The Gambia’s gamble, and how jurisdictional limits may keep the ICJ from ruling on Myanmar’s alleged genocide against Rohingya

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Home EJIL Analysis The Gambia’s gamble, and how jurisdictional limits may keep the ICJ from ruling on
Myanmar’s alleged genocide against Rohingya
The Gambia’s gamble, and how jurisdictional limits
may keep the ICJ from ruling on Myanmar’s alleged
genocide against Rohingya
Published on November 21, 2019 Author: Thomas Van Poecke, Marta Hermez and Jonas
Vernimmen
On 11 November, The Gambia filed an Application (https://www.icj-
cij.org/files/case-related/178/178-20191111-APP-01-00-EN.pdf)
instituting proceedings and requesting provisional measures at the
International Court of Justice (ICJ) in relation to the genocide
allegedly committed by Myanmar against the Rohingya (for a first
analysis of the Application, see this post (https://opiniojuris.org
/2019/11/13/the-gambia-v-myanmar-at-the-international-court-of-
justice-points-of-interest-in-the-application/) by Priya Pillai). As
notably reported by The New York Times (https://www.nytimes.com
/2019/11/11/world/asia/myanmar-rohingya-
genocide.html?searchResultPosition=1) and The Washington Post
(https://www.washingtonpost.com/world/africa/why-a-tiny-african-
country-is-taking-the-rohingyas-case-to-the-world-court/2019/11/12
/f491d5a4-04cd-11ea-9118-25d6bd37dfb1_story.html), the
application is at least in part a personal quest for justice by The
Gambia’s Minister of Justice and Attorney General, Abubacarr Marie
Tambadou, who acts as The Gambia’s Agent and previously worked
for the prosecutor of the International Criminal Tribunal for Rwanda.
The Gambia’s application is backed by the Organisation of Islamic
Cooperation (of which The Gambia is a member) and its legal team is
led by the US law firm Foley Hoag (see here (https://foleyhoag.com
/news-and-events/news/2019/november/foley-hoag-leads-the-
gambias-legal-team-in-case-to-stop-myanmar-genocide)). As we will
About the Author(s)
Thomas Van Poecke
Thomas Van
Poecke is a PhD
fellow at the
Research
Foundation –
Flanders (FWO)
and a researcher
at the KU Leuven Institute for
International Law and Leuven
Centre for Global Governance
Studies. He pursues a PhD on the
relationship between international
humanitarian law and counter-
terrorism law. Thomas holds an
LLM from the Geneva Academy
of International Humanitarian
Law and Human Rights (2017)
and a Master of Law from the
University of Zurich (2015) and
KU Leuven (2016). Read Full
More posts by the Author »
Marta Hermez
Marta Hermez is
a PhD
researcher at the
KU Leuven
Institute for
International
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argue below, the peculiar origins of this quest for justice may well be
determinative for the establishment of the ICJ’s jurisdiction.
Regarding the atrocities committed against the Rohingya, the UN
Human Rights Council’s Independent International Fact-Finding
Mission on Myanmar has found ‘that the factors allowing the
inference of genocidal intent are present’ (see here
(https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-
Myanmar/A_HRC_39_CRP.2.pdf), para 1441). While there appears
little reason to disagree with the Fact-Finding Mission’s conclusion,
in this post we will not examine substantively whether the atrocities
complained of constitute genocide. Instead, we will briefly sketch
why it makes sense for The Gambia to seize the ICJ while
proceedings relating to the Rohingya are already going on at the
International Criminal Court (ICC), after which we will address the
request for provisional measures.
