Introduction
For the first time, the International Court of Justice (ICJ) and the International Criminal Court (ICC) are dealing concurrently with the same set of events, which concern the violence to which those in the group that self-identifies as the Rohingya have been subjected in Myanmar, and that has prompted their mass exodus to Bangladesh. Before both courts, proceedings are at a preliminary stage.
On July 4, 2019, the ICC Prosecutor, having decided to start a proprio motu investigation on the situation in Bangladesh/Myanmar, seized Pre-Trial Chamber III to obtain an authorization for the investigation, based on Article 15 of the Rome Statute.Footnote 1 The Prosecutor's Request was granted on November 14, 2019.Footnote 2
On November 11, 2019, the Republic of The Gambia (The Gambia) filed an Application instituting legal proceedings against the Republic of the Union of Myanmar (Myanmar) at the ICJ, alleging violations of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide (Genocide Convention). With the same Application, The Gambia also requested provisional measures.Footnote 3 The ICJ ordered provisional measures on January 23, 2020.Footnote 4
The ICC's Investigation Authorization
Pre-Trial Chamber III of the ICC agreed with the jurisdiction decision rendered by Pre-Trial Chamber I in 2018,Footnote 5 and found that the ICC could assert jurisdiction pursuant to Article 12(2)(a) of the Rome Statute if at least one element of a crime within the material jurisdiction of the Court were committed on the territory of a state party.Footnote 6 According to Pre-Trial Chamber III, there is a reasonable basis to believe that at least one element of the crimes against humanity of deportation and persecution, under Article 7(1)(d) and (h) of the Rome Statute respectively, were committed against the Rohingya on the territory of Bangladesh.Footnote 7 The latter, unlike Myanmar, is a state party to the Rome Statute. In making this determination, the Chamber also considered facts falling outside the jurisdiction of the ICC to establish whether the contextual elements of crimes against humanity were present.Footnote 8
The Chamber authorized the Prosecutor to investigate crimes committed at least in part on the territory of Bangladesh, as well as crimes committed at least in part on the territory of other states parties or of states making a declaration under Article 12(3) of the Rome Statute, and that were sufficiently linked to the situation as described in the decision.Footnote 9 With respect to the temporal jurisdiction of the Court, and going beyond what the Prosecutor had requested, the Chamber authorized her to investigate crimes that allegedly took place after the Rome Statute entered into force for the relevant states, including crimes committed after the issuance of the decision authorizing the investigation.Footnote 10 The Chamber also stressed that the Prosecutor was bound neither to investigate solely the events outlined in her Request, nor by their provisional legal characterization.Footnote 11
The ICJ's Order on Provisional Measures
Having found that a dispute between the parties appears to existFootnote 12 and that Myanmar's reservation to Article VIII of the Genocide Convention did not affect Myanmar's consent to the ICJ's jurisdiction under Article IX of the same Convention,Footnote 13 the ICJ concluded, without prejudice to the merits of the case, that it has prima facie jurisdiction.Footnote 14
The ICJ agreed with The Gambia that, because of the erga omnes partes character of some obligations under the Genocide Convention, The Gambia has an interest in Myanmar's compliance with those obligations without having to prove a special interest.Footnote 15 The Court based its conclusion on its Advisory Opinion on “Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide”Footnote 16 and on its judgment in Belgium v. Senegal.Footnote 17 Reliance by the Court on the latter case was criticized by Vice-President Xue, who emphasized that Belgium had instituted proceedings against Senegal because it was supposedly injured under the rules of State responsibility, and thus specially affected by the alleged violations, rather than simply because it had an interest in Senegal's compliance with the erga omnes partes obligations under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.Footnote 18
The Court further recognized that some of the alleged acts could be qualified as crimes other than the crime of genocide.Footnote 19 Nonetheless, it dismissed Myanmar's argument that the Court should determine whether the existence of genocidal intent—which is determinative in distinguishing genocide from other international crimes—was the only plausible inference to be drawn from the alleged facts.Footnote 20 Rather, the ICJ focused on the plausibility of the rights claimed by The Gambia.Footnote 21 This low standard of plausibility was criticized by ad hoc Judge Kress, appointed by Myanmar.Footnote 22 Conversely, Judge Cançado Trinidade argued that, because of the fundamental character of the rights requiring protection, there was no need to inquire about whether they were plausible.Footnote 23
Notwithstanding these slight disagreements among the judges, four provisional measures were granted unanimously by the ICJ.Footnote 24 First, Myanmar must take all measures within its power to prevent the commission of the acts listed in Article II of the Genocide Convention. Second, Myanmar must ensure that its military, as well as irregular armed units directed and supported by it, and organizations and persons under its control, direction, or influence do not commit any of the acts within the scope of Articles II and III of the Genocide Convention. Third, Myanmar is ordered to take effective measures to preserve evidence related to allegations of acts under Article II of the Genocide Convention. Fourth, Myanmar is required to submit a report on all measures taken pursuant to the Court's Order within four months of the issuance of the Order and then every six months until the Court renders a final decision on the case.
Conclusion
The ICJ's orders on provisional measures have binding effect for the Parties to a dispute before the Court.Footnote 25 In this case, the last two provisional measures indicated by the ICJ are quite novel and allow for a more active role of the Court in checking compliance with the measures ordered. They likely reflect the Court's attempt to avoid the tragic consequences of the violation of provisional measures regarding the prevention of genocide that had been ordered in Bosnia and Herzegovina v Serbia and Montenegro.Footnote 26
While the ICJ and the ICC are dealing with substantially the same subject matter, they have different mandates and jurisdictional constraints. For the ICJ, such constraints relate to the fact that its jurisdiction derives from Article IX of the Genocide Convention and is thus restricted to the subject matter of this Convention, whereas for the ICC the issue is that Myanmar is not a state party to the Rome Statute.
Nonetheless, both courts have remarked that the alleged crimes under their scrutiny are susceptible to multiple legal qualifications, and that one qualification does not exclude others. These clarifications open the possibility for both courts to make divergent, but equally valid, determinations regarding the nature of the alleged crimes, based on their respective jurisdiction and on the nature of the proceedings before them. Thus, at the merits stage, it will be entirely possible for the ICJ to characterize as genocide acts for which individuals will be prosecuted at the ICC under charges of crimes against humanity. It remains to be seen whether and how the parties to proceedings before either court will attempt to exploit these divergent interpretations.
Original: English No. ICC-01/19
Date: 14 November 2019
PRE-TRIAL CHAMBER III
Before: Judge Olga Herrera Carbuccia, Presiding Judge
Judge Robert Fremr
Judge Geoffrey Henderson
SITUATION IN THE PEOPLE'S REPUBLIC OF BANGLADESH/REPUBLIC OF THE UNION OF MYANMAR
Public
Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People's Republic of Bangladesh/Republic of the Union of Myanmar
Decision to be notified in accordance with regulation 31 of the Regulations of the Court to:
I. Procedural history
II. Procedure under Article 15 of the Statute
III. Preliminary consideration
IV. Victims’ representations
A. Introduction
B. Views on the scope of the investigation
C. Views on gravity and the interests of justice
1. Gravity
2. Interests of justice
V. Jurisdiction
A. Jurisdiction ratione loci
1. Applicable law
i. Meaning of the term ‘conduct’ in article 12(2)(a) of the Statute
ii. Location of the conduct
2. Conclusion
B. Jurisdiction ratione materiae
1. Alleged contextual elements of crimes against humanity
i. Applicable law
ii. Alleged contextual facts
a. Background
b. Systematic or widespread attack directed against any civilian population
c. Alleged State policy
iii. Conclusion
2. Alleged underlying acts constituting crimes against humanity
i. Applicable Law
a. Deportation
b. Persecution
ii. Alleged facts
a. Deportation
b. Persecution
iii. Conclusion
C. Jurisdiction ratione temporis
VI. Admissibility
A. Complementarity
B. Gravity
C. The interests of justice
VII. The scope of the authorised investigation
A. Territorial scope of the investigation (ratione loci)
B. Material scope of the investigation (ratione materiae)
C. Temporal scope of the investigation (ratione temporis)
PRE-TRIAL CHAMBER III of the International Criminal Court (‘Court’) issues this ‘Decision pursuant to Article 15 of the Statute on the authorisation of an investigation into the Situation in the People's Republic of Bangladesh/Republic of the Union of Myanmar (the ‘Situation in Bangladesh/Myanmar’)’.
I. Procedural history
1. On 6 September 2018, Pre-Trial Chamber I issued its ‘Decision on the “Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”’Footnote 1 (the ‘Jurisdiction Decision’) finding that the Court may assert jurisdiction pursuant to article 12(2)(a) of the Statute if at least one element of a crime within the jurisdiction of the Court or part of such crime is committed on the territory of a State Party to the Statute.Footnote 2
2. On 12 June 2019, the Prosecutor informed the Presidency, pursuant to Regulation 45 of the Regulations, of her intention, pursuant to article 15(3) of the Statute, to submit a request for judicial authorisation to commence an investigation into the Situation in Bangladesh/Myanmar.Footnote 3
3. On 25 June 2019, the Presidency constituted this Chamber, and assigned the Situation in Bangladesh/Myanmar to it, with immediate effect.Footnote 4
4. On 27 June 2019, the judges of the Chamber designated Judge Olga Herrera Carbuccia as Presiding Judge.Footnote 5
5. On 4 July 2019, the Prosecutor requested the Chamber ‘to authorise the commencement of an investigation into the Situation in Bangladesh/Myanmar in the period since 9 October 2016 and continuing’ (the ‘Request’).Footnote 6
6. On 30 August, 13 and 27 September, and 11 and 31 October 2019, in accordance with the Chamber's decision granting an extension of time for victims to make representations under article 15(3) of the Statute,Footnote 7 the Victims Participation and Reparations Section (the ‘VPRS’) of the Registry submitted reports on victims’ representations.Footnote 8
7. On 21 October 2019, the Prosecutor submitted supplementary information regarding the admissibility criterion, in particular complementarity.Footnote 9
8. On 23 October 2019, the Chamber received a representation made by the Legal Representatives of Victims on behalf of 86 victims from the village of Tula Toli.Footnote 10
9. On 11 and 31 October 2019, victims’ representations were transmitted to the Chamber.Footnote 11 On 31 October 2019, VPRS also filed its Final Consolidated Report on victims’ representations.Footnote 12
10. On 7 and 11 November 2019, further victims’ representations were transmitted to the Chamber.Footnote 13
II. Procedure under Article 15 of the Statute
11. The procedure for initiating an investigation upon the Prosecutor's own initiative is regulated by article 15 of the Statute. This provision subjects the Prosecutor's power to open an investigation proprio motu to the judicial scrutiny of the Pre-Trial Chamber.Footnote 14 Article 15(3) provides that, ‘[i]f the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected’.
12. Article 15(4) of the Statute clearly states the limited mandate of the Chamber at this stage of the proceedings:
[i]f the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.
III. Preliminary consideration
13. The Chamber notes that the Prosecutor states that the term ‘Rohingya’ is contested:
The Rohingya self-identify as a distinct ethnic group with their own language and culture, and claim a long-standing connection to Rakhine State. Successive Myanmar Governments have rejected these claims. Instead the Rohingya are widely regarded as ‘illegal immigrants’ from neighbouring Bangladesh, and are often referred to as ‘Bengalis’. Even use of the term ‘Rohingya’ is contested.Footnote 15
14. Nevertheless, the Prosecutor uses the term throughout the Request and she identifies and refers to the victims of the alleged crimes as the ‘Rohingya’.Footnote 16
15. The material on the record also points to the use of the term Rohingya as being contested. Reports prepared by the Irish Centre for Human Rights (the ‘ICHR’),Footnote 17 International Crisis Group (the ‘ICG’),Footnote 18 and Amnesty InternationalFootnote 19 indicate that persons who identify themselves as Rohingya reportedly claim that the term denotes an ethno-religious group.Footnote 20 Whereas reports prepared by the United Nations Office of the High Commissioner for Human Rights (the ‘OHCHR’)Footnote 21 and Public International Law & Policy Group (the ‘PILPG’)Footnote 22 indicate that other ethnic groups in Myanmar reject this claim.Footnote 23 Certain Burmese sources on the record indicate that Myanmar authorities do not recognise the term ‘Rohingya’.Footnote 24 Other documents, including a report by Fortify Rights,Footnote 25 indicate that governmental authorities have denied the existence of the Rohingya as an indigenous groupFootnote 26 instead, State authorities refer to them as either ‘Bengali'Footnote 27 or ‘the Muslim community in (northern) Rakhine State’.Footnote 28 Further, a report from Amnesty International contains references to new reports where the Bangladeshi Home Minister used the term,Footnote 29 whereas the agreement concluded on 23 November 2017 between Bangladesh and Myanmar on the return of displaced persons from Rakhine State does not employ it.Footnote 30
16. The Chamber notes that certain victims in their representations have emphasised their wish to be recognised as and called ‘Rohingya’ instead of other denominations, such as ‘Bengali’ or ‘Khola’—a derogatory Burmese term—or even ‘Non-Myanmar national Bengali’ and ‘illegal immigrants’.Footnote 31
17. It is also noted that the United Nations General Assembly ( the ‘UNGA’) has used the term in its resolutions and called upon the Government of Myanmar to allow self-identification.Footnote 32 In that respect, and considering the discussion above, the Chamber will employ the term ‘Rohingya’ in the present decision to refer to the alleged victims individually and collectively.Footnote 33 Notwithstanding this, the Chamber stresses that the use of the term in this decision does not imply endorsement of any particular historical narrative or political claim, or recognition of a specific group for purposes outside of the present decision. The Chamber also emphasises the need for further analysis of this issue during any future stages of proceedings before the Court.
IV. Victims’ representations
A. Introduction
18. The Chamber notes that within a relatively short time span, the Registry has collected and transmitted representations on behalf of a significant number of alleged victims of the Situation in Bangladesh/Myanmar that have come forward to present their accounts and views on whether or not the Chamber should authorise the commencement of the Prosecutor's investigation into this situation. Victims have also provided valuable information relevant to the scope of an eventual investigation.
19. Generally, the victims’ representations confirm the information provided by the Prosecutor in the Request. These victims’ representations, which were gathered from individuals and organisations representing alleged victims living in all camps in Bangladesh, also appear to be a representative sample of the affected population and thus useful in the Chamber's assessment of the merits of the Prosecutor's request.Footnote 34 Although the Chamber has reached its decision on the basis of the material provided by the Prosecutor, the abundant information contained in the victims’ representations would have also allowed the Chamber to reach the same conclusion.
20. The Court received a total of 339 representations in English (311 representations were submitted in written form and 28 were put forward in video format).Footnote 35 The Registry engaged with victims directly, as well as with individuals and organisations working with the affected communities.Footnote 36 The Registry received representations that were submitted in English, but also in Burmese, and in Bengali. The Registry also received video representations in Rohingya.Footnote 37 The Registry reports that it was able to travel or meet individuals from all 34 refugee camps in Bangladesh and held more than 60 meetings with approximately 1,700 individuals.Footnote 38
21. The Chamber has reviewed victims’ representations submitted or translated into English. In the First Registry Transmission, a total of 29 victims’ representations were notified to the Chamber.Footnote 39 In the Second Registry Transmission, a total of 176 victims’ representations were transmitted to the Chamber (174 written forms and two video representations).Footnote 40 In the Third Registry Transmission, a total of 85 representation forms were transmitted to the Chamber, along with 16 videos in support of some representations.Footnote 41
22. The victims’ representations transmitted represent either small family groups or were completed on behalf of a larger community of victims (i.e. living in the same refugee camp). The Registry indicates that a few representations still need to be translated into English. These will be transmitted to the Chamber after the set deadline.Footnote 42 Nonetheless, the Registry estimates that out of the transmitted representations, ‘202 representations were introduced on behalf of approximately 470,000 individual victims, two were submitted on behalf of a total of eight families and one representation was introduced on behalf of one village’.Footnote 43 Further, multiple representations were submitted on behalf of thousands of alleged individual victims.Footnote 44
23. The Chamber acknowledges all the individuals, groups and organisations that have come forward to present their views and accounts of the events pertaining to the present situation.
