ICJ dismisses the preliminary objections over The Gambia’s claims regarding Myanmar’s violation of the Genocide Convention

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), ICJ Case

On July 22, 2022, the ICJ delivered its judgment on Myanmar’s preliminary objections to The Gambia’s claims regarding Myanmar’s violation of the Genocide Convention. By rejecting the preliminary objections, the court confirmed its jurisdiction and the admissibility of The Gambia’s application.

In the judgment, the court elaborated on how to ascertain who is the “real applicant,” whether there is an abuse of process, whether a dispute exists between the parties, whether the applicant can validly seize the court, and whether the applicant has standing to bring claims.

Considering that investment arbitration tribunals frequently resort to the jurisprudence of the ICJ especially when it comes to the issues such as the existence of a dispute and abuse of process, the court’s reasoning has the potential to influence investment arbitration tribunals’ future approaches to these issues.

Background

 The dispute relates to Myanmar’s acts against the members of the Rohingya group. According to The Gambia, in October 2016, the Myanmar military and other Myanmar security forces conducted “clearance operations” against the Rohingya group. It alleged that during “clearance operations,” the military committed mass murder, rape, and other forms of sexual violence and engaged in the systematic destruction by fire of Rohingya villages, often with inhabitants locked inside burning houses, with the intent to destroy the Rohingya as a group. Moreover, The Gambia alleged that the above genocidal acts continued from August 2017 onwards when Myanmar resumed the “clearance operations” on a more massive and wider geographical scale.

The Gambia and Myanmar are both parties to the Genocide Convention. In its application, The Gambia claimed that Myanmar’s acts breached its obligations under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V, and VI of the Genocide Convention. The Gambia based the court’s jurisdiction on Article IX of the Genocide Convention, which provides that “disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention” shall be submitted to the ICJ.

Myanmar raised four preliminary objections to the jurisdiction of the court and the admissibility of the application, namely that 1) The Gambia is not the “real applicant,” 2) there was no dispute between the parties when The Gambia instituted proceedings, 3) The Gambia cannot validly seize the court, and 4) The Gambia lacks standing to bring this case.

The Gambia is the “real applicant” of the case, and there is no abuse of process

In its first preliminary objection, Myanmar argued that the “real applicant” of the case should be the Organization of Islamic Cooperation (“OIC”) rather than The Gambia, and hence the court lacks jurisdiction ratione personae, or the application is inadmissible due to the abuse of process. For Myanmar, there is an abuse of process, because the OIC “appointed” or “tasked” The Gambia to bring the present proceedings on its behalf, so that it can circumvent the limitations that only states can be parties in ICJ cases and that the court may only exercise jurisdiction with the consent of disputing parties.

The Gambia insisted that it raised claims only on its own behalf. Although it accepted the OIC’s proposal to file the case and obtained the OIC’s support, The Gambia opined that these circumstances should have no bearing on the court’s jurisdiction. It further denied the existence of any abuse of process, as it did not initiate the proceedings with improper intent, and the international community has widely recognized its efforts.

The court held that The Gambia is the “real applicant” of the case. Therefore, the first preliminary objection should be rejected. According to the court, the fact that The Gambia may have accepted the OIC’s proposal to initiate the proceedings, or that it may have sought and obtained financial and political support from the OIC to file the case, does not detract from its status as the applicant. The motivation behind the commencement of proceedings is irrelevant for establishing the court’s jurisdiction. The court also rejected Myanmar’s contention that The Gambia’s claims are inadmissible due to the abuse of process. Considering that The Gambia has been recognized as the “real applicant,” there is no evidence showing that The Gambia’s conduct amounts to an abuse of process. The court also recalled its holding in Certain Iranian Assets, which affirmed that only in exceptional circumstances may the court reject a claim on the ground of abuse of process.

There exists a dispute between the parties

Myanmar argued that there was no dispute between the parties when The Gambia filed the application on November 11, 2019. According to Myanmar, to establish the existence of a dispute, the claims must be articulated with a minimum degree of particularity. Moreover, there should be “mutual awareness” of the parties’ opposing views regarding relevant legal claims. After examining relevant facts, Myanmar contended that the above requirements were not satisfied when The Gambia initiated proceedings.

For The Gambia, Myanmar’s view has no merit either in law or in fact. Concerning the legal standards, it opined that Myanmar set a higher bar than what is required for establishing the existence of a dispute. Concerning facts, The Gambia maintained that the evidence clearly shows that prior to the filing of the application, the parties held divergent views regarding Myanmar’s fulfillment of its obligations under the Genocide Convention, and Myanmar was aware of this.