Different nature of the ICJ and ICC Proceedings
Just three days after The Gambia submitted its application to the ICJ,
Pre-Trial Chamber III of the ICC authorized the Prosecutor to
investigate the situation in Myanmar/Bangladesh (see here
(https://www.icc-cpi.int/CourtRecords/CR2019_06955.PDF)). As
Myanmar is not a party to the Rome Statute, and as the position of
China and Russia make a UN Security Council referral highly
unlikely (see eg here (https://www.reuters.com/article/us-myanmar-
rohingya-un/u-n-security-council-mulls-myanmar-action-russia-
china-boycott-talks-idUSKBN1OG2CJ)), the Prosecutor has opened
an investigation on her own initiative. The investigation
‘geographically’ focuses on Bangladesh, Myanmar’s neighbouring
country to which over 742.000 Rohingya refugees have fled (see here
(https://www.unhcr.org/rohingya-emergency.html)). Bangladesh is a
party to the Rome Statute, and accordingly provides a jurisdictional
link to the Court.
This geographical focus on Bangladesh implies certain limitations: as
already ruled by Pre-Trial Chamber I in the Jurisdiction Decision
(https://www.icc-cpi.int/CourtRecords/CR2018_04203.PDF) of 6
September 2018, the Court may only assert jurisdiction ‘if at least one
element of a crime within the jurisdiction of the Court or part of such
a crime is committed on the territory of a State Party to the Statute’
(para 72). This explains why the Prosecutor has limited her
investigation to crimes against humanity, and more specifically those
of deportation, persecution on grounds of ethnicity and/or religion,
Law and Leuven Centre for
Global Governance Studies. She
pursues a PhD on the Chinese
perspectives on the international
law of the sea, focusing on the
regime of islands and
militarization at sea in particular.
Marta holds an LLM in
International and European Public
Law from KU Leuven (2015) and
a Master of Laws from Ghent
University (2014). Read Full
More posts by the Author »
Jonas Vernimmen
Jonas
Vernimmen is a
PhD researcher
at KU Leuven’s
Human Rights
Law department, where he studies
the rights of ethnic minorities
under the ECHR. He is an
alumnus of Columbia Law School
(2019) and KU Leuven (2016),
did migration work with different
NGO’s and interned at the United
Nations HQ in New York. Read
Full
More posts by the Author »
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and other inhumane acts (respectively Article 7(1)(d), (k) and (h) of
the Rome Statute). The Prosecutor argues that these crimes as
allegedly committed against the Rohingya involve cross-border
conduct that has taken place on the territory of Bangladesh (see here
(https://www.icc-cpi.int/CourtRecords/CR2019_03510.PDF), paras
76-78); an argument that has, at least for the crime against humanity
of deportation, first been accepted by Pre-Trial Chamber III (at para
73) and now also by Pre-Trial Chamber I (at para 62). Accordingly,
the Prosecutor does not investigate any crimes of genocide.
Thus, and apart from seeking the immediate imposition of provisional
measures, there are two main reasons to seize the ICJ in addition to
the ICC. First, the ICJ can establish Myanmar’s state responsibility,
whereas the ICC can only establish the individual criminal
responsibility of those who committed the atrocities. Second, given
the points made above about the limited nature of ICC jurisdiction
over the crimes committed against the Rohingya, the ICJ is the
Rohingya’s and, by extension, the international community’s only
hope for an international judicial qualification of the situation as a
genocide.
Provisional Measures
While on the merits The Gambia requests the Court to declare that
Myanmar ‘has breached and continues to breach its obligations under
the Genocide Convention’ (see Application, para 112), it first seeks a
provisional measures order under Article 41 of the ICJ Statute. The
Gambia essentially asks the Court to order Myanmar to prevent new
acts of genocide and to refrain from destroying evidence (para 132).
The Court may indicate provisional measures if three conditions are
met: (1) the provisions relied on by the Applicant appear, prima facie,
to afford a basis on which the ICJ’s jurisdiction could be founded; (2)
the Court must satisfy itself that the rights whose protection is sought
are at least plausible, meaning that there is some chance that the
Court will eventually find a violation on the merits (whilst the
threshold employed by the Court is unclear), and that there is a link
between the rights that are the subject of the proceedings on the
merits and the measures requested; and (3) there is urgency, in the
sense that there is a real and imminent risk that irreparable prejudice
will be caused to the rights in dispute before the Court gives its final
decision (see Costa Rica v Nicaragua, Order of 8 March 2011
(https://www.icj-cij.org/files/case-related/150/150-20110308-
ORD-01-00-EN.pdf), paras 49-64).