24. The Registry submitted a total of five reports during the present article 15 proceedings. Therein, the Registry explained the approach taken when reaching out to the victims,Footnote 45 emphasised the high interest amongst the victims to participate in the process,Footnote 46 but also stressed the logistical challenges faced by the VPRS when collecting victims’ representations.
25. The Registry also made it clear that it was not in a position to verify the accuracy of the information contained in the representation forms, in particular the number of victims allegedly represented. It states that, as previously done in situations before the Court, and in light of the applicable standard of proof, when reporting to the Chamber it has taken into consideration the intrinsic coherence of the information provided by the victims and their representatives.Footnote 47
B. Views on the scope of the investigation
26. All victims’ representations are submitted on behalf of alleged victims who, as a result of the alleged attack against Rohingya in Myanmar, were forced to seek refuge in Bangladesh.Footnote 48
27. Most victims’ representations allege that crimes were committed during the 2017 wave of violence. However, some victims’ representations allege that crimes (particularly, those concerning coercive acts of deportation) took place at an earlier time, as of 2012.Footnote 49 The Registry reports that a large number of victims request that the alleged conduct after 1 June 2010 also be covered by an eventual investigation.Footnote 50
28. Alleged coercive acts: as noted above, all victims’ representations are submitted on behalf of alleged victims who either survived or witnessed the coercive acts described below in this subsection and who, as a result of these coercive acts, now live in refugee camps in Bangladesh or in other countries. Several victims’ representations describe how they had no choice but to leave Myanmar.Footnote 51 One victims’ representation clearly describes the cause-effect of the coercive acts they allegedly suffered and the resulting deportation: ‘We lost our family members. We survive with [gunshot] wounds. We lost our property, our houses, our lands and cattle and everything. Kicked out from our motherland and made us refugee. Destroyed our everything.’Footnote 52 Another representation, submitted on behalf of women, also states that the ‘atrocities of August 2017 were the turning point of the Rohingya crisis, after this date none of the women represented could return to their motherland Myanmar’.Footnote 53 A representation submitted on behalf of alleged victims living in the same refugee camp in Bangladesh similarly states that victims ‘decided to escape and save our lives from the extra-judicial killings […] the people had just one way to save their lives. [It] was to come to Bangladesh’.Footnote 54
29. Alleged killings underlying the alleged coercive acts: several individuals filling in the victims’ representations directly witnessed the killing of close family members, who they are now seeking to represent.Footnote 55 Victims’ representations refer to attacks in which the Myanmar military (Tatmadaw) and other Myanmar security forces allegedly entered villages and started shooting indiscriminately at villagers.Footnote 56 Victims’ representations also mention that children were often targeted and killed, including small children who were thrown into water or fire to die.Footnote 57 Victims’ representations refer to entire families being torched after perpetrators locked them in their homes.Footnote 58 Other victims’ representations report how Rohingya were allegedly killed on their way to Bangladesh.Footnote 59
30. Alleged arbitrary arrests and infliction of pain and injuries underlying the alleged coercive acts: many victims’ representations refer to mass arrests of Rohingya men, including influential community leaders, who were allegedly detained by the Myanmar authorities in order to assess whether or not they had ties with or knowledge of Arakan Rohingya Salvation Army (hereinafter ‘ARSA’).Footnote 60 Victims’ representations also refer to conduct that may amount to torture (such as beating) and arbitrary arrests.Footnote 61
31. Alleged sexual violence underlying the alleged coercive acts: numerous victims’ representations recount frequent occurrence of incidents of rape and other forms of sexual violence.Footnote 62 One victim representation claims that most of the women consulted, who are now refugees in Bangladesh, had been subjected to rape(s), sexual harassment, and other forms of sexual violence whilst in Myanmar.Footnote 63 Other victims’ representations report that victims were subject to gang rapes and mutilations.Footnote 64 One victims’ representation also refers to third-gender persons who were reportedly subjected to rape and sexual violence.Footnote 65
32. Alleged destruction of houses and other buildings underlying the alleged coercive acts: most victims’ representations mention that in addition to the aforesaid violent acts committed against them or their family members, their property were destroyed or taken away from them. Victims’ representations also refer to incidents of burning of their homes, as well as destruction of schools and mosques, either during the attacks to their villages or while they were on their way to Bangladesh.Footnote 66 They also claim that their livestock and their property was taken away from them. Some victims’ representations mention that, in some instances, entire villages were destroyed.Footnote 67
33. Alleged discriminatory intent: all victims’ representations assert that these aforementioned alleged acts were committed on grounds of their ethnicity and religion, namely Rohingya and Muslims.Footnote 68 Furthermore, the Registry states that victims ‘insisted to convey to the ICC Judges how important it is to them to have an acknowledgement that the Rohingya as a recognised and recognisable group by virtue of a common culture, identity and religion were victims of atrocious crimes exclusively based on their ethnicity and religion’.Footnote 69
C. Views on gravity and the interests of justice
1. Gravity
34. Victims’ representations refer to the gravity of the crimes. Some identify those that are allegedly most responsible and some describe the scale of the crimes, the elements of brutality and cruelty of the alleged conduct.
35. The Registry reported that the vast majority of victims’ representations identified the Tatmadaw, the Border Guard Police (‘BGP’), the Myanmar Government, Myanmar Police Force (‘MPF’) and other local authorities, as well as members of the local population and Buddhist monks, as being among those who were allegedly responsible for the acts and conduct described above.Footnote 70 Some victims have specifically identified high-ranking alleged perpetrators.Footnote 71 Victims also claimed that during the alleged attacks, the alleged perpetrators referred to them in a derogatory and discriminatory manner.Footnote 72
36. Victims’ representations refer to the impact of the conduct, particularly how people were forced to flee to Bangladesh.Footnote 73 Victims also state that, as a result of the deportation, many families have been separated.Footnote 74 Victims, particularly Rohingya youth, also claim that they need access to education in order to have a future.Footnote 75
37. As noted above, victims’ representations mention that perpetrators purposely targeted children and that sexual violence, often committed in a brutal manner, was prevalent.
2. Interests of justice
38. According to the Registry, victims unanimously insist that they want an investigation by the Court.Footnote 76 The Registry reports that many of the consulted alleged victims ‘believe that only justice and accountability can ensure that the perceived circle of violence and abuse comes to an end and that the Rohingya can go back to their homeland, Myanmar, in a dignified manner and with full citizenship rights’.Footnote 77 Victims have also expressed their willingness and eagerness to engage with the ICC and ‘explained that bringing the perpetrators to justice within a reasonable time is crucial in preventing future crimes from being committed and for the safe and dignified return of the Rohingya to their homeland Myanmar’.Footnote 78 One victims’ representation states: ‘We are educated, we read about the ICC, about what the Court can do and what it cannot. Despite its limitations, the ICC is the only Court that can look into what happened to the Rohingya and we strongly believe that if the Court opens an investigations, the perpetrators will think twice about committing these crimes again’.Footnote 79
39. Despite the challenges faced during the present article 15 process, the Registry states that the process has been welcomed by the victims.Footnote 80 However, the Registry also conveys the victims’ message that proceedings should be expeditious, evidence should be collected as soon as possible, and victims should be protected as they fear retaliation if they cooperate with the Court.Footnote 81 The Registry also reports that victims wish direct interaction with the ICC, including judges, who victims state ‘should come here and see for themselves how the Rohingya are and how they live’.Footnote 82
V. Jurisdiction
40. The Chamber recalls that, for conduct to fall within the jurisdiction of the Court, it must: (i) fall within the category of crimes set out in article 5 and defined in articles 6 to 8 bis of the Statute (jurisdiction ratione materiae); (ii) fulfil the temporal conditions specified in article 11 of the Statute (jurisdiction ratione temporis); and (iii) meet one of the two requirements contained in article 12(2) of the Statute (jurisdiction ratione loci or ratione personae).Footnote 83
41. In her Request, the Prosecutor seeks authorisation to investigate, specifically, ‘crimes within the jurisdiction of the Court in which at least one element occurred on the territory of Bangladesh, and which occurred within the context of two waves of violence in Rakhine State on the territory of Myanmar, as well as any other crimes which are sufficiently linked to these events.’Footnote 84 Accordingly, the Chamber will assess whether or not in light of the applicable law and with regard to the information provided in the Request, the criteria of territorial jurisdiction, material jurisdiction and temporal jurisdiction are satisfied.
A. Jurisdiction ratione loci
1. Applicable law
42. Article 12(2)(a) of the Statute establishes that the Court may exercise its jurisdiction in the event of a State Party referral (article 13(a) of the Statute) or as a result of the Prosecutor's proprio motu initiation of an investigation (article 13(c) of the Statute):
[…] if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the state of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.Footnote 85
43. In the context of the situation in Bangladesh/Myanmar, the Chamber recalls that Pre-Trial Chamber I found that ‘the Court may assert jurisdiction pursuant to article 12(2)(a) of the Statute if at least one element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party to the Statute’.Footnote 86 For the reasons given below, the Chamber agrees with the conclusion of Pre-Trial Chamber I that the Court may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party.
44. Article 12(2)(a) of the Statute has been widely interpreted as an expression of the territoriality principle. To date, the application of this principle in most of the situations and related cases before the Court has generally been uncontroversial. Most of them were territorially confined within the boundaries of a single State Party.Footnote 87
45. The facts underlying the Request compel the Chamber, however, to interpret the principle of territoriality further. In particular, the question arises as to whether the Court may exercise its jurisdiction over crimes that occurred partially on the territory of a State Party and partially on the territory of a non-State party. In order to answer this question two issues must be addressed: first, the Chamber must ascertain the exact meaning of the term ‘conduct’ in article 12(2)(a) of the Statute and, second, whether article 12(2)(a) of the Statute requires that all conduct must take place in the territory of a State Party.
i. Meaning of the term ‘conduct’ in article 12(2)(a) of the Statute
46. In addressing the first issue, the Chamber begins by assessing the textual interpretation of the term ‘conduct’ in article 12(2)(a) of the Statute. An assessment of the plain meaning of the word ‘conduct’ indicates that it is best defined as a form of behaviour,Footnote 88 encompassing more than the notion of an act.Footnote 89 This understanding of ‘conduct’ is supported by the French version of article 12(2)(a) of the Statute, which uses the word ‘comportement’.Footnote 90 Nonetheless, apart from suggesting that it must be more than a mere act, the plain meaning of conduct does not indicate what it is that must take place on the territory of one or more State Parties.
47. In this regard, the contextual interpretation discussed below provides some clarity. As part of assessing the immediate context of the term ‘conduct’ in this provision, a comparison between the terms ‘crime’ and ‘conduct’ as they appear in article 12(2)(a) of the Statute offers some guidance.
48. Article 12(2)(a) of the Statute uses the term ‘conduct’, when referring to State territory; and ‘crime’, when referring to vessels and aircrafts registered in a State. At first glance, the term ‘conduct’ appears to be distinct from the term ‘crime’. However, the use of both ‘conduct’ and ‘crime’ in the language of article 12(2)(a) of the Statute indicates that the term conduct, short of crime, is a reference to criminal conduct absent legal characterisation. The travaux préparatoires offer no explanation as to why the drafters selected to use a different word in relation to vessel/aircraft. There is no apparent reason why the threshold for territorial jurisdiction would be different based on whether the location of the conduct/crime is on land or vessel/aircraft. In the absence of any explanation as to why the drafters chose different words for the determination of territorial jurisdiction, a contextual reading of the provision allows an inference to be drawn that the juxtaposition of ‘conduct in question’ on the territory of a State immediately before ‘crime’ committed on board a vessel or aircraft means that the notions of ‘conduct’ and ‘crime’ in article 12(2)(a) of the Statute have the same functional meaning.
49. A contextual interpretation of the term involving a comparison with other provisions of the Statute using the same term also renders the same conclusion. For instance, use of the term conduct in article 20 is understood to refer to conduct absent legal characterisation.Footnote 91 For these reasons, the word is used in a factual sense, capturing the actus reus element underlying a crime subject to the jurisdiction ratione materiae of the Court.
50. Further, depending on the nature of the crime alleged, the actus reus element of conduct may encompass within its scope, the consequences of such conduct. For instance, the consequence of an act of killing is that the victim dies. Both facts concerning the act and the consequence (i.e. the killing and the death) are required to be established.
51. In respect of certain crimes within the Statute, the particular consequence may be that the victim behaves, or is caused to behave, in a certain way as a result of conduct attributable to the alleged perpetrator. The negative corollary is that, should those consequences not follow from the conduct of the perpetrator, the crime cannot be said to have occurred (although the suspect's conduct may constitute attempt).
52. The legal elements of the crime of deportation require, inter alia, that the ‘perpetrator deport […] by expulsion or other coercive acts’. This element may be carried out by the perpetrator either by physically removing the deportees or by coercive acts that cause them to leave the area where they were lawfully present.Footnote 92 In such a situation, the victims’ behaviour or response as a consequence of coercive environment is required to be established for the completion of the crime. If the victims refused to leave the area despite the coercive environment or they did not cross an international border, it would constitute forcible transfer or an attempt to commit the crime of deportation.
53. In the present Request, it is alleged that the coercive acts of the perpetrators, which took place in Myanmar, have forced the Rohingya population to cross the border into Bangladesh. The Prosecutor avers that the crime of deportation was completed when the victims left the area where they were lawfully present and fled to Bangladesh as a result of coercive acts and a coercive environment. Accordingly, it could be concluded that part of the actus reus of the crime of deportation occurred in the territory of Bangladesh.
ii. Location of the conduct
54. A second issue requiring the analysis of the Chamber is whether article 12(2)(a) of the Statute requires that all the conduct takes place in the territory of one or more State Parties.
55. As noted above, the wording of article 12(2)(a) is generally accepted to be a reference to the territoriality principle. In order to interpret the meaning of the words ‘on the territory of which the conduct occurred’, it is instructive to look at what territorial jurisdiction means under customary international law, as this would have been the legal framework that the drafters had in mind when they were negotiating the relevant provisions.Footnote 93 It is particularly significant to look at the state of customary international law in relation to territorial jurisdiction, as this is the maximum the States Parties could have transferred to the Court.
56. Customary international law does not prevent States from asserting jurisdiction over acts that took place outside their territory on the basis of the territoriality principle. A brief survey of State practice reveals that States have developed different concepts for a variety of situations that enables domestic prosecuting authorities to assert territorial jurisdiction in transboundary criminal matters, such as:
(i) the objective territoriality principle according to which the State may assert territorial jurisdiction if the crime is initiated abroad but completed in the State's territory;Footnote 94
(ii) the subjective territoriality principle, according to which the State may assert territorial jurisdiction if the crime has been initiated in the State's territory but completed abroad;Footnote 95
(iii) the principle of ubiquity, according to which the State may assert territorial jurisdiction if the crime took place in whole or in part on the territory of the State irrespective of whether the part occurring on the territory is a constitutive element of the crime;Footnote 96
(iv) the constitutive element theory, according to which a State may assert territorial jurisdiction if at least one constitutive element of the crime occurred on the territory of the State;Footnote 97 and
(v) the effects doctrine, according to which the State may assert territorial jurisdiction if the crime takes place outside the State territory but produces effects within the territory of the State.Footnote 98
57. It is safe to assume that all the states reviewed are of the view that their domestic legislation on territorial jurisdiction over cross-boundary conduct are in conformity with international law (opinio juris).
58. Two conclusions follow from this: first, under customary international law, States are free to assert territorial criminal jurisdiction, even if part of the criminal conduct takes place outside its territory, as long as there is a link with their territory. Second, States have a relatively wide margin of discretion to define the nature of this link.
59. Article 12(2)(a) of the Statute does not specify under which circumstances the Court may exercise jurisdiction over transboundary crimes on the basis of the territoriality principle. However, it would be wrong to conclude that States intended to limit the Court's territorial jurisdiction to crimes occurring exclusively in the territory of one or more States Parties. Moreover, reading article 12(2)(a) of the Statute in this manner would go against the principle of good faith (including effective) interpretation.
