By Waceke Njoroge in Nairobi, Kenya
The International Court of Justice is deliberating on the preliminary objections raised by the government of Myanmar in the case in which The Gambia has accused it of subjecting the Rohingya population living in its territory to genocide.
After the conclusion of the public hearings on the objections to the case designated “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar)’, the court announced that its ruling will be delivered at a public sitting on a date that will be announced “in due course”.
Myanmar has raised four preliminary objections to the case. It alleges that the International Court of Justice (ICJ) lacks jurisdiction to hear the matter. It also claims that the application is inadmissible because the real applicant in the proceedings is the Organisation of Islamic Cooperation (OIC) and not The Gambia. Myanmar cites Article 34, paragraph 1, of the Statute of the International Court of Justice, which provides that only states may be parties in cases before the court. The OIC is an international organisation, not a state, it argues.
A statement issued by the head of the Myanmar delegation to the ICJ and also the country’s agent, Ko Ko Hlaing, the Union Minister for International Cooperation of the republic, said: “Myanmar argues that the court is without jurisdiction, and that the case is inadmissible, in no way means that Myanmar has no answer to The Gambia’s case.”
Myanmar states that there was no dispute between The Gambia and Myanmar when the application instituting proceedings was submitted.
Anther objection is that The Gambia alleges genocide committed outside its own territory against persons who are not its nationals. Myanmar argues that there is no link between The Gambia and the facts of the case. It bases its argument on customary international law, which states that a fundamental condition for the admissibility of claims is that the state espousing a claim must have standing to do so.
“Standing refers to the right to present a claim to the court. It requires the showing of individual prejudice or an individual legal interest in the subject matter of the claim. Such individual interest must be distinguished from a mere general interest that could be invoked by any state,” said Myanmar.
It has raised its objections in response to The Gambia’s written submissions filed on January 20, 2021. The court instructed The Gambia to submit a statement of its observations on Myanmar’s preliminary objections, which it did on April 20, 2021.
The public hearings on the preliminary objections were conducted from February 21-28, 2022, in a hybrid format at the Peace Palace, the seat of the court, in The Hague, the Netherlands. The President of the court, Joan Donoghue, Vice-President Kirill Gevorgian, judges Peter Tomka, Ronny Abraham, Abdulqawi Ahmed Yusuf, Hanqin Xue, Julia Sebutinde, Iwasawa Yuji, Georg Nolte, Hilary Charlesworth, as well as judges ad hoc Navanethem Pillay (The Gambia) and Claus Kress (Myanmar) attended the hearing physically. Judges Mohamed Bennouna, Dalveer Bhandari, Patrick Lipton Robinson, and Nawaf Salam participated by video link.
The delegation of The Gambia was led by Attorney General and Minister of Justice Dawda Jallow, as agent.
In reply, The Gambia, through Jallow, refuted claims that it was acting as a proxy of the OIC. “This is very much a dispute between The Gambia and Myanmar. We seek to protect not only the rights of the Rohingya, but our own rights as a state party to the Genocide Convention by holding Myanmar to its erga omnes partes obligations not to commit genocide, not to incite genocide, and to prevent and punish genocide,” he stated.
The Gambia rejected Myanmar’s preliminary objections and held that the ICJ has jurisdiction to hear the claims it has presented in its application and memorial, which it insisted were admissible. It urged the court to hear the claims on their merit.
On November 11, 2019, The Gambia, in a historic move, brought a case against Myanmar at the International Court of Justice for violating the Genocide Convention.According to the case, The Gambia accuses Myanmar of violating its obligations under the Genocide Convention for the commission of mass atrocities against the Rohingya. It says the discrimination and persecution created the conditions for Myanmar’s security forces, the Tatmadaw, to perpetrate targeted and systemic atrocities against the Rohingya.
It further states that Myanmar’s violations included the commission of genocide against the Rohingya, mostly by way of the systematic and widespread perpetration of mass murder, sexual violence, torture, forced displacement, and denial of access to food and shelter. These conditions have caused over 850,000 Rohingya to flee to Bangladesh since 2016. This is determined on state responsibility and not individual liability. The Netherlands and Canada have announced their intention to intervene in support of The Gambia under Article 63 of the court’s Statute.
According to court records, The Gambia sought the jurisdiction of the court by invoking Article 36, paragraph 1, of the Statute of the court, and Article IX of the Genocide Convention. By an order dated January 23, 2020, the court indicated certain provisional measures addressed to Myanmar to protect the Rohingya remaining in Myanmar from genocide. The Gambia filed its memorial on October 23, 2020.
In February 2021, Myanmar’s armed forces, the Tatmadaw, overthrew the elected civilian government. They filled top governmental positions, including the post of Prime Minister and Deputy Prime Minister, with the senior army generals whom United Nations bodies had accused of being responsible for the acts of genocide that, according to their findings, were committed against the Rohingya people between 2016 and 2018.
Reports compiled and released by the UN bodies since the military takeover demonstrate that an estimated 600,000 largely stateless Rohingya in Rakhine state of Myanmar continue to face existential threats and remain discriminated against in accessing citizenship, freedom of movement, and other fundamental rights. “Since the coup, the junta has demonstrated that it intends to ensure that the Rohingya remain disenfranchised and segregated,” one report says.
They add that an estimated 130,000 stateless Rohingya remain confined in internment camps in Rakhine state, and those in villages throughout the state face increased movement restrictions and are impeded from accessing citizenship, services, and livelihoods. “As a result, the Rohingya remain at grave risk of mass atrocity crimes.”
“As the Myanmar military continues to commit atrocities against anti-coup protesters and ethnic minorities, it should be put on notice there will be consequences for these actions – past, present, and future,” said Akila Radhakrishnan, the president of the Global Justice Centre. “The ICJ’s proceedings are laying the groundwork for accountability in Myanmar – not only for the Rohingya, but for all others who have suffered at the hands of the military.”