The three-day International Court of Justice (ICJ) hearing from December 10 to 12 – in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) – ended with decision pending on provisional measures tabled by Gambia and Myanmar rejecting it.

The Gambia was led by H.E. Mr. Abubacarr Marie Tambadou, Attorney General and Minister of Justice of the Republic of The Gambia, as Agent, while the delegation of Myanmar was led by H.E. Ms Aung San Suu Kyi, Union Minister for Foreign Affairs of the Republic of the Union of Myanmar, as Agent.  

At then end of the hearings, Gambia requested the Court as a matter of extreme urgency to “take all measures within its power to prevent all acts that amount to or contribute to the crime of genocide, including taking all measures within its power to prevent the following acts from being committed against any member of the Rohingya group: extrajudicial killings or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or in part.”

“Myanmar shall, in particular, ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any act of genocide, of conspiracy to commit genocide, or direct and public incitement to commit genocide, or of complicity in genocide, against the Rohingya group.”

The President of the Court, H.E. Judge Abdulqawi Ahmed Yusuf

The submission further stated that: “Myanmar shall not destroy or render inaccessible any evidence related to the events described in the Application; Myanmar and The Gambia shall not take any action and shall assure that no action is taken which may aggravate or extend the existing dispute;  Myanmar and The Gambia shall each provide a report to the Court on all measures taken to give effect to this Order for provisional measures, no later than four months from its issuance; and Myanmar shall grant access to, and cooperate with, all United Nations fact-finding bodies that are engaged in investigating alleged genocidal acts against the Rohingya.”

Myanmar on its part appealed to the Court “to remove the case from its List; and in the alternative, to reject the request for the indication of provisional measures submitted by The Gambia.”

Gambia allegations

The Gambia argues 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 Agent of The Gambia, H.E. Mr. Abubacarr Marie Tambadou

In its Application, The Gambia requests the Court to adjudge and declare that Myanmar:

• has breached and continues to breach its obligations under the Genocide Convention;
• must cease forthwith any such ongoing internationally wrongful act and fully respect its obligations under the Genocide Convention;
• must ensure that persons committing genocide are punished by a competent tribunal, including before an international penal tribunal;
• must perform the obligations of reparation in the interest of the victims of genocidal acts who are members of the Rohingya group, including but not limited to allowing the safe and dignified return of forcibly displaced Rohingya and respect for their full citizenship and human rights and protection against discrimination, persecution, and other related acts, consistent with the obligation to prevent genocide; and
• must offer assurances and guarantees of non-repetition of violations of the Genocide Convention.  

Myanmar response

Lawyer Christopher Staker for Myanmar questioned the standing of Gambia by saying: “Therefore, our submission is not that a non-injured State was generally barred in any conceivable situation from bringing a claim before this Court. Rather, we submit, that it is not possible to circumvent the principle that it is the right of an injured State to decide if, and eventually how, to invoke the responsibility of another State, and that the right of non-injured States to invoke such responsibility is subsidiary.”

The Agent of Myanmar, H.E. Ms Aung San Suu Kyi

“The Gambia (is) acting in these proceedings as a proxy or organ of an international organization, rather than in its capacity as a State party to the Genocide Convention,” argued the lawyer.

“We made the point during the first round that these proceedings are brought on behalf of

and are funded by the OIC (Organization of Islamic Cooperation),” said the lawyer buttressing his allegation.

“It is therefore submitted that the Court should be wary of indicating provisional measures in cases where there is a complex situation on the ground, in relation to which various diplomatic and practical initiatives are in play, without sufficient understanding of the effects that such provisional measures might have. For instance, whatever the reasons may be for the lack of significant repatriations so far, there is widespread support for the principle that repatriations should occur. It must be questioned what would be the effect on such support of a finding by this Court that those returning to Myanmar would be at imminent risk of genocide,” said the lawyer in his closing argument.

In her closing appeal, Myanmar Agent Aung San Suu Kyi said: “Mr. President, it is vital for Myanmar’s present and future that our civilian and military criminal justice systems function in accordance with our Constitution. Where a country has a military justice system, neutralizing this system by externalizing justice in effect surgically removes a critical limb from the body  the limb that helps armed forces to self-correct, to improve, to better perform their functions within the constitutional order.”

“Ending the ongoing internal armed conflict between the Arakan Army and Myanmar’s Defence Services is of the utmost importance for our country. But it is equally important to avoid any reignition of the 2016-2017 internal armed conflict in northern Rakhine,” she added.

Outlook

As mentioned by observers and experts, the case of provisional measures will be decided in a matter of weeks, while the state-sponsored genocide allegation case will drag on for years.

For now, whether the Gambia’s submission will sail through the Court all in tact is anybody’s guess. But pressure on Myanmar “to grant access to, and cooperate with, all United Nations fact-finding bodies that are engaged in investigating alleged genocidal acts against the Rohingya” would likely be granted, if not all the other demands of Gambia’s provisional measures. As this might be the only way to clarify if genocide intent and genocidal undertaking have really taken place from Genocide Convention point of view.

And it is also an open question, if the military justice system which Aung San Suu Kyi so fervently

promoted will be enough to woo the the Court judges, including some remedial undertaking to promote community harmonious living together, which she highlighted with few photographs during her closing appeal at the Court, in Rakhine State, and roll over the Gambia’s provisional measures demand.

We only need to be patient for a few more weeks to see which way the wind would be blowing.