International Court Of Justice Proceeds With The Case Against Myanmar

On July 22, 2022, the International Court of Justice (ICJ), the principal judicial organ of the United Nations, has delivered its judgment on the preliminary objections raised by the Republic of the Union of Myanmar in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), finding that it has jurisdiction and that the said Application is admissible.

On November 11, 2019, The Gambia initiated proceedings against Myanmar at the ICJ alleging that the Government of Myanmar has been involved in atrocities against the Rohingya Muslims, including “killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births, and forcible transfers, are genocidal in character because they are intended to destroy the Rohingya group in whole or in part” in violation of the Genocide Convention. The Application further stated that “from around October 2016 the Myanmar military (the ‘Tatmadaw’) and other Myanmar security forces began widespread and systematic ‘clearance operations’ – the term that Myanmar itself uses – against the Rohingya group. The genocidal acts committed during these operations were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses. From August 2017 onwards, such genocidal acts continued with Myanmar’s resumption of ‘clearance operations’ on a more massive and wider geographical scale.” The Gambia has also requested the implementation of several provisional measures to take effect as a matter of urgency, including measures within the Burmese government’s power to “prevent all acts that amount to or contribute to the crime of genocide” and “not destroy or render inaccessible any evidence related to the events.”

On January 23, 2020, the ICJ ordered Myanmar a number of provisional measures, including “take all measures within its power to prevent the commission of all acts within the scope of Article II of [the Genocide Convention]”, “ensure that [the] military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any [prohibited] acts […] or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide”, “take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the [Genocide Convention]”, among others.

In response to The Gambia’s Application, the Government of Myanmar raised four preliminary objections to the jurisdiction of the ICJ and the admissibility of the Application, including, that the ICJ lacked jurisdiction, that the Application was inadmissible as the “real applicant” was the Organization of Islamic Cooperation, The Gambia lacked standing to bring the case, among others.

In its judgment of July 22, 2022, the ICJ rejected all four objections and found that it has jurisdiction and that the said Application is admissible. The judgment is final, without appeal and binding on the Parties.

Commenting on the judgment, Wai Wai Nu, a Rohingya advocate, stated, “I’m relieved that the Rohingya genocide case will proceed [without] further delay. We’ve waited so long for this moment. The world must now expedite its efforts to bring justice and accountability for Rohingya. Justice delayed is justice denied.”

Stephen Schneck, Commissioner with the U.S. Commission on International Religious Freedom (USCIRF) welcomed the judgment urging the U.S. Government to “support multilateral mechanisms of accountability such as this case.”

Over the years, Canada and the Netherlands formally supported The Gambia with joint intention to intervene in these proceedings. Other countries, including the United States and the United Kingdom monitor without further involvement. However, on March 21, 2022, Secretary of State Antony J. Blinken formally recognized the atrocities against the Rohingyas as genocide and crimes against humanity. As Secretary Blinken confirmed, this decision was reached based on a factual assessment and legal analysis prepared by the State Department.

As the case proceeds, it is crucial to remember that the military standing accused of genocide is now in power in Myanmar, having taken over power on February 1, 2021. The Rohingya continue to face existential threats in Myanmar but also dire situation in Bangladesh where over a million of Rohingyas found refuge. All parties to the Genocide Convention must act in accordance with their duties to prevent and punish the crime of genocide to ensure comprehensive responses to the atrocities against the Rohingya in Myanmar.