ICJ case against Myanmar: Why The Gambia?

Myanmar’s military committed extensive atrocities against ethnic Rohingya Muslims. These atrocities reached the peak during the military-led brutal ethnic cleansing campaign, beginning in mid-2017. With the fear of persecution, the Rohingyas fled to Bangladesh, giving birth to one of the largest refugee crises in the history of the world.  

Alleging that Myanmar’s atrocities against the Rohingya in Rakhine State violate various provisions of the Convention on the Prevention and Punishment of the Crime of Genocide (otherwise known as “the Genocide Convention”), The Gambia - with the support of 57 members of the Organisation of Islamic Cooperation (OIC) - has filed a case before the International Court of Justice (ICJ). The Gambia ratified the Convention in 1978. Interestingly, Myanmar has been a party to the Genocide Convention since 1956.

The case has been brought by The Gambia in pursuance of article 9 of the Convention, which allows any party to the Convention to submit disputes to the ICJ between parties relating to the responsibility of a State for genocide. The ICJ previously confirmed in the case concerning application of the Genocide Convention (Bosnia and Herzegovina v Yugoslavia) that all member States of the Convention have a duty to prevent and to punish genocide. The judgment stated that the rights and obligations enshrined in the Convention are rights and obligations erga omnes (owed to and enforceable against everyone).

The case before the ICJ is not a criminal case against individual alleged perpetrators and hence it does not involve the International Criminal Court (ICC). Rather, the case is a State’s litigation brought against another State governed by legal provisions in the UN Charter, the ICJ Statute, and the Genocide Convention.

This has been a historic filing of case because for the first time without being directly affected by the alleged crimes, a State has used its membership nder the Genocide Convention to bring a case before the ICJ.

Compiled by Law Desk (SOURCE: hrw.org).