The Gambia vs Myanmar

How has The Gambia and Myanmar both come to a head?

This is an ongoing case in the International Court of Justice (ICJ) concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide. The ICJ has been moved by the Gambia against Myanmar.

Last month, hearing for the Gambia’s request for provisional measures was concluded. The court will therefore only make preliminary determinations on its jurisdiction and on the existence of genocidal acts. The case on the merits is likely to take years. The judgment is due in January 2020.

The filing of the application by The Gambia is a significant step in establishing state accountability for the Rohingya crisis. Here is a quick recap of the arguments of this significant case.

The Gambia’s Submission

The Gambia alleges violation of Articles I, II, III, IV and VI of the convention which include (paraphrased) committing genocide, conspiracy to commit genocide, direct and public incitement, attempt to commit, complicity, failing to prevent, failure to punish and failure to enact legislation.

The Gambia has requested the Court to take all measures within its power to prevent all acts that amount to or contribute to the crime of genocide, including taking all measures within its power to prevent the following acts being committed against any member of the Rohingya group: extrajudicial killings or physical abuse; rape and other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated of life calculated to bring about the physical destruction of the Rohingya group in whole or in part.

Further they requested the Court to direct Myanmar to not destroy or render inaccessible any evidence to the events described in their application and grant access to, and coordinate with, all UN fact-finding bodies that are engaged in the investigation,

The Gambia asked for safe and dignified return of the Rohingyas with full citizenship rights, and a guarantee of non-repetition.

Myanmar’s Submission

Myanmar has appealed the Court to remove the case from its list and to reject the request of provisional measures submitted by the Gambia.

Myanmar has also questioned the standing of the Gambia claiming that as a non-injured state, The Gambia is barred from bringing a claim before ICJ.

Nobel laureate Aung San SUU Kyi asked the ICJ to not externalize accountability and allow Myanmar to handle its own affairs to investigate its wrong doers.

Myanmar’s legal team suggested that the difficult conditions imposed upon the Rohingya are not meant to kill them—but rather to force them to leave. From a legal perspective, these arguments are important. One of the central challenges to proving any genocide claim in a court of law is establishing the existence of genocidal intent.

By Swarnim Agrahari