On 2 September 2020 Canada and the Netherlands in a joint statement declared their intention to intervene in the case of The Gambia v Myanmar before the International Court of Justice (ICJ).
The mass atrocities and persecution of the Rohingya, an ethnic minority group in Myanmar, has resulted in hundreds of thousands of Rohingya families being forced to seek refuge in Bangladesh. The reports of systematic violence and persecution of the Rohingya speak of unimaginable injustice against the Rohingya. The most recent culmination of the Rohingya crisis occurred in August 2017 when the Myanmar security forces commenced a campaign against the Rohingya people which resulted in them being “killed, tortured, raped, burnt alive and humiliated”.
THE APPLICATION OF THE GAMBIA
In November 2019, the Gambia filed an application before the ICJ against Myanmar. In its application, the Gambia alleged that Myanmar has engaged in acts that violate the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). These acts are described in the Gambia’s application as including “… killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births, and forcible transfers…” and are “…genocidal in character because they are intended to destroy the Rohingya group in whole or in part”.
Additionally, the Gambia also made a request in its application for provisional measures. The Gambia’s request for provisional measures included the following:
Myanmar is to take all steps and measures to prevent any genocidal acts from being committed to the Rohingya.
Myanmar is to regulate the conduct of military groups to ensure that they are not committing any acts of genocide against the Rohingya.
Myanmar is to preserve and not destroy any evidence that is relevant to the events the Gambia describe in their application.
Both Myanmar and the Gambia are prohibited to take any action that may aggravate the dispute in the Gambia’s application.
Both Myanmar and the Gambia are to submit to the ICJ a report outlining the measures taken to give effect to the provisional order.
The ICJ on 23 January 2020 made an unanimous order for provisional measures, which include that Myanmar must submit a report to the ICJ regarding “all measures taken” to give effect to the provisional order. On 22 May 2020, Myanmar submitted its first report to the ICJ which remains confidential.
JOINT INTERVENTION OF CANADA AND THE NETHERLANDS
On 2 September 2020 Canada and the Netherlands expressed their desire to join in these proceedings. This is the second expression of intention to intervene by states in these proceedings, with the Maldives previously announcing its decision to intervene in March 2020. In the joint statement, the two countries commended the Gambia’s “laudable step towards ending impunity for those committing atrocities in Myanmar” and further stated that they “consider it [their] obligation to support these efforts which are of concern to all of humanity”.
In reference to an obligation stemming from atrocities that are of concern to all of humanity, Canada and the Netherlands referred to the erga omnes obligations, which is the same legal argument used by the Gambia in their application. Erga omnes obligations are those that are “owed to the international community as a whole”.
Articles 62 and 63 of the Statute of the ICJ and articles 81 to 86 of the Rules of the Court regulate the circumstances of a state intervening in an ICJ case. Article 62 of the Statute of the ICJ provides that where a state considers that it has an “interest of a legal nature” in the outcome of a case, that state may make a request to the ICJ seeking permission to intervene. Article 63 of the Statute of the ICJ in essence provides a state with the “right to intervene” in a case where the “construction of a convention”, to which that state is a party to, is at issue.
Whilst Canada and the Netherlands, and even the Maldives, have not alluded to the legal avenue they will rely on in support of their decision to intervene, article 63 presents a lower threshold than article 62, which may be a more difficult test to satisfy. Article 63 provides a state that meets the relevant criteria with a right to intervene. The ICJ therefore would not have discretion to determine whether or not that state should be allowed to intervene, provided that the criteria of article 63 are met. Consequently, the state would be required to file a declaration to intervene and the ICJ would then make a decision as to whether a state is in “an Article 63 situation”. This differs from the requirements under article 62, where a state must have an interest and must file an application to intervene and the ICJ would be required to determine whether to admit the application or not.
Notwithstanding the legal arguments and hurdles to successfully establish a legal ground of intervention, the two countries have delivered a strong and compelling message to the international community in stating that they “reiterate their call to all States Parties to the Genocide Convention to support the Gambia in its efforts to address these violations”.
Indubitably much remains to be seen and there is a long road ahead in these proceedings, however this recent development signifies that the international community is indeed watching and some states are willing and feel compelled to take action. This is certainly a step towards justice for the Rohingya.
Tate De Silva is an Australian solicitor practising in commercial law and commercial litigation. She has a strong interest in human rights and international humanitarian law and is passionate to raise awareness in these areas.