Reflections on the latest order rendered by the ICJ (The Gambia v. Myanmar)

Reflections on the order of provisional measures in respect of the convention on the prevention and punishment of the crime of Genocide rendered by the International Court of Justice on January 23 2020 No 2020/3

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1. 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.

2. 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?

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I.      Why did the Gambia initiate such proceedings?

3. 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).

4. 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.

5. 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”.

 

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

Four criteria need to be demonstrated by a plaintiff to obtain the order requested.

a. Prima facie jurisdiction

6. 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 Convention could 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?

7. 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.

1) Statements before the UN General Assembly

8. 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)

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

9. 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

10. 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 partes obligations 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 although the former is not specially affected. The Gambia relied on the same reasoning and presented an a fortiori argument: if any country can allege breaches of obligations ergam omnes partes in respect of acts of torture, then the 1948 Convention prohibiting genocide should permit a similar outcome.

11. The Court accepted such a contention, which did not present any difficulty. It went on to be fairly didactic in so far as it recalled its advisory opinion (ICJ Reports 1951, p.23 Reservations 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 such a 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.

c. Link between rights whose protection is sought & provisional measures

12. 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).

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

13. 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 fact that other alleged acts could also be characterized as crimes against humanity or of 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 wasn’t the object of the instant case.

14. 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 the facts.

15. 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.

ii) link between the rights claimed and the measures requested

16. 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 protect the rights under the convention, the link was established.

d. Risk of irreparable harm and urgency

17. Under art 41, the power to indicate provisional measures is conditional upon 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 observations:

-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.

18. 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 ratifying party that -even when dealing with the darkest bellicose instinct of mankind- the law will provide the basic protection that prevents people from being targeted and killed by the sole reason that they are members of that group.

19. 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

 

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

20. Prior to discussing the specific measures to be ordered, the ICJ recalled that it’s entitled 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 recently Alleged 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)

21. 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 Gambia -represented here by 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 four 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.

22. 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.

23. 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. International justice proved unable to operate concomitantly, that is, ordering effective measures that would prevent a disaster.

24. 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 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.

25. 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 by both the case law of the International Criminal Tribunal for former Yugoslavia (ICTY) in the Kristić case and the final order rendered by the International Court of Justice on the merits on 26 February 2007

26. 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 law or customary international law. In the light of the foregoing, such an order of 23 January 2020 must be altogether approved.

Christophe D. Fabre