The nature of the provisional measures are such that as long as the Court has not made any specific indication that they are not binding, the parties and all involved shall see the measures as binding on the States parties to the proceedings. Press release 2020/14 26 May 2020 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) - Extension of the time-limits for … 135) With her formidable prior experience as President of the ICTR, a judge at the ICC, and head of the OHCHR, this experience will be a welcome addition to the bench. While these are clearly distinct institutions with vastly different mandates, there may well be points of overlap and a reliance on some of the institutions in the course of the ICJ case. The Court concluded that all the conditions required by its Statute to have the request for provisional measures granted had been met and proceeded to granting the requests made by The Gambia against Myanmar. (See my previous Opinio Juris post on potential interlinkages). [2], The Court, after realizing that all the conditions set forth had been fulfilled, made the indications of the provisional measures sought by the Gambia against Myanmar in 2019. Rescue at Sea and the Establishment of Jurisdiction: New Direction from the Human Rights Part II Committee? However, in November 2019, Gambia filed an application before the International Court of Justice (ICJ) alleging that the violence committed by the Myanmar government against the Rohingya violated the Convention on the Prevention and Punishment of the Crime of Genocide. Questions answered include: What allegations does The Gambia The objection was submitted to the International Court of Justice (ICJ) on January 20, more than a Aung San Suu Kyi arrives at ICJ as Myanmar faces genocide case. ) Â, The filing of the application by The Gambia is a significant step in the quest for accountability – this is the route of state accountability, while for individual responsibility, proceedings continue at the ICC, as well as with emerging universal jurisdiction cases. 2020/14) requesting five provisional measures to preserve and protect the lives of Rohingya Muslims in Myanmar under the Genocide Convention. As a last point, The Gambia has appointed Navanethem Pillay as an ad hoc judge. I will briefly go over some legally significant aspects of the application. She is ambitious about writing and editing. The said Article reads: 1. The Court must have competent jurisdiction to take on the matter. In addressing ‘plausible rights’ for the purpose of provisional measures, the application draws upon the case ofBelgium v Senegal, applying mutatis mutandis the comparison to the Convention against Torture. For our previous coverage of the case, see here. The application emphasizes the mass scale destruction of villages, the targeting of children, the widespread use of rape and sexual assault, situated in the context of the clearance operations of October 2016, and then from August 2017 onwards. Today the International Court unanimously issued its provisional measures order in the case brought by The Gambia against Myanmar under the Genocide Convention. 15) This is significant as it seeks to cover both bases – that the obligations arise towards the international community as a whole, as well as to parties to the convention. The Court’s power to grant interim reliefs i.e. This commentary is an attempt to highlight the reasoning for the granting of provisional measures in the protection of human rights. Myanmar cannot be trusted to put own soldiers on trial: Gambia. Rescue at Sea and the Establishment of Jurisdiction: New Direction from the Human Rights Committee? © 2021 Opinio Juris | Design by Minute Works | In association with the International Commission of Jurists. It addresses the compelling circumstances that necessitate provisional measures and cites the 2019 FFM report in assessing a grave and ongoing risk to the approximately 600,000 Rohingya that are in Myanmar. While the ICJ is not a human rights court properly so called, its evolving jurisprudence has taken into account the need to protect human rights in the adjudication of international law. These measures are susceptible to improvements into more permanent remedies rendering them basically temporary. Gambia’s case, whatever the outcome, refocuses attention on the Rohingya crisis, said John Packer, a law professor at the University of Ottawa, who has followed the situation in Myanmar. Importantly, it also cites the destruction of evidence as part of the argument (para. Post was not sent - check your email addresses! As a result, the application has been much anticipated. XLV No.1-2001 pg. Gambia files Rohingya genocide case against Myanmar at UN court This article is more than 1 year old Application seeks punishment for culprits, compensation for victims and end to attacks Ms. Jeng is a 23 year old final year Law student at the University of The Gambia. (para. Earlier this year, the International Court of Justice (ICJ) indicated provisional measures in the case brought by The Gambia against Myanmar (The Gambia v Myanmar No. [7] Provisional measures are made to safeguard the main object that relates to a case and prevent its change in any way. Myanmar has objected to Gambia's eligibility in filing a November 2019 case alleging that it committed atrocities against Northern Rakhine Muslims (Rohingya) in Rakhine State in 2016 and 2017 that violate the Convention on the Prevention and Punishment of the Crime of Genocide. 