The Gambia v. Myanmar: Revisiting the provisional measures order
On 23 January 2020 International Court of Justice (ICJ) delivered its provisional measures order in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case between the Gambia and Myanmar. The court concluded that Myanmar must take all the measures to protect the Rohingya group in its territory from all the acts of genocide. The court also ordered that Myanmar must take adequate measures to safeguard and preserve any evidence relating to acts of genocide.
The ICJ may take any provisional measures under Article 41 of Statute of the International Court of Justice (hereinafter "Statute") to protect the rights of the parties pending the final decision in a dispute. In this case, for checking prima facie jurisdiction, court recalls its provisional measures order in the case of the Islamic Republic of Iran v. the United States of America that court only can deliver provisional measures if prima face get a basis on which its jurisdiction could be founded, but definitive jurisdiction on merit it's not necessary.
Article IX of the Convention makes it clear that dispute between the parties regarding the interpretation, application or fulfilment of the present Convention, shall be submitted to the ICJ. On this point, Maynmar argues that court does not have jurisdiction on the present case because there was no dispute before filing this with The Gambia based on facts; instead, The Gambia filed it as "proxy" or "on behalf" of OIC. On this point court state that according to 34 of the Statute The Gambia filed this case in its own name, and based on violating its own right under the convention.
On the question, whether there was a dispute between parties while filing the case, the court by referring its 2016 judgment in the case of the Marshall Islands v. India stated that "it is a matter for objective determination by the Court; it is a matter of substance, and not a question of form or procedure" (para 26).
The court also noted that the dispute between parties exists here because they hold the two different position regarding the violation of international obligation under this Convention (para 20) which can be determined from any official statement and documents exchange between parties in bilateral and multilateral settings (para 26).
Whether alleged violations attributable to Myanmar under the Convention, on this point, court clarify that it is not required to ascertain whether the violations of the Convention have occurred instead at this stage of proceedings to deliver the provisional measures court need to establish that the alleged violations are accomplished of falling within the provisions of the Convention. The court concludes that some of the alleged violations are capable of falling under the Convention (para 30).
Myanmar has a reservation on Article VIII of the convention which states that any contracting party may request to competent organs of the United Nations (UN) for taking actings under the Charter of the UN for the prevention and suppression of acts of genocide.
Maynmar argued that because of such reservation The Gambia cannot validly seise the Court.
The Court notes that this reservation can not defend Myanmar from adjudication; it can be the defence against to call upon any organs of the UN to prevent and suppress the acts of genocide. This matter depends explicitly on Article IX of the Convention, and there is no reservation on it from Myanmar site (para 35). In light of the above points, the Court concluded that it has prima facie jurisdiction under Article IX of the Convention.
On the question of The Gambia's standing before the court, Myanmar accepts that some obligations of the convention have ergaomnespartes character and The Gambia can stand before the court without being especially affected by such alleged violations. Myanmar argues that the subject matter of the present case primarily affects Bangladesh, so right of Bangladesh to invoke the responsibility being an injured state is primary, and other state's right is subsidiary. The court notes that all the state parties of the convention have a common interest to prevent the acts of genocide and all parties have equal rights to stand against other parties of the Convention (para 41).
The court clarified that for indicating provisional measures, the court is not required to prove whether claimed rights exist or not; the court only needs to confirm that the asserted rights are in merit, are plausible, and the link between such rights and the requested provisional measures. By examining the oral submission of both parties and UN Fact-Finding Mission's reports, the court concludes that the Rohingya are protected group under Article II of the Convention, claimed rights are plausible and have a specific link with requested provisional measures to protect members of Rohingya Group in the Myanmar territory.
In conclusion, the court delivered provisional measures that Myanmar must protect Rohingya people in its from all kinds of acts of genocide, must ensure that all types of military, paramilitary, organisations and groups do not commit acts of genocide, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide. Myanmar must also protect and restain from destroying evidence related to the present case.
Bindingness of Provisional Measures
There is no specific provision regarding the bindingness of ICJ's provisional measures in international law instruments. In the LaGrand case, 2001, para 102, the ICJ stated after considering the object and purposes of its statute and the context of Article 41 that, the order of provisional measures are binding on the parties of the dispute.
Article 94 of the UN charter ensured that each state parties of the UN have an obligation to comply with the decision of ICJ in any case, which it is a party. It also states that if any party fails to comply with any judgment of ICJ, then another party may request to UN security council to take action to give effect to the ICJ's decision.
In LaGrand case, the court also noted that there is no restriction to take action under Article 94 of the UN Charter to implement provisional measures (LaGrand case, para 108).
If we carefully examine the object and purposes of provisional measures and the context of Article 41 of the ICJ Statute, we can get the answer of bindingness, that is provisional measures used to deliver by court to protects rights of parties relating to the subject matter of the dispute which can be violated during the court proceedings on merits. So, without bindingness, such order can not fulfil its sole object and purposes.
Md Lutfur Rahman is an LLM Candidate, South Asian University, New Delhi, India