The ICJ provides a forum for states to bring their disputes to be settled peacefully, rather than through conflict. However, it is only as significant as the political will of the international community, a longtime challenge regarding human rights under international law. As notably reported by The New York Times […] Logan: Today, we will be talking about the case that The Gambia has raised in the International Court of Justice against Myanmar. The critical provisional measures ordered by the Court would either contribute directly to a reduction in violence targeted towards the Rohingya or preserve evidence for later accountability. BASIL (Blacks of the American Society of International Law), Women in International Law Mentoring Program, American Journal of International Law & AJIL Unbound, Convention on the Prevention and Punishment of the Crime of Genocide, places an obligation on states to prevent and punish genocide, Independent International Fact Finding Mission on Myanmar, alleged to have killed two women in a Rohingya village, China’s Role in Myanmar’s Internal Conflicts. [2] There remain years’ worth of written submissions and hearings before that issue will be determined. The Gambia is seeking several determinations from the ICJ. Similarly, an extension was granted to Myanmar set at 23 July 2021. This is a landmark case in several respects. 3. Provisional Order of the ICJ in The Gambia vs Myanmar (Genocide Case) In November 2019, The Gambia instituted proceedings in the International Court of Justice (ICJ) against Myanmar over the alleged violations of the Genocide Convention.In its application, The Gambia specifically mentioned that since October 2016, military and security forces of Myanmar had … What is the International Court of Justice and what does it do? A legal finding against a state by the ICJ usually indicates that the Court believes that the state violated international law in some way. Regardless of whether the Court ultimately finds that genocide actually occurred in this case, the day-to-day life of the Rohingyan people would be immeasurably improved and the actors implicated in wrongdoing could potentially face individual criminal accountability. Require Myanmar to cooperate with the United Nations and any of its bodies that might seek to investigate ongoing violence related to the case. The ICJ held a public hearing on that request for three days, 10-12 December 2019. [8] The Court required Myanmar to submit a report to the ICJ within four months on the steps it is taking to comply with these orders. On November 11, 2019 The Gambia submitted an application against Myanmar at the International Court of Justice (ICJ) alleging that Myanmar had violated its obligations under the 1948 Convention on the Prevention and Punishment of the … This legal step has been in the works for some time now, with the announcement by the Gambian Minister of Justice that instructions had been given to counsel in October to file the application. A look at the prospects for the ICJ case, based on past precedent and international law. International law is hardest to enforce against states which do not want to comply with it and which have powerful political allies, especially ones with U.N. veto power, to protect them from official sanction. Gambia v. Myanmar: ICJ Delivers Order on ‘Crime of Genocide’ Part 1 However, in filing this case The Gambia is seeking to enforce the right of the Rohingya to be protected from genocide. . Since both The Gambia and Myanmar are parties to the Genocide Convention, they have both agreed that any dispute they have about the Convention should be resolved by the ICJ. Outside counsel for The Gambia in… 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. In determining which of the measures proposed by The Gambia to adopt, the Court held that Myanmar must take steps to prevent further genocidal acts by its own forces or by groups or forces acting within its territory over which it has any “control, direction, or influence.”[7] It also held that Myanmar must take steps to preserve any evidence of wrongdoing under the Genocide Convention. So what happens now in the case? The judge presiding the case, Abdulqawi Ahmed Yusuf, has given Myanmar four months to implement his rulings: Myanmar must take "all measure within its power" to prevent genocide. These include requests that the Court declare that: The Court will require several years to adjudicate these requests. Myanmar must demonstrate its intent to not commit further violations of the Genocide Convention. The Gambia is entitled to submit comments on Myanmar’s report.[9]. [17], The Court issued a procedural order on the same date, setting filing deadlines of 23 July 2020 for The Gambia's Memorial, and 25 January 2021 for Myanmar's responsive Counter-Memorial. The decision was widely covered in global news outlets and even headlined some websites for several hours, which is notable for an international body normally shunted to the deep recesses of the “world” section. The Gambia is entitled to submit comments on Myanmar’s report. Require Myanmar to immediately stop all acts that could possibly be construed as violations of the Genocide Convention; Require Myanmar to exert control over any non-state actors (like militias or paramilitary groups) that might also be committing such acts; Require Myanmar to preserve evidence (and explicitly forbid it from destroying evidence) which might relate to genocidal acts; Order both The Gambia and Myanmar not to do anything that would further “aggravate or extend the existing dispute”; Require both states