The International Court of Justice (ICJ) ruled unanimously Thursday that Myanmar must take “provisional measures” to prevent the ongoing genocide of the remaining Rohingya in Myanmar, to preserve evidence and to make regular reports to the court.
This decision arises as part of the ongoing dispute between The Gambia and Myanmar regarding allegations that Myanmar took part in a genocide against its Rohingya Muslim minority. The Gambia brought a complaint to the ICJ in November and the trial officially commenced in December with oral arguments from the two sides.
During the initial arguments, The Gambia requested that the ICJ institute “provisional measures” against Myanmar to ensure the protection of the Rohingya people during the trial and to preserve evidence. The court can, “pursuant to Article 41 of its Statute,” institute provisional measures “to protect the respective rights of either party pending its final decision.”
Myanmar made two requests of the court. First, they asked the court to remove the case. Second, they asked that the court not grant provisional measures at such an early stage citing fears that such an action may be determinative and premature. The Gambia’s six specific requests for provisional measures and Myanmar’s two requests were subsequently reviewed by the court.
The court found that given the inherent gravity of genocide allegations and the prima facie evidence already presented provisional measures were necessary to preserve the rights of the Rohingya currently remaining in Myanmar. The court granted all three of The Gambia’s requests for protection and ordered that Myanmar “shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention.” They went on to add that Myanmar must also ensure that “its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above.”
The ICJ also granted The Gambia’s additional requests that Myanmar should “take effective measures to prevent the destruction and ensure the preservation of evidence related to (the) allegations” and “submit a report to the Court on all measures taken to give effect to this Order within four months” as well as “thereafter every six months, until a final decision on the case is rendered.” The court, however, declined to grant The Gambia’s final request that the ICJ take any further provisional measures as it may deem necessary, on the basis that the current provisional measures were sufficient.
Myanmar’s request that the court remove the case did not have sufficient evidence to be persuasive and was denied. The ICJ also found that the evidence submitted so far is “sufficient at this stage to establish prima facie the existence of a dispute between the Parties relating to the interpretation, application or fulfilment of the Genocide Convention” and that “prima facie, it has jurisdiction pursuant to Article IX of the Genocide Convention.”
Despite this initial victory for The Gambia, the court was also careful to clarify that:
The Court further reaffirms that the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves.
The case is expected to continue to move forward in the weeks to come, alongside its sister case in the International Criminal Court.