60. Indeed, when States delegate authority to an international organisation they transfer all the powers necessary to achieve the purposes for which the authority was granted to the organisation. In this respect, it is recalled that the Statute contains a number of war crimes that take place in international armed conflicts. If the Court could not exercise its jurisdiction over crimes that were partly committed in the territory of a non-State party, this would mean that the Court could not hear cases involving war crimes committed in international armed conflicts involving non-States Parties. There is no indication anywhere in the Statute that the drafters intended to impose such a limitation. This is confirmed by the fact that the States Parties deemed it necessary to include such a limitation in article 15 bis (5) of the Statute in relation to the crime of aggression. It follows from this that, since the States Parties did not explicitly restrict their delegation of the territoriality principle, they must be presumed to have transferred to the Court the same territorial jurisdiction as they have under international law.
61. The only clear limitation that follows from the wording of article 12(2)(a) of the Statute is that at least part of the conduct (i.e. the actus reus of the crime) must take place in the territory of a State Party. Accordingly, provided that part of the actus reus takes place within the territory of a State Party, the Court may thus exercise territorial jurisdiction within the limits prescribed by customary international law.
2. Conclusion
62. The alleged deportation of civilians across the Myanmar-Bangladesh border, which involved victims crossing that border, clearly establishes a territorial link on the basis of the actus reus of this crime (i.e. the crossing into Bangladesh by the victims). This is the case under the objective territoriality principle, the ubiquity principle, as well as the constitutive elements approach. The present situation therefore falls well within the limits of what is permitted under customary international law. Under these circumstances, the Chamber does not otherwise deem it necessary to formulate abstract conditions for the Court's exercise of territorial jurisdiction for all potentially transboundary crimes contained in the Statute.
B. Jurisdiction ratione materiae
1. Alleged contextual elements of crimes against humanity
i. Applicable law
63. The chapeau of article 7 of the Statute sets out the contextual elements of crimes against humanity as ‘a widespread or systematic attack directed against any civilian population’.Footnote 99 Article 7(2)(a) of the Statute further defines an ‘attack directed against any civilian population’ as ‘a course of conduct involving the multiple commission of acts referred to in [article 7(1) of the Statute] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack’.Footnote 100 As regards the elements ‘attack’,Footnote 101 ‘civilian population’,Footnote 102 ‘policy’Footnote 103 and ‘widespread or systematic’,Footnote 104 the Chamber refers to the established case law of the Court. Lastly, any of the underlying crimes must have been committed as part of the attack.
ii. Alleged contextual facts
a. Background
64. The Prosecutor submits that in Myanmar's political and constitutional context the Tatmadaw essentially dominates the government.Footnote 105 The Prosecutor also states that in Myanmar, but more specifically in Rakhine State, there is systematic discrimination, institutionalised oppression, human rights violations, and hostility against the Rohingya.Footnote 106 The Prosecutor alleges that the government has discriminated against this ethnic group for decades, by implementing policies and laws that deny citizenship to persons of this ethnic group, ‘rendering them stateless’.Footnote 107 The Prosecutor also states that the government of Myanmar has violated fundamental rights of the Rohingya people, including by restricting their movement between townships.Footnote 108
65. The Prosecutor further submits that on previous occasions the government of Myanmar forced many Rohingya to flee Myanmar (including in 1978, 1991–1992, and 2012–2013).Footnote 109 She also states that there was increasing Buddhist nationalism and use of hate speech against Muslims in general and the Rohingya in particular.Footnote 110 Within this context, the Prosecutor submits that ARSA emerged and launched attacks against government posts in Rakhine State.Footnote 111 Consequently, the Prosecution states that the Tatmadaw launched ‘clearance operations’ that resulted in the 2016 and 2017 waves of violence, which are the subject of this Request.Footnote 112
66. According to the supporting material, including the report of the Independent International Fact-Finding Mission on Myanmar (the ‘UNFFM’),Footnote 113 MyanmarFootnote 114 and more specifically Rakhine State are ethnically diverse,Footnote 115 with the Rohingya forming the second largest group in Rakhine State.Footnote 116 It is reported that, unlike the vast majority of the population in Myanmar, who are almost 90% Buddhist,Footnote 117 the Rohingya are predominantly Muslim.Footnote 118 Further, according to the supporting material, the Rohingya also have their own language, which is a spoken language, with no agreed written script.Footnote 119
67. According to the information on the record, the Rohingya have gradually been deprived of citizenship through legislation,Footnote 120 and via administrative decisions applying the legislation.Footnote 121 For example, it is reported that the Rohingya are not entitled to full citizenship by birth.Footnote 122 The supporting material indicates that the Rohingya have allegedly been subjected to severe violations of their human rights for decades,Footnote 123 including the right to freedom of movement,Footnote 124 marriage,Footnote 125 and other aspects of family life.Footnote 126
68. The supporting material, including reports by Amnesty InternationalFootnote 127 and Human Rights Watch (hereinafter ‘HRW’),Footnote 128 refers in particular to waves of violence in June and October 2012, involving confrontations between Buddhist and other inhabitants of Rakhine State on one side, and Rohingya and other Muslim groupsFootnote 129 on the other.Footnote 130 The available information suggest that acts of violence were perpetrated by members of both communities,Footnote 131 but that most of the internally displaced were Muslim, and among them, most of them Rohingya.Footnote 132
69. The supporting material suggests that the violence in Rakhine was partly inter-communal, fuelled by an increasing anti-Muslim sentiment propagated by nationalist Buddhist groups and individuals who portrayed the Rohingya and Muslims as a ‘threat to race and religion’.Footnote 133 According to the supporting material, members of the Myanmar security forces (the Tatmadaw, the police and the Border Area Immigration Control Headquarters, known as the NaSaKa) allegedly participated in the attacks, supported them, or failed to stop them.Footnote 134
70. According to the available information, following the 2012 waves of violence, the restrictions against the Rohingya, as well as other Muslim groups, were tightened and expanded, particularly in terms of their freedom of movement.Footnote 135 The available information suggests that the authorities sought to segregate the two communities in order to prevent further violence and reduce tensions.Footnote 136 However, it is alleged that the restrictions, which involved limitations on freedom of movement, travel permits, school segregation, and confinement to internal displacement camps, discriminately and disproportionately targeted the Muslim communities.Footnote 137
b. Systematic or widespread attack directed against any civilian population
71. The Prosecutor submits that there is a reasonable basis to believe that the alleged crimes which form the object of the Request were committed as part of a widespread or systematic attack directed against a civilian population.Footnote 138 She states that the alleged crimes were committed in the context of two waves of violence, starting on 9 October 2016 (‘2016 wave of violence’) and on 25 August 2017 (‘2017 wave of violence’), which constitute—either in combination or separately—an ‘attack’ within the meaning of article 7 of the Statute.Footnote 139 The Prosecutor contends that the available information supports allegations that the attack was widespread, particularly given the high number of peopled reportedly killed (10,000) and deported (700,000) during the 2017 wave of violence.Footnote 140 She also argues that the attack was systematic, given the high-degree of organisation and amount and type of State resources used to commit it.Footnote 141 The Prosecutor further submits that there is a link between the identified crimes of deportation and inhumane attacks and the attack.Footnote 142 With respect to the 2016 wave of violence, she states that there are striking analogies between the two waves, suggesting that the crimes committed in 2016 also meet the widespread/systematic threshold.Footnote 143
72. In her Request, the Prosecutor claims that there is information about acts of violence allegedly committed by ARSA and of armed confrontations between ARSA and the Tatmadaw. She states that, if authorised to investigate, her office will keep these allegations under review, to determine whether crimes within the jurisdiction of the Court were committed in the territory of a State Party.Footnote 144
73. As regards the 2016 wave of violence, the Prosecutor states that on 9 October 2016 and on 12 November 2016, following ARSA attacks, the Tatmadaw, together with other governmental forces and non-Rohingya civilians, started ‘clearance operations’ in Rakhine State that resulted in the use of violence against Rohingya. It is estimated that 87,000 persons fled to Bangladesh as a result.Footnote 145
74. According to the information on the record, ARSA emerged as a response to the events of 2012.Footnote 146 It is reported that on 9 October 2016, ARSA launched an attack on three border police posts in Maungdaw and Rathedaung townships, resulting in the death of nine police officers.Footnote 147 The supporting material, including a report by the OHCHR,Footnote 148 indicates that these events marked the starting point of an escalation in the scale and severity of the violence perpetrated by Myanmar security forces against the Rohingya.Footnote 149
75. The supporting material suggests that, in the course of these operations, the Tatmadaw and the police, most notably the BGP, with the participation of some non-Rohingya civilians, murdered, tortured, raped, sexually assaulted, mutilated, imprisoned, and severely deprived Rohingya men and women of their physical liberty.Footnote 150 The ‘clearance operations’ reportedly lasted until January/February 2017 and caused as many as 87,000 Rohingya to flee to Bangladesh.Footnote 151 It is estimated that a further 20,000 to 22,000 people remained internally displaced.Footnote 152
76. In relation to the 2017 wave of violence, the Prosecutor submits that following ARSA attacks on 26 August 2017, the Tatmadaw together with other governmental forces and non-Rohingya civilians, again launched ‘clearance operations’ of Rohingya villages, but this time on a larger scale. During this wave of violence, hundreds of villages were destroyed; thousands of persons were killed, raped and injured. As a result, she estimates over 700,000 Rohingya were deported to Bangladesh.Footnote 153
77. According to the information on the record, on 25 August 2017 ARSA allegedly launched a series of coordinated attacks and further clashes were reported over the next several days.Footnote 154 The aim of the attacks was reportedly to respond to what ARSA viewed as an ‘increased oppression of the Rohingya’ and to draw attention to their situation.Footnote 155 It is reported that, following the aforesaid attacks, the Government of Myanmar declared ARSA a ‘terrorist organisation’ and launched ‘clearance operations’ in hundreds of villages across Maungdaw, Buthidaung and Rathedaung townships.Footnote 156 In the course of these operations, the Tatmadaw and other security forces, often with the participation of non-Rohingya civilians, allegedly murdered, tortured, raped, sexually assaulted, mutilated, and imprisoned or otherwise severely deprived Rohingya men and women of their physical liberty.Footnote 157
78. The supporting material suggests that the clearance operations during the 2016 wave of violence were mostly limited to Maungdaw Township.Footnote 158 In relation to the clearance operations during the 2017 wave of violence, documents including a report by Médecins Sans Frontières (hereinafter ‘MSF’),Footnote 159attacks were allegedly carried out in hundreds of villages across the Maungdaw, Buthidaung, and Rathedaung Townships.Footnote 160
79. PILPG and Kaladan Press Network (hereinafter ‘Kaladan’)Footnote 161 report that the focus of the clearance operations were village raids.Footnote 162 Organisations that have conducted investigations in the area, including UNFFM, OHCHR, and Xchange,Footnote 163 report that the village raids were allegedly perpetrated by Tatmadaw soldiers, often accompanied by local civilians,Footnote 164 and at times accompanied by the BGP.Footnote 165 According to the supporting material, these assaults were full-fledged military operations.Footnote 166
80. It is reported that most of the attacked villages were comprised almost exclusively of Rohingya.Footnote 167 It is further reported that in villages with mixed ethnic population, the non-Rohingya population remained unharmed.Footnote 168 According to the information submitted, including a report by Physicians for Human Rights (the ‘PHR’),Footnote 169 the attackers referred to the victims in a derogatory and discriminatory manner during the attacks.Footnote 170
81. The supporting material suggests that the village raids were carried out following the same pattern.Footnote 171 Documents, including research by HRWFootnote 172 report that, after entering villages, the Tatmadaw and other security forces often shot indiscriminately at villagers.Footnote 173 As a result of these indiscriminate shootings, numerous Rohingya, including many children,Footnote 174 were reportedly killed or injured, many whilst fleeing.Footnote 175
82. Several village raids reportedly resulted in mass killings with hundreds of Rohingya dead,Footnote 176 many of them allegedly buried in mass graves.Footnote 177 According to the supporting material, such massacres allegedly occurred at least in Min Gyi, Maung Nu, Chut Pyin, Gu Dar Pyin and Koe Tan Tauk village tract, Shila Khali and Tong Bazar.Footnote 178
83. The available information further suggests that, as part of the clearance operations, Rohingya houses in northern Rakhine were systematically burnt down,Footnote 179 leading to the death of numerous RohingyaFootnote 180 and the destruction of their homes.Footnote 181 It is reported that where houses were not burned, they were destroyed by other means.Footnote 182 According to UNOSAT, 392 settlements were affected between 25 August 2017 and 18 March 2018 and approximately 37,700 structures were destroyed.Footnote 183
84. Estimates in the supporting material indicate that 6,097 sexual and gender based incidents have been reported between 27 August 2017 and 25 March 2018.Footnote 184 The majority of the alleged rapes occurred during village raids.Footnote 185
85. The clearance operations allegedly also involved the systematic abduction of girls and women ‘of fertile age’ to military and police compounds and bases, where they were detained and raped for extended periods of time,Footnote 186 and often subsequently killed.Footnote 187 Most alleged rapes were reportedly carried out by the Tatmadaw, although members of the BGP, the MPF and local civilians equally committed these acts.Footnote 188
86. Although the majority of alleged rapes concern women and girls, the Chamber notes that the supporting material also refers to incidents of rape, forced nudity, forced witnessing of rape, sexual violence humiliation of men during the 2017 clearance operations,Footnote 189 in particular while in detention.Footnote 190 Moreover, the available information suggests that in some instances ‘Hijra’ individuals, who are defined as third-gender persons, transgender women, and intersex persons in South Asia who were assigned a masculine gender at birth’,Footnote 191 were reportedly targeted for rape and sexual violence.Footnote 192
87. The supporting material further indicates that at least between August 2016 and October 2017, Myanmar authorities allegedly carried out mass arrests of Rohingya, often in order to assess whether they had ties with or knowledge of ARSA.Footnote 193 In particular men and boys between the age of 17 and 45,Footnote 194 at times as young as 15,Footnote 195 and influential community members such as village elders, religious leaders and teachers, were allegedly targeted.Footnote 196
88. According to available information, numerous Rohingya were killed or injured en route to Bangladesh.Footnote 197 MSF reports that 13.4% of violent deaths occurred during the period between their displacement from their village to their arrival in Bangladesh.Footnote 198
89. In light of the allegations described above, it is reported that over 700,000 Rohingya allegedly fled to Bangladesh.Footnote 199 This has been reported to be ‘one of the fastest refugee exoduses in modern times [which] has created the largest refugee camp in the world’.Footnote 200
c. Alleged State policy
90. The Prosecutor submits that the alleged crimes against Rohingya were ‘carried out pursuant to a State policy to attack the Rohingya civilian population’. The Prosecution identifies the following as perpetrators of the crimes: the Tatmadaw (Myanmar defence forces comprising the army, navy and air force), the MPF and the BGP. The Prosecutor also submits that non-Rohingya civilians may have also been involved in the commission of the crimes. The Prosecutor avers that the existence of a policy is suggested by: (a) patterns of violence, (b) institutionalised oppression, (c) public statements of high officials, (d) and the failure to bring those responsible to justice or to prevent or deter further crimes.Footnote 201
91. According to the supporting material, members of the Tatmadaw led the 2016 and 2017 ‘clearance operations’.Footnote 202 Other security forces such as the BGP and the MPF reportedly operated jointly with the Tatmadaw during clearance operations.Footnote 203 The available information further suggests that non-Rohingya civilians (including Buddhist monks), may also have taken part in village raids conducted during the clearance operations.Footnote 204 The supporting material suggests that they participated in consistent ways, carrying out specific functions.Footnote 205
iii. Conclusion
92. Based on the above, the Chamber accepts that there exists a reasonable basis to believe that since at least 9 October 2016 widespread and/or systematic acts of violence may have been committed against the Rohingya civilian population, including murder, imprisonment, torture, rape, sexual violence, as well as other coercive acts, resulting in their large-scale deportation. Given that there are many sources indicating the heavy involvement of several government forces and other state agents, there exists reasonable basis to believe that there may have been a state policy to attack the Rohingya.
