The Gambia v. Myanmar: ICJ Delivers Order on Request for Provisional Measures (Archives 23 Jan 2020)

The International Court of Justice (ICJ) delivers its Order on the request for provisional measures made by The Gambia in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar)

La CIJ rend son ordonnance en l’affaire Gambie c. Myanmar (mesures conservatoires).

Screenshot Credit: UN Photo/ICJ-CIJ/Frank van Beek

Learn More: https://www.icj-cij.org/en/case/178

တရားသူႀကီးမ်ား၊ ေရွ႕ေနမ်ားႏွင့္ အစိုးရေရွ႕ေနမ်ား၏
လြတ္လပ္မႈႏွင့္
တာ၀န္ယူမႈဆိုင္ရာ ႏိုင္ငံတကာ စည္းမ်ဥ္းမ်ား https://www.icj.org/wp-content/upload...

The Court begins by recalling that, on 11 November 2019, The Gambia filed in the Registry
of the Court an Application instituting proceedings against Myanmar concerning alleged violations
of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December
1948 (hereinafter the “Genocide Convention” or the “Convention”). The Application contained a
Request for the indication of provisional measures, submitted pursuant to Article 41 of the Statute
and Articles 73, 74 and 75 of the Rules of Court with a view to preserving the rights The Gambia
claims under the Convention, pending the Court’s final decision in the case.
I. PRIMA FACIE JURISDICTION (PARAS. 16-38)
1. General introduction (paras. 16-19)
The Court notes that Article IX of the Genocide Convention makes its jurisdiction
conditional on the existence of a dispute relating to the interpretation, application or fulfilment of
the said instrument, and that it must therefore determine prima facie the existence of such a dispute between the Parties. It observes that, in principle, the date for determining the existence of a
dispute is the date on which the application is submitted.
First, Myanmar having argued that there was no dispute between the Parties in view of the
fact that the proceedings before the Court were instituted by The Gambia not on its own behalf but
rather as a “proxy” and “on behalf of” the Organisation of Islamic Cooperation (“OIC”), in
circumvention of Article 34 of the Statute, the Court notes that the Applicant instituted proceedings
in its own name, and that it maintains that it has a dispute with Myanmar regarding its own rights
under the Convention. In the view of the Court, the fact that The Gambia may have sought and
obtained the support of other States or international organizations in its endeavour to seise the
Court does not preclude the existence between the Parties of a dispute relating to the Genocide
Convention.
Turning to the question of whether there was a dispute between the Parties at the time of the
filing of the Application, the Court notes that, on 8 August 2019, the Independent International
Fact-Finding Mission on Myanmar established by the Human Rights Council of the United Nations
(hereinafter the “Fact-Finding Mission”) published a report which affirmed its previous conclusion
“that Myanmar incurs State responsibility under the prohibition against genocide” and welcomed
the efforts of The Gambia, Bangladesh and the OIC to pursue a case against Myanmar before the
Court under the Genocide Convention. The Court further notes that, on 26 September 2019,
The Gambia stated during the general debate of the seventy-fourth session of the General Assembly of the United Nations that it was ready to lead concerted efforts to take the Rohingya issue to the
International Court of Justice, and that Myanmar delivered an address two days later,
characterizing the Fact-Finding Mission reports as “biased and flawed, based not on facts but on
narratives”. In the Court’s view, these statements suggested the existence of a divergence of views
concerning the events which allegedly took place in Rakhine State in relation to the Rohingya. In
addition, the Court takes into account The Gambia’s Note Verbale of 11 October 2019, in which it
stated that it understood Myanmar to be in ongoing breach of its obligations under the Genocide
Convention and under customary international law and insisted that Myanmar take all necessary
actions to comply with these obligations. In light of the gravity of the allegations made in this Note
Verbale, the Court considers that the lack of response may be another indication of the existence of
a dispute between the Parties.

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