The Geneva-based International Commission of Jurists, a non-governmental organisation that works to promote and protect human rights through the rule of law, issued a briefing paper about the hearings at the International Court of Justice (ICJ) on Myanmar’s Genocide case. Below are excerpts:
What allegations does Gambia make against Myanmar?
On November 11, the Republic of The Gambia filed an “Application Instituting Proceedings and Request for Provisional Measures” at the ICJ against the Republic of the Union of Myanmar.
Gambia said they have a “dispute” with Myanmar concerning Myanmar’s application of the Convention on the Prevention and Punishment of the Crime of Genocide.
The definition of genocide found in Article II of the convention is set out in Annex 1.
Gambia said Myanmar had violated its obligations under the convention by:
• committing genocide,
• conspiracy to commit genocide,
• direct and public incitement to commit genocide,
• attempting to commit genocide,
• complicity in genocide,
• failing to prevent genocide,
• failing to punish genocide, and
• failing to enact the necessary legislation to give effect to the provisions of the convention.
Specifically, Gambia alleged in paragraph 6 of its application that “…against the backdrop of longstanding persecution and discrimination, from around October 2016, the Myanmar military (the Tatmadaw) and other Myanmar security forces began widespread and systematic ‘clearance operations’ – the term that Myanmar itself uses – against the Rohingya group. The genocidal acts committed during these operations were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses. From August 2017 onwards, such genocidal acts continued with Myanmar’s resumption of ‘clearance operations’ on a more massive and wider geographical scale.”
Gambia said these facts are extensively documented by independent investigative efforts conducted under the auspices of the United Nations and corroborated by international human rights organisations and other credible sources. In particular, Gambia relies extensively on the reports of the Independent International Fact-Finding Mission on Myanmar.
In paragraph 112 of its application, and with reference to specific articles of the convention, Gambia asked the ICJ to “adjudge and declare” that Myanmar:
• has breached and continues to breach its obligations under the convention,
• must cease forthwith any such ongoing internationally wrongful act and fully respect its obligations under the convention,
• must ensure that persons committing genocide are punished by a competent tribunal, including before an international penal tribunal,
• must perform the obligations of reparation in the interest of the victims of the genocidal acts who are members of the Rohingya group, including but not limited to allowing the safe and dignified return of forcibly displaced Rohingya and respect for their full citizenship and human rights and protection against discrimination, persecution, and other related acts, consistent with the obligation to prevent genocide, and
• must offer assurance and guarantees of non-repetition of violations of the convention.
This is what is known as the “merits” part of the case.
If the case proceeds, a significant amount of time may pass before final judgment of the merits.