93. In reaching these conclusions, the Chamber has taken into account the allegations underpinning the 2016 and 2017 waves of violence, which took place on the territory of Myanmar. In this regard, the Chamber wishes to make the following clarification: while the Court is not permitted to conduct proceedings in relation to alleged crimes which do not fall within its jurisdiction, it ‘has the authority to consider all necessary information, including as concerns extra-jurisdictional facts for the purpose of establishing crimes within its competence’.Footnote 206 In other words, the Court is permitted to consider facts which fall outside its jurisdiction in order to establish, for instance, the contextual elements of the alleged crimes. In the situation at hand, the Chamber has considered the information regarding alleged coercive acts (including alleged murder, forcible transfer of population, imprisonment, torture, rape or persecution) which have allegedly occurred entirely on the territory of Myanmar for the purpose of evaluating whether the Prosecutor has a reasonable basis to believe that an attack against the Rohingya civilian population pursuant to a State policy may have occurred. In other words, although the Court does not have jurisdiction over these alleged crimes per se, it considered them in order to establish whether or not the contextual elements of crimes against humanity may have been present.
2. Alleged underlying acts constituting crimes against humanity
94. In her Request, the Prosecutor submits that there is a reasonable basis to believe that, since 9 October 2016, members of the Tatmadaw jointly with the BGP and the MPF, with some participation of non-Rohingya civilians, and other Myanmar authorities, committed crimes within the jurisdiction of the Court, of which at least one element occurred on the territory of Bangladesh.Footnote 207
95. According to the Prosecutor these include crimes against humanity of deportation (article 7(1)(d) of the Statute), other inhumane acts (article 7(1)(k) of the Statute), and persecution on grounds of ethnicity and/or religion (article 7(1)(h) of the Statute).Footnote 208 She however states that further crimes may be identified during an authorised investigation.Footnote 209
96. In the following, the Chamber will focus its assessment on the alleged crimes of deportation and persecution, in order to establish whether the threshold under article 15 of the Statute is met. If this is the case, there is no need to assess whether other crimes within the jurisdiction of the Court may have been committed, even though such alleged crimes could be part of the Prosecutor's future investigation.
i. Applicable Law
a. Deportation
97. Deportation or forcible transfer of a population, within the meaning of article 7(1)(d) of the Statute, are committed when:Footnote 210
1. The perpetrator deported or forcibly transferred without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.
2. Such person or persons were lawfully present in the area from which they were so deported or transferred.
98. The forcible displacement of individuals must occur without grounds permitted under international law. While it is for the Prosecutor to prove that this is the case,Footnote 211 the Chamber notes that, under international law, deportation of a State's nationals as well as the arbitrary or collective expulsion of aliens is generally prohibited.Footnote 212 International humanitarian law permits displacement in specific circumstances, where the security of the population or imperative military reasons so require.Footnote 213 However, this is not the case where the humanitarian crisis that caused the displacement is the result of an unlawful activity.Footnote 214
99. The lawful presence of a person must be assessed on the basis of international law,Footnote 215 and should not be equated with the requirement of lawful residence.Footnote 216
b. Persecution
100. Persecution, within the meaning of article 7(1)(h) and (2)(g)Footnote 217 of the Statute,Footnote 218 is committed, either through a single act or a series of acts,Footnote 219 when:
1. The perpetrator severely deprived, contrary to international law,Footnote 220 one or more persons of fundamental rights.
2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.
3. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in Article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.
4. The conduct was committed in connection with any act referred to in Article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.Footnote 221
101. Not every infringement of human rights amounts to persecution, but only a ‘severe deprivation’ of a person's ‘fundamental rights contrary to international law’ (emphasis added). Fundamental rights may include a variety of rights, whether derogable or not, such as the right to life, the right not to be subjected to torture or cruel, inhuman or degrading treatment, freedom of expression, freedom of assembly and association and the right to education.Footnote 222
102. The targeted group or collectivity must be identifiable by any of the characteristics mentioned in article 7(2)(g) of the Statute. In assessing whether a group is identifiable, a mixed approach may be adopted,Footnote 223 considering both objective and subjective criteria.
103. Based on objective considerations, an ethnic group may be defined as a group whose members share a common language and culture.Footnote 224 A religious group may be defined as one ‘whose members share the same religion, denomination or mode of worship’.Footnote 225 As regards the subjective criteria, the perception of the group by the perpetratorFootnote 226 as well as the perception and self-identification of the victims may be considered.Footnote 227
ii. Alleged facts
a. Deportation
104. Pursuant to the information on the record, as a result of the clearance operations described above,Footnote 228 many Rohingya were forced to flee to Bangladesh.Footnote 229 In particular, the supporting material suggests that as a result of the 2016 wave of violence, 87,000 RohingyaFootnote 230 were forced to flee to Bangladesh,Footnote 231 while others have reportedly been internally displaced, residing in camps with severe restrictions on freedom of movement and access to healthcare, education and livelihoods.Footnote 232
105. It is estimated that, following the 2017 wave of violence, approximately 700,000 Rohingya were forced to escape to Bangladesh.Footnote 233 Only 10% of the original Rohingya population allegedly remains in northern Rakhine State.Footnote 234 The supporting material further indicates that the majority of Rohingya arrived in Bangladesh during the peak of the 2017 clearance operations,Footnote 235 between 25 August and 31 December 2017.Footnote 236 A 2017 survey on Rohingya migration reports that of the 1,360 respondents interviewed following the 2017 wave of violence, 92% answered that they had suffered or witnessed a major incident prompting them to flee to Bangladesh.Footnote 237
106. While reliable numbers of the current Rohingya refugee population in Bangladesh are not available to the Chamber, UNHCR reported that 907,199 Rohingya lived in Bangladeshi refugee camps in January 2019,Footnote 238 with the largest camp in Cox's Bazar hosting over 700,000 people.Footnote 239
107. According to the material submitted, most of the Rohingya interviewed in refugee camps in Bangladesh wish to return to Myanmar,Footnote 240 but expressed concerns about their safety and citizenship rights.Footnote 241 Many stated that they would return only if they were treated with dignity, including respect for their religion, their ethnic identity, the return of their possessions, and a sustainable future for their children.Footnote 242
108. In light of the above, a reasonable prosecutor could believe that coercive acts towards the Rohingya forced them to flee to Bangladesh, which may amount to the crime against humanity of deportation.
b. Persecution
109. The Chamber is further satisfied that the Prosecutor could reasonably believe that the alleged coercive conduct leading to the Rohingya's deportation to Bangladesh was directed against an identifiable group or collectivity.Footnote 243 This is confirmed by victims representations that have indicated that they self-identify as belonging to the same group.Footnote 244 Further, based on the available information the Prosecutor could reasonably believe that the targeting may have been based on ethnic and/or religious grounds. It is for the investigation to determine whether or not this was actually the case. The Chamber reiterates the need to obtain further clarity on the contours of the group-identity in question as well as the basis of the alleged targeting.
iii. Conclusion
110. Upon review of the available information, the Chamber accepts that there exists a reasonable basis to believe that since at least 9 October 2016, members of the Tatmadaw, jointly with other security forces and with some participation of local civilians, may have committed coercive acts that could qualify as the crimes against humanity of deportation (article 7(1)(d) of the Statute) and persecution on grounds of ethnicity and/or religion (article 7(1)(h) of the Statute) against the Rohingya population.
111. As noted above, the Chamber does not consider it necessary to form any view in relation to the facts identified as relevant to the Prosecutor's submissions concerning the alleged crime of other inhumane acts. Nevertheless, the Chamber stresses that the Prosecutor is not restricted to investigating only the events mentioned in her Request, much less their provisional legal characterisation.
C. Jurisdiction ratione temporis
112. Pursuant to article 11 of the Statute, the Court may exercise jurisdiction over crimes committed after the entry into force of the Statute or, where a State has become party to the Statute later, after the entry into force of the Statute for that State.
113. The Chamber notes that Bangladesh ratified the Rome Statute on 23 March 2010,Footnote 245 and therefore, pursuant to article 126(2) of the Statute, the Statute entered into force for that State on 1 June 2010.
114. In light of the information submitted and allegations described above, the Chamber notes that alleged crimes have partially been committed on the territory of Bangladesh since at least 9 October 2016. Consequently, the Court may assert jurisdiction ratione temporis over those crimes.
VI. Admissibility
A. Complementarity
115. Article 17(1)(a)–(b) of the Statute provides, in the relevant part, that ‘[…] the Court shall determine that a case is inadmissible where: (a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute’. The Chamber has taken note of the Prosecutor's submission in relation to the admissibility of potential cases arising out of the situation. Given the open-ended nature of the Request—there are at present no specific suspects or charges—and the general nature of the available information, the Chamber sees no need to conduct a detailed analysis, as this would be largely speculative.
116. Moreover, the Chamber has not received submissions from Myanmar on the issue of admissibility. Regardless of the question whether or not the Prosecutor should have notified Myanmar at this stage of the proceedings, the Chamber would receive and entertain an application by the Prosecutor, should Myanmar ask for deferral on the basis of article 18(2) of the Statute within one month of the issuing of the present decision. Moreover, specific challenges to the admissibility of specific cases can be brought at a later stage, pursuant to article 19 of the Statute.
117. The Chamber therefore does not consider it necessary to assess complementarity at this point in time. It suffices to note that, on the basis of the currently available information, there is no indication that any potential future case would be inadmissible.
B. Gravity
118. With respect to the gravity of the situation at hand, the Chamber is of the view that the mere scale of the alleged crimes and the number of victims allegedly involved—according to the supporting material, an estimated 600,000 to one million Rohingya were forcibly displaced from Myanmar to neighbouring Bangladesh as a result of the alleged coercive actsFootnote 246—clearly reaches the gravity threshold.
C. The interests of justice
119. As regards the interests of justice, the Prosecutor has stated that she ‘has identified no substantial reasons to believe that an investigation into the situation would not be in the interests of justice’Footnote 247 and the Chamber has no reason to disagree with this assessment. This view is reinforced by the fact that, according to the Registry's Final Consolidated Report, ‘all victims representations state that the victims represented therein want the Prosecutor to start an investigation in the Situation.’Footnote 248
VII. The scope of the authorised investigation
120. The Prosecutor requests authorisation to proceed with the investigation into crimes allegedly committed since 9 October 2016, in the context of the 2016 and 2017 waves of violence which occurred in Rakhine State, Myanmar, and any other crimes which are sufficiently linked to these events, where at least one element of the crime occurred on the territory of Bangladesh.Footnote 249 The Prosecutor makes a number of specific submissions regarding the material and temporal scope of the investigation, as follows.
121. Regarding the material scope, she submits that the incidents identified in her Request are ‘examples of relevant criminality within the situation’ and that the Chamber should not limit the scope of the authorised investigation to these acts or incidents, but should authorise an investigation into the situation as a whole.Footnote 250 Similarly, she highlights that while the Request focuses on crimes allegedly committed by Myanmar authorities and some non-Rohingya civilians, she is aware of a number of acts of violence allegedly committed by ARSA. She submits that, if the authorisation to investigate is granted, she will keep these allegations under review, together with any allegations that an armed conflict may have existed between Myanmar and ARSA.Footnote 251
122. Regarding the temporal scope, the Prosecutor submits that the environment in Myanmar remains volatile and she specifically requests that the authorisation extend also to ‘any alleged crimes that may be committed and/or completed after the filing of [the] Request, provided that they occur within the context of the waves of violence […] or are sufficiently linked to these events’.Footnote 252
123. In what follows, the Chamber will set out the parameters of the authorised investigation in terms of territorial, material and temporal scope.
A. Territorial scope of the investigation (ratione loci)
124. The Chamber recalls its determination regarding jurisdiction ratione loci where it found that the Court can exercise jurisdiction where a part of the actus reus of a crime within the jurisdiction of the Court is committed on the territory of a State Party.Footnote 253 Consequently, the Chamber authorises the commencement of the investigation for crimes committed at least in part on the territory of Bangladesh.Footnote 254 Following this principle, the Prosecutor may also extend her investigation to alleged crimes committed at least in part on the territory of other States Parties, or States which would accept the jurisdiction of this Court in accordance with article 12(3) of the Statute, insofar as they are sufficiently linked to the situation as described in this decision.Footnote 255
125. Considering that article 12(2) of the Statute is formulated in the alternative,Footnote 256 the Prosecutor is authorised to investigate alleged crimes which fall within these parameters irrespective of the nationality of the perpetrators.Footnote 257
B. Material scope of the investigation (ratione materiae)
126. The Chamber authorises the commencement of the investigation in relation to any crime within the jurisdiction of the Court committed at least in part on the territory of Bangladesh, or on the territory of any other State Party or State making a declaration under article 12(3) of the Statute, if the alleged crime is sufficiently linked to the situation as described in this decision.Footnote 258 Noting the Prosecutor's submissions,Footnote 259 the Chamber wishes to emphasise that the Prosecutor is not restricted to the incidents identified in the Request and the crimes set out in the present decision but may, on the basis of the evidence gathered during her investigation, extend her investigation to other crimes against humanity or other article 5 crimes, as long as they remain within the parameters of the authorised investigation.Footnote 260 Similarly, the Prosecutor is also not restricted to the persons or groups of persons identified in the Request. The Chamber considers that, for the reasons that follow, such a limitation would be inconsistent with the object and purpose of article 15 of the Statute.
127. First, the Chamber recalls that the purpose of article 15, as envisaged by the drafters of the Statute, is to subject the Prosecutor's power to trigger the jurisdiction of the Court proprio motu to judicial scrutiny, in order to prevent ‘unwarranted, frivolous, or politically motivated investigations’.Footnote 261 This objective is achieved as soon as it can be established, based on the available information, that there is a reasonable basis to believe that ‘at least one crime within the jurisdiction of the Court has been committed’ and the potential case(s) are admissible (article 53(1) of the Statute).Footnote 262 If and once this is established, it can no longer be said that an investigation would be unwarranted or politically motivated.
128. Second, the information available to the Prosecutor at the preliminary examination stage is necessarily limited, as her powers under article 15(2) compared to those provided for in article 54 at the investigation stage are themselves more limited.Footnote 263 As a result, she is not in a position to identify all incidents, crimes and actors involved—and is not expected to do so.Footnote 264 It is precisely the purpose of the investigation to discover proper evidence and establish the facts to enable a determination as to which crimes, if any, may be prosecuted.Footnote 265 Limiting the Prosecutor to investigating the incidents and groups of persons that she has knowledge of at the preliminary examination stage would be contrary to her obligation under article 54(1)(a) of the Statute to ‘extend the investigation to cover all facts and evidence’, ‘[i]n order to establish the truth’.Footnote 266
129. Third, the Chamber notes that, following a referral by the Security Council or a State Party in accordance with articles 13 and 14 of the Statute, the Prosecutor may investigate any crimes within the jurisdiction of the Court within the temporal and territorial/personal parameters of the situation as long they are ‘sufficiently linked’ to the situation that triggered the jurisdiction of the Court through the referral.Footnote 267 The same should apply to situations initiated pursuant to article 15 of the Statute.
130. Lastly, limiting the Prosecutor in her investigation to the incidents identified in the Request would have a negative impact on the efficiency of proceedings and the effectiveness of the investigation. It would require the Prosecutor to request authorisation every time she wishes to add new incidents to the investigation, making the article 15 procedure highly cumbersome. It would also put pressure on her to identify the incidents, crimes and actors involved as comprehensively as possible at the preliminary examination stage, even after she is satisfied that the requirements set out in article 53(1)(a)–(c) of the Statute are met. This will inevitably delay the request for authorisation and the investigation itself and would be highly inefficient with regard to the collection of evidence.
C. Temporal scope of the investigation (ratione temporis)
131. While the Prosecutor requests authorisation to initiate an investigation into crimes allegedly committed since 9 October 2016,Footnote 268 the Chamber notes, based on the available information, that some crimes have allegedly been committed before 9 October 2016. Therefore, the Chamber authorises the commencement of the investigation for crimes allegedly committed on or after 1 June 2010, the date of entry into force of the Statute for Bangladesh. Further, the Prosecutor may extend the investigation into crimes allegedly committed at least in part on the territory of other States Parties after the date of entry into force of the Statute for those States Parties, insofar as the alleged crimes are sufficiently linked to the situation as described in this decision.
