Reflections on the order on the request for the indication of provisional measures submitted by the Republic of the Gambia for the protection of the Rohingya in Myanmar

 

 

Part 1/3

 

Reflections on the request for the indication of provisional measures in respect of the convention on the prevention and punishment of the crime of Genocide

ICJ January 23, 2020 No 2020/3

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          Rarely in the history of International justice has a hearing on indication of provisional measures before the International Court of Justice been so widely publicized.

           Most likely, it had to do with the fact that a former Nobel laureate, currently State Counsellor of Myanmar, stood accused of covering her country’s military committing acts of genocide.       

          Minutes after the order became public, Gambian Justice Minister Abubacarr Tambadou, henceforward known as the Man who took Aung San Suu Kyi to Court, uttered the following statement:

 

“"I think this represents a triumph of international law and international justice. And it is the international community - as represented by the ICJ - saying in the strongest of terms that genocide will not be accepted under any circumstances by any perpetrators.

          To fully understand what was at play before the International Court of Justice in the instant case, the case should be best explained by breaking it into 3 main questions:

 

Why did the Gambia initiate such proceedings?

What are the prerequisites for the indication of provisional measures by the Court?

What provisional measures were indicated by the International Court of Justice?

                                

1. Why did the Gambia initiate such a proceeding?

 

The Republic of The Gambia (thereafter The Gambia) filed proceedings against the Republic of Myanmar (thereafter Myanmar) as to alleged violation of article 2 of the Convention on the Prevention & Punishment of the Crime of Genocide. In its application, The Gambia contends that Myanmar has committed and continues to commit genocidal acts against a protected group under the convention (The Rohingya that resided primarily in Myanmar’s Rakhine State). 

The Gambia requested for the indication of provisional measures under article 41 of the ICJ statute aimed at preserving the Rights of the Rohingya (to be secured from Genocide) group and securing evidence of the involvement of Myanmar’s Government. 

It’s worth recalling that following the LaGrand Case (LaGrand (Germany v. United States of America), Judgment, I.C.J Reports 2001, p 506 provisional measures can be ordered by the ICJ without entering into conclusive findings as to the merits of the case. 

The standards for adjudicating whether provisional measures should be ordered are different from the standards used when adjudicating the merits of the case although the same convention on the prohibition and prevention of genocide applies in the case at hand.

As the ICJ is used to recalling the decision on provisional measures:

            “In no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case”.

 

2. What are the prerequisites for the indication of provisional measures by the Court?

 

A- Prima facie jurisdiction

 

Consistent with article IX of the Genocide convention, the Court could only find it had jurisdiction if a dispute relating to the interpretation, application or fulfilment of the Conventioncould be proven. 

 

A dispute exists where States “hold clearly opposite views concerning the question of the performance or non-performance of certain international obligations”. A positive demonstration of claim A by State X must therefore be “positively opposed by State Y” as made plain in “South West Africa (Ethiopia v. South Africa; Liberia v. South Africa). 

 

Did such a dispute exist? 

 

To conclude that a dispute existed, the Court based its reasoning on 1) Statements uttered by both parties to the General Assembly 2) Myanmar’s lack of response to the Gambia’s Note Verbale issued October 11, 2019.

 

i) Statements before the UN General Assembly

 

Following the fact-finding mission report asserting that “Myanmar incurs State responsibility under the prohibition against genocide, the Gambia stated before the U.N General assembly that it was ready to take the issue to the ICJ. 2 days later Myanmar described the Fact-finding mission reports as “biased and flawed, based not on facts but on narratives”. The Court’s approach to the existence of a dispute was broad in that the ICJ inferred it from the position and attitude of Myanmar in reaction to the report of the fact-finding mission. It however drew on a precedent, namely (Land & Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), preliminary objections, Judgment I.C.J Reports 1998) 

 

ii) Myanmar’s lack of response to the Note verbale

 

In addition, Myanmar’s absence of response to the Gambia’s assertion in its note verbal that the former was “in ongoing breach of its obligations under the Genocide convention and under customary international law” was seen as an indication of the existence of a dispute between the parties. 

 

            Accordingly, the Court concluded prima facie to the existence of a dispute of the parties regarding the interpretation, application or fulfilment of the Genocide convention. 

 

B- Standing

 

In the instant case, The Gambia was drawing on the precedent (Questions relating to the obligation to prosecute or extradite (Belgium v. Senegal) in which the ICJ held that Belgium could file a claim before the Court in relation to breaches of erga omnes partesobligations by Senegal. In essence, the ICJ reasoned that the 1984 Convention prohibiting torture is of such importance that it places deterrence, prevention and punishment at its core. Therefore, the classical doctrine of intersubjectivity in treaty law doesn’t apply here because the very object and purpose of the convention forbid it. It follows that any country can file a claim before the ICJ by reason of breaches committed by another former is not specially affected. The Gambia relied on the same reasoning and presented an a fortioriargument: if any country can allege breaches of obligations ergam omnes partesin respect of acts of torture, then the 1948 Convention prohibiting genocide should permit a similar outcome.

 

The Court accepted such a contention, which did not bore any difficulty. It went on to be fairly didactic in so far that it recalled its advisory opinion on ICJ Reports 1951, p.23Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide to help understand why breach of obligations erga omnes partes permitted any party to file a claim with the ICJ to seek for redress of that breach.

 

“in such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention”

 

In the light of such a rationale, the Court concluded that it had prima facie standing.

To be continued...