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Thomas Van Poecke Dear
Aditya Roy, Thanks for your
question. You're entirely right in
pointing to Art 48(1)(b) of the
Draft Articles on State
Responsibility, which reflects
the... – Nov 21
Aditya Roy Dear Authors,
Very Comprehensive Analysis of
the situation at hand. My
question is What is the role of
Article 48 (1) (b) of the Draft... –
Nov 21
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Prima Facie Jurisdiction: The Existence of a Dispute
The Gambia submits that the Court has jurisdiction based on Article
36(1) of the ICJ Statute, referring to all matters specially provided for
in conventions in force, linked with Article IX of the Genocide
Convention, which provides that disputes between the Contracting
Parties relating to the interpretation, application or fulfilment of the
Genocide Convention shall be submitted to the ICJ at the request of
any of the parties to the dispute.
To establish its prima facie jurisdiction, the ICJ first has to establish
whether there is a dispute between The Gambia and Myanmar. In its
Application (paras 20-21), The Gambia lists a number of events and
documents through which it has supposedly ‘repeatedly expressed its
concerns in respect of the conduct by Myanmar’. They include
reports of the UN Fact Finding Mission (see here
(https://www.ohchr.org/EN/HRBodies/HRC/MyanmarFFM/Pages
/Index.aspx)), statements by the Organisation of Islamic Cooperation
(OIC), as well as statements by The Gambia itself in the context of
the UN General Assembly, in one way or another condemning
Myanmar for genocide. They also include a statement of a
Myanmarese representative contesting the Fact-Finding Mission’s
conclusions in the UN General Assembly. However, there is only one
indication of direct contact between The Gambia and Myanmar on the
matter: a Note Verbale of 11 October 2019 from The Gambia’s
Permanent Mission to the UN transmitted to Myanmar’s Permanent
Mission, in which The Gambia expresses its concerns over the
findings of the UN Fact-Finding Mission and Myanmar’s rejection
thereof. Myanmar has not responded to this Note Verbale.
Hence, the question is whether the ICJ will accept these concerns
expressed by or in the context of multilateral fora, and supported by
The Gambia, and/or the relatively recent and as of yet unanswered
Note Verbale, as sufficient to find a dispute between The Gambia and
Myanmar. Admittedly, it is not that clear that there is a claim of one
party that is ‘positively opposed’ by the other (South West Africa,
Judgment of 21 December 1962 (https://www.icj-cij.org/files/case-
related/46/046-19621221-JUD-01-00-EN.pdf), p 328). Nevertheless,
the existence of a dispute must be determined by an examination of
the facts as a matter ‘of substance, not of form’, and ‘may be inferred
from the failure of a State to respond to a claim in circumstances
where a response is called for’ (Georgia v Russian Federation,
Judgment of 1 April 2011 (https://www.icj-cij.org/files/case-related
/140/140-20110401-JUD-01-00-EN.pdf), para 30). That consideration
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may in particular apply to the (relatively recent) Note Verbale, to
which Myanmar has not (yet) replied.
Even then, it would suffice that Myanmar ‘was aware or could not
have been unaware, that its views were “positively opposed” by the
applicant’ (Marshall Islands v India, Judgment of 5 October 2016
(https://www.icj-cij.org/files/case-related/158/158-20161005-
JUD-01-00-EN.pdf), para 38). In this respect, it is – apart from the
Note Verbale – relevant that The Gambia’s Vice-President has stated
in a plenary meeting of the UN General Assembly that ‘The Gambia
is ready to lead the concerted efforts for taking the Rohingya issue to
the International Court of Justice’ (see here (https://undocs.org
/en/A/74/PV.8), at 31). However, the threshold for the Court to accept
statements made in the context of international fora is rather high.
