ICJ measures to prevent Rohingya genocide: Review from International Law

On January 23, 2020, in the case of the Gambia v. Myanmar(ICJ General List no. 178, January 23, 2020), the International Court of Justice (ICJ) issued its judgment against Myanmar over its inhumane treatment of the Rohingya people who are entwined with real and imminent risk.

The ICJ, which is based in the Hague, issued provisional measures indicating that Myanmar must take actions to protect the Rohingya from actions encompassing extrajudicial killing, physical abuse, sexual violence, burning and destruction of homes and livestock and deliberate infliction of conditions that can drag the Rohingya people to deprivation of food and necessities of life. The provisional measures in the case have been adopted by the ICJ unanimously.

The case concerned a request by the Gambia to immediately halt the crimes against humanity, which is also violation of the 1948 UN Genocide Convention against the Rohingya people of Myanmar. Gambia asked the Court to take provisional measures. Gambia filed the case against Myanmar on November last year to seek order measure to immediately halt the crimes against humanity against the Rohingya people of Myanmar.

To counter Gambia' plea, Myanmar requested the court to (a) remove the case from ICJ's general case list and (b) to reject Gambia's request for indication of provisional measures (Paragraph 13 of the Order of the ICJ).

Provisional Measures of the ICJ and International Law

The Statute (Article 41) and Rules (Rules 73,74 and 75) of the ICJ pave legal thoroughfare for the ICJ's authority to order provisional measure. There are three prerequisites to issue a 'provisional measure'.

The first criteria entails that there must be existence of prima facie (i.e., based on the first impression) jurisdiction of the Court. While issuing provisional measures order in the case of the Gambia v. Myanmar (General List no. 178, January 23, 2020), the ICJ comments that it has prima facie jurisdiction pursuant to provision of Article 9 of the 1948 UN Genocide Convention (Paragraph 37 of the Order of ICJ).

The second criteria on issuing 'provisional measure' is that the measures sought after must have nexus with claims that constitute the subject matter of the case proceeding. In the case of Gambia v Myanmar, recalling the raison d'être (i.e., purpose of existence) of the UN Genocide Convention of 1948, the Court deems that the Gambia has eligible standing to submit it to the UN's top Court (Paragraphs 41 and 42 of the Order).

The third criteria enumerates that there must be imminent risk of prejudice to the claims at stake. Here, the nature of 'risk of prejudice' should be irreversible in nature (Paragraph 64 of the Order). To appraise the third criteria, the ICJ recalls the provisions of the UN General Assembly Resolution 96(I) of 11 December 1946 which reiterate that denial of the right of existence of human groups is contrary to the moral law and to the spirit and aims of the United Nations (Paragraph 69 of the Provisional order of the ICJ). Taking note on that observation, the ICJ considers that there is real and imminent risk of irreparable prejudice to the claims invoked by the Gambia (Paragraph 75 of the Order).

However, if we scroll back recent case judgments delivered by the ICJ, it'll become conspicuous that the Court has become comparatively more prescriptive and precise (about relevant obligations) when issuing orders. Such precision is actually helpful to legal scholars to identify whether any infringement of order has been occurred. In the case of Temple of Preah Vihear (Cambodia v. Thailand)[I.C.J. Reports 2011, p. 537], the ICJ adds an additional requirement about provisional measure. In paragraph 33 of that case judgment, the Court mentions that it can exercise such power to indicate provisional measures only if it is satisfied that the claims asserted by the party are at least plausible.

In other words, it means that just claiming a right and arguing that the provisional measures requested are linked to the claim- is not sufficient enough. Professor Dapo Akande, a faculty of Oxford University, further illustrates that there must be some links between the success on merits of the original claim and the indication of the provisional measures.

The present case of the Gambia v. Myanmar is not any exception from that. In the case, the Court clarifies that it needs to assert whether two issues are plausible: (a) whether the rights claimed by the Gambia on the merits; and (b) for whom the Gambia sought the protection (Paragraph 44 of the Order). The Court's appraisal reveals that the facts and circumstance as to the Rakhine state of Myanmar and the plights of the Rohingya people are sufficient enough to conclude that both issues are plausible (Paragraph 56 of the Order).

The ICJ unanimously issued provisional measures to order Myanmar to take measures, in compliance with the 1948 UN Genocide Convention, to prevent (a) commission of killing members of the Rohingya; (b) causing serious bodily or mental harm; (c) any deliberate infliction of condition that may cause physical destruction of the Rohingya in whole or in part; (d) imposing any decree intended to stop reproduction within the Rohingya (Paragraph 79 of the Order of Provisional Measure). The court further ordered Myanmar to dissuade destruction and ensure the preservation of any evidence related to allegations of acts within the scope of Article II of the 1948 UN Genocide Convention Rohingya (Paragraph 79 of the Order of Provisional Measure).

However, consciously or otherwise, the ICJ refrains itself from providing Myanmar any instruction as to ensuring safety of the Rohingya. Rather, to appraise Myanmar's compliance of the issued provisional measure, the ICJ asked Myanmar to submit reports to the Court firstly within four months from the date of the order and thereafter in every six months as long as the case remains open to the Court (Paragraph 79 of the Order of Provisional Measure). Nevertheless, it is still ambiguous what sort of retaliations can be adopted against any non-compliance of the report submission by Myanmar.

Binding Nature of Provisional Measures issued by the ICJ

Considering the rulings of the ICJ, the discourse of 'provisional measure' emerges to the occasion. Until now, the momentum and scope of provisional measures ordered by the ICJ has been little explored. Lack of clarity about 'provisional measure' may appear as bulwark in effective implementation of the order issued by the ICJ in the Gambia v. Myanmar case. With this in mind, what the rest part of the write up aims to focus here, is the binding nature and consequence of non-compliance of the 'provisional measure' issued by the ICJ.

Over the preceding decades, many of the factors have shaped the present discourse of 'provisional measures' ruled by the Int'l Court of Justice, which is also the principal judicial organ of the United Nations. Until before the judgment of the LaGrand case (Germany v. USA, judgment of June 2001), it has never been clarified whether or not there is formal obligation by state parties to comply with orders given by the court.

Before that, from 1945 onwards, nothing much has been discussed about the legally binding nature of the provisional measures of the ICJ. In that case between Germany v. USA, the ICJ (in paragraph 109 of the judgement) has enumerated the binding legal effect of provisional measure under the provision of article 41 of the ICJ statute.

In response to the ruling by the ICJ, Myanmar's Ministry of Foreign Affairs has already defied the orders of the provisional measures by issuing a statement. This Southeast Asian country's response to the ICJ's ruling reiterate that Myanmar is less concerned about the legally binding nature of 'provisional measure' ordered by the UN's principal judicial organ.

So, what are the options available in case of non-compliance to such binding provisional measure? In such case, two outcome options will be obvious. In resorting to first option, affected state party of the case or the Rohingya people can place request 'additional provisional measure' for immediate and effective implementation of the measure. For example, Bosnia opted such request of additional provisional measure in Genocide Convention Case between Bosnia and Herzegovina v Serbia and Montenegro (2007).

The binding nature of the provisional measure opens the second option to opt for the article 94(2) of the Charter of the United Nations. The provision of the Charter facilitates the right to the affected party to bring the issue to the UN Security Council.

However, it is undisputed that due to the binding nature of the provisional measure, the state party can't simply whisk away the measures issued by the United Nations' top Court. If any state risks to do so, it would simply drag itself into to the loop of breach of obligations under international law.

The writer is Teaching Assistant, Texas Tech University, USA