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 2/3

Continued

 

C- Link between rights whose protection id sought & provisional measures

 

Under article 41 of its Statute, the ICJ can indicate provisional measures in order to preserve the rights claimed by the parties in a case, pending the decision on the merits. It follows that the rights asserted by petitioner must be plausible i) and that there’s sufficient link between the rights claimed and the measures requested ii). 

 

  1. During the hearing, the question of the plausibility of the rights was fiercely debated. 

 

On the one hand, The Gambia contended that some acts establishing a pattern of conduct warranting an inference of Genocide was sufficient to meet the standard of plausibility. According to the Gambia, the facts that other alleged acts could also be characterized as crimes against humanity or war could not be construed as excluding the plausible inference of genocide. The Gambia expressed the view that conditioning the plausibility standard to the necessity that all acts could infer genocidal intent was premature and would amount to a finding on the merits, which was the object of the instant case. 

 

            On the other hand, Myanmar counter-argued that plausible claim under the Genocide convention meant the showing of the “dolus specialis” that forms the basis of the crimes of crimes as opposed to other international crimes. To Myanmar, it needed to be shown that the genocidal intent could be the only inference that could be drawn from. 

Construing the requirement of plausibility as such (genocidal intent can only be inferred from the entire set of facts) would be akin to anticipating the discussion on the merits of the case. 

Hence, the ICJ didn’t follow Myanmar’s argument which – if adopted- would have resulted in emptying the plausibility requirement of its very meaning. 

The Court noted that all the facts and circumstances put forward by the fact-finding mission and the General assembly were sufficient to find that acts of genocide (art II) and other prohibited acts in connection to it (art III) were plausible. 

 

 

  1. link between the rights claimed and the measures requested

 

The Court characterized the link by stressing that the very purpose of the measures requested were intended to preserve the rights protected by the Genocide convention.  Since 3 provisional measures requested were directly designed to protected the rights under the convention, the link was established.

 

D- Risk of irreparable harm and urgency

 

Under art 41, the power to indicate provisional measures is conditional on a showing of risk of irreparable prejudice and urgency. Therefore, to render an order of provisional measures the Court must find that there’s a real and imminent risk of irreparable consequences before the final verdict can be reached. 

 

Myanmar’s denial of such a risk rested on two observation: 

  • 1- its taking steps to facilitate the return of the Rohingya refugees & was willing to promote ethnic, reconciliation and stability 
  • 2- its difficulty in safeguarding the protected group by reason of an ongoing internal conflict between armed groups & the Myanmar military. 

 

To dismiss those arguments, the ICJ recalled the exacting standard to which parties are held when it comes to assessing an irreparable harm and urgency under the 1948 Convention. Such a crime under International law must be prevented and punished at all times. It’s therefore irrelevant to argue that an ongoing conflict or war prevents the country from complying with the obligations it has agreed to. The very essence of such a convention is to assure inhabitants of a defined ratifying party that, even when dealing with the darkest bellicose instinct of mankind, the law will provide the basic protection that people are targeted and killed by the sole reason that they are members of a group. 

 

Accordingly, recalling its previous case law (Application of the convention on the prevention and punishment of the crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary objections, Judgment, ICJ, Reports 1996 (II), the Court dismisses Myanmar’s argument and concludes to a real risk of irreparable prejudice to the rights protected under the convention. 

 

      The ICJ therefore concluded that the conditions required to indicate provisional measures were met and ordered 4 provisional measures, each of which by a unanimous Court 

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