2. What struck me particularly is the timeline of events as the underlying factual basis of the application, commencing with the ‘clearance operations’ in October 2016 and continuing to date. On the substance of the allegations of genocide, the application lays the groundwork – the persecution of the Rohingya, including denial of rights, as well as hate propaganda, and then goes on to address the commission of genocidal acts. Before the Court grants provisional measures, certain conditions must be fulfilled. “The growing global support for Gambia’s case raises the stakes for Myanmar to engage in the ICJ process in a meaningful way and change its approach to the Rohingya,” Singh said. The Court found that the link between the provisional measures sought and the rights claimed has been established as it recalled that certain genocidal intentions/acts were deducible from the conduct against the people of Rohingya in Myanmar as can be found in the reports of the Fact-Finding Mission. As part of the relief asked for, The Gambia has asked that the continuing breach of the Genocide Convention obligations are remedied, that wrongful acts are ceased and that perpetrators are punished by a competent tribunal, which could include an international penal tribunal – clearly leaving the door open to the ICC or an ad hoc tribunal. This legal step has been in the works for some time now, with the announcement by the Gambian Minister of Justice that instructions had been given to counsel in October to file the application. The Court further refers to resolution 73/264 adopted on 22 December 2018 by the General Assembly of the United Nations, in which the latter condemned the widespread and systematic crimes committed by Myanmar forces against the Rohingya in Rakhine State. As demonstrated in the cases of Interhandel (Switzerland v. United States of America) and the Legality of Use of Force (Yugoslavia v. Spain), there is no specific level of urgency that surrounds the request of reliefs by the parties and acceptance by the Court. The Gambia is entitled to submit comments on Myanmar’s report. 118), indicating the necessity of the work of the IIMM in this regard. Today, the International Commission of Jurists published a legal briefing on the hearing on provisional measures to be held at the International Court of Justice between 10-12 December 2019 in the case of The Gambia v Myanmar. This is a landmark case in several respects. Asserting its power to try the case and noting Myanmar’s obligation to comply with the 1948 Genocide Convention, the judges unanimously granted four provisional measures. Violations of the following provisions of the Genocide Convention are alleged: Articles I, III, IV, V and VI. On 11 November 2019, The Gambia lodged a 35-page application with the ICJ against Myanmar, initiating the case on the basis of the erga omnes character of the obligations enshrined in the Genocide Convention. Ultimately, the ICJ judges found Gambia’s argument more compelling. This legal step has been in the works for some time now, with the announcement by the Gambian Minister of Justice that instructions had been given to counsel in October to file the application. [1] https://www.asil.org/ILIB/icj-indicates-provisional-measures-gambia-v-myanmar-case, [2] https://baripedia.org/wiki/Provisional_measures#Concept, [5] https://law-journal.de/archiv/jahrgang-2017/heft-1/remedies/, [7] https://www.corteidh.or.cr/tablas/r23114.pdf, [9] Ateno Law Journal-Vol. The west African nation accuses Myanmar of genocide against its Rohingya Muslim minority at top UN court. (And no, as I’ve been asked many times, unfortunately we are not related! Priya Pillai is an international lawyer, consulting in the areas of international justice, transitional justice, and human rights. On 11 November 2019, The Gambia filed an application at the International Court of Justice against Myanmar, alleging violation of obligations under the Genocide Convention. The order is available here, the three separate opinions here. In November 2019, Gambia opened the case at the ICJ against Myanmar for failing to prevent or punish acts of genocide against Rohingya Muslims. In addition, as part of the obligation of reparation, The Gambia asks for safe and dignified return of the Rohingya with full citizenship rights, and a guarantee of non-repetition. This order is the result of an application filed by The Gambia on 11 November 2019 at the ICJ. The Gambia v. Myanmar case has become very relevant also because of the implication of Aung San Suu Kyi, a human rights activist who leads the Burmese government since 2016. On 11 November 2019, The Gambia filed an application at the International Court of Justice against Myanmar, alleging violation of obligations under the Genocide Convention. Secondly, the party initiating the request must have prima facie locus standi without which it will have been unable to bring the case forward as it would not have any interest, whatsoever to seek preservation for the rights which it does if there were no connection to it through a treaty (the Genocide Convention). She hopes to pursue a career in Criminal Psychology. In association with the International Commission of Jurists. 2020/14) requesting five provisional measures to preserve and protect the lives of Rohingya Muslims in Myanmar under the Genocide Convention. Gambia files Memorial with ICJ over Myanmar Oct 26, 2020, 11:02 AM The Republic of The Gambia filed its “Memorial” with the International Court of Justice (ICJ) in the Hague in the case it brought against Myanmar under the Genocide Convention last year, according to a missive. The Gambia v. Myanmar: ICJ Delivers Order on Request for Provisional Measures (Archives 23 Jan 2020) The United Nations of Earth reporting on this issue: "The Gambia v. It accused Myanmar authorities of continuing to commit human rights violations against the Rohingya even after the provisional measures, confining more than 125,000 Rohingya in over 20 internment camps. Outside counsel for The Gambia includes a team from the law firm Fol… While the Gambia