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178- Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia vs Myanmar)

On November 11th, 2019, the Republic of The Gambia filed an application instituting proceedings before the International Court of Justice (ICJ) against the Republic of Myanmar for alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide (the Convention) in its Article IX. Both countries are members of the Organization of Islamic Cooperation (OIC).

Indeed, The Gambia contends that Myanmar has been implementing a policy of ethnic and religious persecution and discrimination against the Rohingya group for several decades. The requesting State affirms that according to the findings of the United Nations Independent Fact-Finding Mission (the Mission), the Myanmar army and other security forces began conducting “clean-up operations” around October 2016. The latter aimed to destroy all or part of the Rohingya group through mass murder, rape and other forms of sexual violence, systematic destruction of their villages. The Mission’s report concluded that Myanmar had committed acts of genocide and that those acts are continuing. For its part, the respondent State categorically refutes these allegations, stating that the reports issued by the Mission were “tainted by bias and error”.

The Gambia accompanied its initial application with a request for the indication of provisional measures. It asks the Court to order Myanmar to:

  • To respect its international commitments under the Convention and to take all measures in its power to prevent any act constituting a crime of genocide;
  • Ensure that none of the military, paramilitaries or paramilitary units that may be under its authority commit any act constituting a crime of genocide;
  • Refrain from destroying or rendering inaccessible any evidence relating to the facts described in the application;
  • Refrain from taking any action that could aggravate the dispute;
  • To provide a detailed report setting out the detailed measures that have been taken to implement the Court’s decisions.

In its Order dated January 23rd, 2020, the Court granted this application.

Order of 23-01-2020.pdf

The respondent State, for its part, raised preliminary objections relating to the Jurisdiction of the Court to hear the present case and to the admissibility of the Application. Indeed, the Myanmar authorities state:

  • First of all, it was the OIC and not the Gambia that is the real claimant in this case since The Gambia was chairing an ad hoc committee of the Organization. However, if the institution is the true applicant, the ICJ cannot have jurisdiction to hear the case since only States have standing to appear before the Court;
  • In addition, that the Gambia, as a State party to the Genocide Convention, is not prejudiced by the situation in Myanmar and therefore does not have standing to bring an action against it;
  • Furthermore, Myanmar, in acceding to the Convention, made a reservation to the effect that the scope rationae personae of the Convention was limited to injured States, thus excluding the Gambia;
  • Finally, there was no dispute between the two parties at the time of filing the application instituting the proceedings. 

The Court delivered its judgment on these points on July 22nd, 2022. 

With regard to the question relating to the real claimant in the case, namely either The Gambia or the OIC, the ICJ concludes that The Gambia filed the application on its own behalf and not that of the international organisation. The Gambia is indeed a party to both the Statute of the Court and the Convention against. Moreover, there appears to be no indication that there is an abuse of process on the part of the Gambian authority.  The ICJ therefore rejects the first preliminary objection raised by Myanmar.

With regards to the question relating to the existence of a dispute between the parties at the time of filing the application, the Court considers that the statements made by the two countries at the meetings of the UN General Assembly in 2018 and 2019 prove a divergence of views between them. The same applies to the communications made by the Vice-President of The Gambia, which Myanmar could not ignore. The fact that the latter did not reply to those remarks cannot be construed as an agreement on those points. In addition, Myanmar disputes the report of the Mission set up by the United Nations which is one of the basis of the Gambia’s actions. The Court therefore concludes that there was indeed a dispute between both countries at the time of the filing of the application in November 2011 and therefore rejects the second plea of lack of jurisdiction.

With regards to the question relating to the reservation made by Myanmar upon its accession to the Convention against Genocide, the Court rejects this objection.

With regards to the question of The Gambia’s standing to lodge an application, the Court notes that any State party to the Convention against Genocide has the option of invoking a breach of an obligation erga omnes partes. A State is not required to demonstrate that its own nationals or its own interests have been injured by an internationally wrongful act in the case of a breach of an obligation erga omnes partes. 

The Court therefore rejects all of Myanmar’s preliminary objections.  

Judgment of 22-07-2022.pdf

This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.