{"id":4333,"date":"2019-12-23T00:00:00","date_gmt":"2019-12-23T14:00:45","guid":{"rendered":"https:\/\/staging.voelkerrechtsblog.org\/articles\/all-eyes-on-the-court\/"},"modified":"2020-12-09T12:17:26","modified_gmt":"2020-12-09T11:17:26","slug":"all-eyes-on-the-court","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/all-eyes-on-the-court\/","title":{"rendered":"All eyes on the Court"},"content":{"rendered":"

Whilst Myanmar\u2019s treatment of the Rohingya minority has long been subject to public scrutiny, in November news broke that The Gambia instituted<\/a> proceedings against Myanmar before the International Court of Justice (ICJ) under Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide<\/a> (Genocide Convention) for the alleged genocide against the Rohingya Muslim minority. Last week\u2019s hearings were confined to The Gambia\u2019s request for provisional measures and did not concern the merits of the case. This post\u00a0<\/em>provides a general overview of the provisional measures requested.<\/p>\n

The Gambia\u2019s request for provisional measures forms part of its application instituting proceedings<\/a> of 11 November 2019 against Myanmar. The Gambia argues in the first paragraph of the 46-page application that the request serves the protection of \u201cthe rights invoked herein from imminent and irreparable loss\u201d (para. 1). Seeking to establish the measures\u2019 urgency through an account of the events in Myanmar, the application details the commencement and resumption of the so-called \u201cclearance operations\u201d in 2016 and 2017 and alleges the continuation of genocidal acts committed against members of the Rohingya. The Gambia holds that these \u201cclearance operations\u201d resulted in the systematic perpetration of violence, murder, disappearances, sexual assault, rape, and detainment of and against members of the Rohingya and their property, including their private homes, places of worship, and madrassas<\/em>. The first part of the operations started on 9 October 2016 and lasted for four months. After declaring their end on 16 February 2017, the \u201csecond wave\u201d (para. 73) of the operations formally resumed on 25 August 2017. The application recounts these atrocities by relying on the findings of the UN Independent International Fact-Finding Mission on Myanmar<\/a> that include interviews excerpts. Its latest report<\/a>, published in September 2019, asserted \u201creasonable grounds to conclude [\u2026] that there is a serious risk that genocidal actions may recur\u201d (para. 90).<\/p>\n

Pursuant to Article 74 (1) of the Rules of the Court<\/a>, a request for provisional measures takes priority over all other cases. The ICJ\u2019s power to indicate provisional measures is laid down in Article 41 of the Statute of the ICJ<\/a>. The provision reads that the Court has the power to indicate any provisional measures necessary to \u201cpreserve the respective rights of either party\u201d. Identifying such rights, the application specifies the protection of \u201cthe rights of all members of the Rohingya group who are in the territory of Myanmar [\u2026] from the genocidal acts prohibited under the Convention\u201d (para. 126). The application further cites the erga omnes partes <\/em>rights The Gambia has under the Genocide Convention (para. 127).<\/p>\n

Whilst the original application requested five provisional measures, laid down in paragraph 132, a sixth measure was subsequently added. The first and second provisional measures concern Myanmar\u2019s obligation, under the Genocide Convention, to prevent any acts amounting or contributing to genocide. This includes ensuring that regular and irregular armed forces, organisations, or persons \u201csubject to its control, direction or influence\u201d refrain from the commission of or from any forms of participation in the commission of genocidal acts against the Rohingya. Cognizant of the proceedings that may ensue before the ICJ, The Gambia requested four provisional measures that would equip the Court with the necessary tools to adjudge the merits of the case (CR 2019\/18, p. 71, para. 26<\/a>). The third provisional measure seeks to halt the deliberate destruction of evidence relating to the events outlined in The Gambia\u2019s application. The fourth and fifth provisional measures address both Myanmar and The Gambia. The fourth requests both parties to refrain from aggravating the dispute, whereas the fifth requests them to submit a report on the implementation of the provisional measures requested. In light of Myanmar\u2019s \u201cpersistent refusal\u201d (CR 2019\/18, p. 71, para. 24<\/a>) to cooperate with UN bodies, The Gambia added a sixth provisional measure, seeking to compel Myanmar to grant access to and cooperate with UN fact finding bodies (CR 2019\/18, p. 71, para. 25<\/a>; p. 41, para. 9<\/a>).<\/p>\n