132. Regarding alleged crimes that have a continuous nature, the Prosecutor may extend her investigation even when such crimes commenced before 1 June 2010 (or the date of entry into force of the Statute for any other relevant State Party) in so far as the crimes continued after this date.
133. Lastly, the Chamber finds that any crimes committed after the issuance of this decision remain within the temporal scope of the authorised investigation, as long as such crimes are sufficiently linked to the situation identified in the present decision.Footnote 269
134. As a final remark, the Chamber considers that, considering the complexity of the situation, the specific circumstances of the victims, and the difficulties for the Trial Chambers to evaluate testimonial evidence when witnesses testify a long time after the events,Footnote 270 it is advisable for the Prosecutor to use the dispositions of article 56 of the Statute to preserve evidence which may not be available for the purposes of a potential future trial or whose reliability may be undermined by lapse of time.
FOR THESE REASONS, THE CHAMBER HEREBY
AUTHORISES the commencement of an investigation into the Situation in Bangladesh/Myanmar; and
ORDERS the VPRS to communicate the present Decision to the organisations and individuals who have submitted victims’ representations to the Chamber in relation to the Situation in Bangladesh/Myanmar.
Done in both English and French, the English version being authoritative.
Dated this 14 November 2019
At The Hague, The Netherlands
23 JANUARY 2020
ORDER
APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(THE GAMBIA v. MYANMAR)
APPLICATION DE LA CONVENTION POUR LA PRÉVENTION ET LA RÉPRESSION DU CRIME DE GÉNOCIDE
(GAMBIE c. MYANMAR)
23 JANVIER 2020
ORDONNANCE
TABLE OF CONTENTS
……………………………………………………Paragraphs
Chronology of the procedure…………[ILM Page 643-655]
I. Prima facie jurisdiction…………[ILM Page 658-680]
1. General introduction…………[ILM Page 658-661]
2. Existence of a dispute relating to the interpretation, application or fulfilment of the Genocide Convention…………[ILM Page 662-673]
3. The reservation of Myanmar to Article VIII of the Convention…………[ILM Page 674-678]
4. Conclusion as to prima facie jurisdiction…………[ILM Page 679-680]
II. Question of the standing of The gambia…………[ILM Page 681-684]
III. The rights whose protection is sought and the link between such rights and the measures requested…………[ILM Page 685-705]
IV. Risk of irreparable prejudice and urgency…………[ILM Page 706-717]
V. Conclusion and measures to be adopted…………[ILM Page 718-727]
Operative clause…………[ILM Page 728]
INTERNATIONAL COURT OF JUSTICE
YEAR 2020
2020
23 January General List
No. 178
23 January 2020
APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(THE GAMBIA v. MYANMAR)
REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES
ORDER
Present: President Yusuf; Vice-President Xue; Judges Tomka, Abraham, Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian, Salam, Iwasawa; Judges ad hoc Pillay, Kress; Registrar Gautier.
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court,
Makes the following Order:
1. On 11 November 2019, the Republic of The Gambia (hereinafter “The Gambia”) filed in the Registry of the Court an Application instituting proceedings against the Republic of the Union of Myanmar (hereinafter “Myanmar”) concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the “Genocide Convention” or the “Convention”).
2. At the end of its Application, The Gambia
“respectfully requests the Court to adjudge and declare that Myanmar:
– has breached and continues to breach its obligations under the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI;
– must cease forthwith any such ongoing internationally wrongful act and fully respect its obligations under the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI;
– must ensure that persons committing genocide are punished by a competent tribunal, including before an international penal tribunal, as required by Articles I and VI;
– must perform the obligations of reparation in the interest of the victims of genocidal acts who are members of the Rohingya group, including but not limited to allowing the safe and dignified return of forcibly displaced Rohingya and respect for their full citizenship and human rights and protection against discrimination, persecution, and other related acts, consistent with the obligation to prevent genocide under Article I; and
– must offer assurances and guarantees of non-repetition of violations of the Genocide Convention, in particular the obligations provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI.”
3. In its Application, The Gambia seeks to found the Court's jurisdiction on Article 36, paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention.
4. The Application contained a Request for the indication of provisional measures submitted with reference to Article 41 of the Statute and to Articles 73, 74 and 75 of the Rules of Court.
5. At the end of its Request, The Gambia asked the Court to indicate the following provisional measures:
(a) Myanmar shall immediately, in pursuance of its undertaking in the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, take all measures within its power to prevent all acts that amount to or contribute to the crime of genocide, including taking all measures within its power to prevent the following acts from being committed against [any] member of the Rohingya group: extrajudicial killings or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or in part;
(b) Myanmar shall, in particular, ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any act of genocide, of conspiracy to commit genocide, or direct and public incitement to commit genocide, or of complicity in genocide, against the Rohingya group, including: extrajudicial killing or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or in part;
(c) Myanmar shall not destroy or render inaccessible any evidence related to the events described in the Application, including without limitation by destroying or rendering inaccessible the remains of any member of the Rohingya group who is a victim of alleged genocidal acts, or altering the physical locations where such acts are alleged to have occurred in such a manner as to render the evidence of such acts, if any, inaccessible;
(d) Myanmar and The Gambia shall not take any action and shall assure that no action is taken which may aggravate or extend the existing dispute that is the subject of this Application, or render it more difficult of resolution; and
(e) Myanmar and The Gambia shall each provide a report to the Court on all measures taken to give effect to this Order for provisional measures, no later than four months from its issuance.”
6. The Registrar immediately communicated to the Government of Myanmar the Application containing the Request for the indication of provisional measures, in accordance with Article 40, paragraph 2, of the Statute of the Court, and Article 73, paragraph 2, of the Rules of Court. He also notified the Secretary-General of the United Nations of the filing by The Gambia of the Application and the Request for the indication of provisional measures.
7. Pending the notification provided for by Article 40, paragraph 3, of the Statute, the Registrar informed all States entitled to appear before the Court of the filing of the Application and the Request for the indication of provisional measures by a letter dated 11 November 2019.
8. Since the Court included upon the Bench no judge of the nationality of either Party, each Party proceeded to exercise the right conferred upon it by Article 31 of the Statute to choose a judge ad hoc to sit in the case. The Gambia chose Ms Navanethem Pillay and Myanmar Mr. Claus Kress.
9. By letters dated 12 November 2019, the Registrar informed the Parties that, pursuant to Article 74, paragraph 3, of its Rules, the Court had fixed 10, 11 and 12 December 2019 as the dates for the oral proceedings on the Request for the indication of provisional measures.
10. By a letter dated 9 December 2019, a copy of which was immediately communicated to Myanmar, The Gambia submitted to the Court the text of the following additional provisional measure requested from the Court:
“The Gambia requests that Myanmar be ordered to grant access to, and cooperate with, all United Nations fact-finding bodies that are engaged in investigating alleged genocidal acts against the Rohingya, including the conditions to which the Rohingya are subjected.”
11. At the public hearings, oral observations on the Request for the indication of provisional measures were presented by:
12. At the end of its second round of oral observations, The Gambia asked the Court to indicate the following provisional measures:
(a) Myanmar shall immediately, in pursuance of its undertaking in the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, take all measures within its power to prevent all acts that amount to or contribute to the crime of genocide, including taking all measures within its power to prevent the following acts from being committed against any member of the Rohingya group: extrajudicial killings or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or in part;
(b) Myanmar shall, in particular, ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any act of genocide, of conspiracy to commit genocide, or direct and public incitement to commit genocide, or of complicity in genocide, against the Rohingya group, including: extrajudicial killing or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or in part;
(c) Myanmar shall not destroy or render inaccessible any evidence related to the events described in the Application, including without limitation by destroying or rendering inaccessible the remains of any member of the Rohingya group who is a victim of alleged genocidal acts, or altering the physical locations where such acts are alleged to have occurred in such a manner as to render the evidence of such acts, if any, inaccessible;
(d) Myanmar and The Gambia shall not take any action and shall assure that no action is taken which may aggravate or extend the existing dispute that is the subject of this Application, or render it more difficult of resolution;
(e) Myanmar and The Gambia shall each provide a report to the Court on all measures taken to give effect to this Order for provisional measures, no later than four months from its issuance; and
(f) Myanmar shall grant access to, and cooperate with, all United Nations fact-finding bodies that are engaged in investigating alleged genocidal acts against the Rohingya, including the conditions to which the Rohingya are subjected.”
13. At the end of its second round of oral observations, Myanmar requested the Court:
(1) to remove the case from its List;
(2) in the alternative, to reject the request for the indication of provisional measures submitted by The Gambia.”
*
* *
14. In its Application, The Gambia seeks protection for “all members of the Rohingya group who are in the territory of Myanmar, as members of a protected group under the Genocide Convention”. According to a 2016 Report of the United Nations High Commissioner for Human Rights, Rohingya Muslims “self-identify as a distinct ethnic group with their own language and culture, and claim a longstanding connection to Rakhine State”; however, “[s]uccessive Governments [of Myanmar] have rejected these claims, and the Rohingya were not included in the list of recognized ethnic groups. Most Rohingya are stateless” (United Nations, Situation of human rights of Rohingya Muslims and other minorities in Myanmar, doc. A/HRC/32/18, 29 June 2016, para. 3).
15. The Court's references in this Order to the “Rohingya” should be understood as references to the group that self-identifies as the Rohingya group and that claims a longstanding connection to Rakhine State, which forms part of the Union of Myanmar.
I. Prima facie jurisdiction
1. General introduction
16. The Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case (see, inter alia, Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II), p. 630, para. 24).
17. In the present case, The Gambia seeks to found the jurisdiction of the Court on Article 36, paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention (see paragraph 3 above). The Court must therefore first determine whether those provisions prima facie confer upon it jurisdiction to rule on the merits of the case, enabling it — if the other necessary conditions are fulfilled — to indicate provisional measures.
18. Article IX of Genocide Convention provides:
“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
19. The Gambia and Myanmar are parties to the Genocide Convention. Myanmar deposited its instrument of ratification on 14 March 1956, without entering a reservation to Article IX, but making reservations to Articles VI and VIII. The Gambia acceded to the Convention on 29 December 1978, without entering any reservation.
2. Existence of a dispute relating to the interpretation, application or fulfilment of the Genocide Convention
20. Article IX of the Genocide Convention makes the Court's jurisdiction conditional on the existence of a dispute relating to the interpretation, application or fulfilment of the Convention. A dispute between States exists where they hold clearly opposite views concerning the question of the performance or non-performance of certain international obligations (see Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 115, para. 22, citing Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74). The claim of one party must be “positively opposed” by the other (South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328). The Court cannot limit itself to noting that one of the parties maintains that a dispute exists, and the other denies it (cf. Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 810, para. 16). Since The Gambia has invoked as a basis of the Court's jurisdiction the compromissory clause in an international convention, the Court must ascertain whether the acts complained of by the Applicant are capable of falling within the provisions of that instrument and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain (Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1159, para. 47). The Court also recalls that, “[i]n principle, the date for determining the existence of a dispute is the date on which the application is submitted to the Court” (see, for example, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016 (I), p. 271, para. 39).
* *
21. The Gambia contends that a dispute exists with Myanmar relating to the interpretation and application of the Genocide Convention and the fulfilment by Myanmar of its obligations “to prevent genocide and to desist from its own acts of genocide”. Specifically, The Gambia asserts that in October 2016 the Myanmar military and other Myanmar security forces began widespread and systematic “clearance operations” against the Rohingya group, during the course of which they committed mass murder, rape and other forms of sexual violence, and engaged in the systematic destruction by fire of Rohingya villages, often with inhabitants locked inside burning houses, with the intent to destroy the Rohingya as a group, in whole or in part. The Gambia alleges that, from August 2017 onwards, such genocidal acts continued with Myanmar's resumption of “clearance operations” on a more massive and wider geographical scale.
22. The Gambia maintains that, prior to filing its Application, it made clear to Myanmar that the latter's actions constituted a violation of its obligations under the Genocide Convention, but that Myanmar “has rejected and opposed any suggestion that it has violated the Genocide Convention”. In this connection, The Gambia argues that it has made several statements in multilateral settings whereby it clearly addressed the situation of the Rohingya in Rakhine State, including allegations of breaches by Myanmar of the Genocide Convention, and expressed its readiness to take this issue to the Court. The Gambia adds that Myanmar was aware that the Independent International Fact-Finding Mission on Myanmar established by the Human Rights Council of the United Nations (hereinafter the “Fact-Finding Mission”) welcomed the efforts of States, in particular Bangladesh and The Gambia, and the Organisation of Islamic Cooperation (hereinafter the “OIC”) “to encourage and pursue a case against Myanmar before the International Court of Justice under the Convention on the Prevention and Punishment of the Crime of Genocide” (United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, doc. A/HRC/42/50, 8 August 2019, para. 107). According to The Gambia, Myanmar completely rejected the Fact-Finding Mission reports and the conclusions contained therein. Finally, The Gambia emphasizes that its claims against Myanmar regarding breaches by the latter of its obligations under the Genocide Convention were specifically communicated to Myanmar by a Note Verbale sent on 11 October 2019, to which Myanmar did not respond.
*
23. Myanmar contends that the Court does not have jurisdiction under Article IX of the Genocide Convention. It first argues that there is no dispute between the Parties in view of the fact that the proceedings before the Court were instituted by The Gambia, not on its own behalf, but rather as a “proxy” and “on behalf of” the OIC. It further argues that no such dispute existed at the time of the filing of the Application. In this regard, Myanmar asserts that the allegations contained in the OIC documents and statements regarding the situation of the Rohingya mentioned by The Gambia could not give rise to a dispute between the Parties as they did not amount to allegations of violations of the Genocide Convention made by The Gambia against Myanmar. It also contends that the Court cannot infer the existence of a dispute between the Parties from The Gambia's Note Verbale of 11 October 2019 and the absence of any response by Myanmar before the filing of the Application on 11 November 2019. In Myanmar's opinion, the Note Verbale in question did not call for a response as it did not formulate specific allegations of violations of the Convention, and, in any event, such a response could not be expected within a month.
24. Myanmar concludes that, in the absence of a dispute, the Court's lack of jurisdiction is manifest and the case should be removed from the General List.
* *
25. With regard to Myanmar's contention that, in bringing before the Court its claims based on alleged violations of the Genocide Convention, The Gambia acted as a “proxy” for the OIC in circumvention of Article 34 of the Statute, the Court notes that the Applicant instituted proceedings in its own name, and that it maintains that it has a dispute with Myanmar regarding its own rights under the Convention. In the view of the Court, the fact that The Gambia may have sought and obtained the support of other States or international organizations in its endeavour to seise the Court does not preclude the existence between the Parties of a dispute relating to the Genocide Convention.
26. Turning to the question whether there was a dispute between the Parties at the time of the filing of the Application, the Court recalls that, for the purposes of deciding this issue, it takes into account in particular any statements or documents exchanged between the Parties (see Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), pp. 443–445, paras. 50–55), as well as any exchanges made in multilateral settings (see Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 94, para. 51 and p. 95, para. 53). In so doing, it pays special attention to “the author of the statement or document, their intended or actual addressee, and their content” (ibid., p. 100, para. 63). The existence of a dispute is a matter for objective determination by the Court; it is a matter of substance, and not a question of form or procedure (Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016 (I), p. 270, paras. 35–36).
27. The Court notes that, on 8 August 2019, the Fact-Finding Mission published a report which affirmed its previous conclusion “that Myanmar incurs State responsibility under the prohibition against genocide” and welcomed the efforts of The Gambia, Bangladesh and the OIC to pursue a case against Myanmar before the Court under the Genocide Convention (United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, doc. A/HRC/42/50, 8 August 2019, paras. 18 and 107). On 26 September 2019, The Gambia stated during the general debate of the seventy-fourth session of the General Assembly of the United Nations that it was ready to lead concerted efforts to take the Rohingya issue to the International Court of Justice (United Nations, Official Records of the General Assembly, doc. A/74/PV.8, 26 September 2019, p. 31). Myanmar addressed the General Assembly two days later, characterizing the Fact-Finding Mission reports as “biased and flawed, based not on facts but on narratives” (United Nations, Official Records of the General Assembly, doc. A/74/PV.12, 28 September 2019, p. 24). In the Court's view, these statements made by the Parties before the United Nations General Assembly suggest the existence of a divergence of views concerning the events which allegedly took place in Rakhine State in relation to the Rohingya. In this regard, the Court recalls that
“a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis . . . the position or the attitude of a party can be established by inference, whatever the professed view of that party” (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89).