to provide regular written reports to the Court about their compliance with any provisional measures the Court might order; and. It is the first time that the ICJ is hearing a genocide case which is not a neighbour of the accused state. Tambadou, who is also the justice minister, visited Rohingya refugees in Cox’s Bazar, Bangladesh, as part of an OIC delegation in 2018 . ", "Factbox: Myanmar on trial for Rohingya genocide – the legal cases", "Report of Independent International Fact-Finding Mission on Myanmar (27 August 2018)", "World court acts to prevent Rohingya genocide", "Aung San Suu Kyi has gone from hero to villain", Application instituting proceedings and Request for the indication of provisional measures, "Foley Hoag Leads the Gambia's Legal Team in Historic Case to Stop Myanmar's Genocide Against the Rohingya | Foley Hoag", "Gambia files Rohingya genocide case against Myanmar at UN court", "The Republic of The Gambia institutes proceedings against the Republic of the Union of Myanmar and asks the Court to indicate provisional measures (press release)", "Aung San Suu Kyi to defend Myanmar in genocide case", "Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) - Request for the indication of provisional measures - The Court to hold public hearings from Tuesday 10 to Thursday 12 December 2019", "The Challenges for the ICJ in the Reliance on UN Fact-Finding Reports in the Case against Myanmar", "U.N. Court Orders Myanmar to Protect Rohingya Muslims", "ICJ Indicates Provisional Measures in the Myanmar Genocide Case", ICJ page on the case with all available official documents, Recap of provisional measures hearing from Opinio Juris blog, day 1 (10 December 2019), Recap of provisional measures hearing from Opinio Juris blog, day 2 (11 December 2019), Recap of provisional measures hearing from Opinio Juris blog, day 3 (12 December 2019), Order on provisional measures (23 January 2020), Separate opinion of Judge Cançado Trindade, https://en.wikipedia.org/w/index.php?title=Rohingya_genocide_case&oldid=1004314312, Wikipedia articles in need of updating from February 2021, All Wikipedia articles in need of updating, Creative Commons Attribution-ShareAlike License, This page was last edited on 2 February 2021, at 00:46. This Insight will address some of the most common questions about the January 23 decision, specifically for those who are not specialists in international law or international dispute resolution. An ICJ Order is a significant decision under international law and should play a critical role in protecting a group under serious threat. Rizwanul Islam. ICJ hearing draws to close as Aung San Suu Kyi faces fresh criticism for defending Myanmar … Essentially, these relate to the Court’s jurisdiction over the parties and the issue (prima facia jurisdiction), whether there is arguably a link between the rights asserted (which the court must determine are “plausible”) and the requested preliminary measures, and the urgency and scope of the potential harm. On 11 November 2019, The Gambia lodged a 35-page application with the ICJ against Myanmar, initiating the case on the basis of the erga omnes character of the obligations enshrined in the Genocide Convention. Provisional measures serve as the equivalent of injunctions or even temporary restraining orders against a country. The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), commonly referred to as the Rohingya genocide case,[1][2] is a case currently being heard by the International Court of Justice (ICJ). [10] Statute of the International Court of Justice, art. The Rohingya people are a Muslim Indo-Aryan[3] ethnic minority in Buddhist majority Myanmar who, in recent years, have faced mass persecution and ethnic cleansing that has been described as a genocide. There are very specific circumstances in which provisional measures may be authorized by the Court. On November 11, 2019, The Republic of The Gambia filed suit against Myanmar in the International Court of Justice (“ICJ”) for violating the Genocide Convention. And yet, the actual effect depends on whether Myanmar chooses to follow the Court’s provisional measures order. On 11 November 2019, the Republic of The Gambia (hereinafter “The Gambia”) filed in the Registry of the Court an Application instituting proceedings against the Republic of the Union of Myanmar (hereinafter “Myanmar”) concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the “Genocide Convention” … 66-67, ¶ 9 in the Verbatim Record. Gambia’s Attorney General Abubacarr Tambadou, who spent more than a decade prosecuting cases from Rwanda’s 1994 genocide, had already expressed a personal commitment to the case. Official citation: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. November 30, 2019 What Does the ICJ Decision on The Gambia v. Myanmar Mean? In the meantime, due to the ongoing threat to the Rohingya population, The Gambia also requested the Court rule on “provisional measures” designed to protect the Rohingya while these legal questions are being considered. A/HRC/42/CRP.5 (Sept. 16, 2019) ¶ 242. 41(2). [2] Order, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) (Jan. 23, 2020). 