The Gambia’s gamble (part 2): will jurisdictional limits keep the ICJ from ruling on Myanmar’s alleged genocide?

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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) in relation to the genocide allegedly committed by Myanmar against the Rohingya. In an earlier blogpost, we argued why it makes sense to seize the ICJ in addition to the ICC. In this post, we address the likelihood of success of the request for 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, § 112), it first seeks a provisional measures order under Art. 41 of the ICJ Statute. Essentially, it asks the Court to order Myanmar to prevent new acts of genocide and to refrain from destroying evidence (§ 132).

The Court may order provisional measures if three conditions are met: (1) the provisions relied on by the Applicant appear, prima facie, to contain a basis for the ICJ’s jurisdiction;

(2) the Court must satisfy itself that the rights whose protection is sought are at least plausible. That means that there is some chance that the Court will eventually find a violation on the merits (yet 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 of irreparable prejudice to the rights in dispute before the Court gives its final decision (Costa Rica v Nicaragua, § 49-64).

Prima Facie Jurisdiction: The Existence of a Dispute

The Gambia submitted that the Court has jurisdiction based on Art. 36(1) of the ICJ Statute, referring to all matters specially provided for in conventions in force. It linked this with Art. IX of the Genocide Convention, providing that disputes between Contracting Parties on the interpretation, application or fulfilment of this Convention are submitted to the ICJ at the request of a party to this dispute.

To establish its prima facie jurisdiction, the ICJ first has to establish that there is a dispute between The Gambia and Myanmar. The Gambia’s application (§ 20-21) lists a number of events and documents through which it has supposedly ‘repeatedly expressed its concerns in respect of the conduct by Myanmar’. This includes reports of the UN Fact Finding Mission (see here), statements by the Organisation of Islamic Cooperation (OIC), as well as statements by The Gambia itself in the context of the UN General Assembly, condemning Myanmar for genocide. It also includes a statement of a Myanmarese representative contesting the Fact-Finding Mission’s conclusions in the UN General Assembly. However, only one element indicates 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 never responded to this.

Hence, the question is whether 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, will be sufficient for the ICJ to find a dispute between The Gambia and Myanmar. At last week’s session, Myanmar contested this. It argued that, as a non-member, it was not (nor could it have been) aware of the different statements made in the context of the OIC. Moreover, none of the other submitted documents explicitly referred to (the) genocide (Convention). As the Note Verbale was restricted to a legal conclusion without factual arguments, it had no reason to reply to the Note Verbale. Consequently, Myanmar concluded, there is no opposition between the states, and thus no dispute with The Gambia.

Admittedly, it is not unambiguously clear that there is a claim of one party that is ‘positively opposed’ by the other (South West Africa, p 328). Nevertheless, the existence of a dispute is 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, § 30). That consideration may in particular apply to the (relatively recent) Note Verbale.

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, § 38). In this respect, it is also relevant that The Gambia’s Vice-President 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, at 31). However, the threshold for accepting statements made in the context of international fora as proof 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, § 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, § 46). While the statement may have made The Gambia’s intentions relatively clear, it did not mention allegations of genocide, nor explicitly address Myanmar.

Whether the Court will accept the combination of events and documents on which The Gambia relies as sufficient to establish a dispute remains to be seen. In any case, this issue of the existence of a dispute appears to be intrinsically linked to the second requirement of plausible rights.

Plausible Rights and Link with Measures Requested

The rights which The Gambia claims 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, § 121-127). As the ICJ rules on disputes between states over their mutual rights and obligations (art. 34 Statute), (i) can arguably dismissed, and (ii) should be the focus of our attention.

As The Gambia itself appears to realize, the ‘plausible rights’ requirement is, in this case, intrinsically linked with the issue of standing. To quote Mariko Kawano (2012) (at 210):

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, characterizing this dispute is that it 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. As ruled by the ICJ in Belgium v Senegal (2012) concerning the relevant provisions of the Convention against Torture, which are in this respect similar to those of the Genocide Convention (§  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’ (§ 68-70).

In this case, the alleged acts appear to fall within the scope of the Genocide Convention. The rights asserted by The Gambia are plausible, considering the erga omnes nature of the obligations enshrined in this 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), 184). Nevertheless, at last week’s session Myanmar denied that the events amounted to genocide. It argued that genocidal intent (an essential condition to qualify acts as genocide) had to be the only possible explanation for the events, rather than for it to just be plausible. That this interpretation would hollow out the concept of provisional measures is clear. Nonetheless, the plausible rights test (like the urgency-test, for that matter) is delicate, as the ICJ will have to touch upon the merits of the case, be it in a prima facie way (see also here).

Urgency and Imminent Risk of Irreparable Injury

Finally, there must be urgency. Here, The Gambia stressed 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. It quoted (§ 99) the Fact-Finding Mission’s conclusion in September 2019 that ‘the Rohingya remain the target of a Government attack aimed at erasing the identity and removing them from Myanmar’ (here, § 2).

Despite Myanmar’s argument that different initiatives were instated to help Rohingya return, supposedly showing that the Rohingya themselves don’t experience the situation as urgent, it is still quite likely that 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), 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). When precisely the ICJ will decide on the request for provisional measures depends on its consultations with the parties. 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 sooner rather than later.

Conclusion

The main issue regarding The Gambia’s request for provisional measures is that of jurisdiction as 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 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.

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 an earlier blogpost, they argued why it makes sense to seize the ICJ in addition to the ICC.

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


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