28. In addition, the Court takes into account The Gambia's Note Verbale of 11 October 2019, in which The Gambia, referring to the reports of the Fact-Finding Mission, wrote that it “underst[ood] Myanmar to be in ongoing breach of [its] obligations under the [Genocide] Convention and under customary international law” and “insist[ed] that Myanmar take all necessary actions to comply with these obligations”. The Court observes that this Note Verbale specifically referred to the reports of the Fact-Finding Mission and indicated The Gambia's opposition to the views of Myanmar, in particular as regards the latter's denial of its responsibility under the Convention. In light of the gravity of the allegations made therein, the Court considers that the lack of response may be another indication of the existence of a dispute between the Parties. As the Court has previously held, “the existence of a dispute may be inferred from the failure of a State to respond to a claim in circumstances where a response is called for” (Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016 (I), p. 271, para. 37).
29. As to whether the acts complained of by the Applicant are capable of falling within the provisions of the Genocide Convention, the Court recalls that The Gambia contends that Myanmar's military and security forces and persons or entities acting on its instructions or under its direction and control have been responsible, inter alia, for killings, rape and other forms of sexual violence, torture, beatings, cruel treatment, and for the destruction or denial of access to food, shelter and other essentials of life, all with the intent to destroy the Rohingya group, in whole or in part. In The Gambia's view, these acts are all attributable to Myanmar, which it considers to be responsible for committing genocide. The Gambia contends that Myanmar has also violated other obligations under the Genocide Convention, “including by attempting to commit genocide; conspiring to commit genocide; inciting genocide; complicity in genocide; and failing to prevent and punish genocide”. The Court notes that Myanmar, for its part, denied that it has committed any of the violations of the Genocide Convention alleged by The Gambia, arguing in particular the absence of any genocidal intent.
30. For the purposes of the present proceedings, the Court is not required to ascertain whether any violations of Myanmar's obligations under the Genocide Convention have occurred. Such a finding, which notably depends on the assessment of the existence of an intent to destroy, in whole or in part, the group of the Rohingya as such, could be made by the Court only at the stage of the examination of the merits of the present case. What the Court is required to do at the stage of making an order on provisional measures is to establish whether the acts complained of by The Gambia are capable of falling within the provisions of the Genocide Convention. In the Court's view, at least some of the acts alleged by The Gambia are capable of falling within the provisions of the Convention.
31. The Court finds therefore that the above-mentioned elements are sufficient at this stage to establish prima facie the existence of a dispute between the Parties relating to the interpretation, application or fulfilment of the Genocide Convention.
3. The reservation of Myanmar to Article VIII of the Convention
32. Myanmar further submits that The Gambia cannot validly seise the Court as a result of Myanmar's reservation to Article VIII of the Genocide Convention, which specifically deals with the right of any of the Contracting Parties to the Convention to seise any competent organ of the United Nations. According to the Respondent, this provision applies to the Court, being a competent organ of the United Nations. In its view, only this provision enables States parties not specially affected to bring a claim before the Court for alleged breaches of the Convention by another State party. Myanmar therefore submits that the valid seisin of the Court by The Gambia, on the basis of Article VIII, is a necessary precondition to the exercise of the Court's jurisdiction under Article IX of the Genocide Convention. In light of its reservation to Article VIII, Myanmar concludes that the Court should not assume jurisdiction in the present case.
*
33. The Gambia submits that Myanmar's argument based on its reservation to Article VIII of the Genocide Convention should be rejected as it would amount to depriving Article IX of any substance. In particular, the Applicant contends that the Respondent has not explained how its argument could be reconciled with Myanmar's consent to Article IX and to the Court's jurisdiction.
* *
34. The Court recalls that Myanmar has made a reservation to Article VIII of the Genocide Convention, which reads as follows: “With reference to article VIII, the Union of Burma makes the reservation that the said article shall not apply to the Union.”
Article VIII of the Genocide Convention provides:
“Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.”
35. The Court considers that, although the terms “competent organs of the United Nations” under Article VIII are broad and may be interpreted as encompassing the Court within their scope of application, other terms used in Article VIII suggest a different interpretation. In particular, the Court notes that this provision only addresses in general terms the possibility for any Contracting Party to “call upon” the competent organs of the United Nations to take “action” which is “appropriate” for the prevention and suppression of acts of genocide. It does not refer to the submission of disputes between Contracting Parties to the Genocide Convention to the Court for adjudication. This is a matter specifically addressed in Article IX of the Convention, to which Myanmar has not entered any reservation. Article VIII and Article IX of the Convention can therefore be said to have distinct areas of application. It is only Article IX of the Convention which is relevant to the seisin of the Court in the present case (cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 23, para. 47).
36. In view of the above, Myanmar's reservation to Article VIII of the Genocide Convention does not appear to deprive The Gambia of the possibility to seise the Court of a dispute with Myanmar under Article IX of the Convention.
4. Conclusion as to prima facie jurisdiction
37. In light of the foregoing, the Court concludes that, prima facie, it has jurisdiction pursuant to Article IX of the Genocide Convention to deal with the case.
38. Given the above conclusion, the Court considers that it cannot accede to Myanmar's request that the case be removed from the General List for manifest lack of jurisdiction.
II. Question of the standing of The gambia
39. Myanmar accepts that, because of the erga omnes partes character of some obligations under the Convention, The Gambia has an interest in Myanmar's compliance with such obligations. It disputes, however, that The Gambia has the capacity to bring a case before the Court in relation to Myanmar's alleged breaches of the Genocide Convention without being specially affected by such alleged violations. Myanmar argues that “it is the right of an injured State to decide if, and eventually how, to invoke the responsibility of another State, and that the right of non-injured States to invoke such responsibility is subsidiary”. The Respondent submits that Bangladesh, as the State being specially affected by the events forming the subject-matter of the Application, would be the State entitled to invoke the responsibility of Myanmar, but that Bangladesh is prevented from doing so in light of its declaration made with regard to Article IX of the Genocide Convention.
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40. The Gambia contends that, since the obligations under the Genocide Convention are obligations erga omnes partes, any State party to the Genocide Convention is entitled to invoke the responsibility of another State party for the breach of its obligations, without having to prove a special interest. The Gambia argues that the fact of being party to a treaty imposing obligations erga omnes partes suffices to establish its legal interest and legal standing before the Court. In this regard, it refers to the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), in which the Court recognized the capacity of Belgium to bring a claim before the Court in relation to alleged breaches of erga omnes partes obligations by Senegal under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter the “Convention against Torture”), without determining whether Belgium had been specially affected by those breaches. The Gambia also submits that if a special interest were required with respect to alleged breaches of obligations erga omnes partes, in many cases no State would be in a position to make a claim against the perpetrator of the wrongful act.
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41. The Court recalls that in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, it observed that
“[i]n such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions.” (I.C.J. Reports 1951, p. 23.)
In view of their shared values, all the States parties to the Genocide Convention have a common interest to ensure that acts of genocide are prevented and that, if they occur, their authors do not enjoy impunity. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention. In its Judgment in the case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the Court observed that the relevant provisions in the Convention against Torture were “similar” to those in the Genocide Convention. The Court held that these provisions generated “obligations [which] may be defined as ‘obligations erga omnes partes’ in the sense that each State party has an interest in compliance with them in any given case” (Judgment, I.C.J. Reports 2012 (II), p. 449, para. 68). It follows that any State party to the Genocide Convention, and not only a specially affected State, 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.
42. The Court concludes that The Gambia has prima facie standing to submit to it the dispute with Myanmar on the basis of alleged violations of obligations under the Genocide Convention.
III. The rights whose protection is sought and The link between such rights and the measures requested
43. The power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof. It follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party. Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible (see, for example, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), pp. 421–422, para. 43).
44. At this stage of the proceedings, however, the Court is not called upon to determine definitively whether the rights which The Gambia wishes to see protected exist; it need only decide whether the rights claimed by The Gambia on the merits, and for which it is seeking protection, are plausible. Moreover, a link must exist between the rights whose protection is sought and the provisional measures being requested (ibid., para. 44).
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45. In its Application, The Gambia states that it seeks to assert the rights of “all members of the Rohingya group who are in the territory of Myanmar, as members of a protected group under the Genocide Convention”, including the “rights of the Rohingya group to exist as a group”, to be protected from acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide, in accordance with Article III of the Convention. The Gambia adds that it “also seeks to protect the erga omnes partes rights it has under the Convention, which mirror the erga omnes obligations of the Convention with which it is entitled to seek compliance”.
46. The Gambia contends that, for the purposes of the indication of provisional measures, the rights it asserts in the present case are plausible, and that their protection coincides with the very object and purpose of the Convention. The Gambia affirms that, based on the evidence and material placed before the Court, the acts of which it complains are capable of being characterized at least plausibly as genocidal. The Applicant maintains that the evidence of the specific genocidal intent (dolus specialis) can be deduced from the pattern of conduct against the Rohingya in Myanmar and refers, in this regard, to the inference of such intent drawn by the Fact-Finding Mission in its reports. In The Gambia's view, the Court should not be required, before granting provisional measures, to ascertain whether the existence of a genocidal intent is the only plausible inference to be drawn in the given circumstances from the material put before it, a requirement which would amount to making a determination on the merits. In this regard, the fact that some of the alleged acts may also be characterized as crimes other than genocide would not be inconsistent with and should not exclude the plausible inference of the existence of the said genocidal intent.
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47. Myanmar does not specifically address the question whether, for the purposes of the indication of provisional measures, the rights asserted by The Gambia are at least plausible. The Respondent rather contends that the Court should indicate provisional measures only if the claims put forward by The Gambia, based on the facts alleged in its Application, are plausible. Myanmar argues that, for that purpose, a “plausible claim” under the Genocide Convention must include evidence of the required specific genocidal intent. For Myanmar, “it is this subjective intent that is the critical element distinguishing genocide from other violations of international law such as crimes against humanity and war crimes”. Myanmar maintains that the Court should take into account the exceptional gravity of the alleged violations in assessing whether the required level of plausibility is met. It submits that the Court should therefore determine whether it is plausible that the existence of a genocidal intent is the only inference that can be drawn from the acts alleged and the evidence submitted by the Applicant. In this respect, the Respondent explains that if the information and the materials invoked in support of the Application may provide evidence indicating alternative inferences that can be drawn from the alleged conduct, other than an inference of a genocidal intent, the Court should conclude that the claims are not plausible.
48. On that basis, Myanmar states that, in the present case, the Applicant has not provided sufficient and reliable evidence to establish that the acts complained of were plausibly committed with the required specific genocidal intent. The Respondent argues that alternative inferences, other than a genocidal intent to destroy, in whole or in part, the Rohingya group as such, may be drawn from the alleged conduct of Myanmar vis-à-vis the Rohingya.
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49. The Court observes that, in accordance with Article I of the Convention, all States parties thereto have undertaken “to prevent and to punish” the crime of genocide. Article II provides that
“genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
50. Pursuant to Article III of the Genocide Convention, the commission of the following acts, other than genocide itself, are also prohibited by the Convention: conspiracy to commit genocide (Article III, para. (b)), direct and public incitement to commit genocide (Article III, para. (c)), attempt to commit genocide (Article III, para. (d)) and complicity in genocide (Article III, para. (e)).
51. The obligation to prevent and punish genocide set out in Article I of the Convention is supplemented by the distinct obligations which appear in the subsequent articles, especially those in Articles V and VI requiring the enactment of the necessary legislation to give effect to the provisions of the Convention, as well as the prosecution of persons charged with such acts. In so far as these provisions concerning the duty to punish also have a deterrent and therefore a preventive effect or purpose, they too meet the obligation to prevent genocide (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 109, para. 159 and p. 219, para. 426).
52. The Court further observes that the provisions of the 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. The Court also considers that there is a correlation between the rights of members of groups protected under the Genocide Convention, the obligations incumbent on States parties thereto, and the right of any State party to seek compliance therewith by another State party (cf. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 426, para. 51). In the Court's view, the Rohingya in Myanmar appear to constitute a protected group within the meaning of Article II of the Genocide Convention.
53. In the present case, the Court notes that, at the hearings, Myanmar, referring to what it characterizes as “clearance operations” carried out in Rakhine State in 2017, stated that
“it cannot be ruled out that disproportionate force was used by members of the Defence Services in some cases in disregard of international humanitarian law, or that they did not distinguish clearly enough between [Arakan Rohingya Salvation Army] fighters and civilians”,
and that
“[t]here may also have been failures to prevent civilians from looting or destroying property after fighting or in abandoned villages”.
54. The Court also notes that the United Nations General Assembly, in its resolution 73/264 adopted on 22 December 2018, expressed
“grave concern at the findings of the independent international fact-finding mission on Myanmar that there [was] sufficient information to warrant investigation and prosecution so that a competent court may determine liability for genocide in relation to the situation in Rakhine State, that crimes against humanity and war crimes have been committed in Kachin, Rakhine and Shan States, including murder, imprisonment, enforced disappearance, torture, rape, sexual slavery and other forms of sexual violence, persecution and enslavement, that children were subjected to and witnessed serious human rights violations, including killing, maiming and sexual violence, that there are reasonable grounds to conclude that serious crimes under international law have been committed that warrant criminal investigation and prosecution and that the military has consistently failed to respect international human rights law and international humanitarian law”.
By the same resolution, the General Assembly condemned
“all violations and abuses of human rights in Myanmar, as set out in the report of the fact-finding mission, including the widespread, systematic and gross human rights violations and abuses committed in Rakhine State, including the presence of elements of extermination and deportation and the systematic oppression and discrimination that the fact-finding mission concluded may amount to persecution and to the crime of apartheid”.
It also
“strongly condemn[ed] the grossly disproportionate response of the military and the security forces, deplore[d] the serious deterioration of the security, human rights and humanitarian situation and the exodus of more than 723,000 Rohingya Muslims and other minorities to Bangladesh and the subsequent depopulation of northern Rakhine State, and call[ed] upon the Myanmar authorities to ensure that those responsible for violations of international law, including human rights violations and abuses, are held accountable and removed from positions of power” (United Nations, doc. A/RES/73/264, 22 December 2018, paras. 1–2).
55. In this connection, the Court recalls that the Fact-Finding Mission, to which the General Assembly refers in its above-mentioned resolution, stated, in its report of 12 September 2018, that it had “reasonable grounds to conclude that serious crimes under international law ha[d] been committed that warrant[ed] criminal investigation and prosecution”, including the crime of genocide, against the Rohingya in Myanmar (United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, doc. A/HRC/39/64, 12 September 2018, paras. 83 and 84–87). The Court notes that, regarding the acts perpetrated against the Rohingya in Rakhine State, the Fact-Finding Mission, in its 2018 detailed findings, observed that
“[t]he actions of those who orchestrated the attacks on the Rohingya read as a veritable check-list: the systematic stripping of human rights, the dehumanizing narratives and rhetoric, the methodical planning, mass killing, mass displacement, mass fear, overwhelming levels of brutality, combined with the physical destruction of the home of the targeted population, in every sense and on every level” (United Nations, Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, doc. A/HRC/39/CRP.2, 17 September 2018, para. 1440).
The Fact-Finding Mission concluded that “on reasonable grounds . . . the factors allowing the inference of genocidal intent [were] present” (United Nations, Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, doc. A/HRC/39/CRP.2, 17 September 2018, para. 1441). The Fact-Finding Mission reiterated its conclusions, based on further investigations, in its report of 8 August 2019 (United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, doc. A/HRC/42/50, 8 August 2019, para. 18). The Court further notes that the Fact-Finding Mission, in its 2018 detailed findings, also asserted, based on its overall assessment of the situation in Myanmar since 2011, and particularly in Rakhine State, that the extreme levels of violence perpetrated against the Rohingya in 2016 and 2017 resulted from the “systemic oppression and persecution of the Rohingya”, including the denial of their legal status, identity and citizenship, and followed the instigation of hatred against the Rohingya on ethnic, racial or religious grounds (United Nations, Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, doc. A/HRC/39/CRP.2, 17 September 2018, paras. 458–748). The Court also recalls that following the events which occurred in Rakhine State in 2016 and 2017, hundreds of thousands of Rohingya have fled to Bangladesh.