1 (Sept. 2018), p. 32. It is also the first time that the ICJ has investigated genocide claims on its own, without relying on findings of other tribunals. See pp. According to a press release issued by the Court, The Gambia requested a series of five provisional measures "to preserve . Unfortunately, while the Myanmar military has said it won’t destroy any evidence, Myanmar political leadership has already said they don’t think they need to implement any special procedures to comply with the Court’s Order, arguing they have not committed genocide and thus do not need to change anything they are doing. On 23 January 2020, the International Court of Justice (ICJ) delivered a unanimous judgment requiring Myanmar to take steps to prevent the genocide of the Rohingya people. The ICJ is sometimes confused with the International Criminal Court (ICC, also located in The Hague), which adjudicates individual criminal legal responsibility. In this case, The Gambia fears further harm to the Rohingya population. Oral hearings were held on December 10, and the ICJ issued its order on January 23, 2020, which was consistent with the average time needed for the Court to issue an order on provisional measures. Myanmar cannot be trusted to put own soldiers on trial: Gambia. Intervention Of Canada And The Netherlands In The Gambia v Myanmar ICJ Case October 28, 2020 Tate De Silva On 2 September 2020 Canada and the Netherlands in a joint statement declared their intention to intervene in the case of The Gambia v Myanmar before the International Court of Justice (ICJ). Having reviewed the submissions from both states and the independent evaluations of the situation on the ground in Myanmar, the Court held that “there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia.”[6] Accordingly, the Court found that it was justified in issuing provisional measures. © 2021 The American Society of International Law [4][5][6] The state government deems them illegal immigrants, but the Rohingya people argue that they have lived in the area for generations and that this treatment is unfair to the Muslims. [10] U.N. Secretary-General António Guterres issued a statement taking official notice of the ruling and expressing that he “trusts that Myanmar will duly comply.”. The Gambia asked for provisional measures designed to: The Gambia filed the request for provisional measures on November 11, 2019, and requested that the ICJ issue an order as soon as possible, given the urgent nature of the ongoing threat to the Rohingya population. All rights reserved. What does this mean for the Rohingya people? 2223 Massachusetts Ave., NW, Washington DC 20008 This order is the result of an application filed by The Gambia on 11 November 2019 at the ICJ. In its January 23 order, the court did not determine that Myanmar had committed genocide. No, and that is the concern of many non-governmental organizations and governments who know that compliance with international law relies in large part on the cooperation of concerned states. Contentious cases cannot be brought by individuals or groups against a state — only states can bring contentious cases against other states. Please click the button below to get started. Opinion Opinion: Gambia's case against Myanmar no help to Rohingya. The Gambia vs. Myanmar is a contentious case between two states. The Gambia, an African nation located more than 11,500 kilometers from Myanmar, filed a case at the ICJ claiming that a conflict exists between it and Myanmar regarding the interpretation and application of the Convention based on how the government of Myanmar was treating the Rohingya population, which the Gambia claimed rose to the level of genocidal acts. Yesterday, the International Court of Justice issued its decision relating to the request for provisional measures in the case brought by The Gambia against Myanmar, relating to the Genocide Convention and the Rohingya. The ICJ first determined that it has “prima facie jurisdiction,” to justify issuing an order for provisional measures, meaning that The Gambia has made an initial showing sufficient to satisfy the Court, on a basic level, that it has the authority to adjudicate the dispute. [1] The sixth provisional measure requested was submitted during oral proceedings on December 10, 2019, but was not part of the original written submission. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), List of International Court of Justice cases, "Fallen rights icon at UN court for Rohingya genocide case", "Rohingya Genocide Case Against Myanmar Opens Before U.N. Court", "Rohingya Ethnic Muslim Minority and the 1982 Citizenship Law in Burma", "Is refugee crisis 'textbook ethnic cleansing'? The order "indicated" (i.e., issued) provisional measures ordering Myanmar to prevent genocidal acts against the Rohingya Muslims during the pendency of the case, and to report regularly on its implementation of the order. Both The Gambia and Myanmar have ratified the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. [11] See U.S. Institute of Peace Senior Study Group Final Report, “China’s Role in Myanmar’s Internal Conflicts,” No. The future of the conflict in Myanmar, and the protection of the Rohingya population, is still very much in question. Persons with expertise in international law who are interested in writing ASIL Insights are encouraged to submit proposals. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) - The Court indicates provisional measures in order to preserve certain rights claimed by The Gambia for the protection of the Rohingya in Myanmar. Is there any way to ensure that Myanmar complies with the Court’s order (for example, through police or peacekeepers)? The impact of the Order will be decided in the months and years to come. . The Gambia must submit its written memorial by July 23 and Myanmar must submit its response by January 23, 2021. The Gambia filed this case at the ICJ in November 2019. [19], Analyzing the decision in the blog of the European Journal of International Law, Dr. Marko Milanovic, a professor at the University of Nottingham School of Law, called the Court's order "obviously a win for The Gambia, and for the Rohingya cause more generally," but also noted that the order largely only replicated existing "state obligations under the Genocide Convention," and did not include the broader measures and statements that The Gambia had requested.