On the first day of the oral hearings, The Gambia inter alia <\/em>emphasised the need for specificity and clarity should the Court order provisional measures (CR 2019\/18, p. 66, para. 5; p. 70, para. 21)<\/a>. Recalling the events in Srebrenica, that occurred in spite of the Court\u2019s order<\/a> of provisional measures in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide <\/em>(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), and underlining that genocide is not a single act occurring at once (CR 2019\/18, p. 69, para. 17<\/a>), the Court was urged to identify and articulate a non-exhaustive list of particular genocidal acts (CR 2019\/18, p. 70, para. 21<\/a>).<\/p>\n

During the hearings, Myanmar responded to and rebutted The Gambia\u2019s application and oral arguments, contesting the facts presented and the request for provisional measures. Arguing that the events formed part of an internal armed conflict, Aung Sang Suu Kyi, acting as Agent, described them as a \u201ccomplex situation\u201d, asking the Court to \u201cbear in mind [\u2026] the challenge to sovereignty and security in our country\u201d (CR 2019\/19, p. 16, para. 16 f.<\/a>). It appears that Myanmar sought to convey that the events were already being investigated internally, conceding that \u201cpossible war crimes\u201d occurred (CR 2019\/19, p. 16, para. 17 f.<\/a>).<\/p>\n

It is important to recall that a decision to indicate provisional measures in this case does not require the ICJ to find a breach of the Genocide Convention. In line with Questions relating to the Obligation to Prosecute or Extradite <\/em>(Belgium v. Senegal<\/a>), the Court\u2019s decision to order provisional measures will be, inter alia, <\/em>premised on its satisfaction \u201cthat the rights asserted by a party are at least plausible\u201d (para. 57)<\/a>. This was evidently a contested issue between the parties. Myanmar inter alia <\/em>argued that the Court ought to decide \u2013 in ordering provisional measures \u2013 whether genocidal intent is the only<\/em> inference that can be drawn from Myanmar\u2019s treatment of the Rohingya, thereby excluding the possibility that crimes against humanity occurred (CR 2019\/19, p. 26, para. 15 f.<\/a>). The Gambia disagreed, arguing that the Court does not necessarily need to characterise all acts as genocidal, but merely infer genocidal intent from some of the acts before them (CR 2019\/20, p. 31, para. 7<\/a>). Furthermore, it maintained that only because another inference could be drawn, does not prevent the Court from ordering provisional measures, emphasising that \u201c[p]lausibility is not a zero-sum game\u201d (CR 2019\/20, p. 31, para. 7<\/a>).<\/p>\n

Myanmar requested the Court to remove the case from the list or, alternatively, to reject the request for provisional measures (CR 2019\/21, p. 36, para. 7<\/a>). In accordance with Article 75 (2) of the Rules of the Court, the ICJ is not bound by the measures requested and may decide to \u201cindicate measures that are in whole or in part other than those requested\u201c. Provisional measures are ordered if the Court sees a number of requirements met, discussed here<\/a> in the context of the present case. These pertain to prima facie jurisdiction, the plausibility of the asserted rights and a link between the rights the application is seeking to protect and the requested measures, and a risk \u2013 both real and imminent \u2013 of irreparable prejudice requiring urgency. Following the hearings, the Court now has begun its deliberations. If it decides to order provisional measures, they are binding (La Grand <\/em>case (Germany v. United States of America, para. 102)<\/a>).<\/p>\n

 <\/p>\n

Laura Hofmann is a research associate at Ruhr University Bochum\u2019s Institute for International Law of Peace and Armed Conflict (IFHV) and doctoral candidate at the Institute of Development Research and Development Policy (IEE).<\/em><\/p>\n

This post appears as part of a collaboration<\/a> between the IFHV<\/a> and the V\u00f6lkerrechtsblog.<\/em><\/p>\n

 <\/p>\n

Cite as: Laura Hofmann, “All eyes on the Court. On the ICJ hearings on provisional measures in The Gambia v. Myanmar”, V\u00f6lkerrechtsblog<\/em>, 23 December 2019, doi: 10.17176\/20191223-173942-0<\/a>.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Whilst Myanmar\u2019s treatment of the Rohingya minority has long been subject to public scrutiny, in November news broke that The Gambia instituted proceedings against Myanmar before the International Court of Justice (ICJ) under Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) for the alleged genocide against […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[5618],"article-categories":[5108],"doi":[],"class_list":["post-4333","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-laura-hofmann","article-categories-bofaxe"],"acf":{"subline":"On the ICJ hearings on provisional measures in The Gambia v. Myanmar"},"meta_box":{"doi":""},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4333","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=4333"}],"version-history":[{"count":0,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4333\/revisions"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=4333"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=4333"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=4333"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=4333"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=4333"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=4333"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}