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Fast facts about ICJ hearings on Myanmar

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.”

Suu Kyi at ICJ 

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.

What is Daw Aung San Suu Kyi’s role in the proceedings?

A state that is a party to a case before the ICJ nominates an agent who serves as the head of the diplomatic mission with power to legally commit a sovereign state.

They receive communications from the ICJ’s registrar concerning the case and forwards all correspondence and pleadings, duly signed or certified, to them.

In public hearings before the ICJ, the agent opens the argument on behalf of the government and lodges the submissions.

In general, when any formal act is to be done by the government represented, it is done by the agent.

They are always assisted by counsel or advocates appointed by the government to act on their behalf.

On November 24, the State Counsellor’s Office said in a statement that “a high-level briefing on recent developments on international arena with regard to Myanmar was held at the President Office.”

The statement noted that the “case concerns the high national interest of the entire country. Accordingly, State Counsellor Daw Aung San Suu Kyi, in her capacity as Union Minister of Foreign Affairs, will act as the Agent.”

In the Gambia’s Application, it also requested the Court to indicate provisional measures “in light of the nature of the rights at issue, as well as the ongoing, severe and irreparable harm being suffered by members of the Rohingya group.”

At paragraph 132 of The Gambia’s filing, it requested the Court to indicate five provisional measures.

It also reserved the right to request additional provisional measures during the proceedings, and as the Court has the power to indicate different provisional measures to those requested, any provisional measures finally indicated by the Court in the form of an order may differ from those listed in the Application.

Of significance is that The Gambia requested the Court to indicate a provisional measure whereby the parties shall each provide a report to the Court on all measures taken to give effect to the order for provisional measures, no later than four months from its issuance.

Finally, The Gambia requested the Court to address the issue of provisional measures as a “matter of extreme urgency.”

What are provisional measures?

Provisional measures are certain orders the Court can make aimed at preserving the rights of the Parties to a case pending the final decision of the court in order to avoid irreparable damage to the rights which are the subject of the dispute.

What factors are taken into account on a request for provisional measures?

Over time, the ICJ has established, including in the 19 May 2017 Order for provisional measures in the case of Jadhav, that it will take into account four requirements when deciding whether to indicate provisional measures:

1. prima facie jurisdiction

The Court may indicate provisional measures only if the provisions relied on by the applicant appear, prima facie, to provide a basis on which the Court’s jurisdiction could be founded – but the Court need not satisfy itself in a definitive manner that it has jurisdiction as regards to the merits of the case.

In its filing, The Gambia submitted that the Court has jurisdiction based on the UN Charter and Article IX of the Convention which states that disputes between Contracting Parties relating to the Convention shall be submitted to the ICJ.

The Court will want to be satisfied, prima facie, that the Convention confers jurisdiction on the Court, including whether a “dispute” exists between the parties.

2. plausibility

The object of the Court’s power to indicate provisional measures is the preservation of the respective rights claimed by the parties in a case pending final judgment on the merits.

The Court must therefore preserve the rights which may subsequently be adjudged by it to belong to either party – but only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible.

In the present case, The Gambia submitted it seeks to protect the rights of all members of the Rohingya group who are in the territory of Myanmar, as members of a protected group under the Convention, noting that at this state of the proceedings “the Court does not need to establish definitively the existence of such rights; it is sufficient…that such rights are plausible, i.e., “grounded in a possible interpretation of the Convention.”

3. real and imminent risk of irreparable prejudice

The Court has the power to indicate provisional measures when irreparable prejudice could be caused to rights, which are the subject of judicial proceedings.

But the Court will only indicate provisional measures if there is urgency, in the sense that there is real and imminent risk that irreparable prejudice will be caused to the rights in dispute before the Court gives its final decision.

The Gambia argues there is no doubt these requirements are satisfied in this case.

4. the link between the rights claimed on the merits and the provisional measures requested.

A link must exist between the rights whose protection is sought, and the provisional measures being requested.

If the Court indicates provisional measures, are they binding on the parties?

Article 94 of the UN Charter provides that judgments of the ICJ are binding on the parties to the dispute and that, if they are not implemented, then recourse is to be had to the Security Council, which may make recommendations or decide upon measures to be taken to give effect to the judgment.

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