Introduction
The International Court of Justice’s Order indicating Provisional Measures in The Gambia v. Myanmar on 23 January 2020 (Order) has been hailed by many as politically and legally significant in ensuring justice for the Rohingya group. Given the fact that all the interim measures indicated in the Order will remain in force at least until the date of the final decision, unless the ICJ or The Gambia opts for another Order in the interim, this Order will be very crucial in ensuring the interim protection of the Rohingyas for the time being. Against this backdrop, this article aims at elucidating the strengths and weakness of the Order in protecting the Rohingyas from genocide for the interim period. It will also explore its relevance to the final decision.
The Proceedings in a Nutshell
Relying on the compromissory clause of the Genocide Convention, The Gambia initiated the proceedings before ICJ against Myanmar on 11 November 2019. The application sought, among other things, an order indicating provisional measures. In response, the ICJ convened public hearings from 10 to 12 December 2019 where both parties presented their arguments and the Court delivered its decision on 23 January 2020. Highlighting its binding nature, the Order indicated that Myanmar should (1) prevent the commission of genocide against Rohingyas, (2) not commit genocide, (3) preserve the evidence related to the commission of genocide, and (4) report to the Court regarding the actions taken to implement the measures mentioned above at certain intervals.
Three aspects of the Order are worth mentioning: (1) all judges, including Myanmar-appointed ad hoc judge Claus Creß, voted for the adoption of interim measures and (2) the Court, albeit only on a prima facie basis, recognised the Rohingyas as a protected group under the Genocide Convention and stated that ‘the acts complained of by The Gambia are capable of falling within the provisions of the Genocide Convention’, and (3) the Court endorsed The Gambia’s reliance on the principle of erga omnes partes to seize the Court.
Compliance Rate of Provisional Measures
The instances of implementation of interim measures remain very poor till the date. After analysing eleven cases,Constanze Schulte, Attorney-at-Law and Partner, Hogan Lovells International LLP, has found that the provisional measures have been complied with only in one case. Moreover, the statement made by the Government of Myanmar on the ICJ’s Order casts adequate doubt about its willingness to comply with these measures. However, the failure to comply with the provisional measures does not automatically result in any consequences. Generally, the Court takes the note of the non-compliance at the merit level. It did so in the Bosnian Genocide case even though the final judgment went against Bosnia and Herzegovina.
Additionally, the party affected by such non-compliance may bring an additional request for provisional measures (Tanakaat 200). Schulte ultimately found that ‘Interim orders in most cases fulfilled some useful purpose for the litigant, irrespective of actual compliance.’ We can already see that the present Order has demystified many legal issues on a prima facie basis. This Order may offer both parties sufficient guidance to draft their respective submissions. Additionally, the political and moral gain of the Order by The Gambia and the Rohingyas should not be overlooked.
The Uncertainty Around the Reporting Requirement
The nature of the fourth provisional measure indicated by the Court is relatively rare in its history. It stipulates that ‘Myanmar shall submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court’. It should be noted that the report should be addressed only to the Court, rather than to The Gambia or the Security Council. It also omits to mention whether it should be public or confidential. By analysing ICJ’s past practices, Michael A Becker, Adjunct Assistant Professor of Public International Law at the Trinity College, Dublin, predicted that it would not be made publicly available. However, a publicly available periodic review would be useful to foster compliance with the provisional measures by the Government of Myanmar.
The Court’s Reluctance About Access to Evidence
Due to Myanmar’s repeated refusal to provide access to the UN Fact Finding Mission (FFM), the later had no choice but to limit its investigation outside Myanmar (mostly within Bangladesh). However, the investigation led by FFM was based on ‘reasonable basis’ which falls far below the classical criminal law standard of ‘beyond reasonable doubt’. Currently, Independent Impartial Mechanism, Myanmar (IIMM) is carrying out its evidence collection mission for potential criminal trials. But its ability to access to the territory of Myanmar remains highly uncertain, if not completely impossible.
In the second round of oral argument before the Court, The Gambia sought the Court to indicate that ‘Myanmar shall not destroy or render inaccessible any evidence…’ and ‘grant access to, and cooperate with, all United Nations fact-finding bodies’ (Order, para 12). But in its Order, the Court unanimously indicated that Myanmar should not destroy the evidence only. While rejecting the Request (also unanimously), the Court stated that it ‘does not consider that its indication is necessary in the circumstances of the case’ without any further reasoning (Order, para 62). In the Request for provisional measures, The Gambia relied heavily on the FFM reports. The issue of admissibility of evidence provided from FFM reports, though strongly objected by Myanmar did not frustrate The Gambia’s ability to obtain the Order, primarily because the Court decided on a prima facie basis.
However, genocide is a crime, and its commission must be proved based on a strict criminal law standard. Becker commented that in the past two cases on the Genocide Convention, the Court relied on the evidence obtained from the adversarial process of trials before the International Criminal Tribunal for the Former Yugoslavia. In The Gambia v Myanmar, IIMM’s access to the territory would be a possible solution, and thus the ICJ’s positive ruling was very necessary. Now, the issue remains mostly at the disposal of time and partly to the innovation of the Court under Article 50 of the Statute.
Provisional Measures and the UN Security Council
The role of the UN Security Council in implementing the provisional measures has historically produced some confusions. Article 41 of the ICJ Statute, which empowers the Court to indicate provisional measures, and Article 77 of the Rules of Court provided that the measures suggested by the Court shall be forwarded to the Security Council. Neither the Statute nor the Rules of Court indicate the role of the Security Council in relation to the enforcement of provisional measures.
Sometimes, a reference to Article 94(2) of the UN Charter is made, which states, ‘If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.’ However, the wording of this provision requires further scrutiny; it mentions judgment, not decision. After analysing Article 59 of the UN Charter and Article 94 of the Statute, it becomes apparent that ‘judgment’ does not include an Order indicating provisional measure. However, the sole instance to recourse to the Security Council for enforcing provisional measures remains to date is the Anglo-Iranian Oil case. But it was done in reliance of Articles 34 and 35, not that of Article 94(2) of the UN Charter.
At this juncture, a recent veto-frustrated initiative related to the Order at the Security Council warrants some scrutiny. Though much is not known due to its confidential nature, the media reports indicate that the initiative was intended to make a statement for making some political pressures upon Myanmar. Thus, the implementation of the provisional measures, despite its binding nature, remains at the sole discretion of Myanmar. However, the statement made by representatives from Myanmar about the Order indicates otherwise. Additionally, Myanmar has some allies in the Security Council who have already exhibited their commitment to that relationship.
Does Morning Show the Day at ICJ?
Despite all shortcomings, the Order appears to be a promising morning that many may take as a prediction of a prosperous day. But the history of the ICJ has something different to say. It is worth mentioning that in the Bosnian Genocide case, the Court indicated two positive Orders, but the final decision was negative. Even unanimity of the judges in indicating the Order does not offer the likelihood that it will remain the same in the subsequent stages. A very recent example is the Immunities and Criminal Proceedings (Equatorial Guinea v. France), where the Court was unanimous in indicating provisional measures but was divided while deciding its judgment on preliminary objections. These factors do not forecast a fait accompli for The Gambia, and it is still too early to attempt any concluding remark about the results of the case.
Quazi Omar Foysal teaches Public International Law at the American International University-Bangladesh. He holds an LLM in International Humanitarian Law and Human Rights from Geneva Academy of International Humanitarian Law and Human Rights, Switzerland. He was one of the authors of the amicus curiae observation submitted by Bangladesh Non-Government Representatives to the International Criminal Court in support of Prosecutor’s Request for Jurisdictional Ruling.