The court dismissed Myanmar’s objection regarding the non-existence of the dispute. It first rejected Myanmar’s view that The Gambia’s statements before filing of the application lacked sufficient particularity. According to the court, it is sufficient that Myanmar was informed, through the reports of the UN Fact-Finding Mission on Myanmar in 2018 and 2019, of the allegations against it concerning violations of the Genocide Convention.

The court also found that the requirement of “mutual awareness” based on explicitly opposed positions, as advanced by Myanmar, has no basis in law. In its view, the conclusion that the parties hold opposite views does not require that the respondent expressly oppose the applicant’s claims. For the present case, the opposite stance of Myanmar can be reflected in the statements by its representative before the UN General Assembly and inferred from its failure to respond to The Gambia’s Note Verbale.

The Gambia can validly seize the court despite Myanmar’s reservation to Article VIII of the Genocide Convention

In its third preliminary objection, Myanmar submitted that The Gambia cannot validly seize the court because Myanmar made the reservation that Article VIII of the Genocide Convention shall not apply to it. Article VIII provides that “any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.” Based on Myanmar’s interpretation, the court constitutes one of the “competent organs” of the UN under Article VIII. Thus, Myanmar’s reservation to this provision precludes the valid seisin of the court by The Gambia.

For The Gambia, the court did not constitute a “competent organ” of the United Nations under Article VIII, because it cannot take “action” under the Charter of the United Nations based on what it considers “appropriate.” Also, the expression “call upon” in Article VIII is not commonly employed in connection with judicial proceedings.

The court admitted that the ordinary meaning of “competent organs of the United Nations” appears to include the court. Nevertheless, reading Article VIII as a whole could lead to a different interpretation. In particular, Article VIII provides that the competent organs of the United Nations may “take such action . . . as they consider appropriate,” which suggests that these organs exercise discretion in determining the actions for “the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.” The function of the “competent organs” under Article VIII is to address the prevention and suppression of genocide at the political level, which is different from the function of the court.

According to the court, Article IX explains the conditions for recourse to the principal judicial organ of the United Nations, whereas Article VIII allows any contracting party to appeal to the political organs of the United Nations. It follows that Article VIII does not govern the seisin of the court. Consequently, the third preliminary objection was rejected.

The Gambia has standing to bring the case before the court

Myanmar contended that because The Gambia is not an “injured State” and has not demonstrated its individual legal interest in this dispute, it lacks standing under Article IX of the Genocide Convention. It further argued that The Gambia is not entitled to invoke Myanmar’s responsibility in the interest of members of the Rohingya group, who are not nationals of The Gambia. Even if The Gambia has standing to bring the case, its standing should be subsidiary and dependent upon the standing of Bangladesh, which is the state “specially affected” by Myanmar’s acts.

The Gambia pointed out that the obligations under the Genocide Convention are owed erga omnes partes. Therefore, a breach of these obligations injures all signatories to the Convention and enables any signatory to invoke the corresponding responsibility. The Gambia also contended that the rule concerning the nationality of claims is inapplicable because it is inconsistent with the object and purpose of the Convention. Moreover, The Gambia rejected Myanmar’s contention that its rights to bring claims are subordinate to those of Bangladesh.

The court recalled its advisory opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, which explained that under the Genocide Convention, “the contracting States do not have any interests of their own; they merely have, one and all, a common interest.” In the court’s view, the common interest in compliance with the relevant obligations under the Genocide Convention entails that any signatory is entitled to invoke the responsibility of another signatory for an alleged breach of its obligations erga omnes partes. The applicant does not need to prove its special interest before bringing claims.

Since the entitlement to make claims derives from the common interest, the court further observed that such entitlement is not limited to the state of nationality of the alleged victims. The court also affirmed that The Gambia’s standing before the court is not subsidiary and dependent upon the standing of Bangladesh.

The ICJ´s decision in The Gambia v. Myanmar may influence future ISDS cases as far as treatment of the issues of existence of a dispute and abuse of process. For that reason, it is of relevance to investment policy-makers.

Author

Ying Sun is a PhD researcher in international law at the European University Institute. Her previous experiences include handling international arbitration cases and domestic litigation cases as a Chinese lawyer.

Note: Judge Xue delivered her dissenting opinion regarding the judgment. Judge ad hoc Kress issued a declaration. The ICJ judgment on preliminary objections, Judge Xue’s dissenting opinion, and Judge ad hoc Kress’s declaration, are available at https://www.icj-cij.org/en/case/178.