The Gambia’s case against Myanmar under the international Genocide Convention, for the alleged genocide committed against the ethnic Rohingyas, is now all set to be heard and judged by the International Court of Justice (ICJ), following its rejection of Myanmar’s preliminary objections on the grounds of the court’s jurisdiction and the Gambia’s legal standing. Besides rejecting Myanmar’s objections, the ICJ also ruled that the Gambia’s application filed on 11 November 2019 was admissible, thereby allowing the case to proceed on merits. The Rohingya victims of genocide, as well as all peace-loving people who believe in the rule of law, can be certain now that we are one step closer to justice. The ICJ decision really is a huge step towards an overdue reckoning with the Myanmar military’s atrocities against the Rohingyas.
It is wellknown that the international justice system is a long-drawn complex process, which may take years to conclude. But at least the world court’s decision to proceed on substance should worry the Myanmar’s military junta that they can no longer shrug off their responsibilities for their murderous campaign against a minority ethnic group. Myanmar’s official reaction to the ICJ ruling indicates that the junta is now beginning to realise the gravity of the world court’s ruling. A statement issued by the Ministry of International Cooperation and published by the military-owned news portal Myawady says, “Myanmar is disappointed that its preliminary objections were rejected, while it notes that the court has now determined the matter.” It then admits, “Myanmar noted that this judgement will become not only a source of international law, but (will) also set a precedent for future cases.” The statement adds, “Myanmar reaffirms its position in a declaration over the ratification of the convention and respects its obligations under the convention without any violation of them.”
The ministry ends its statement with a commitment that “it will endeavour its utmost efforts to safeguard the country’s sovereignty and national interest and continue to undertake appropriate steps for the country.” Justifying its preliminary objections, the Myanmar government argued that the preliminary objections raised were believed to be strong as a matter of law and a matter of fact. And then it notes Judge Xue Hanqin’s dissenting opinion and votes against the court’s finding that it has jurisdiction and that the application is admissible. Myanmar raised four preliminary objections to the jurisdiction of the ICJ and the admissibility of the application. In its first preliminary objection, Myanmar argued that the court lacked jurisdiction, or alternatively that the application was inadmissible, on the grounds that the “real applicant” in the proceedings was the Organisation of Islamic Cooperation (OIC).
According to the second preliminary objection, the application was inadmissible because the Gambia lacked standing to bring this case. In its third preliminary objection, Myanmar asserted that the ICJ lacked jurisdiction or that the application was inadmissible since the Gambia cannot validly seise the court in light of Myanmar’s reservation to Article VIII of the Genocide Convention. In its fourth preliminary objection, Myanmar pleaded that the court lacked jurisdiction, or alternatively that the application was inadmissible, because there was no dispute between the parties under the Genocide Convention on the date of filing of the application. The court unanimously rejected three preliminary objections, and the other one (on the Gambia’s standing for bringing the case) was rejected by a 15-1 vote. The ruling on the admissibility of the Gambia’s application, too, was decided by a 15-1 vote. In both these decisions, the dissenting member of the court was Justice Xue Hanqin.
One other interesting thing to be noted is that both the ad hoc judges, Navanethem Pillay and Claus Kress, representing the Gambia and Myanmar, respectively, were in agreement with the majority of the court. Earlier on 23 January 2020, following the Gambia’s application, the ICJ issued provisional measures against Myanmar to prevent any genocidal acts in its territory against the Rohingyas and to protect them. It also asked Myanmar to take effective measures to prevent the destruction and ensure the preservation of evidence related to the alleged atrocities, and submit periodical reports to the court on all measures taken to give effect to this order, until a final decision on the case is rendered by the court. The ICJ, in its latest verdict, noted that Myanmar indeed had submitted reports on the measures taken to give effect to that order on 22 May 2020, 23 November 2020, 20 May 2021, 23 November 2021, and 23 May 2022. The court also said that the Gambia, too, had submitted comments on each of these reports.
The significance of the ICJ’s order on provisional measures were not only related to the prevention and protection of a vulnerable ethnic group, but the recognition of the Rohingyas as a distinct ethnic group in Myanmar. We don’t know what actions Myanmar has taken so far and how the Gambians have evaluated them. But, according to the ICJ, Myanmar overtly maintains its obligation to the ICJ. The unfortunate fact, however, remains that there has not been any progress at all in repatriating about one million Rohingya refugees now living in Bangladesh, and the reason, according to the UNHCR, is Myanmar’s failure to create an environment where safe and dignified return of the Rohingyas is possible. The ICJ’s decision to proceed on the merits to examine the Gambia’s genocide allegations against Myanmar also gives us an opportunity for a diplomatic push on repatriation.
The Gambia has submitted its main arguments in October 2020 within the time frame fixed by the court. So, it is expected that Myanmar will now have to submit its response soon. As Canada and the Netherlands have joined the Gambia in its pursuit for justice for the Rohingyas, we hope the legal course will gather new strength. With the legal proceedings moving forward, it is high time for us to pile up political pressure on the Myanmar military junta, too.