ICJ allows Rohingya genocide case to proceed over objections from Myanmar
© WikiMedia (Zlatica Hoke (VOA))
ICJ allows Rohingya genocide case to proceed over objections from Myanmar

The International Court of Justice (ICJ) ruled in a 15-1 decision Friday that The Gambia is allowed to file proceedings against Myanmar for violating provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. The Gambia, along with many other countries and the UN, has claimed that Myanmar has subjected its Rohingya Muslim community to mass rape and murder, forced expulsion, and the burning of villages .

The Gambia initially brought its case against Myanmar in November 2019. In an attempt to stop proceedings, Myanmar filed four preliminary objections with the ICJ in January 2021, wherein Myanmar claimed that the ICJ lacks jurisdiction in the matter and that The Gambia lacks standing to bring the case.

The first objection brought by Myanmar claimed that the ICJ lacked jurisdiction because the case was filed on behalf of a non-state party, the Organisation of Islamic Cooperation, a claim which The Gambia denied. The ICJ unanimously rejected this claim on the grounds that The Gambia “instituted the present proceedings in its own name, as a State party to the Statute of the Court and to the Genocide Convention.”

Myanmar also asserted that the ICJ lacked jurisdiction because The Gambia and Myanmar were not in a dispute as defined by Article IX of the Genocide Convention. The court unanimously ruled that The Gambia and Myanmar were in a dispute concerning the Rohingya Genocide by virtue of the countries holding different views on the same matter.

Myanmar’s third objection contested that since its predecessor, the Union of Burma, deposited with reservations to Article VIII of the Genocide Convention, meaning the article does not apply to Myanmar. Article VII states allows any party to the convention to ask the “competent organs of the United Nations” to intervene in cases of suspected genocide. The court again unanimously rejected Myanmar’s argument by saying, “function of the competent organs envisaged in this provision is thus different from that of the Court, ‘whose function is to decide in accordance with international law such disputes as are submitted to it.”

The last objection listed in the judgement was the only one that the judges did not reject unanimously. Myanmar said that the Gambia was not an “injured State” and therefore lacked standing to bring it to the ICJ. The court disagreed. The judgement said that states have a “common interest” in preventing and punishing genocide and that “such a common interest implies that the obligations in question are owed by any State party to all the other States parties to the relevant convention.” Judge Xue Hanqin dissented from the ruling, indicating that she would not have allowed The Gambia to bring the case as a result.

Xue contended that the negotiations surrounding the Genocide Convention showed that the signatories did not intend for non-injured parties to bring suits against other parties. She said in her dissent that:

The treaty was drafted at a time when the notions of obligations erga omnes partes or erga omnes were not established in general international law. During the negotiation process of Article IX, contracting parties did not have much discussion on the word “disputes”; its ordinary meaning was presumed to refer to bilateral disputes.