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

 

Prior to entering into the specific measures to be ordered, the ICJ recalled its entitlement to indicate measures that are, in whole or in part, other than those requested. The Court had already exercised such a power under art 75(2) of the Rules of the Court in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirate ), Provisional Measures, Order of 23 July 2018 or even more recentlyAlleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II) 

Four provisional measures were indicated by the Court, all of them were decided unanimously. Measures suggested by the Gambia aimed at ensuring the non-aggravation of the dispute with Myanmar were rejected by the Court on the grounds that they were unnecessary in the instant case. However, four key measures were ordered: 

 

1.- Under the 1948 on the prevention and Punishment of the Crime of genocide, Myanmar was ordered to “take all measures within its power to prevention the commission of all acts within the scope of article II of the Convention.

 

2.- Myanmar was commanded to ensure its military or any irregular armed unit supported by it or any organizations & persons under its control do not commit any acts constitutive of Genocide or conspiracy to commit the said crime or direct and public incitement to commit genocide, attempt to commit or complicity in the crime. 

Strikingly, two measures requested by the Republic of Gambia in the person of Philippe Sands explaining the rationale behind those measures were indicated.

3.- Myanmar’s obligation to take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts. 

The fulfillment of such a provisional measure was conditional upon the last measure ordered, namely: 

4.- the obligation to submit a report to the Court on all the above-mentioned measures within for months of the order and thereafter every six months until a decision is reached on the merits. 

That last provisional measure is unprecedented and therefore needs to be analyzed.  

          It’s obviously aimed at strengthening the enforcement of those requested measures. However, it’s worth recalling that as was made plain by the LaGrand case (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p 506 § 109),an order for provisional measure under article 41 of the Statute benefits from a legal binding effect, thereby creating an international legal obligation for any addressee of such measures. 

           It seems therefore likely that in addition to such a binding effect, the ICJ has decided on new ways to ensure that the provisional measures receive concrete application in the instant jurisdiction.

           Such an obligation to report is intended to redress previous flaws that were spotted in the 90’s at great costs. International justice proved unable to operate ex ante, that is, ordering effective measures that would prevent a disaster.

            Back in March 1993, immediately after the filing of its Application, Bosnia and Herzegovina submitted a request for the indication of provisional measures under Article 41 of the Statute to take with a view to safeguarding the rights protected under the Genocide Convention. The Court did just that by on order rendered on 8 April 1993. As events were still unfolding, shortly thereafter in July 1993, Bosnia and Herzegovina submitted a new request for the indication of provisional measures, which resulted in an order dated 13 September 1993, whereby the Court reasserted the measures indicated in its previous order and declared that those measures should be immediately and effectively implemented. 

            However, those orders for provisional measures proved unable to bar the Srebrenica massacre from happening. It is estimated that in July 1995 -2 years after the second order of the Court-  around 8,000 Bosnian Muslims, all of them of military age, were executed in the area of Srebrenica as it was explained afterwards at length by both the case law of the International Criminal Tribunal for former Yugoslavia in the Kristićcase and the final order rendered by the International Court of Justice on the merits on 26 February 2007

            This new obligation to report in due course on how those ordered provisional measures are to be implemented combined with the fact-finding mission of the U.N and the obligation to communicate such a report to the claimant -The Gambia in the instant case- so that it can comment thereon is designed to improve the efficacy of those provisional measures.

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The International court of justice, it seems, has learnt from its previous shortcomings. Accordingly, it keeps developing its case law so as to better protect rights under treaty or customary international law. 

       In light of the foregoing, such an order of 23 January 2020 must be altogether approved.