By Hassan Ahmed

Many people cheered the recent International Court of Justice (ICJ) developments in The Gambia v. Myanmar case as a win for International Law and the campaign against genocide (Application of the Convention on the Prevention and Punishment of the Crime of Genocide). In 2020, the ICJ issued a preliminary order to Myanmar to prevent genocidal acts, and in October 2023, several other countries, including Canada, joined The Gambia’s case on behalf of the Rohingya, a Muslim minority facing genocide in the Rakhine state of Myanmar. Legal scholars have followed this case closely not only out of an interest in human rights, but also because of the case’s implications for international law. The case highlights the ways that the ICJ has evolved since the 1990s, as well as the potential for this case to set precedents for genocides that are in progress. To fully understand the potential implications, we need to take a step back and outline some of the differences between the ICJ of the 1990s and today’s ICJ. Despite having the same governing documents, these are clearly two different courts. This shift is exemplified in precedent-forming cases from the past few decades, which in turn reflect changes in global geopolitics, legal frameworks, and technological advancements. 

The ICJ that is hearing The Gambia v. Myanmar is a fundamentally different institution than the one that heard cases in the 1990s. The ICJ in the 1990s reflected a bipolar, immediately post-Cold War world in which international disputes brought to the ICJ, or at least disputes that the ICJ heard, reflected state-based jurisdiction. In other words, the ICJ of the 1990s existed in relative isolation instead of collaborating with other international tribunals, and legal issues before the ICJ pertained mainly to contractual or jurisdictional disputes, rather than human rights violations themselves. Think of Libya v. United Kingdom, for example, which dealt with the legal processes used to persecute the bombers involved in the 1988 Lockerbie bombing. Libya argued that the Montreal Convention (MC99), which governs airline disaster disputes between states, meant the UK had no right to demand the extradition of the alleged Libyan accomplices without the existence of an extradition treaty. Here, the ICJ addressed the issue of interpreting and applying MC99 to the case at hand, as opposed to the actual allegations of terrorism against Libya. Additionally, because of the choices in cases heard, the ICJ was perceived as a body used for resolving interstate conflicts, rather than as an arbiter for human rights. 

In the 1990s, the ICJ refused to hear Bosnia i Hercegovina’s (Bosnia) case against Serbia as the genocide was in progress. The decision came about because of the procedural requirements for the court and was one of the first times that the ICJ was involved in instances of accused genocide. Ultimately, the ICJ did hear the case, and ruled that Serbia was not legally responsible for the genocide, only that it did not do enough to prevent or intervene in the genocide. The ruling did little more than provide legal clarifications regarding state responsibilities under the Genocide Convention, without holding Serbia to account. Yet as noted by dissenting judge al-Khasawneh, “had the Court followed more appropriate methods for assessing the facts, there would have been, in all probability, positive findings as to Serbia’s international responsibility”.

In the intervening years, the ICJ has begun to hear cases that reflect a more humanitarian and international scope, both for its jurisdiction and in terms of the arguments plaintiffs are making. Events such as the establishment of the Rome Statute and the ICJ’s advisory opinions in other cases have highlighted not simply the evolution of the ICJ, but the transformation of the broader geopolitical and economic context. The transition to a digitized world has both knit countries closer together and made it easier to bring undeniable evidence about genocide before the court. The Gambia v. Myanmar case suggests that even though today’s ICJ remains a legal body, the interventions of the 2020s ICJ are less abstracted by state agreements, and potentially more engaged with interventions in atrocities as they happen. 

Will The Gambia v. Myanmar case reveal a constant trajectory of the ICJ towards intervention? Obviously it is impossible to say, particularly because Myanmar has raised some objections. These objections centered around the fact that The Gambia, acting on behalf of the Organization for Islamic Cooperation (OIC), is not an “injured party” in the case given the absence of conflict between The Gambia and Myanmar, as well as the fact that the Rohingya are not nationals of The Gambia, and therefore the country should not be granted standing (it is altogether another issue that the Rohingya have been rendered stateless in Myanmar itself, having been stripped of citizenship in 1982). However, the ICJ has rejected this line of reasoning, citing the erga omnes nature of the obligation to prevent genocide, and has already resolved the issue of standing in favor of The Gambia. What this understanding of standing means for the future of international law generally, and the ICJ in particular, will be interesting given that the same objection of standing was subsequently raised by Israel in relation to South Africa’s case at the ICJ and also rejected. Myanmar has also argued that the actions undertaken against the Rohingya were part of a crackdown against terrorism, rather than intentional genocide. If the court accepts this causative argument, then the direction of the case and of the ICJ more generally will be more challenging to predict. 

As it stands, however, the implications of this case provide a potential foundation for significantly expanding the scope of international law. If the ICJ rules in favor of The Gambia, it could set a significant precedent for addressing ongoing genocides and human rights violations, underscoring the importance of international legal mechanisms in responding to humanitarian crises and setting a precedent for more responsive interventions in genocides. The ICJ’s finding that the Gambia has standing could empower smaller or non-directly affected states to take legal action against larger states accused of violations, thereby strengthening the global enforcement of human rights norms. From the standpoint of third-party interveners, NGO’s might follow in the footsteps of the OIC and raise genocide cases in states that are friendly to their cause, even if those states are not actually parties to the events.

The recent developments in the case leave room for cautious optimism not only for the plight of the Rohingya, but also for a humanitarian impulse arising from the ICJ. As the case progresses, the ICJ’s decisions in this matter could reshape the strategies used to take human rights cases before the court, potentially creating a new avenue of accountability for genocide.  Ultimately, the question is less one of whether the ICJ will rule in favor of genocide, but rather, whether it is ready to intervene when a genocide is in full swing, or whether it remains a tepid body only empowered to act on behalf of states and after many years have passed. The objections that Myanmar has raised could not only reset the potential for the ICJ to intervene in genocide, but also re-establish the court as one rooted in narrow, abstract legal jurisdictional issues, rather than one that is embedded in human rights. It would also mitigate any precedent for interveners in genocide to bring cases to the ICJ through non-party states. If the ICJ rules in favor of Myanmar, it would set an additional precedent for an ICJ that is truly and wholly interested in the rights of states, rather than the rights of humans. Conversely, a ruling in favor of The Gambia will help legitimize the ICJ, particularly in the global south, as a viable instrument for human rights advocacy, not entirely fettered by the chains of international politics.