2018 and 2019 came shortly after the publication of a fact finding mission's reports that specifically discussed the perpetration of crimes that were similar to those that have allowed genocide intent to be established in other contexts. Moreover, the reports specifically referred to The Gambia as seeking to build a case against Myanmar. In the Court’s view, Myanmar cannot have been unaware that The Gambia would pursue a genocide case against Myanmar. The Court therefore
concluded that a dispute existed at the time of the filing of the application and rejected the fourth preliminary objection.
Myanmar’s third preliminary objection is based on its argument that the Court lacks jurisdiction and the case is inadmissible because The Gambia cannot validly seize the court under the Genocide Convention because of its reservation to Article 8 of the Genocide Convention, which provides that “Any 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 prevention and suppression of acts of genocide or any of the other acts enumerated in article III.”
After considering the plain meaning of Article 8, in accordance with the Vienna Convention on the Law of Treaties, the Court turned to the customary international law principle that terms must be interpreted in their context and in light of other provisions in the Genocide Convention. In that regard, the Court paid specific attention to Article 9, which constitutes the basis of its jurisdiction under the Convention. It concluded that Articles 8 and 9 have distinct areas of applications: Article 9 provides the conditions for recourse to Court; Article 8 allows contracting parties to appeal to other organs of the UN. It therefore follows that Article 8 does not govern the
seisen of the Court and there is no need to resort to supplementary methods of interpretation. Myanmar's reservation to Article 8 is therefore irrelevant and does not need to be examined. The third preliminary objection is rejected.
Finally the Court considered Myanmar’s second preliminary objection that the application is inadmissible because The Gambia lacks standing under Article 9 because it is not an injured (i.e. adversely affected) state. In addition, it is inadmissible because the application was not brought before the Court in accordance with the rule concerning the nationality of claims. Moreover, even if The Gambia is assumed to have standing, this standing is subsidiary to, and dependent upon, the standing of states that are affected.
The Court therefore considered whether The Gambia is able to invoke Myanmar’s responsibility before the Court for alleged breaches of the Genocide Convention. In that regard, the Court recalled its 1951 Advisory Opinion on reservations to the Genocide Convention. In that Opinion, the Court wrote that with regard to the Genocide Convention, contracting states do not have any interests of their own; rather, they have a common interest: the prevention of genocide. It is inappropriate to speak of individual advantages and disadvantages to states in the context of the Convention. All contracting states are committed to fulfilling the obligations in the Convention. That common interest implies that the obligations are owed by any state party to the others—they are erga omnes partes obligations. This entails that any party is entitled to invoke the responsibility of another party for alleged breaches of its obligations under the Convention regardless of whether a special interest can be demonstrated. Such a requirement would, in many cases result in no state being able to bring a claim under the Convention.
Moreover, a state does not need to demonstrate that any victims of an alleged breach of the Convention are its own nationals. The entitlement to invoke state responsibility erga omnes partes is distinct from any right of a state to exercise diplomatic protection of its nationals, and it is not limited to the state of nationality of alleged victims. Indeed, the Court observed that victims of genocide are often nationals of the breaching state. The Convention does not attach additional conditions to the invocation of responsibility before it. The Court acknowledged the special circumstance of Bangladesh, which faced a large influx of Rohingya, but noted that that fact does not affect the right of all other parties to assert the common interest of all parties under the Convention before the Court. The Gambia therefore has standing to invoke the responsibility of Myanmar for the alleged breaches of Articles 1, 3, 4, and 5 of the Convention, and the second preliminary objection is rejected.
Judge Xue filed a dissenting opinion, and Judge ad hoc Kress filed a declaration. In particular, Judge Xue argued that “The way in which Article IX of the Genocide Convention is being interpreted in the Judgment, in my opinion, deviates from the rules on treaty interpretation and the settled jurisprudence of the Court with regard to the Genocide Convention.”