On 11 November 2019, The Gambia – with the support of the 57 members of the Organisation of Islamic Cooperation – filed a case before the International Court of Justice (ICJ) alleging that the crimes against the Rohingya in Rakhine State violate the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”). The Gambia brought the case under Article 9 of the 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.
In its Application to the ICJ, The Gambia also requested provisional measures to “protect against further, irreparable harm to the rights of the Rohingya group under the Genocide Convention”. In response, the ICJ issued an order on 23 January 2020. Under this order, the Court directed Myanmar to “take all measures within its power” to prevent the commission of acts defined in the Genocide Convention, including by 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. Finally, it directed Myanmar to submit regular reports concerning the measures it has taken to comply with the order.
In contrast to the Mechanism, which builds case files against individuals for alleged violations of serious international crimes, the case before the ICJ is “state-to-state” dispute between UN Member States. However, the Mechanism’s mandate under Human Rights Council resolution 43/26 allows it to share information in relation to ICJ proceedings. The Mechanism is sharing materials with The Gambia and Myanmar, at their request and with the consent of the information providers.
On 22 June 2020, in resolution 43/26, the Human Rights Council called “for close and timely cooperation between the Mechanism and any future investigations by national, regional or international courts or tribunals, including by the International Criminal Court or the International Court of Justice.”
On 20 January 2021, the Government of Myanmar filed “preliminary objections to the jurisdiction of the Court and the admissibility of the Application”. On 28 January 2021, the Court issued an order directing The Gambia to submit a written response to these objections by 20 May 2021. Thereafter, the Court is expected to hold hearings before taking a decision on Myanmar’s preliminary objections.