GAMBIA VS. MYANMAR CASE
Author: Akriti Shukla, IV year of B.B.A.,LL.B. from Banasthali Vidhyapith
Gambia accuses Myanmar of historical genocidal acts 2019's The Gambia v. Myanmar case, which involves the genocide of the Rohingya, is being heard by the International Court of Justice
1. Why has the genocide against the Rohingyas been covered in the media?
Global media coverage of THE genocide of the Rohingya has been extensive. It has given international lawyers a chance to emphasize the importance of their profession.
This situation has undergone two significant developments. In 2019, an enquiry was opened at the International Criminal Court (the "ICC"). According to Article 7.1.d of the Rome Statute of the ICC, the Office of the ICC Prosecutor filed a request regarding the allegations of crimes against humanity involving the deportation or forceful transfer of population from Myanmar to Bangladesh.
Second, the Republic of the Gambia applied to the International Court of Justice (the "ICJ") alleging that the Republic of the Union of Myanmar violated the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and requesting the ICJ to adopt preliminary measures.
2. What transpired in the ICJ case between The Gambia and Myanmar?
The International Court of Justice decided on January 23, 2020, after hearing from both sides, that Myanmar shall:
1. Follow the Convention's directives to "take all steps within its power to avoid the commission of all actions within the ambit of Article II;"
2. Confirm that its military did not engage in any of the behavior listed in (a), including complicity in genocide, direct and open incitement to commit genocide, and attempted genocide;
3. Take concrete steps to protect evidence pertaining to alleged activities covered by Article II of the Convention from being destroyed and to secure its preservation;
4. Report to the ICJ on all actions taken to carry out its order within four months of the order's date but thereafter every six months until the ICJ has reached a final determination.
The International Court of Justice's jurisdiction over the case was then contested by Myanmar on January 20, 2021. Four concerns were voiced by Myanmar.
First, the "Court lacks jurisdiction, or alternatively the application is inadmissible, since the genuine petitioner in these hearings is the Organization of Islamic Cooperation." The Gambia lacks standing under Article IX of the Convention to bring this issue before the ICJ, hence the application was inadmissible. As a result of Myanmar's reservation to Article VIII of the Convention, The Gambia was unable to legitimately take the ICJ, and as a result, the application was deemed to be inadmissible. The fourth defence claims that "the Court lacks jurisdiction, or alternatively, the application is inadmissible, as there was no dispute between The Gambia and Myanmar over the date of filing the Application commencing from the date of the Application being filed,"
On July 22, the ICJ issued a decision on their objections. The first, third, and fourth complaints were all dismissed by a unanimous vote. By a divided vote of 15 to 1, it also dismissed the second complaint. To ascertain whether The Gambia and Myanmar really had a dispute for the ICJ to decide, it is crucial to examine the judgment and the arguments put up by both parties.
3. The ICJ's determination that a dispute exists between The Gambia and Myanmar was made in what manner?
The Gambia's application is based on Article IX of the Convention, which says that:
"Disputes between both the Parties To the contract relating to the interpretation, application, or fulfillment of the present Convention, including those relating to a State's responsibility for a genocide or for any of the additional acts enumerated in article III, shall, at the request of any of the parties to the dispute, be submitted to the International Court of Justice." (I have underlined to emphasize)
Myanmar said that The Gambia was speaking on behalf of the International Organization of Islamic Cooperation (OIC). This was Myanmar's first disapproval.
According to Article IX of the Convention, Myanmar claimed that there was no disagreement between The Gambia and itself. It said that the accusations of genocide were political and not legal since they were represented in papers and remarks made by or at the OIC. Additionally, it claimed that there was no shared understanding of the competing viewpoints held by the parties who made up the dispute.
The Gambia refuted these assertions by citing remarks made by its President and Vice-President during the general discussion of the 74th session of the United Nations General Assembly (the "UNGA"), specifically that "Gambia is prepared to lead the combined effort for trying to take the Rohingya issue to the International Court of Justice."
The ICJ concluded that the mutual awareness defence is unpersuasive and supported The Gambia's allegations. It claimed that since Myanmar had not responded to the president and vice president of The Gambia's words, Myanmar had disproved their assertions. Basically, it was assumed that there was a conflict because of Myanmar's quiet.
