On 22 July 2022, the International Court of Justice (the “ICJ” or “Court”) upheld jurisdiction in the case Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), dismissing all four preliminary objections raised by Myanmar. The Gambia instituted proceedings in 2019, arguing that Myanmar had violated the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) through its treatment of members of the Rohingya group that resides primarily in Myanmar’s Rakhine State. In January 2020, the Court unanimously prescribed provisional measures, which, inter alia, required Myanmar to prevent the commission of acts of genocide under Article II of the Genocide Convention.
[Read more]
First, Myanmar argued that the Court lacked jurisdiction ratione personae or, in the alternative, that the Application was inadmissible, because the “real applicant” was the Organisation of Islamic Cooperation. In unanimously dismissing this objection, the ICJ found “no reason why it should look beyond the fact that The Gambia has instituted proceedings against Myanmar in its own name”. The Court observed that accepting a proposal from an intergovernmental organization (to bring a case) or seeking and obtaining financial and political support from that organization for the proceedings did not detract from a State’s status as applicant before the ICJ. As for admissibility, the Court observed that “it is only in exceptional circumstances that the Court should reject a claim based on a valid title of jurisdiction on the ground of abuse of process”. On the facts, the ICJ found no evidence that The Gambia’s conduct had amounted to an abuse of process.
Second, Myanmar argued that the Application was inadmissible because The Gambia lacked standing. In particular, Myanmar argued that (i) only “injured States” could present a claim under Article IX of the Genocide Convention and (ii) members of the Rohinga group were not nationals of The Gambia. In dismissing this objection by 15 votes to one, the Court ruled that any State party to the Genocide Convention was entitled to invoke the international responsibility of another for an alleged breach of obligations erga omnes partes. Because of the “common interest in compliance” with obligations under the Genocide Convention, no “special interest” of a State party was required.
Judge Xue dissented on this preliminary objection – in particular, as regards the interpretation of Article IX of the Genocide Convention. She opined, inter alia, that the applicant State required a “special interest” to have standing or must have “a territorial, national or some other form of connection with the alleged acts”. She also considered that the travaux préparatoires to the Genocide Convention supported a narrower interpretation of Article IX.
Third, Myanmar raised a jurisdiction and admissibility objection based on its reservation to Article VIII of the Genocide Convention. Myanmar argued that its reservation precluded recourse to “competent organs of the United Nations”, which included the ICJ. In unanimously dismissing this objection, the Court said that, viewed in isolation, the ordinary meaning of the expression could appear to encompass the Court. However, reading Article VIII “as a whole” led to a different interpretation, because the function of the competent organs of the UN differed from that of the ICJ. In that sense, Article VIII addressed the prevention and suppression of genocide “at the political level rather than as a matter of legal responsibility”. Also, when Article VIII was interpreted in light of other provisions in the Genocide Convention – in particular, Article IX, which provides for recourse to the ICJ for disputes between Contracting Parties – it followed that Article VIII did “not govern the seisin of the Court”.
Fourth, Myanmar argued that the Court lacked jurisdiction or, in the alternative, that the Application was inadmissible, because no dispute had existed between the Parties when The Gambia instituted proceedings. The ICJ recalled its earlier decisions on the definition of a “dispute” and noted that the parties’ conduct after proceedings commence may “confirm the existence of a dispute”. After examining the Parties’ prior statements before the UN General Assembly in September 2018 and September 2019, the Court unanimously found that a “dispute” existed, because the Parties had held opposing views on whether Myanmar’s treatment of the Rohinga group complied with the Genocide Convention. For “opposite views” to exist, there was no requirement that the respondent State “expressly oppose” the applicant State’s claims; rather, in certain circumstances, the respondent State’s rejection of claims could be “inferred” from “silence”. The ICJ concluded that Myanmar was also aware of The Gambia’s opposition to Myanmar’s views through UN Fact-Finding Mission reports of 2018 and 2019, as well as a 2019 note verbale from The Gambia to Myanmar.
The ICJ’s preliminary objections judgment is available here.
Judge Xue’s dissent is available here.
Judge Kress’ declaration is available here.