[20]. It is located in The Hague, the capital of The Netherlands, and it is specifically designed to handle disputes between nations (identified as “states” under international law). PDF version. Radio Free Asia has a video of Rohingya refugees watching the Court’s reading of the Order and an article with some on-the-ground interviews of those refugees discussing their feelings. On 11 November 2019, The Gambia filed an application at the International Court of Justice against Myanmar, alleging violation of obligations under the Genocide Convention. [9], On 11 November 2019, The Gambia lodged a 35-page application with the ICJ against Myanmar, initiating the case on the basis of the erga omnes character of the obligations enshrined in the Genocide Convention. On 23 January 2020, the International Court of Justice issued its decision in the request for indication of provisional measures in the case filed by The Gambia against Myanmar. The Gambia was led by H.E. 3. Gambia’s Genocide Case Against Myanmar: A Legal Review By Md. Please update this article to reflect recent events or newly available information. Myanmar is to face accusations of genocide at the UN’s highest court over its treatment of Rohingya Muslims. Summary 2020/1 23 January 2020 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) 23 January 2020. To prevent automated spam submissions leave this field empty. Available in: About the Author: D. Wes Rist is the Deputy Executive Director at the American Society of International Law and a member of the civil society Prevention and Protection Working Group that engages on atrocity prevention issues. On October 23, The Gambia filed a more than 500-page Memorial, which also includes more than 5000 pages of supporting material, in its lawsuit against Myanmar at the International Court of Justice in The Hague, making its case for how the Government of Myanmar is responsible for genocide against its own Rohingya population. At the same time, military strikes against Rohingya populations continued even after the Court’s ruling, such as the artillery fire alleged to have killed two women in a Rohingya village. In The Hague, Myanmar's government claims that actions taken against the … The application alleged that Myanmar has committed mass murder, rape and destruction of communities against the Rohingya group in Rakhine state since about October 2016 and that these actions violate the Genocide Convention. This was an order specifically addressing the short term, urgent request by The Gambia for provisional measures. The ICJ has released the schedule for both sides to submit their legal briefs addressing the issues on the merits that are in dispute. Outside counsel for The Gambia includes a team from the law firm Foley Hoag led by Paul Reichler, as well as Professors Philippe Sands of University College London and Payam Akhavan of McGill University. [11][12][13] On the other side, leader and State Counsellor Aung San Suu Kyi is representing Myanmar, along with a legal team. Gambia files Memorial with ICJ over Myanmar Oct 26, 2020, 11:02 AM The Republic of The Gambia filed its “Memorial” with the International Court of Justice (ICJ) in the Hague in the case it brought against Myanmar under the Genocide Convention last year, according to a … Text of International Court of Justice Provisional Judgement: The Gambia vs Myanmar- Rohingya Genocide. Environment, Health, Science, and Technology, Human Rights and International Criminal Law, International Organizations and Governance, Law of Armed Conflict and International Security, Transnational Litigation, Arbitration, and Dispute Resolution. On January 23, 2020, the International Court of Justice (ICJ) indicated provisional measures in the case of The Gambia v. Myanmar. The ICJ Statute requires that the order for provisional measures be transmitted to the U.N. Security Council for review. Phone +1-202-939-6001 On Thursday, January 23, 2020, the International Court of Justice (ICJ) issued its decision on the request for provisional measures in the case of The Gambia v. Myanmar. Aung San Suu Kyi, State Counsellor and Minister of Foreign Affairs of Myanmar (formerly known as Burma), will lead the delegation of her state in a case initiated by the Gambia, a tiny Western African nation, under the 1948 Genocide Convention before the International Court of Justice (ICJ).. Suu Kyi’s presence will add to the global attention to this case. Contentious cases cannot be brought by individuals or groups against a state — only states can bring contentious cases against other states. Article IX of the Genocide Convention explicitly provides that any dispute between states that have agreed to follow the Convention should be resolved by the ICJ. What are “provisional measures” and what do they do? Myanmar’s main arguments were based on a mix of outright denial, the claim that Gambia was being influenced by the OIC to pursue the case, and that Myanmar’s domestic and military justice mechanisms were capable of resolving the issue. Outside counsel for the ICJ article XIV of the Rohingya to be protected from.., urgent request by the Court declare that: the Court ’ s provisional measures `` to.! 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