The UN Fact-Finding Mission's 2018 report on Myanmar, remarks made by representatives of The Gambia and Myanmar before the UNGA, and a note-verbale delivered by The Gambia to Myanmar are all mentioned throughout the ruling.
Based on these three references, the International Court of Justice (ICJ) decided that The Gambia and Myanmar were involved in a dispute under Article IX of the Convention.
It is debatable whether the ICJ correctly read the references, especially in identifying a conflict under the first two references.
4. According to the parties' declarations, was there a conflict between Both the Gambia and Myanmar?
In other rulings, the ICJ has said that in order to establish the existence of a controversy, it is necessary to consider both bilateral and multilateral exchanges of remarks or documents between the parties. Specifically, "the creator document, real audience, and their substance," is given particular consideration by the ICJ while doing this, according to its statement. The remarks in issue in the current situation were made by the President and Vice-President of Gambia as well as the Union Minister for the Office of the State Counsellor of Myanmar.
While it is important to take these authorities' words into account when determining if there is a disagreement, it is their statements' substance that has to be emphasized. The Gambian President said that his nation would support an accountability system that would guarantee those responsible for the heinousgenocideagainst the Rohingya Muslims were brought to justice in this regard in 2019. The UN Fact-Finding Mission's conclusions were criticized three days later by Myanmar's Union Minister for the Office of the State Counsellor as being "based on narratives and not on real facts" in his statement to the UNGA.
The Gambia claims that these assertions make it very evident that the parties are at odds. But whether there was a disagreement between both the two parties as a result of these words alone is debatable.
The vice president of the Gambia further said that his country intended to "lead coordinated efforts to bring the Rohingya matter to the International Court of Justice." Two days later, the Union Minister of Myanmar's Office of the State Counselor rejected the UN Fact-Finding Mission's findings, calling it "biassed and defective, focused not on facts but on narratives."
These utterances, according to The Gambia, indicate that Myanmar was aware that The Gambia had opinions that differed from its own about Myanmar's legal obligations under the Convention.
While these remarks do suggest that The Gambia believed Myanmar had committed genocide, they do not suggest that there is any disagreement between the parties about the Convention. Myanmar has criticised the UN Fact-Finding Mission's findings in both remarks. Although it was not compelled to, it did not respond to The Gambia's assertion.
5. What effect did the findings of the UN Fact-Finding Mission have on the ICJ case?
The report of the UN Fact-Finding Mission has been frequently used by The Gambia and the ICJ. The remarks provided by Myanmar government representatives refute this story. This study provides the foundation for The Gambia's claim that Myanmar committed genocide.
According to the article, The Gambia's position appears to be that Myanmar has committed genocide. While The Gambia mentioned this study in its pronouncements, Myanmar casts doubt on it, suggesting that it does not agree that genocide was committed. This is considered to be a sign of a conflict between Myanmar and The Gambia.
This result seems to be a stretch of the case. Even if we were to believe it, it would not establish that Myanmar and The Gambia are involved in a conflict. The report's denial by Myanmar cannot be compared to The Gambia's denial of allegations.
However, the Gambia's allegations may be taken in one of two ways depending on Myanmar's quiet, therefore it is challenging to refute the ICJ's argument that there is a disagreement based on Myanmar's silence.
6. Does the Note Verbale that The Gambia addressed to Myanmar establish that the two parties are engaged in conflict?
A Note Verbale, sometimes known as a "verbal note," is a formal document communication between two nations. In this case, The Gambia addressed a Note Verbale to Myanmar after the UNGA comments, and it strongly cited the findings of the UN Fact-Finding Mission. Myanmar, however, didn't respond to the Note Verbale.
In light of the fact that Myanmar had previously rejected the report, shouldn't it have done so once again in its reply to The Gambia? What prevented it from repeating it in response to the Note Verbale? In any case, the claim that a disagreement existed should only have been based on Myanmar's failure to respond to the Note Verbale.
By a vote of 15 to 1, the International Court of Justice (ICJ) decided last month that "it has jurisdiction, on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, to entertain the Application filed by the Republic of The Gambia on November 11, 2019, and that the said Application is admissible." Myanmar has until April 24, 2023, in which to file its countermemorial. The ICJ will then continue with the case's merits hearing.
As a result, The Gambia seems to have won the argument over whether there is a conflict between it and Myanmar.