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Home Posts tagged "The Gambia"

ICJ Indicates Provisional Measures in the Myanmar Genocide Case

Published on January 23, 2020        Author: 

 

Today the International Court unanimously issued its provisional measures order in the case brought by The Gambia against Myanmar under the Genocide Convention. The order is available here, the three separate opinions here. For our previous coverage of the case, see here. The fact that the Court ordered provisional measures and did so unanimously is obviously a win for The Gambia, and for the Rohingya cause more generally, but its impact should not be overstated. A couple of quick noteworthy points:

(1) The Court adopts a rather flexible approach to the issue of plausibility, and relies mainly on the reports of UN fact-finding commission to support the issuance of provisional measures (on the fact-finding commission reports see in particular Mike Becker’s earlier post). The Court specifically rejects Myanmar’s argument that a more rigorous standard of proof should be required at the provisional measures stage of a genocide claim (para. 56). However that doesn’t mean at all that Gambia will succeed on the merits (it likely won’t, as I’ll explain below).

(2) The Court indicated all but two of the provisional measures that Gambia had requested, but it’s interesting how exactly it did so.

(3) First, the principal measures it indicated, at para. 86 (1) and (2), effectively replicate state obligations under the Genocide Convention, i.e. they do not strictly legally speaking add anything new to the corpus of obligations that Myanmar already has. Second, in indicating these measures the Court omitted the references to more specific acts (e.g. rape or the burning of villages) from Gambia’s request (compare at para. 5) – basically the Court didn’t want to give the impression that any of such specific acts were proven, and the final language is more palatable and diplomatic.

Third, the Court specifically ordered Myanmar (para. 86(3)) to ‘take effective measures to prevent the destruction and ensure the preservation of evidence,’ but again it avoided the more explicit and specific language from Gambia’s request. Fourth, the Court rather laconically rejected Gambia’s (late) request for a specific measure requiring Myanmar to provide access to UN investigators, saying simply (para. 62) that it ‘does not consider that its indication is necessary in the circumstances of the case.’ This is hardly a surprising result, bearing in mind sovereignty concerns and the intrusiveness of such a measure, but the paucity of the reasoning is difficult to justify. Fifth, the Court (rather surprisingly) decided not to indicate the general, innocuous non-aggravation measure, saying that it was unnecessary due to the specific measures that it did indicate (para. 83). Finally, the Court ordered Myanmar to provide it with periodic reports on its implementation of the measures indicated – this has the potential for some bite, but obviously it remains to be seen with what rigour the Court and the parties will observe this requirement.

(4) Bearing in mind how it handled the prima facie jurisdiction analysis in this order, it seems extremely unlikely that the Court will dismiss this case at the jurisdictional stage. I see no reasonable way in which Myanmar could win on jurisdiction, but its contestation of jurisdiction will of course prolong the Court’s examination of the case.

(5) That said, the most likely outcome of the merits stage is still that Myanmar will win, i.e. that Gambia will not be able to provide clear and convincing evidence that genocide (as opposed to crimes against humanity or war crimes) were committed against the Rohingya – basically the same outcome as in the Bosnian and the Croatian genocide cases. The evidentiary requirements were set so high in those cases (in my view rightly so), that they could not be met even with the existence of a fully-fledged international criminal tribunal that could reliably establish the facts. The Court will not have the luxury of the ICTY’s assistance in this case, and once counsel for Myanmar start probing the specific evidence behind the UN fact-finding reports bit by little bit it seems probable that they’ll raise sufficient doubt as to the existence of genocidal intent. But this outcome, even though in my view highly likely, is still many years down the line.

 

The Challenges for the ICJ in the Reliance on UN Fact-Finding Reports in the Case against Myanmar

Published on December 14, 2019        Author: 

 

This past week’s provisional measures hearing in the case against Myanmar at the International Court of Justice (ICJ) made for a remarkable spectacle (see here, here, and here). Acting as the head of her country’s delegation, Nobel Peace Prize winner Aung San Suu Kyi sat silently as The Gambia’s legal team laid out its case alleging violations of the 1948 Genocide Convention, including brutal descriptions of the atrocities that have been exacted upon the Rohingya minority. When Aung San Suu Kyi addressed the Court herself, she pointedly did not utter the word “Rohingya”—except in a sole reference to the Arakan Rohingya Salvation Army, an insurgent group that Myanmar places at the center of what it frames as an internal armed conflict. Instead, she asked the Court to reject the provisional measures request and to resist the efforts by The Gambia and others to “externalize accountability” for alleged war crimes, leaving Myanmar to addresses these matters itself (CR 2019/19, pp 17-18, paras 24-25) .