56. In view of the function of provisional measures, which is to protect the respective rights of either party pending its final decision, the Court does not consider that the exceptional gravity of the allegations is a decisive factor warranting, as argued by Myanmar, the determination, at the present stage of the proceedings, of the existence of a genocidal intent. In the Court's view, all the facts and circumstances mentioned above (see paragraphs 53–55) are sufficient to conclude that the rights claimed by The Gambia and for which it is seeking protection — namely the right of the Rohingya group in Myanmar and of its members to be protected from acts of genocide and related prohibited acts mentioned in Article III, and the right of The Gambia to seek compliance by Myanmar with its obligations not to commit, and to prevent and punish genocide in accordance with the Convention — are plausible.
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57. The Court now turns to the issue of the link between the rights claimed and the provisional measures requested.
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58. The Gambia submits that the provisional measures it requests (see paragraph 12 above) are directly linked to the rights which form the subject-matter of the dispute. In particular, the Applicant asserts that the first two provisional measures have been requested to ensure Myanmar's compliance with its obligation to prevent genocide and to uphold the rights of The Gambia to protect the Rohingya group against total or partial destruction, and that the four other provisional measures requested are aimed at protecting the integrity of the proceedings before the Court and The Gambia's right to have its claim fairly adjudicated.
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59. Myanmar does not dispute the link of the provisional measures requested with the rights under the Genocide Convention for which protection is sought by the Applicant, except with regard to the fifth and sixth provisional measures requested. The Respondent claims that these last two measures would go beyond the specific purpose of preserving the respective rights of the Parties pending a final decision by the Court. Furthermore, with regard to the sixth provisional measure, Myanmar argues that the indication of such a measure would circumvent Myanmar's reservation to Article VIII of the Genocide Convention.
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60. The Court has already found (see paragraph 56 above) that the rights asserted by The Gambia under the Genocide Convention are plausible.
61. The Court considers that, by their very nature, the first three provisional measures sought by The Gambia (see paragraph 12 above) are aimed at preserving the rights it asserts on the basis of the Genocide Convention in the present case, namely the right of the Rohingya group in Myanmar and of its members to be protected from acts of genocide and other acts mentioned in Article III, and the right of The Gambia to have Myanmar comply with its obligations under the Convention to prevent and punish acts identified and prohibited under Articles II and III of the Convention, including by ensuring the preservation of evidence. As to the fourth and fifth provisional measures requested by The Gambia, the question of their link with the rights for which The Gambia seeks protection does not arise, in so far as such measures would be directed at preventing any action which may aggravate or extend the existing dispute or render it more difficult to resolve, and at providing information on the compliance by the Parties with any specific provisional measure indicated by the Court.
62. As to the sixth provisional measure requested by The Gambia, the Court does not consider that its indication is necessary in the circumstances of the case.
63. The Court concludes, therefore, that a link exists between the rights claimed and some of the provisional measures being requested by The Gambia.
IV. Risk of irreparable prejudice and urgency
64. The Court, pursuant to Article 41 of its Statute, has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences (Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II), p. 645, para. 77).
65. However, the power of the Court to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused before the Court gives its final decision. The condition of urgency is met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the Court makes a final decision on the case. The Court must therefore consider whether such a risk exists at this stage of the proceedings (Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II), pp. 645–646, para. 78).
66. The Court is not called upon, for the purposes of its decision on the Request for the indication of provisional measures, to establish the existence of breaches of the Genocide Convention, but to determine whether the circumstances require the indication of provisional measures for the protection of rights under this instrument. It cannot at this stage make definitive findings of fact, and the right of each Party to submit arguments in respect of the merits remains unaffected by the Court's decision on the Request for the indication of provisional measures.
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67. The Gambia contends that there is a risk of irreparable prejudice to the rights of the Rohingya and to its own rights under the Genocide Convention, as well as urgency. According to The Gambia, not only have the Rohingya been subjected to genocidal acts in the recent past, but there is a grave danger of further such acts because the Government of Myanmar continues to harbour genocidal intent and to commit crimes against members of the Rohingya group. The Gambia thus argues that the Rohingya remaining in Myanmar face grave threats to their existence, placing them in urgent need of protection.
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68. Myanmar denies that there exists a real and imminent risk of irreparable prejudice in the present case. Myanmar first asserts that it is currently engaged in repatriation initiatives for the return of displaced Rohingya presently in Bangladesh, with the support of international actors, whose support would not be forthcoming if there was an imminent or ongoing risk of genocide. Myanmar also argues that it is engaged in a range of initiatives aimed at bringing stability to Rakhine State, protecting those who are there or who will return there, and holding accountable those responsible for past violence — actions which are inconsistent with it allegedly harbouring genocidal intent. Finally, Myanmar stresses the challenges it is facing, inter alia, in ending an ongoing “internal armed conflict” with the Arakan Army in Rakhine State. It submits that the indication of provisional measures by the Court might reignite the 2016–2017 “internal armed conflict” with the Arakan Rohingya Salvation Army, and undermine its current efforts towards reconciliation.
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69. The Court recalls that, as underlined in General Assembly resolution 96 (I) of 11 December 1946,
“[g]enocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations”.
The Court has observed, in particular, that the Genocide Convention “was manifestly adopted for a purely humanitarian and civilizing purpose”, since “its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality” (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23).
70. In view of the fundamental values sought to be protected by the Genocide Convention, the Court considers that the rights in question in these proceedings, in particular the right of the Rohingya group in Myanmar and of its members to be protected from killings and other acts threatening their existence as a group, are of such a nature that prejudice to them is capable of causing irreparable harm.
71. The Court notes that the reports of the Fact-Finding Mission (see paragraph 55 above) have indicated that, since October 2016, the Rohingya in Myanmar have been subjected to acts which are capable of affecting their right of existence as a protected group under the Genocide Convention, such as mass killings, widespread rape and other forms of sexual violence, as well as beatings, the destruction of villages and homes, denial of access to food, shelter and other essentials of life. As indicated in resolution 74/246 adopted by the General Assembly on 27 December 2019, this has caused almost 744,000 Rohingya to flee their homes and take refuge in neighbouring Bangladesh (United Nations, doc. A/RES/74/246, 27 December 2019, preambular para. 25). According to the 2019 detailed findings of the Fact-Finding Mission, approximately 600,000 Rohingya remained in Rakhine State as of September 2019 (United Nations, Detailed findings of the Independent International Fact-Finding Mission on Myanmar, doc. A/HRC/42/CRP.5, 16 September 2019, paras. 4, 57, 107, 120, 158 and 212).
72. The Court is of the opinion that the Rohingya in Myanmar remain extremely vulnerable. In this respect, the Court notes that in its resolution 74/246 of 27 December 2019, the General Assembly reiterated
“its grave concern that, in spite of the fact that Rohingya Muslims lived in Myanmar for generations prior to the independence of Myanmar, they were made stateless by the enactment of the 1982 Citizenship Law and were eventually disenfranchised, in 2015, from the electoral process” (United Nations, doc. A/RES/74/246, 27 December 2019, preambular para. 14).
The Court further takes note of the detailed findings of the Fact-Finding Mission on Myanmar submitted to the Human Rights Council in September 2019, which refer to the risk of violations of the Genocide Convention, and in which it is “conclude[d] on reasonable grounds that the Rohingya people remain at serious risk of genocide under the terms of the Genocide Convention” (United Nations, Detailed findings of the Independent International Fact-Finding Mission on Myanmar, doc. A/HRC/42/CRP.5, 16 September 2019, para. 242; see also paras. 58, 240 and 667).
73. The Court takes note of the statement of Myanmar during the oral proceedings that it is currently engaged in repatriation initiatives to facilitate the return of Rohingya refugees present in Bangladesh and that it intends to promote ethnic reconciliation, peace and stability in Rakhine State, and to make its military accountable for violations of international humanitarian and human rights law. In the view of the Court, however, these steps do not appear sufficient in themselves to remove the possibility that acts causing irreparable prejudice to the rights invoked by The Gambia for the protection of the Rohingya in Myanmar could occur. In particular, the Court notes that Myanmar has not presented to the Court concrete measures aimed specifically at recognizing and ensuring the right of the Rohingya to exist as a protected group under the Genocide Convention. Moreover, the Court cannot ignore that the General Assembly has, as recently as on 27 December 2019, expressed its regret that “the situation has not improved in Rakhine State to create the conditions necessary for refugees and other forcibly displaced persons to return to their places of origin voluntarily, safely and with dignity” (United Nations, doc. A/RES/74/246, 27 December 2019, preambular para. 20). At the same time the General Assembly reiterated
“its deep distress at reports that unarmed individuals in Rakhine State have been and continue to be subjected to the excessive use of force and violations of human rights and international humanitarian law by the military and security and armed forces, including extrajudicial, summary or arbitrary killings, systematic rape and other forms of sexual and gender-based violence, arbitrary detention, enforced disappearance and government seizure of Rohingya lands from which Rohingya Muslims were evicted and their homes destroyed” (ibid., preambular para. 16).
74. Finally, the Court observes that, irrespective of the situation that the Myanmar Government is facing in Rakhine State, including the fact that there may be an ongoing internal conflict between armed groups and the Myanmar military and that security measures are in place, Myanmar remains under the obligations incumbent upon it as a State party to the Genocide Convention. The Court recalls that, in accordance with the terms of Article I of the Convention, States parties expressly confirmed their willingness to consider genocide as a crime under international law which they must prevent and punish independently of the context “of peace” or “of war” in which it takes place (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 615, para. 31). The context invoked by Myanmar does not stand in the way of the Court's assessment of the existence of a real and imminent risk of irreparable prejudice to the rights protected under the Convention.
75. In light of the considerations set out above, the Court finds that there is a real and imminent risk of irreparable prejudice to the rights invoked by The Gambia, as specified by the Court (see paragraph 56 above).
V. Conclusion and measures to be adopted
76. From all of the above considerations, the Court concludes that the conditions required by its Statute for it to indicate provisional measures are met. It is therefore necessary, pending its final decision, for the Court to indicate certain measures in order to protect the rights claimed by The Gambia, as identified above (see paragraph 56).
77. The Court recalls that it has the power, under its Statute, when a request for provisional measures has been made, to indicate measures that are, in whole or in part, other than those requested. Article 75, paragraph 2, of the Rules of Court specifically refers to this power of the Court. The Court has already exercised this power in the past (see, for example, Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II), p. 651, para. 96).
78. In the present case, having considered the terms of the provisional measures requested by The Gambia and the circumstances of the case, the Court finds that the measures to be indicated need not be identical to those requested.
79. Bearing in mind Myanmar's duty to comply with its obligations under the Genocide Convention, the Court considers that, with regard to the situation described above, Myanmar must, in accordance with its obligations under the Convention, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of the Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.
80. Myanmar must also, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, 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.
81. The Court is also of the view that Myanmar must take effective measures to prevent the destruction and ensure the preservation of any evidence related to allegations of acts within the scope of Article II of the Genocide Convention.
82. Regarding the provisional measure requested by The Gambia that each Party shall provide a report to the Court on all measures taken to give effect to its Order, the Court recalls that it has the power, reflected in Article 78 of the Rules of Court, to request the parties to provide information on any matter connected with the implementation of any provisional measures it has indicated. In view of the specific provisional measures it has decided to indicate, the Court considers that Myanmar must 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. Every report so provided shall then be communicated to The Gambia which shall be given the opportunity to submit to the Court its comments thereon.
83. The Gambia has further requested the Court to indicate measures aimed at ensuring the non-aggravation of the dispute with Myanmar. In this respect, the Court recalls that when it is indicating provisional measures for the purpose of preserving specific rights, it also possesses the power to indicate additional provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that the circumstances so require (see Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011 (II), pp. 551–552, para. 59). However, in the circumstances of the present case, and in view of the specific provisional measures it has decided to take, the Court does not deem it necessary to indicate an additional measure relating to the non-aggravation of the dispute between the Parties.
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84. The Court reaffirms that its “orders on provisional measures under Article 41 [of the Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party to whom the provisional measures are addressed.
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85. The Court further reaffirms that the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves. It leaves unaffected the right of the Governments of The Gambia and Myanmar to submit arguments and evidence in respect of those questions.
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86. For these reasons,
THE Court,
Indicates the following provisional measures:
(1) Unanimously,
The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:
(a) killing members of the group;
(b) causing serious bodily or mental harm to the members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and
(d) imposing measures intended to prevent births within the group;
(2) Unanimously,
The Republic of the Union of Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide;
(3) Unanimously,
The Republic of the Union of Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide;
(4) Unanimously,
The Republic of the Union of 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.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-third day of January, two thousand and twenty, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of The Gambia and the Government of the Republic of the Union of Myanmar, respectively.
(Signed) Abdulqawi Ahmed Yusuf,
President.
(Signed)
Philippe Gautier,
Registrar.
Vice-President Xue appends a separate opinion to the Order of the Court; Judge Cançado Trindade appends a separate opinion to the Order of the Court; Judge ad hoc Kress appends a declaration to the Order of the Court.
(Initialled) A.A.Y.
(Initialled) Ph.G.
1. I voted in favour of the operative paragraph of the Order, however, with reservations to some of the reasoning. Given the importance of the issues involved, even at the present stage of the proceedings, I feel obliged to put on record my separate opinion.
2. First of all, I have serious reservations with regard to the plausibility of the present case under the Genocide Convention. For the genocide offence to be distinguished from other most serious international crimes, e.g. crimes against humanity, war crimes, genocidal intent constitutes a decisive element. Even accepting that, for the purpose of indication of provisional measures, a determination of the existence of such intent is not necessarily required, the alleged acts and the relevant circumstances should, prima facie, demonstrate that the nature and extent of the alleged acts have reached the level where a pattern of conduct might be considered as genocidal conduct. In other words, there should be a minimum standard to be applied at this early stage. In order to found the jurisdiction of the Court under Article IX of the Genocide Convention to indicate provisional measures, the Court has to determine, prima facie, that the subject-matter of the dispute between the Parties could possibly concern genocide.
3. The evidence and documents submitted to the Court in the present case, while displaying an appalling situation of human rights violations, present a case of a protracted problem of ill-treatment of ethnic minorities in Myanmar rather than of genocide. This can be observed from the official statements of the Government of Bangladesh, whose interest was specially affected by this crisis (see statements by the Foreign Minister of Bangladesh, Observations of the Republic of The Gambia, Annexes 8, 10; press releases of the Ministry of Foreign Affairs of Bangladesh, Observations of the Republic of The Gambia, Annexes 7, 9, 11, 12). From these statements one can tell that the cross-border displacements of hundreds of thousands of Myanmar residents, mostly the Rohingya, after the “clearance operations” in 2016 and 2017, have brought the issue of ethnic minorities to a breaking point. The gravity of the matter, nevertheless, does not change the nature of its subject, namely, the issue of national reconciliation and equality of ethnic minorities in Myanmar. Bangladesh's position to seek “a durable solution” to this protracted problem in close co-operation with the Myanmar Government indicates that the particular circumstances from which the present case has arisen could not possibly suggest a case of genocide.
4. On the question of the standing of The Gambia, first of all, I am of the opinion that the Court's reliance on Belgium v. Senegal to establish The Gambia's standing in the present case is flawed. I will not repeat my dissenting opinion to the Court's statement in that case relating to the common interest, but only wish to emphasize that the facts of the present case are entirely different from those in Belgium v. Senegal. In that case, Belgium acted, pursuant to Article 7 of the Convention against Torture, as a requesting State for legal assistance and extradition from Senegal. It instituted the case against Senegal in the Court not because it merely had an interest as shared by all the States parties in the compliance of the Convention against Torture, but because it was specially affected by Senegal's alleged non-fulfilment of its obligation aut dedere aut judicare under Article 7 of the Convention, as its national courts were seised with lawsuits against Mr. Hissène Habré for allegations of torture. In other words, it was supposedly an injured State under the rules of State responsibility.