is not in any way directly affected by the atrocities the Myanmar security forces have committed on the Rohingyas, its standing to bring a case against Myanmar … 2. The application alleged that Myanmar has committed mass murder, rape and destruction of communities against the Rohingya group in Rakhine state since about October 2016 and that these actions violate the Genocide Convention. Lastly, there must also be a real risk that irreparable damage is likely to take place at any time before the Court gives its final decision. The Gambia v Myanmar at the International Court of Justice: Points of Interest in the Application, Weekly Update November 14– November 20, 2019 – CASS, EJIL: Talk! The Gambia filed this case at the ICJ in November 2019. Although this is her first legal article, she maintains a blog that can be found at: https://yaawajeng.wixsite.com/perfectbruises1 where she occasionally posts her various write-ups based on a wide range of topics that she finds interesting. The Gambia opened a case at the ICJ, also known as the World Court, in November last year against Myanmar for failing to prevent or punish genocide against Rohingya Muslims. The IIMM was explicitly mandated to inquire into events from 2011 onwards, while the FFM interpreted its mandate to commence from 2011. (paras. The ICJ has released the schedule for both sides to submit their legal briefs addressing the … 1. The Court is guided by the authority that is the Statute but it has discretion to determine the requests made and to make them in accordance with their finding and deliberation based on the circumstances they may consider as necessary to be the foundation of the interim reliefs. However, Myanmar ‘dispute[d] that The Gambia [had] the capacity to bring a case before the Court in relation to Myanmar’s alleged breaches of the Genocide Convention without being specially affected by such alleged violations" by, for example, "hav[ing] a … As already mentioned above, the rights whose protection is sought must be linked with the measures that are requested. Introduction. As I have previously written about the application, as well as days 1, 2 and … By an Order dated 28 January 2021, the Court fixed 20 May 2021 as the time-limit within which The Gambia may present a written statement of its observations and submissions on the preliminary objections raised by Myanmar on 20 January 2021 in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Part I, Subverting Racism in / through International Law Scholarship, Not All that Glitters Is Gold: the Human Rights Committee’s Test for the Extraterritorial Application of the ICCPR in the Context of Search and Rescue Operations. In consideration of all these, the Court finds that there was a real, imminent and irreparable damage to the rights as claimed by The Gambia.[15]. [11] It is important to note that any procedure that relates to provisional measures is entirely based on the discretion of the Court. The Rights Whose Protection is Sought and the Link Between Such Rights and the Measures Requested. provisional measures to requesting parties is derived from Article 41 of the ICJ Statute. 130, [12] Genocide Convention, Article III <(https://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx)>, [13] https://www.icj-cij.org/files/case-related/178/178-20200123-ORD-01-00-EN.pdf, [14] https://www.icj-cij.org/files/case-related/178/178-20200123-PRE-01-00-EN.pdf, International Court of Justice (ICJ) Provisional Measures in The Gambia v Myanmar Case: A commentary, Parliamentary sovereignty: The Gambia’s perspective, THE JUDICIARY: BEACON OF HOPE FOR  THE PROTECTION OF HUMAN RIGHTS AND DEMOCRACY IN THE GAMBIA, https://yaawajeng.wixsite.com/perfectbruises1, https://www.asil.org/ILIB/icj-indicates-provisional-measures-gambia-v-myanmar-case, https://baripedia.org/wiki/Provisional_measures#Concept, https://law-journal.de/archiv/jahrgang-2017/heft-1/remedies/, https://www.corteidh.or.cr/tablas/r23114.pdf, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx, https://www.icj-cij.org/files/case-related/178/178-20200123-ORD-01-00-EN.pdf, https://www.icj-cij.org/files/case-related/178/178-20200123-PRE-01-00-EN.pdf. – The Gambia’s gamble, and how jurisdictional limits may keep the ICJ from ruling on Myanmar’s alleged genocide against Rohingya, The OTP Should Have Appealed the Palestine Decision. This decision was made in the LaGrand case[3] where the question as to the binding nature of the provisional measures arose before the Court and a decision was made that the purpose of the indications would be missed if they were not binding. She has extensive legal experience at international and domestic institutions. As notably reported by The New York Times and The Washington Post, the […]. (para. Earlier this year, the International Court of Justice (ICJ) indicated provisional measures in the case brought by The Gambia against Myanmar (The Gambia v Myanmar No. For the legal basis of the application, The Gambia asserts that both states are parties to the Genocide Convention, neither have reservations to Article IX, and that there exists a dispute between it and Myanmar – listing a number of instances in which The Gambia has issued statements about and to Myanmar regarding the treatment of the Rohingya, including a note verbal in October 2019. [14], 3. This is the same timeframe under scrutiny at the International Criminal Court, but different from the FFM (which has now completed its mandate), and the Independent Investigative Mechanism for Myanmar (IIMM). As articulated in Article III of the Genocide Convention, the following acts shall be punishable: c)    Direct and public incitement to commit genocide; The provisions above seek to protect the rights of members of a national, ethnical, racial or religious group.