UNPRECEDENTED LEGAL ACTION TAKEN BY THE GAMBIA AGAINST MYANMAR

Nearly 75 years after the international community proclaimed “never again” at Nuremberg, it has failed time and time again to prevent subsequent genocide and other egregious human rights violations. Or so says the Gambia’s Attorney General and Minister for Justice Abubacarr Marie Tambadou. On 11 November 2019, the Gambia submitted a petition to the International Court of Justice (ICJ), accusing Myanmar of genocide against Rohingya Muslims as well as alleging that Myanmar has carried out mass murder, rape, and destruction of communities in Rakhine state.

This confirmation comes after Tambadou announced, at The Hague Conclave on Justice and Accountability for the Rohingya, that in early October he had instructed the Gambian Ministry of Justice’s legal team to file charges of genocide against Myanmar at the ICJ. The Gambia first declared its intention to do so at the United Nations General Assembly (UNGA) in September 2019.

ALLEGED VIOLATIONS OF INTERNATIONAL LAW BY MYANMAR

It has been over two years since Myanmar security forces drove over 700,000 Rohingya across the border to neighbouring Bangladesh during operations that have been described by the United Nations as a "textbook example of ethnic cleansing". A 2018 Human Rights Council report outlined serious violations of international humanitarian and human rights law by Myanmar security forces, including killing, rape, torture, arson, and forced displacement. A further report, published in August 2019 by the Council’s Fact-Finding Mission on Mynamar, alleged that the Myanmar government as a whole should be held accountable for these breaches that, in the view of the Human Rights Council, “amount to war crimes, crimes against humanity and acts of genocide”.

A CASE OF GENOCIDE AT THE ICJ

The ICJ provides a forum for states to resolve disputes and also gives advisory opinions on certain international legal issues. Any decision issued by the Court in the context of a state-to-state dispute is binding on the state-parties.

When prosecuting the international crime of genocide, individual criminal liability is key. States, however, also have an affirmative duty to prevent and punish acts of genocide within their borders, according to the UNGA Genocide Convention of 1948. This Convention, to which Myanmar is a party, provides for ICJ jurisdiction should a state believe another state has violated the treaty’s obligations. The ICJ could therefore issue a ruling on this matter within a reasonably short timeframe that would be binding on Myanmar. It would be the first time the Court has investigated genocide claims independently without relying on the findings of other international tribunals.

The Gambia has urged other nations to come forward in support of this action. The importance of this development for not only those who have fled to neighbouring states but also for the Rohingya still within Myanmar cannot be overstated.

Human Rights Pulse core team member, Vaughn is passionate about sustainability and human rights. His scholarship and writing focuses on international law, climate change and transitional justice.

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