On 11 November 2019, The Gambia – with the backing 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 has been a party to the Genocide Convention since 1956.
In contrast to the Mechanism, which is mandated to build cases against individuals for alleged violations of serious international crimes, the case of The Gambia v. Myanmar before the ICJ is “state-to-state” litigation between UN Member States governed by legal provisions in the UN Charter, the ICJ Statute and the Genocide Convention. If requested, the Mechanism’s Terms of Reference allow the Mechanism to share information in relation to proceedings before the ICJ. The Mechanism has commenced the process of sharing materials relevant to these proceedings, with the consent of the parties that provided the information and documentation.
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.”