Searching for ‘dispute’ in The Gambia versus Myanmar (2019): A case before the International Court of Justice on the Rohingya genocide

The ICJ has decided that it has jurisdiction to admit a case on the Rohingya genocide by The Gambia against Myanmar, by simply interpreting the latter's silence over the former's claims, to prove 'dispute' between the two.

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Why the Rohingya genocide case has been in the news?

THE Rohingya genocide has received considerable attention throughout the world. International lawyers have taken it as an opportunity to assert the significance of their field.

Two important developments have happened in this regard. The first was the initiation of an investigation at the International Criminal Court ('ICC'), in 2019. The Office of the Prosecutor of the ICC submitted a request on the allegations of crimes against humanity of deportation or forcible transfer of population from Myanmar to Bangladesh under Article 7.1.d of the Rome Statute of the ICC.

Second, the Republic of the Gambia submitted an application to the International Court of Justice ('ICJ') alleging violation of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 by the Republic of the Union of Myanmar, and requested the ICJ to issue preliminary measures.

Also read: International Law Omissions in Rohingya Deportation Order

What happened in the matter of The Gambia versus Myanmar at the ICJ?

The ICJ, after hearing both the parties, issued a decision on January 23, 2020, in which it held that Myanmar shall:

1. Take "all measures within its power to prevent the commission of all acts within the scope of Article II" of the Convention;
2. Ensure that its military did not commit any acts described in point (a), of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide;
3. Take effective measures to prevent the destruction, and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention; and
4. Submit a report to the ICJ on all measures taken to give effect to its order within four months from the date of the order, and thereafter every six months, until a final decision was rendered by the ICJ.

Subsequently, on January 20, 2021, Myanmar raised objections on the ICJ's jurisdiction and admissibility of the case. Myanmar raised four objections.

First, that the "Court lacks jurisdiction, or alternatively the application is inadmissible, as the real applicant in these proceedings is the Organisation of Islamic Cooperation". Second, that the application was inadmissible, as The Gambia lacked standing to bring this case before the ICJ under Article IX of the Convention. Third, that the application was inadmissible, as The Gambia could not validly seize the ICJ due to Myanmar's reservation to Article VIII of the Convention. Fourth, that "the Court lacks jurisdiction, or alternatively the application is inadmissible, as there was no dispute between The Gambia and Myanmar on the date of filing of the Application instituting proceedings".

On July 22, the ICJ ruled on those objections. It unanimously rejected the first, third and fourth objections. Additionally, it rejected the second objection with a split vote of 15 to 1.

It is important to analyse the decision and the arguments made by both the parties to determine whether there even was a dispute between The Gambia and Myanmar for the ICJ to adjudicate upon.

Also read: As Ukraine and Russia (in absentia) battle it out at the International Court of Justice, the question of genocide is under scrutiny

How did the ICJ come to the conclusion of the existence of a dispute between The Gambia and Myanmar?

The Gambia's application is based on Article IX of the Convention, which states that:

"Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute." (emphasis supplied)

Myanmar asserted that The Gambia is acting on behalf of the Organization of Islamic Cooperation ('OIC'). This was Myanmar's first objection.

Myanmar said that there was no dispute between The Gambia and itself, as per Article IX of the Convention. It said that the allegations of genocide were reflected in documents and statements made by or at the OIC, and hence were political and not legal. Further, it claimed that there was no mutual awareness about the opposing views of the parties constituting the point of dispute.

The Gambia rebutted these claims by citing statements of its President and Vice-President made at the general debate of the 74th Session of the United Nations General Assembly ('UNGA'), specifically that "Gambia is ready to lead the concerted efforts for taking the Rohingya issue to the International Court of Justice".

The ICJ agreed with The Gambia's claims and ruled that the mutual awareness argument is not valid. It said that since Myanmar didn't reply to the statements made by the Gambian President and Vice-President, Myanmar had rejected the claims made by The Gambia. Essentially, Myanmar's silence was interpreted as the presence of a dispute.

Throughout the judgment, there are references to a) statements made by officials of The Gambia and Myanmar at the UNGA; b) the United Nations ('UN') Fact-Finding Mission's 2018 report on Myanmar; and c) a Note-Verbale sent by The Gambia to Myanmar.

