Written by Jefferi Hamzah Sendut
In an ongoing case at the International Court of Justice (ICJ), The Gambia is suing (‘bringing a case against’) Myanmar, accusing Myanmar of committing genocide against its Rohingya population. This post outlines how the case has been brought to the ICJ (see also previous analysis of the case’s route to the ICJ, for example here, here and here).
The ICJ is the UN’s top court, composed of 15 independent judges. Although the ICJ may issue formally non-binding ‘advisory opinions’, its primary role is to make binding judgments to settle disputes between countries, referred to as ‘States’ in legal terminology. The ICJ only settles disputes between States – individuals cannot bring a case to the ICJ themselves, or have a case brought against them. This aspect of the ICJ’s role is the focus of this post.
The importance of consent
The ICJ can only settle disputes between States with their consent. Without the consent of the States involved, the ICJ will have no power, or ‘jurisdiction’, to decide a case. This is a key difference between the ICJ’s role, and the role of national courts, which have compulsory jurisdiction. The ICJ must first establish that it has jurisdiction before it can consider the substance, or ‘merits’, of a case.
State consent is expressed in three main ways. First, consent may be expressed when two States agree to bring a specific dispute to the ICJ, making a ‘special agreement’ to do so. This occurred between Malaysia and Singapore in the Pedra Branca/Pulau Batu Puteh case.
Second, consent may be expressed through the ICJ’s ‘optional clause’ system. States can voluntarily declare that they consent to the ICJ settling certain kinds of disputes involving them. A declaring State can subsequently bring a case against, or have one brought against it, by another State which has made a corresponding declaration. The Aerial Incident case between Pakistan and India illustrates how the optional clause system operates. The ICJ was unable to make a final merits judgment after Pakistan brought a case against India, because although both States made an optional clause declaration, the declarations did not correspond. The text of India’s declaration showed that unlike Pakistan, it had not consented to the ICJ settling disputes between it and the other Commonwealth States.
Third, a State may consent to the ICJ’s jurisdiction through a ‘compromissory clause’ included in an agreement, or ‘treaty’, between it and other States. When States make treaties with each other, they may include a clause in which they agree to submit to the ICJ any future disputes relating to the treaty. These clauses are known as compromissory clauses. This method of expressing consent to the ICJ’s jurisdiction differs from the making of special agreements, because the main content of the treaty involved will concern a general subject matter. These are not agreements relating to a specific dispute, made after a dispute has already arisen.
The compromissory clause in the Genocide Convention 1948 treaty is what enabled the current case between The Gambia and Myanmar. The main content of the Genocide Convention, which Myanmar committed to in 1956, concerns rules on the prevention and punishment of genocide. One of its clauses states that the ICJ will settle related disputes. In bringing a case against Myanmar, The Gambia is arguing that a dispute exists between it and Myanmar relating to commitments under the treaty, and that Myanmar has consented to the ICJ settling this dispute. The case at the ICJ is hence distinct from a criminal trial of an individual which would occur at the International Criminal Court, for instance.
Linked to this, The Gambia must formally establish the existence of a dispute between it and Myanmar to enable it to use the Genocide Convention’s compromissory clause. A dispute would require The Gambia and Myanmar to have ‘clearly opposite views’ on the fulfilment of legal obligations. The Gambia has sought to show this using UN reports, both Gambian and Myanmarese statements, and a note sent by it to Myanmar. Although traditionally considered a low bar to clear, The Gambia will be wary of its importance after the 2016 Marshall Islands cases, where the ICJ threw cases out for the first time due to a technical lack of a dispute.
The requirement of standing
The Gambia must additionally show it has the standing to bring its case against Myanmar, meaning it has a ‘legal right or interest’ in the subject matter of the case. While The Gambia itself has not been directly ‘injured’ by Myanmar’s persecution of the Rohingya within Myanmarese territory, it has argued that the Genocide Convention’s obligations are ‘erga omnes partes’ obligations. The Gambia is arguing that like the UN Torture Convention, all States committed to the Genocide Convention have an interest in the fulfilment of its obligations, regardless of whether they are injured.
In a recent decision in The Gambia v Myanmar case, the ICJ provisionally ordered Myanmar to ensure it respects the Genocide Convention while the case continues. What this means is that the ICJ accepted that The Gambia’s arguments are strong enough to show there is an urgent risk of irreparable harm to relevant legal interests which the ICJ may protect. The ICJ has not yet definitively decided whether it has jurisdiction to decide on the merits of the case, nor has it made a merits decision that Myanmar has committed genocide. Nevertheless, the case is one to watch, not only because of its implications for the Rohingya people, but also as a demonstration of the ICJ’s dispute settlement role in an important context.