The Gambia Is Taking Myanmar To Court

On November 11, 2019, The Gambia initiated proceedings against Myanmar at the International Court of Justice (the ICJ). 

The ICJ is the principal judicial organ of the United Nations. The main aim of the ICJ is to peacefully settle disputes between States and to issue advisory legal opinions in response to requests submitted by the U.N. General Assembly, the U.N. Security Council, other competent organs and specialised agencies. The ICJ hears legal disputes relating to international law and provides authoritative judgments. The ICJ can also adjudicate on matters under (Articles VIII and IX of) the U.N. Convention on the Prevention and Punishment of the Crime of Genocide (the Convention on Genocide). 

The application filed by The Gambia alleges that the Government of Myanmar has been involved in atrocities against the Rohingya Muslims, including “killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births, and forcible transfers, are genocidal in character because they are intended to destroy the Rohingya group in whole or in part” in violation of the Genocide Convention. 

The Gambia’s application alleges that: 

“from around October 2016 the Myanmar military (the “Tatmadaw”) and other Myanmar security forces began widespread and systematic “clearance operations” – the term that Myanmar itself uses – against the Rohingya group. The genocidal acts committed during these operations were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses. From August 2017 onwards, such genocidal acts continued with Myanmar’s resumption of “clearance operations” on a more massive and wider geographical scale.”

The document discusses various evidential sources, said to show the atrocities perpetrated against the Rohingya Muslims, including evidence obtained by several U.N. mechanisms. 

Aside from an adjudication, The Gambia has also requested the implementation of several provisional measures to take effect as a matter of urgency, including:

“(a) Myanmar shall immediately, in pursuance of its undertaking in the [Genocide Convention], take all measures within its power to prevent all acts that amount to or contribute to the crime of genocide…

(b) Myanmar shall, in particular, ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any act of genocide, of conspiracy to commit genocide, or direct and public incitement to commit genocide, or of complicity in genocide, against the Rohingya group…

(c) Myanmar shall not destroy or render inaccessible any evidence related to the events described in the Application…”

The Gambia justifies the need for such provisional measures by asserting that there is a risk of irreparable harm. Members of the Rohingya Muslim group are in “grave danger of further genocidal acts because of Myanmar’s deliberate and intentional efforts to destroy them as a group, and the remaining Rohingya communities and individuals in Myanmar continue to face daily threats of death, torture, rape, starvation and other deliberate actions aimed at their collective destruction, in whole or in part.” 

The Gambia must be commended for taking a proactive step towards ensuring that the U.N. does finally address the issue of the genocide against the Rohingya Muslims in Myanmar. States have too often failed to engage the ICJ on the issue of genocide. Indeed, it has considered and determined on issues of genocide only a few times, among others, in the cases of Pakistan v. India, Bosnia and Herzegovina v. Yugoslavia, Yugoslavia v. NATO and Croatia v. Yugoslavia. This is as many states would shy away from taking such a step, out of fear of upsetting diplomatic relationships. However, where there is a risk that a group is facing annihilation, diplomatic relationships should not stand in the way. 

It is noteworthy that the International Criminal Court (the ICC) has recently opened a preliminary examination into the alleged crimes committed against the Rohingya population in Myanmar and their deportation to Bangladesh and potentially other crimes under the Rome Statute. However, as the examination is still at a very early stage, it will take time before the case could be heard and before those responsible will be brought to justice. 

The steps taken by The Gambia should put other states to shame. Many continue to look away. States need to move past futile diplomatic dialogue with a government that will not accept its blame for the atrocities against the Rohingya Muslims. The steps taken by The Gambia should encourage other states to maximize the use of the existing U.N. mechanisms, mechanisms which could accommodate a more forceful discussion with states that allow, enable or participate in genocide and other such mass atrocities.

The question is whether other states will also begin to make better use of the mechanisms at their disposal to address mass atrocities in other parts of the world. Among others, as British politician, Lord Alton of Liverpool asked, “Who will be the first to bravely stop kowtowing to Beijing and defend the beleaguered and persecuted Muslim Uighurs?”


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Ewelina U. Ochab is a legal researcher and human rights advocate, and author of the book “Never Again: Legal Responses to a Broken Promise in the Middle East.” Ochab wor...