The ICJ ruled that there was a dispute between The Gambia and Myanmar under Article IX of the Convention based on these three references.

It is contentious whether the ICJ interpreted the references correctly, particularly in finding a dispute under the first two references.

Was there a dispute between The Gambia and Myanmar according to statements made by the parties? 

In previous judgments, the ICJ has noted that in order to determine the existence of a dispute, the statements or documents exchanged between parties, and also exchanges made in multilateral settings, must be referred to. The ICJ has stated that in so doing, it pays special attention to "the author of the statement or document, their intended or actual addressee, and their content". In the present context, the statements in question were made by the Gambian President and Vice-President, and Myanmar's Union Minister for the Office of the State Counsellor.

While the statements made by these officials should be considered to ascertain any dispute, it is the content of the statements which should be emphasised. In this matter, the Gambian President said in 2019 that his country was going to champion an accountability mechanism that would ensure that perpetrators of the terrible crimes against the Rohingya Muslims were brought to book. Three days later, Myanmar's Union Minister for the Office of the State Counsellor, in his speech to the UNGA, dismissed the findings of the UN Fact-Finding Mission as "based on narratives and not on hard evidence".

Also read: Rohingyas: Genocide in the backyard

According to The Gambia, these statements clearly indicate disagreement between the parties. However, it is questionable whether there was a dispute between the two parties merely based on these statements.

Similarly, the Gambian Vice-President declared his government's intention to "lead concerted efforts to take the Rohingya issue to the International Court of Justice". Two days later, Myanmar's Union Minister for the Office of the State Counsellor dismissed the UN Fact-Finding Mission's report as "biased and flawed, based not on facts but on narratives".

Because of these statements, The Gambia asserts that Myanmar was aware that The Gambia held views that were opposed to its own regarding the legal responsibility of Myanmar under the Convention.

While these statements do indicate that The Gambia considered Myanmar guilty of committing genocide, it still does not indicate any dispute between the parties under the Convention. In both the statements, Myanmar has dismissed the UN Fact-Finding Mission's report. It did not reply to The Gambia's claim, and it was not required to do so.

How did the UN Fact-Finding Mission's report impact the matter before the ICJ?

Both The Gambia and the ICJ have relied heavily on the UN Fact-Finding Mission's report. The statements made by Myanmar officials discredit this report. It is on the basis of this report that The Gambia asserts the commission of genocide by Myanmar.

The Gambia's argument seems to be that Myanmar has committed genocide, according to the report. While The Gambia cited this report in its statements, Myanmar discredits the report, implying that it denies the commission of genocide. This is interpreted as indicative of a dispute between The Gambia and Myanmar.

Also read: 'India must pass a law that specifically outlaws genocide, and provide for ways to implement that law', says founder of Genocide Watch, Gregory H. Stanton

This conclusion seems to stretch the argument. Even if we were to accept it, it still doesn't prove the existence of a dispute between The Gambia and Myanmar. Myanmar's rejection of the report cannot be equated with the rejection of claims by The Gambia.

Nonetheless, mere silence on the issue of claims by The Gambia may be interpreted one way or another, and hence it is difficult to counter the ICJ's assertion that Myanmar's silence is indicative of a dispute.

Does the Note Verbale sent by The Gambia to Myanmar prove the existence of a dispute between the two parties? 

A Note Verbale, or verbal note, is a formal written communication between two countries. In this matter, a Note Verbale was sent by The Gambia to Myanmar, after the statements were made at the UNGA, and it relied heavily on the UN Fact-Finding Mission's report. However, Myanmar didn't reply to the Note Verbale.

Since Myanmar had already dismissed the report, shouldn't it have done so, once again, in its response to The Gambia? What stopped it from doing so again as a reply to the Note Verbale? Either way, the absence of a reply by Myanmar to the Note Verbale should have been the sole basis for asserting the existence of a dispute.

Last month, the ICJ ruled, by 15 votes to 1, 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 11 November 2019, and that the said Application is admissible". It has given Myanmar time till April 24, 2023 to submit its counter-memorial. Subsequently, the ICJ will proceed to hear the matter on its merits.

Thus, the question of whether there is a dispute between The Gambia and Myanmar seems to have been settled in favour of The Gambia.