The Gambia’s gamble (part 1): introduction to the ICJ-case on Myanmar’s alleged genocide against Rohingya

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On 11 November, The Gambia filed an application instituting proceedings and requesting provisional measures at the International Court of Justice (ICJ) concerning the alleged genocide by Myanmar against the Rohingya. This blogpost demonstrates the added value of seizing the ICJ in addition to the ICC. In a second blogpost, we assess the likelihood of success for the request for provisional measures.

As notably reported by The New York Times and The Washington Post, 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). As this post will argue, 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, § 1441). While there appears little reason to disagree with the Fact-Finding Mission’s conclusion, this post will not contain a substantive examination on whether the atrocities complained of constitute genocide. Instead, it will briefly sketch why it makes sense for The Gambia to seize the ICJ while proceedings relating to the Rohingya are already ongoing at the International Criminal Court (ICC).  A second post 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). 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 e.g. here), the Prosecutor of the ICC 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). Bangladesh is a party to the Rome Statute, and accordingly provides a jurisdictional link to the Court (art. 12).

This geographical focus on Bangladesh implies certain limitations. As already ruled by Pre-Trial Chamber I in the Jurisdiction Decision 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’ (§ 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, 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, 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 limited nature of ICC jurisdiction over the crimes committed against the Rohingya set out in the previous paragraph, 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.

Thomas Van Poecke and Marta Hermez are PhD-candidates at the Leuven Centre for Global Governance Studies. Jonas Vernimmen is a PhD-candidate at the Leuven Centre for Public Law.

In a second blogpost, they address the likelihood that the request for provisional measures will succeed.

An earlier version of this post appeared on the blog of the European Journal of International Law, EJIL-talk.


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