International Law Update: The Gambia v. Myanmar
The ICJ unanimously held that Myanmar breached Article II of the Genocide Convention and ordered Myanmar to “take all measures within its power” to prevent the acts committed in violation of Article II of the Convention.
By: Jenny Li, Staff Member
Aung San Suu Kyi received a Nobel Peace Prize in 1991 for her courageous resistance against the military junta in Myanmar. She is now defending Myanmar in a case before the International Court of Justice (ICJ) against allegations that Myanmar violated the 1948 Genocide Convention.
The Gambia brought suit against Myanmar in the ICJ on behalf of the Organization of Islamic Cooperation (OIC) for genocide of the Rohingya minority group. Myanmar is a majority-Buddhist country in which the Rohingya, a Muslim ethnic group, numbered around one million in 2017. The Rohingya people primarily reside in Rakhine, a state in the western region of Myanmar. Religious and social differences sparked a conflict between the two groups that has been ongoing since World War II. The government of Myanmar denied the Rohingya recognition by excluding them from the 2014 census, claiming that they are illegal immigrants from Bangladesh. Despite their population size and long established history in Myanmar, the government refused to grant them citizenship.
In August 2017, a Rohingya armed group launched attacks on Hindu villages. Notably, the attacks on August 25 targeted police posts and killed 12 people. These attacks were conducted by the Arakan Rohingya Salvation Army (ARSA), a group of Rohingya people persecuted by the Rakhine state. In response, the government reportedly killed 6700 people. The government euphemistically categorized this violence as nothing more than “clearance operations” against the militant group and claimed that the violence ended in September 2017.
In September 2018, a UN report found that the Myanmar killings continued through the year and were done with “genocidal intent.” On November 11, 2019, The Gambia began proceedings in the International Court of Justice against Myanmar for the violation of the Genocide Convention.
In December, the ICJ heard arguments from both sides to decide whether provisional measures for an order to protect to Rohingya people was necessary. The ICJ has the power to indicate any provisional measures to preserve the rights of a party under Article 41 of the Statute of the International Court of Justice. The ICJ has jurisdiction under Article 36 of the Statute of the Court and Article IX of the Genocide Convention.
Article IX of the Genocide Convention provides that “disputes between Contracting Parties relating to the interpretation, application or fulfillment of the Convention…shall be submitted to the International Court of Justice.” First, the Court found that both states are members of the Genocide Convention. Second, The Gambia claims that Myanmar committed “genocide” due to its “clearance operations” against the Rohingya group and committed “murder, rape, and other forms of sexual violence” and “destruction by fire of Rohingya villages.” Myanmar countered that there is no conflict between the state and The Gambia, and that The Gambia did not have the standing to bring a case as a “proxy” of the OIC. Ultimately, the Court sided with The Gambia and held that 1) The Gambia’s own dispute with Myanmar under its own name and own rights is enough to sue “on behalf of the OCI” and 2) the August 2019 Fact Finding Mission report that listed The Gambia as a party, which showed The Gambia had already played an active role against Myanmar’s actions.
The court further held that according to the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, where a “common interest” is enough to meet the standing requirement, The Gambia has a “common interest” to “ensure the acts of genocide are prevented. Therefore, The Gambia meets the prima facie case to sue under the Genocide Convention.
Under Article 41, the Court must decide whether “the rights claimed by The Gambia on the merits exist.” In the Application, The Gambia seeks to protect the rights “of the Rohingya group” from “acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide,” in accordance with Article III of the Convention. Genocidal intent can be deduced from United Nations report, multiple UN investigations and the UN Fact-Finding Mission that document attacks on homes, women and girls raped and killed, and burning of villages.
Myanmar did not address the question of plausibility but insisted that alternative inferences could be drawn to its actions that do not rise to the level of genocide. In her closing argument, Aung San Suu Kyi said, “where a country has a military justice system, neutralizing this system by externalizing justice in effect surgically removes a critical limb from the body ¾ the limb that helps armed forces to self-correct, to improve, to better perform their functions within the constitutional order.”
After three days of hearing from December 10 to 12, 2019, The ICJ unanimously held on January 23, 2020 that Myanmar breached Article II of the Genocide Convention for “(a) killing members of the group, (b) causing serious bodily or mental harm…, (c) bring[ing] about physical destruction in whole or in party, and (d) imposing measures intended to prevent births within a group.” Furthermore, the Court ordered Myanmar to “take all measures within its power” to prevent the acts committed in violation of Article II of the Convention, namely killing and causing serious harm. The Secretary General of the United Nations, António Gueterres, commented that he “supports the use of peaceful means to settle international disputes” and “trusts that Myanmar will duly comply with the Order from the Court.”
Jenny Li is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. Jenny graduated from McGill University in 2018 with a B.A. in History.