In brief, The Gambia accuses Myanmar of engaging in a systematic policy of oppression and persecution against the Rohingya, a Muslim minority in a predominantly Buddhist country, that reaches back decades. Based on the Application, the ICJ will be asked to focus on military campaigns (termed “clearance operations” by Myanmar) carried out against the Rohingya since 2016, which are estimated to have caused more than 10,000 deaths and more than 700,000 people to seek refuge in Bangladesh. This is not the first time that a non-injured State has sought to enforce obligations erga omnes partes at the ICJ, but it is the first such case brought under the Genocide Convention.

I wrote previously about the possibility of an ICJ case against Myanmar and some of the attendant challenges. This post aims to highlight a specific challenge that these proceedings will pose for the Court: The Gambia’s extensive reliance on UN fact-finding reports, combined with the absence of prior or parallel international criminal proceedings relating to these events. Read the rest of this entry…

 

A Picture is Worth a Thousand Words

Published on December 4, 2019        Author: 

(Image credit: AFP)

Next week, Aung San Suu Kyi, the Nobel Peace Prize laureate and de facto head of government of Myanmar, will appear in person before the International Court of Justice. She will be defending her country in the case brought by Gambia for breaches of the Genocide Convention due to atrocities against the Rohingya. The Court will be holding oral hearings on provisional measures in the case (for our earlier coverage, see here). According to an AFP report:

Ardent fans of Aung San Suu Kyi are snapping up spots on $2,000 tours to The Hague, in a display of moral support as Myanmar faces charges of genocide over the Rohingya crisis at the UN’s top court in December.

Supporter rallies, billboards and outpourings of praise online followed the shock announcement by the country’s civilian leader last week that she would personally represent Myanmar at the International Court of Justice (ICJ).

The once-lauded democracy champion will be defending the 2017 military crackdown against the Rohingya minority.

One travel operator is organising a five-day tour to The Hague that includes visa and transportation as part of a $2,150 package, said employee Ma July — a prohibitive rate for most in the developing nation.

Social influencer Pencilo and well-known TV presenter Mg Mg Aye are among the 20 or so people to have already signed up.

“I believe this is our duty as citizens,” Pencilo, 29, told AFP Friday, urging any of her 1.1 million Facebook followers who have the means to do the same.

“It’s important the world knows her compatriots are fully behind her.”

– ‘We stand with you’ –

All of this is so deeply disturbing on so many levels that I genuinely find myself bereft of words. But the image above somehow manages to convey it all – Peace Palace, Photoshop, Facebook. For analysis of why Suu Kyi has decided to appear before the Court in person, perhaps due to her total inability to accept a reality that is not to her liking, or perhaps as part of a cynical strategy to buoy support for her party and herself within Myanmar, see here and here. Either way, it will be a sad spectacle, in more ways than one.

 

The Gambia’s gamble, and how jurisdictional limits may keep the ICJ from ruling on Myanmar’s alleged genocide against Rohingya

Published on November 21, 2019        Author: , and

 

On 11 November, The Gambia filed an Application instituting proceedings and requesting provisional measures at the International Court of Justice (ICJ) in relation to the genocide allegedly committed by Myanmar against the Rohingya (for a first analysis of the Application, see this post by Priya Pillai). As notably reported by The New York Times and The Washington Post, the application is at least in part a personal quest for justice by The Gambia’s Minister of Justice and Attorney General, Abubacarr Marie Tambadou, who acts as The Gambia’s Agent and previously worked for the prosecutor of the International Criminal Tribunal for Rwanda. The Gambia’s application is backed by the Organisation of Islamic Cooperation (of which The Gambia is a member) and its legal team is led by the US law firm Foley Hoag (see here). As we will argue below, the peculiar origins of this quest for justice may well be determinative for the establishment of the ICJ’s jurisdiction.

Regarding the atrocities committed against the Rohingya, the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar has found ‘that the factors allowing the inference of genocidal intent are present’ (see here, para 1441). While there appears little reason to disagree with the Fact-Finding Mission’s conclusion, in this post we will not examine substantively whether the atrocities complained of constitute genocide. Instead, we will briefly sketch why it makes sense for The Gambia to seize the ICJ while proceedings relating to the Rohingya are already going on at the International Criminal Court (ICC), after which we will address the request for provisional measures.