Special consideration is given to ‘the author of the statement or
document, their intended or actual addressee, and their content’
(Marshall Islands, para 36). More specifically, ‘a statement can give
rise to a dispute only if it refers to the subject-matter of a claim “with
sufficient clarity to enable the State against which [that] claim is
made to identify that there is, or may be, a dispute with regard to that
subject matter”’ (ibid, para 46). While the statement may have made
The Gambia’s intentions relatively clear, it did not mention
allegations of genocide, nor explicitly address Myanmar.
It remains to be seen whether the Court will accept the combination
of events and documents on which The Gambia relies as sufficient to
establish a dispute. In any case, it appears that the issue of the
existence of a dispute is intrinsically linked to that of plausible rights.
Plausible Rights and Link with Measures Requested
For the second condition, the rights which according to The Gambia
are the subject of the proceedings are (i) the rights of the Rohingya
residing in Myanmar, as a protected group under the Genocide
Convention; and (ii) the ‘erga omnes rights’ of The Gambia under the
Genocide Convention (see Application, paras 121-127). As the ICJ
rules on disputes between states over their mutual rights and
obligations, (i) can arguably dismissed, and (ii) should be the focus of
our attention.
As The Gambia itself appears to be aware, the ‘plausible rights’
requirement is, in this case, intrinsically linked with the issue of
standing. To quote Mariko Kawano (2012) (https://heinonline.org
/HOL/Page?collection=journals&handle=hein.journals/jpyintl55&
id=223&men_tab=srchresults) (at 210):
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the issue of the standing of the Applicant has not been taken up in
every case before the PCIJ and the ICJ. The reason might be that
when a State decides to refer a dispute in order to invoke the
international responsibility of other States, the acts of the latter have
normally infringed the concrete and specific rights and interests of the
former, giving the dispute an essentially bilateral nature.
Indeed, what characterizes The Gambia v Myanmar is that the dispute
is not of an essentially bilateral nature. Accordingly, and rightfully so,
The Gambia appeals to the erga omnes nature of the provisions of the
Genocide Convention it invokes. As ruled by the ICJ in Belgium v
Senegal (https://www.icj-cij.org/files/case-related/144/144-20120720-
JUD-01-00-EN.pdf) (2012) in relation to the relevant provisions of
the Convention against Torture, which are in this respect similar to
those of the Genocide Convention (para 68), ‘each State party has an
interest in compliance with them in any given case’, which ‘implies
the entitlement of each State party to the Convention to make a claim
concerning the cessation of an alleged breach by another State party’.
This gives any State Party to the Convention ‘standing’ to invoke the
responsibility of another State Party without the requirement of any
‘special interest’ (paras 68-70).
In this case, the acts alleged by The Gambia appear to fall within the
scope of the Genocide Convention and the rights asserted by The
Gambia are plausible, considering the erga omnes nature of the
obligations enshrined in the Convention. There is also a link between
the rights to be protected through these provisional measures, and the
rights subject to the main claim. That is so especially as ‘the
possibility of particularly devastating consequences – particularly
those involving risk to human life, health or liberty – will result in the
link requirement being stretched to its limits’ (Cameron A Miles
(2017) (https://www.cambridge.org/core/books/provisional-measures-
before-international-courts-and-tribunals
/AA4D6B5C3D5E7259861E3E472C943F39), 184). Nonetheless, and
especially should Myanmar, by way of preliminary objection for
example, contest the ICJ’s jurisdiction, the plausible rights test (and
the urgency-test, for that matter) will be delicate, as the ICJ will have
to touch upon the merits of the case, be it in a prima facie way (see a
discussion of this issue in this recent post) (http://www.ejiltalk.org
/provisional-measures-in-ukraine-v-russia-from-illusions-to-reality-
or-a-prejudgment-in-disguise/).
