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International Court of Justice Q&A: Gambia v. Myanmar

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—Courtesy of Paula Bronstein Getty Images Reportage for the US Holocaust Memorial Museum

What is this case about?

This is a case about whether Burma has committed genocide, and whether it has failed in its duty to prevent and punish the crime. The case is focused on crimes against the Rohingya population, an ethnic and religious minority in the country that for years has faced persecution from various arms of the state. The Museum’s Simon-Skjodt Center for the Prevention of Genocide found compelling evidence that the violence and persecution of the Rohingya community amounts to genocide. The United Nations’ Independent International Fact-Finding Mission on Myanmar, found that “the factors allowing for inference of genocidal intent” were present.

What is genocide?

The 1948 Convention on the Prevention and Punishment of Genocide defines genocide as any of the below acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group:

Killing members of the group;

Causing serious bodily or mental harm to members of the group;

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

Imposing measures intended to prevent births within the group;

Forcibly transferring children of the group to another group.

What is the International Court of Justice (ICJ)? How is it different from the International Criminal Court (ICC)?

The ICJ resolves disputes between states. In this case, the Court is examining Gambia’s claim that Burma failed to uphold its obligations under the Genocide Convention. The case before the ICJ is not a criminal proceeding, and will not examine individual criminal responsibility by any particular person or group in Burma. 

The ICC, by contrast, is a court that can examine the criminal responsibility of individuals. While the case at the ICJ moves forward, the Prosecutor of the ICC is also investigating potential crimes against humanity committed against the Rohingya people from Burma—including notably deportation and persecution—which is within the ICC's jurisdiction. While Burma is not a State Party to the Rome Statute, the ICC Pre-Trial Chamber concluded that the Court may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party, in this case, the Republic of Bangladesh. These two efforts are separate.

What is happening the week of December 9?

On December 10, 11, and 12, the ICJ is hosting public hearings to address The Gambia’s request that Burma immediately adopt provisional measures, specifically that Burma take all possible measures to prevent genocide, including ensuring that its military does not commit additional acts of genocide, and that it does not destroy evidence of genocide. The broader questions regarding whether Burma has or has not upheld its obligations under the Genocide Convention is a longer endeavor, and may take the ICJ years to resolve.

Under what circumstances may the Court grant/ indicate provisional measures?

The Court may indicate provisional measures if three conditions are met:

  1. The provisions relied on by the Applicant appear to afford a basis on which the ICJ’s jurisdiction could be founded;
  2. The Court is satisfied 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, 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 

Why is Aung San Suu Kyi involved?

Aung San Suu Kyi, Burma’s State Counsellor, has chosen to participate in the public hearings this week to, in her government’s words, “defend the national interest” of Burma at the ICJ. She does not have the obligation to appear at the Court. 

Aung San Suu Kyi’s role in the proceedings—an agent—is a specific one. While the agent has the same rights and obligations as a solicitor in a national court, she or he also serves, effectively, as the head of a special diplomatic mission with powers to commit a sovereign State. (The agent for The Gambia is the country's Minister of Justice and Attorney General, Abubacarr Marie Tambadou). As agents, both Aung San Suu Kyi and Abubacarr Marie Tambadou will open the arguments on behalf of the governments of Myanmar and The Gambia, respectively. 

Aung San Suu Kyi has received significant support from the population in Burma, with some rallies and public signs supporting her efforts to counter allegations of genocide. Domestically she is perceived as defending the state against “muslims” or “outsiders” seeking to interfere, as The Gambia is taking forward the case on behalf of the Organization of Islalmic Cooperation (OIC). But other groups, including civil society organizations representing ethnic and religious minorities in the country, have expressed support for the proceedings at the ICJ.

Why is this case important?

This case is significant because it is only the second time in history that the ICJ has examined the obligations that states have to prevent genocide. This case has the ability to bring international attention to the atrocities committed in Burma, including the genocide of the Rohingya. It may result in measures by Burma to punish perpetrators and prevent future crimes. On a more general level, this case has the potential to shape how the world understands the crime of genocide and what states are required to do as parties to the Genocide Convention.

What has the US Holocaust Memorial Museum done in relation to the genocide in Burma?

The Museum has documented mass atrocities against the Rohingya population (issuing reports in 2015 and 2017), and issued a statement in 2018 finding compelling evidence of genocide against the group. The Museum has also held high-profile public events and has engaged in targeted policy outreach to decision makers. Read more about our work.

Why is Gambia involved?

Even though The Gambia is far from Burma, both states are party to the Genocide Convention, and the ICJ is the body that adjudicates disputes between such parties. The Gambia is backed by the OIC, and other states can, informally or formally, support The Gambia in its efforts before the Court. Canada and the Netherlands have already done so. Additionally, Gambia’s Attorney General, Abubacarr Tambadou, has a personal interest in justice for the world’s worst crimes—he previously worked at the International Criminal Tribunal for Rwanda, and was personally moved by his experience visiting Rohingya refugees in Bangladesh. 

Article IX of the Genocide Convention provides no requirement that a party have a connection to a particular situation to bring a case; rather, it provides that any disputes relating to the “interpretation, application or fulfillment” of the Convention, including “the responsibility of a State for genocide,” can be brought to the Court. By bringing the case as a non-injured party, Gambia’s Application to the Court emphasises the erga omnes (obligation owed by all) nature of the core legal obligations of the Genocide Convention.

Tags:   burmarohingyagambiajusticemyanmarinternational court of justice

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