Different nature of the ICJ and ICC Proceedings

Just three days after The Gambia submitted its application to the ICJ, Pre-Trial Chamber III of the ICC authorized the Prosecutor to investigate the situation in Myanmar/Bangladesh (see here). As Myanmar is not a party to the Rome Statute, and as the position of China and Russia make a UN Security Council referral highly unlikely (see eg here), the Prosecutor has opened an investigation on her own initiative. The investigation ‘geographically’ focuses on Bangladesh, Myanmar’s neighbouring country to which over 742.000 Rohingya refugees have fled (see here). Bangladesh is a party to the Rome Statute, and accordingly provides a jurisdictional link to the Court. Read the rest of this entry…

 

Post-Election Crisis in The Gambia, the Security Council and the Threat of the Use of Force

Published on February 17, 2017        Author: 

The Gambian post-election crisis is a gem amongst cases relevant to the law on ius ad bellum – not only because it is a crisis that has been resolved with almost no bloodshed, but also because it offers valuable insights into the interaction between Security Council authorization, the doctrine of intervention by invitation, and the prohibition on the threat to use of force (see for some analysis here, here, here, or here).

Professor Hallo de Wolf has concluded that “the legality of the ECOWAS’ military intervention is dubious”. His analysis primarily focuses on the question of legality of the ECOWAS’ intervention after the inauguration of The Gambia’s new president, Adama Barrow. However, his conclusion may be challenged if one is to read Security Council resolution 2337 (2017) as a non-prohibitive non-authorization, which indirectly opens and strengthens the alternative avenue of the doctrine of intervention by invitation . Elsewhere, I have evaluated this interpretation against State practice and the Council’s resolutions in the Syrian and Yemeni incidents and concluded that the consent of the new president, Barrow, may suffice to justify the military intervention in The Gambia.

If one is ready to follow this line of thought, a question arises as to the effect of the consent; what conduct is justified by the invitation? The post-election crisis in The Gambia, for which the course of events may be recalled here or here, entails temporal complications in this respect. The crisis can be divided in three phases: (1) pre- inauguration (Jammeh’s clinging to power up until the inauguration, and end of the ECOWAS’ ultimatum, 19 January 2017); (2) the time between passage of the ultimatum and official inauguration; (3) post- inauguration. Read the rest of this entry…

 
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The Use of Force to (Re-)Establish Democracies: Lessons from The Gambia

Published on February 16, 2017        Author: 

It has been almost a month since predominantly Senegalese troops entered The Gambia as part of an ECOWAS intervention after long-term president Yahya Jammeh had refused to accept the results of the December 2016 elections. ECOWAS troops remain in the country until this day in order to support newly-elected president, Adama Barrow, in establishing and maintaining public order.

The case has been widely discussed as it raises a number of questions concerning the use of force in general, the right to intervention by invitation and authorizations by regional organizations (see here, here, or here). In particular, it shows that, if the circumstances admit it, the international community is more than willing to accept the use of force to establish or re-establish democracies. The following post will focus on this debate and briefly describe how it evolved until this very day. Read the rest of this entry…

 
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Rattling Sabers to Save Democracy in The Gambia

Published on February 1, 2017        Author: 

On 19 January 2017, ECOWAS’ deployed a military contingent from five West African countries to enforce results of the recent democratic elections held in The Gambia. This post raises a few interesting/critical questions regarding its legality and the prohibition on the use of force.

Background

Mr. Adama Barrow won those elections in a run down against (now former) President Yahya Jammeh. After initially acknowledging defeat, Mr. Jammeh, whose regime has been accused of committing gross human rights violations, reversed his position alleging election irregularities. On 18 January 2017, after Jammeh declared a state of emergency, the Gambian National Assembly voted to extend his term for 90 days. Barrow was sworn into office during a ceremony celebrated in the Gambian embassy in Dakar, Senegal on 19 January 2017, and immediately requested the UN, in particular the Security Council, the African Union and ECOWAS for assistance in installing his democratically elected government.

The Peace and Security Council of the African Union adopted a communiqué  noting concern for Jammeh’s rejection of the election’s outcome, and decided to coordinate its activities with ECOWAS and the UN to facilitate a speedy and orderly transfer of power to Barrow. More importantly, it stressed the AU’s determination “[…] to take all necessary measures, in line with the relevant AU Instruments[,]” to ensure full compliance with the outcome of the elections. Read the rest of this entry…

Filed under: EJIL Analysis, Use of Force