Of late, the social media and news media in Bangladesh have been brimming with questions and concerns about The Gambia’s case against Myanmar at the International Court of Justice (ICJ). This essay will briefly address a few of such questions which are of legal nature.
The most recurring question is why Bangladesh has refrained from filing a case against Myanmar for violation of the Genocide Convention. Arguably, there are both strategic and legal reasons why Bangladesh did not volunteer to file any case against Myanmar at the ICJ. Myanmar is one of the two countries with whom Bangladesh shares its borders. Hence, it is not unusual that Bangladesh will evade any head to head situation with Myanmar over the treatment of its own inhabitants. There are many strategic disadvantages in pursuing cases against an immediate neighbour, not to mention the high litigation cost and political repercussions. From legal viewpoint, there appears to exist no legal dispute between Bangladesh and Myanmar over Myanmar’s observance of the Genocide Convention. Bangladesh has not formally taken issue with Myanmar over the alleged Rohingya Genocide in any bilateral or multilateral forums. Without the existence of a well crystallised legal dispute, any ICJ proceedings may not get through the preliminary objection phase.
Many people have expressed concern if Bangladesh will be able to intervene in The Gambia’s case against Myanmar. Articles 62 and 63 of the Statute of the ICJ allow a state to intervene in a case pending before the ICJ. Should Bangladesh consider that it has ‘an interest of a legal nature’ to protect, which may be affected by the ICJ’s decision in The Gambia’s case, it may decide to intervene under article 62 of the aforesaid Statute. Alternatively, Bangladesh may intervene under article 63 of the same Statute for the reason that interpretation of the Genocide Convention to which Bangladesh is also a signatory state is a matter in issue in this case (para 23 of The Gambia’s Application Instituting Proceedings). In the latter case, the judgment of the ICJ will be equally binding on Bangladesh like The Gambia and Myanmar.
Another frequently asked question is whether the ICJ could declare the Rohingyas as Myanmar citizens and order their repatriation. In its Application Instituting Proceedings, The Gambia has asked for safe and dignified return of the forcibly displaced Rohingyas as well as respect for their full citizenship and human rights. However, the ICJ is unlikely to uphold such request since it does not have any nexus with the contents of the Genocide Convention. For example, in the recently concluded Jadhav Case (India v Pakistan), the remedies requested by India included either annulment of the decision of the Pakistani military court, or in the alternative restraining Pakistan from giving effect to the said sentence, and so forth. The ICJ declined to grant this request on the grounds that its jurisdiction derived from article I of the Optional Protocol, which is limited to interpretation or application of the Vienna Convention on Consular Relations and does not extend to India’s claims based on other rules of international law like the ICCPR [paras 125-126, 135-137 of Judgment dated 17 July 2019 (Merits)].
Can Bangladesh bring a case against Myanmar before the ICJ asking for repatriation of the Rohingyas? To begin with, the jurisdiction of the ICJ in contentious proceedings comes from the consent of the states. According to article 36 of the ICJ Statute, states may signify their consent to jurisdiction of the Court in the following manner: (1) by means of special agreement or compromis between the disputing states (2) in virtue of a compromissory clause in a treaty, and (3) optional clause declaration. Bangladesh and Myanmar have concluded a treaty titled, ‘Arrangement on Return of Displaced Persons from Rakhine State’ dated 23 November 2017 in order to facilitate repatriation of the Rohingyas to their homeland. However, it is to be noted that this Agreement does not contain a compromissory clause accepting the jurisdiction of the ICJ. Moreover, neither Bangladesh nor Myanmar deposited any optional clause declaration accepting the jurisdiction of the Court. Therefore, for the time being Bangladesh will not be able to espouse the cause of Rohingya repatriation or their citizenship before the ICJ.
A good many people have asked if the ICJ can still be availed of to facilitate Rohingya repatriation. The fact is that no Rohingya has hitherto returned to Myanmar despite conclusion of the aforesaid repatriation treaty. The reason is they believe that their plight will not end without citizenship rights. The prevailing Citizenship Law of Myanmar does not recognise the Rohingyas as the nationals of Myanmar. In Myanmar, they are considered to be Bangladeshi expatriates. Hence, it is clear that Rohingya repatriation now hinges on the recognition of their demand for Myanmar nationality. In this context, an advisory opinion from the ICJ on the question of nationality of the Rohingyas could be a useful tool to address this matter. A favourable ICJ advisory opinion, despite having no binding force, will nevertheless help the issue of Rohingya nationality transform into a matter worth greater international attention. It will uphold the morale of the Rohingyas, might also encourage their return to Myanmar. Therefore, it is advisable that Bangladesh should take steps to move the UN General Assembly for this purpose. The Chagos Archipelago advisory opinion (25 February 2019) makes a comparable example of this kind of move.
And lastly, if there are any weak spots in The Gambia’s case against Myanmar. It appears from the Application Instituting Proceedings that the mainstay of The Gambia’s theory of dispute is based on an unreciprocated note verbale dated 11 October 2019 urging Myanmar to comply with the Genocide Convention. The Gambia thereafter instituted the current proceedings on 11 November 2019 without further ado. Generally speaking, an international legal dispute is said to exist when there is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons (Mavrommatis Palestine Concessions case). According to ICJ jurisprudence, mere assertion is not sufficient to prove the existence of a dispute. It must be shown that the claim of one party is positively opposed by the other (South West Africa case). Hence, it is very much probable that Myanmar will try to capitalise on the aforesaid fact at the preliminary objection phase by contending that The Gambia’s application is inadmissible for non-existence/lack of crystallisation of dispute. The procedure of the ICJ recognises any objection as to jurisdiction or admissibility as preliminary objections (articles 79, 79bis and 79ter of the Rules of the Court).
Finally, it will be interesting to see how the ICJ deals with Myanmar’s reservation to articles VI and VIII of the Genocide Convention in the light of its own advisory opinion on reservations to the Genocide Convention (28 May 1951) if The Gambia’s case against Myanmar succeeds in getting through to the merits phase. Let’s wait and see.
The writer is an Advocate, Supreme Court of Bangladesh.