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Finally, there must be urgency. In this respect, The Gambia stresses
that while significant alleged acts of genocide against the Rohingya
have already taken place, especially in two waves of escalation during
‘clearance operations’ by the Myanmarese government (October-
February 2017 and August 2017-November 2018), the atrocities are
still ongoing. As quoted by The Gambia (para 99), the Fact-Finding
Mission concluded in September 2019 that ‘the Rohingya remain the
target of a Government attack aimed at erasing the identity and
removing them from Myanmar’ (here (https://www.ohchr.org
/Documents/HRBodies/HRCouncil/FFM-Myanmar/20190916
/A_HRC_42_CRP.5.pdf), para 2).
Quite likely, therefore, the urgency criterion is met. First, ‘it is not
relevant whether the situation complained of had already existed for a
considerable time when the request was filed, for what is important is
only the imminence of action prejudicial to the rights at stake’ (Karin
Oellers-Frahm (2012) (https://opil.ouplaw.com/view/10.1093
/law/9780199692996.001.0001/law-9780199692996-
chapterFrontMatter-55), 1048). Second, ‘the condition of urgency
was found to exist in all cases concerning genocide or ethnic
cleansing, thus all cases where irreparable damage resulted from the
risk to human life on a large scale’ (ibid, 1047). Precisely how soon
the ICJ will decide on the request for provisional measures depends
on its consultations with the parties, in which Myanmar may refuse to
participate. With some exceptions, such decisions usually take
between four and fifteen weeks (ibid, 1048). However, as human life
is at risk on a large scale, the ICJ may want to decide rather quickly.
For example, in Bosnia and Herzegovina v Yugoslavia (Order of 8
April 1993 (https://www.icj-cij.org/files/case-related
/91/091-19930408-ORD-01-00-EN.pdf)), it took the Court 19 days to
indicate the provisional measure that ‘The Government of the Federal
Republic of Yugoslavia (Serbia and Montenegro) should immediately
[…] take all measures within its power to prevent commission of the
crime of genocide’ (at 24).
Conclusion
The main issue regarding The Gambia’s request for provisional
measures is that of jurisdiction, because the existence of a dispute
between The Gambia and Myanmar is not obvious. This is a fortiori
the case for a decision on the merits, which requires the Court to
establish its jurisdiction in a definite rather than prima facie way.
Nevertheless, we believe that this jurisdictional obstacle can be
overcome. That is so especially as the ICJ considers the existence of a
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dispute to be a matter of substance and not of form. In any case, the
ICJ is the only hope for an international judicial condemnation of the
atrocities committed by Myanmar against the Rohingya under the
label they appear to deserve, namely genocide. This consideration
may well influence the ICJ’s decision about its (prima facie)
jurisdiction.
Filed under: EJIL Analysis, Genocide, International Court of Justice, International Criminal
Court, International Criminal Law, International Tribunals, Jurisdiction
Tags: Myanmar, Provisional Measures, Rohinga, The Gambia
« R v TRA: Article 1 of the Conv...
2 Responses
Aditya Roy
November 21, 2019 at 11:37
Dear Authors,
Very Comprehensive Analysis of the situation at hand.
My question is What is the role of Article 48 (1) (b) of the
Draft Articles on Responsibility of States for Internationally
Wrongful Acts?
Article 48 (1) (b) deas with the invocation of responsibility by
States other than the injured State acting in the collective
interest. A State which is entitled to invoke responsibility
under article 48 is acting not in its individual capacity by
reason of having suffered injury, but in its capacity as a
member of a group of States to which the obligation is
owed, or indeed as a member of the international community
as a whole.
Therefore, Article 48 (1) (b) is also relevant when the
proceedings commences before the ICJ.
Thomas Van Poecke
November 21, 2019 at 14:13
Dear Aditya Roy,
Thanks for your question. You’re entirely right in pointing to
2 Comments
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Art 48(1)(b) of the Draft Articles on State Responsibility,
which reflects the ICJ’s case law as regards obligations erga
omnes (Barcelona Traction onwards) and the corollary
interest all states have in invoking the responsibility of a state
breaching such obligation. In other words, the article is most
relevant and is in a way implied in our analysis.
Kind regards,
Thomas Van Poecke
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