One of the most extraordinary recent developments in international law has been the so-far successful challenge by The Gambia to the policies and practices by Myanmar against its minority Muslim Rohingya people. The Gambia took the matter to the International Court of Justice, where it alleges these practices amount to genocide, a claim denied by Myanmar. In the latest round, The Gambia has won a series of provisional orders against Myanmar. The unanimous decision by the 17 judges of the International Court of Justice, delivered yesterday, 23 January 2020, included four interim measures to be taken by Myanmar to protect the Rohingya from any acts of genocide and to retain evidence that might be needed when the court gets to hearing the merits of the case.
The case brought by The Gambia against Myanmar began at the International Court of Justice in November 2019. Public sittings were held during December, and the court has this week released its decision on a number of preliminary issues as well as a four-part interim order.
The preliminary issues included whether The Gambia had standing to bring a case in which it had no direct involvement. Myanmar conceded that under the obligations related to the Genocide Convention, The Gambia has ‘an interest’ in Myanmar’s compliance with its obligations. But it argued that The Gambia was not allowed to bring a case before the court in relation to specific alleged breaches of the convention ‘without being specially affected by such alleged violations’.
For its part, The Gambia says the obligations under the Genocide Convention were such that ‘any State party to the … Convention’ was entitled to raise allegations that another State party had breached its obligations, ‘without having to prove a special interest’.
The court concluded that all parties to the Genocide convention had a common interest, namely to ensure that acts of genocide were prevented, and that ‘if they occur, their authors do not enjoy impunity’.
On that basis, said the court, The Gambia had prima facie standing to submit this dispute for hearing under the Genocide Convention.
One of the tasks of the court, before it could issue the interim orders against Myanmar, was to establish if the claims were at least 'plausible'.
Referring to that question, the court noted that during the public hearings, Myanmar, ‘referring to what it characterises as “clearance operations” carried out in Rakhine State in 2017’, conceded a number of issues. For example, Myanmar said ‘It cannot be ruled out that disproportionate force was used by members of the Defence Services in some cases in disregard of international humanitarian law, or that they did not distinguish clearly enough between (Rohingya) fighters and civilians.’
It further conceded that ‘there may also have been failures to prevent civilians from looting or destroying property after fighting or in abandoned villages.’
The court referred to UN fact-finding missions in Myanmar which had spoken of a court needing to determine liability ‘for genocide’ in several states, ‘including murder, imprisonment, enforced disappearance, torture, rape, sexual slavery and other forms of sexual violence, persecution and enslavement, that children were subjected to and witnessed serious human rights violations, including killing, maiming and sexual violence’. Such a court should also consider that there were reasonable grounds for concluded that serious crimes under international law had been committed that should be investigated and prosecuted.
On the basis of this and other reports, the court concluded that the allegations by The Gambia ‘are plausible’.
According to The Gambia there was a risk of irreparable prejudice to the rights of the Rohingya under the Genocide Convention. The Gambia said not only had there been ‘genocidal acts’ in the recent past, but there was a grave danger of further acts of this kind and the Rohingya remaining in Myanmar were in urgent need of protection.
Myanmar claimed this was not true and that any provisional orders by the court could undermine Myanmar’s current efforts ‘towards reconciliation’ and could reignite internal armed conflict with the Arakan Rohingya Salvation Army.
All 17 judges agreed that Myanmar had to take ‘all measures within its power’ to prevent any killing of Rohingya, imposing any measures ‘intended to prevent births within the group’, or doing anything intended to bring about the destruction of the Rohingya as a group.
Myanmar must also ensure that its military do not commit any acts of genocide or incite the public to do so. It is also to prevent the destruction of evidence related to allegations that the Genocide Convention had been breached. Finally, Myanmar has been ordered to report to the court on what it has done to give effect to these orders. The first report must be presented in four months, and thereafter every six months, until the court gives a final decision on the case.
Three members of the court wrote separate decisions, while agreeing with the main interim orders. But the president of the court, Somali judge Abdulqawi Ahmed Yusuf, stressed that while Myanmar had to take concrete steps to prevent genocide in the region, this was not a final ruling on the case brought by The Gambia. As the court’s judgment put it, it was not required at this point to conclude whether any violations of Myanmar’s obligations under the Genocide Convention have occurred. That decision could only be made once the court gets to the stage of examining the merits of the case.