A legal briefing by The International Commission of Jurists (ICJ)

The International Commission of Jurists (ICJ) published a legal briefing on the hearing on provisional measures to be held at the International Court of Justice on 10-12 December 2019 in the case of The Gambia v Myanmar.

Introduction

This briefing note focusses on the upcoming hearing between The Gambia and Myanmar on the narrow issue of “provisional measures,” set down for 10-12 December 2019 at the International Court of Justice (ICJ)[1] and does not seek to address the wider, substantive, proceedings.

What allegations does The Gambia make against Myanmar?

On 11 November 2019, the Republic of The Gambia filed an “Application Instituting Proceedings and Request for Provisional Measures” at the ICJ against the Republic of the Union of Myanmar. The Gambia submitted they have a “dispute” with Myanmar concerning Myanmar’s application of the Convention on the Prevention and Punishment of the Crime of Genocide (“Convention”).

The definition of genocide found in Article II of the Convention is set out in Annex 1.

The Gambia submits Myanmar has violated its obligations under the Convention, including by:

committing genocide;

conspiracy to commit genocide;

direct and public incitement to commit genocide;

attempting to commit genocide;

complicity in genocide;

failing to prevent genocide;

failing to punish genocide; and

failing to enact the necessary legislation to give effect to the provisions of the Convention.

Specifically, The Gambia alleges at paragraph 6 of its Application that “…against the backdrop of longstanding persecution and discrimination, 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 Gambia submits that these facts are extensively documented by independent investigative efforts conducted under the auspices of the United Nations and corroborated by international human rights organizations and other credible sources.  In particular, The Gambia relies extensively on the reports of the Independent International Fact-Finding Mission on Myanmar (FFM).

At paragraph 112 of its Application, and with reference to specific articles of the Convention, The Gambia requests the ICJ to “adjudge and declare” that Myanmar:

has breached and continues to breach its obligations under the Convention;

must cease forthwith any such ongoing internationally wrongful act and fully respect is obligations under the Convention;

must ensure that persons committing genocide are punished by a competent tribunal, including before an international penal tribunal;

must perform the obligations of reparation in the interest of the victims of the genocidal acts who are members of the Rohingya group, including but not limited to allowing the safe and dignified return of forcibly displaced Rohingya and respect for their full citizenship and human rights and protection against discrimination, persecution, and other related acts, consistent with the obligation to prevent genocide; and

must offer assurance and guarantees of non-repetition of violations of the Convention.

This is what is known as the “merits” part of the case. It the case proceeds, a significant amount of time may pass before final judgment of the merits.

What provisional measures has The Gambia requested?

In the Gambia’s Application, it also requested the Court to indicate provisional measures “in light of the nature of the rights at issue, as well as the ongoing, severe and irreparable harm being suffered by members of the Rohingya group.”

At paragraph 132 of The Gambia’s filing, it requested the Court to indicate five provisional measures – see Annex 2 for the full text.

It also reserved the right to request additional provisional measures during the proceedings, and as the Court has the power to indicate different provisional measures to those requested, any provisional measures finally indicated by the Court in the form of an order may differ from those listed in the Application.

Of significance is that The Gambia requested the Court to indicate a provisional measure whereby the parties shall each provide a report to the Court on all measures taken to give effect to the order for provisional measures, no later than four months from its issuance.

Finally, The Gambia requested the Court to address the issue of provisional measures as a “matter of extreme urgency.”

What are provisional measures?

Provisional measures are certain orders the Court can make aimed at preserving the rights of the Parties to a case pending the final decision of the court in order to avoid irreparable damage to the rights which are the subject of the dispute.

Article 41 of the Statute of the ICJ confers power on the ICJ to indicate provisional measures in certain circumstances:

Article 41

1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.

2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.

Full briefing