Hague Case Law: Latest Developments
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Hague Case Law: Latest Developments Anna Meijknecht1
© The Author(s) 2020
International Court of Justice (1) The Gambia v. Myanmar (indication of provisional measures) On 23 January 2020, the International Court of Justice (the Court) delivered its order on the request for the indication of provisional measures submitted by the Republic of The Gambia (‘The Gambia’) in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). On 11 November 2019, The Gambia filed an application instituting proceedings against the Republic of the Union of Myanmar (‘Myanmar’) concerning alleged violations of the Genocide Convention. In its application, The Gambia argued in particular that Myanmar has committed and continues to commit genocidal acts against members of the Rohingya group, which it describes as a ‘distinct ethnic, racial and religious group that resides primarily in Myanmar’s Rakhine State’. The application contained a request for the indication of provisional measures, seeking to preserve, pending the Court’s final decision in the case, the rights of the Rohingya group in Myanmar, of its members and of The Gambia under the Genocide Convention. The Court established that it has jurisdiction and that The Gambia does have prima facie standing to bring a case before it on the basis of alleged violations of obligations under the Genocide Convention. The Court recalled that any State party to the Genocide Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end. Addressing the question whether the rights claimed by The Gambia are plausible, the Court observed that the provisions of the Genocide Convention are intended to protect the members of a national, ethnical, racial or religious group from acts of genocide or any other punishable acts enumerated in Article III. In the Court’s view, the Rohingya in Myanmar appear to constitute a protected group within the meaning of the Genocide Convention. The Court then recalled that, at the hearings, * Anna Meijknecht [email protected] 1
Tilburg Law School, Tilburg, The Netherlands
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A. Meijknecht
Myanmar stated that violations of international humanitarian law may have occurred during what it characterizes as ‘clearance operations’ carried out in Rakhine State in 2017. The Court further referred to resolution 73/264 adopted on 22 December 2018 by the General Assembly of the United Nations, as well as to the reports of the Fact-Finding Mission affirming that there are reasonable grounds to conclude to the commission of genocide against the Rohingya. In the Court’s view, these facts and circumstances are sufficient to find that the rights claimed by The Gambia and for which it is seeking protection are plausible. Turning to the issue of the link between the rights claimed and the provisional measures requested, the Court found that some of
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