ICJ – The Gambia v. Myanmar

On 11 November 2019, The Gambia, on behalf of the 57 members of the Organisation of Islamic Cooperation, filed a case at the International Court of Justice (ICJ) alleging that Myanmar failed to fulfill its obligations to prevent and punish acts of genocide committed against the Rohingya in Rakhine State as required under the Genocide Convention.

In response, the ICJ issued an order on 23 January 2020 directing Myanmar to “take all measures within its power” to prevent the commission of acts defined in the Genocide Convention, including ensuring that its military and any irregular armed units refrain from committing these acts. The Court also ordered Myanmar to “take effective measures to prevent the destruction and ensure the preservation of evidence” related to the ICJ proceedings, and to submit regular reports concerning the measures it has taken to comply with the order.

In 2022, the ICJ rejected Myanmar’s preliminary objections to the jurisdiction of the Court, noting the Convention’s central purpose is the ‘common interest’ of all signatories to ensure the prevention and punishment of genocide and that The Gambia has the right to initiate proceedings against a fellow signatory in light of this ‘common interest’. For more information, read the Mechanism’s reaction to the ruling.

Next, the ICJ is expected to consider the parties’ arguments on the merits of the case. Myanmar was directed to file its response to The Gambia’s claims by 24 May 2023, which was subsequently postponed to 24 August 2023, following Myanmar’s request for an extension of the time limit.

On 16 October 2023, the ICJ issued an order for The Gambia to submit its Reply to arguments made by Myanmar by 16 May 2024 and for Myanmar to submit a Rejoinder – its response to The Gambia’s Reply – by 16 December 2024.

On 15 November 2023, Canada, Denmark, France, Germany, the Netherlands and the United Kingdom filed a joint declaration of intervention, given their “common interest in the accomplishment of the high purposes” of the 1948 Convention on the Prevention and Punishment of Genocide. The Maldives also filed a declaration to intervene, citing its deep concern “over the continued… human rights violations and barbarous assaults against the Rohingya Muslims” and recognizing the need for “international cooperation in the quest to prevent and punish genocide.”

What is the ICJ?

The ICJ is a United Nations court that settles legal disputes between States. It cannot prosecute individuals, and only States can initiate legal proceedings.

Why does the ICJ have jurisdiction over this case?

The ICJ has jurisdiction over disputes in relation to treaties that States have signed and ratified. The Gambia brought the case under Article 9 of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”), which allows disputes between parties “relating to the responsibility of a State for genocide” to be submitted to the ICJ. Myanmar ratified the Genocide Convention in 1956.

How is the Mechanism involved?

While the case before the ICJ is between States and is not a criminal investigation, the Mechanism can share information for uses other than criminal proceedings when this could contribute to the interests of justice and deter future crimes. In June 2020, the Human Rights Council (resolution 43/26) specifically called for the Mechanism to cooperate with the ICJ.

The Mechanism is therefore sharing materials with The Gambia at their request and with the consent of the people that provided the information. Before the coup, the Mechanism also shared some requested materials with the Myanmar authorities with the consent of those who provided the information. However, since the coup, the Myanmar authorities have not confirmed their agreement to the Mechanism’s requirements concerning confidentiality and witness safety and therefore no information has been shared with them.

The Mechanism could share information with Myanmar in the future, but only if the people who provided the information consent to it being shared, and only if certain conditions are met, including if the Mechanism is confident that sharing information will not endanger anyone.