5. In Belgium v. Senegal, the Court stated that
“[t]he common interest in compliance with the relevant obligations under the Convention against Torture implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party. If a special interest were required for that purpose, in many cases no State would be in the position to make such a claim. It follows that any State party to the 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.” (Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 450, para. 69.)
This interpretation of the Convention against Torture, in my view, drifts away from the rules of treaty law. I doubt that, on the basis of public international law and practice as it stands today, one can easily draw such a sweeping conclusion; it is one thing for each State party to the Convention against Torture to have an interest in compliance with the obligations erga omnes partes thereunder, and it is quite another to allow any State party to institute proceedings in the Court against another State party without any qualification on jurisdiction and admissibility. The same consideration equally applies to the Genocide Convention, or any of the other human rights treaties.
6. Lofty as it is, the raison d’être of the Genocide Convention, as illustrated by the Court in its Advisory Opinion in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, does not, in and by itself, afford each State party a jurisdictional basis and the legal standing before the Court. Otherwise, it cannot be explained why reservation to the jurisdiction of the Court under Article IX of the Convention is permitted under international law. Those States which have made a reservation to Article IX are equally committed to the raison d’être of the Genocide Convention. The fact that recourse to the Court cannot be used either by or against them in no way means that they do not share the common interest in the accomplishment of the high purposes of the Convention. To what extent a State party may act on behalf of the States parties for the common interest by instituting proceedings in the Court bears on international relations, as well as on the structure of international law.
7. Moreover, resort to the Court is not the only way to protect the common interest of the States parties in the accomplishment of the high purposes of the Convention. Under Article VIII, any State party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III. As a matter of fact, United Nations organs, including the General Assembly, the Human Rights Council and the Office of the United Nations High Commissioner for Human Rights, all stand ready, and indeed, are being involved in the current case to see to it that acts prohibited by the Genocide Convention be prevented and, should they have occurred, perpetrators be brought to justice. In this regard, the national legal system of criminal justice of the State concerned bears the primary responsibility.
8. What Myanmar argued on this point reflects the existing rules of international law, lex lata, on State responsibility as codified by the International Law Commission (hereinafter the “ILC”). That is to say, under the rules of State responsibility, it is the injured State, which is specially affected by the alleged violations, that has the standing to invoke the responsibility of another State in the Court. The position taken by the Court in this Order, albeit provisional, would put to a test Article 48 of the ILC's Articles on Responsibility of States for Internationally Wrongful Acts. How far this unintended interpretation of the Convention can go in practice remains to be seen, as its repercussions on general international law and State practice would likely extend far beyond this particular case.
9. Notwithstanding my above reservations, I agree with the indication of the provisional measures for the following considerations. First, the two reports of the Independent International Fact-Finding Mission on Myanmar established by the Human Rights Council of the United Nations, issued in 2018 and 2019 respectively, reveal, even prima facie, that there were serious violations of human rights and international humanitarian law against the Rohingya and other ethnic minorities in Rakhine State of Myanmar, particularly during the “clearance operations” carried out in 2016 and 2017. Although at this stage, the Court could not, and rightly need not, ascertain the facts, the weight of the said reports cannot be ignored. In other words, the human rights situation in Myanmar deserves serious attention from the Court. Considering the gravity and scale of the alleged offences, measures to ensure that Myanmar, as a State party to the Genocide Convention, observe its international obligations under the Convention, especially the obligation to prevent genocide, should not be deemed unwarranted under the circumstances.
10. Secondly, during the oral proceedings, Myanmar acknowledged that during their military operations, there may have been excessive use of force and violations of human rights and international humanitarian law in Rakhine State and there may also have been failures to prevent civilians from looting or destroying property after fighting or in abandoned villages. Whether any criminal offences were committed during that period, and if so, what offences were committed, have to be determined in the course of criminal justice process and, whether such acts constitute breaches of the Genocide Convention in the present case is a matter that should be dealt with on the merits, if the case proceeds to that stage. However, as internal armed conflicts in Rakhine State may erupt again, the provisional measures as indicated by the Court would, in my view, enhance the control of the situation.
11. Lastly, it is apparent that the Rohingya as a group remain vulnerable under the present conditions. With more than 740,000 people displaced from their homeland, the situation demands preventive measures.
12. In light of the foregoing considerations, I concur with the indication of the provisional measures. As the Court reaffirms in the Order, “the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application or to the merits themselves” (Order, paragraph 85). The issues I have raised in this opinion should be further considered in due course.
(Signed) Xue Hanqin.
TABLE OF CONTENTS
………………………………………………………Paragraph
I. Prolegomena: Some Introductory Considerations in Historical Perspective…………[ILM Page 676]
II. Provisional Measures of Protection in ICJ Case under the Convention against Genocide…………[ILM Page 682]
1. Provisional Measures in the First Case on the Application of the Convention against Genocide…………[ILM Page 683]
2. Provisional Measures in the Present Case on the Application of the Convention against Genocide…………[ILM Page 688]
III. International Fact-Finding: Relevant Passages of U.N. Reports of the Independent International Fact-Finding Mission on Myamar…………[ILM Page 690]
1. Mission's Report on Myanmar of 12.09.2018…………[ILM Page 695]
2. Mission's Report on Myanmar of 08.08.2019…………[ILM Page 704]
3. Mission's “Detailed Findings” on Myanmar of 16.09.2019…………[ILM Page 710]
IV. International Fact-Finding: Reports of the U.N. Special Rapporteur on Human Rights in Myanmar…………[ILM Page 716]
1. Report of the Special Rapporteur on the Situation of Human Rights in Myanmar (of 30.08.2019)…………[ILM Page 717]
2. Report of the Special Rapporteur on the Situation of Human Rights in Myanmar (of 02.05.2019)…………[ILM Page 720]
3. Report of the Special Rapporteur on the Situation of Human Rights in Myanmar (of 20.08.2018)…………[ILM Page 723]
V. Provisional Measures of Protection and the Imperative of Overcoming the Extreme Vulnerability of Victims…………[ILM Page 728]
1. The Legacy of the II World Conference on Human Rights (1993), in Its Attention to Human Vulnerability…………[ILM Page 730]
2. International Case-Law and the Need of Properly Addressing Human Vulnerability…………[ILM Page 741]
a) Support for the Relevance of Consideration of Vulnerability of the Victims…………[ILM Page 741]
b) Invocation of Occurrence of Extreme Human Vulnerability…………[ILM Page 745]
VI. The Utmost Importance of the Safeguard of Fundamental Rights by Provisional Measures of Protection, in the Domain of Jus Cogens…………[ILM Page 750]
1. Fundamental, Rather than “Plausible”, Rights…………[ILM Page 750]
2. Jus Cogens under the Convention against Genocide and the Corresponding Customary International Law…………[ILM Page 756]
VII. Epilogue…………[ILM Page 763]
I. Prolegomena: Some Introductory Considerations in Historical Perspective
1. I have voted in support of the present Order of Provisional Measures of Protection, in the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia versus Myanmar), which has just been adopted by the International Court of Justice (ICJ), significantly by unanimity. The provisional measures just ordered are intended to bring the necessary protection to human beings who have been suffering for a long time in a situation of extreme vulnerability.
2. Once again, in the cas d'espèce, the ICJ is seized of a case on the basis of the 1948 Convention against Genocide. Looking back in time, when the Convention was adopted, on 09.12.1948, on the eve of the adoption of the Universal Declaration of Human Rights (on 10.12.1948), the ICJ, established in June 1945, was still in its initial years. Shortly afterwards, the ICJ was already called upon to pronounce on the matter, still in the very early years of its existence, when it delivered, on 28.05.1951, its Advisory Opinion on Reservations to the Convention against Genocide.
3. Several years passed until the ICJ became seized of successive contentious cases specifically on the basis of the Convention against Genocide, especially in respect of the victims of wars and of devastation in the Balkans in the last decade of the XXth. century (case of the Application of the Convention against Genocide, Bosnia-Herzegovina versus Serbia and Montenegro, Judgment of 26.02.2007; and case of the Application of the Convention against Genocide, Croatia versus Serbia, Judgment of 03.02.2015).
4. There have also been occasions in which the ICJ addressed the Convention against Genocide together with other U.N. Conventions (on Human Rights): this occurred, e.g., in the ICJ's Judgment of 03.02.2006 (on jurisdiction and admissibility) in the case of Armed Activities in the Territory of Congo (paras. 27 et seq.). In that decision, the ICJ acknowledged the universality of the Convention against Genocide and the importance of the principles underlying the Convention (para. 64); it referred to the norms contained in the substantive provisions of the Convention as being jus cogens, creating rights and obligations erga omnes (para. 64).
5. Yet, in that same Judgment, when the ICJ turned to its own jurisdiction, and pursued a voluntarist outlook, attentive to the consent of States (paras. 78, 125 and 127). This was unfortunate, as it deprived the Court to develop further its own reasoning in a matter of such importance. This is a point which I shall retake later (cf. parts V–VI, infra). In my own perception, human conscience stands above the will of States. In this understanding, I shall present my Separate Opinion, identifying, at first, the points to be examined in sequence.
6. They are the following ones: a) provisional measures of protection in ICJ cases under the Convention against Genocide; b) international fact-finding: relevant passages of U.N. Reports of the Independent International Fact-Finding Mission on Myanmar, and of the U.N. Special Rapporteur on Human Rights in Myanmar; c) provisional measures of protection and the imperative of overcoming the extreme vulnerability of victims, encompassing the legacy of the II World Conference on Human Rights (1993) in its attention to human vulnerability, and international case-law and the need of properly addressing human vulnerability; d) the great relevance of the safeguard of fundamental rights by provisional measures of protection, in the domain of jus cogens, under the Convention against Genocide and the corresponding customary international law. The way is then paved for the presentation of an epilogue.
II. Provisional Measures of Protection in ICJ Case under the Convention Against Genocide
7. The presence of the invocation of the Convention against Genocide before the ICJ, time and time again, discloses its great importance, given the timeless and most regrettable presence of violence and cruelty in human relations. Yet, the occasions have been rare when the ICJ has been called upon to decide on requests for provisional measures of protection on the basis of the Convention against Genocide (cases of Bosnia-Herzegovina versus Yugoslavia [Serbia and Montenegro] in 1993, and now of Gambia versus Myanmar), as I shall consider in sequence.
1. Provisional Measures in the First Case on the Application of the Convention against Genocide
8. In the first case before the ICJ on the Application of the Convention against Genocide, following the original request for provisional measures by Bosnia-Herzegovina, the ICJ adopted its Order of 08.04.1993, and, following the second request for additional provisional measures, the ICJ adopted its Order of 13.09.1993. In the first Order, of 08.04.1993, the ICJ held that it has prima facie jurisdiction under Article IX of the Convention against Genocide, and can thus consider indicating provisional measures protecting rights under the Convention. It then stressed that, that under Article I of the Convention against Genocide, all States Parties have undertaken the duty to prevent and punish genocide as a crime under international lawFootnote 1.
9. As there was a grave risk of acts of genocide being committed, the ICJ issued two provisional measures relating to the Convention against Genocide, whereby Yugoslavia should promptly: a) take all measures within its power to prevent the commission of the crime of genocide; and b) ensure that any military or organizations and persons under its control, direction or influence do not commit any acts of genocide, of conspiracy to commit genocide, of incitement to commit genocide, or of complicity in genocide (para. 52A). Moreover, the ICJ issued a more general provisional measure, whereby both Parties should take no action, and ensure that no action is taken, that may aggravate or extend the existing dispute, or make it more difficult to reach a solution (para. 52B).
10. Subsequently, in its Order of 13.09.1993, the ICJ found that the development of the situation in Bosnia-Herzegovina justified consideration of the second request; while Bosnia-Herzegovina attempted to expand the bases of the Court's prima facie jurisdiction beyond the Convention against Genocide, the ICJ once again held that its jurisdiction is based on Article IX of the Convention. It then proceeded to examine the new request keeping in mind the provisional measures of protection it had already ordered five months earlier.
11. The Court found that the ten additional provisional measures just requested by Bosnia-Herzegovina do not concern the protection of disputed rights which might form the basis of a judgment in the exercise of the Court's jurisdiction under Article IX of the Convention against Genocide. The ICJ reasserted that the two Parties were already under a clear obligation to do all in their power to prevent the commission of any acts of genocide (under the Convention itself), and, furthermore, to ensure that no action was taken to aggravate or extend the existing dispute (as it determined in the provisional measures indicated in its previous Order of 08.04.1993).
12. As the ICJ was not satisfied with the situation as it remained, it found that it required, instead of additional measures, the prompt and effective compliance with the existing provisional measures indicated by its Order of 08.04.1993. In the same Order of 13.09.1993, the ICJ reiterated the undertaking to prevent and punish genocide contained in Article I of the Convention against Genocide, and the recognition thereunder that the crime of genocide, whether committed in time of peace or in time of war, “shocks the conscience of mankind”, results in “great losses to humanity”, and goes against “the spirit and aims of the United Nations”, as promptly stated in General Assembly resolution 96 (I) of 11.12.1946 (paras. 50–51).
2. Provisional Measures in the Present Case on the Application of the Convention against Genocide
13. The present case now before the ICJ, opposing Gambia to Myanmar, is a new occasion of requested provisional measures of protection before the ICJ, again concerning the Application of the Convention against Genocide. The Applicant State, as will be seen next (parts III and IV), refers to international fact-finding, comprising U.N. Mission's Reports (2018 and 2019) and Reports of the U.N. Special Rapporteur on Human Rights in Myanmar (2018 and 2019).
14. An account of their contents will pave the way for an examination of provisional measures of protection and the imperative of overcoming the extreme vulnerability of victims (part IV) in the present Separate Opinion. It is significant that the needed protection of persons and groups in extreme vulnerability is attracting the attention of the United Nations, by the work of its Human Rights Council (infra) as well as of the ICJ, in the present request of provisional measures of protection. This is, in my perception, a matter of great concern in the contemporary law of nations as a whole.
III. International Fact-Finding: Relevant Passages of U.N. Reports of the Independent International Fact-Finding Mission on Myanmar
15. On 11.11.2019, Gambia has submitted an Application to the ICJ instituting proceedings against Myanmar concerning alleged violations of the 1948 Convention against Genocide, and requesting the indication of provisional measures of protection, in accordance with Article 41 of the ICJ Statute and Articles 73, 74, and 75 of the Rules of Court. In its Application, Gambia describes “a brutal and continuing campaign of sweeping genocidal acts and measures, imposed by Myanmar against members of the Rohingya group, intended to destroy the group in whole or in part”, in violation of the Convention against Genocide (para. 114). Gambia, as a State Party to the Convention, submits that provisional measures are necessary to protect against further irreparable harm to the rights of the Rohingya group under the Convention (para. 115)Footnote 2.
16. The aforementioned Application by Gambia in the cas d'espèce, on alleged acts of genocide against the Rohingya people in Myanmar, includes references to: a) two reports by the Independent International Fact-Finding Mission on Myanmar, which provide evidence of intent of genocide against the Rohingya population in Myanmar; and b) three reports by the Special Rapporteur of the Human Rights Council on the Situation of Human Rights in Myanmar, which provide evidence of continuing discrimination and potential genocide against the Rohingya population in Myanmar. May I summarize the relevant passages of them.
17. The Independent International Fact-Finding Mission on Myanmar was established by the U.N. Human Rights Council (resolution 34/22). The Mission found consistent patterns of grave violations of human rights in Kachin, Rakhine and Shan States in Myanmar, in addition to grave violations of International Humanitarian Law, including the deliberate targeting of civilians. The Mission further found that these violations were committed mainly by Myanmar security forces. The Mission also noted a pervasive situation of impunity at domestic level, as well as a lack of cooperation from the Government of Myanmar with the Mission, and recommended that the impetus for accountability must come from the international community.
18. Throughout its Application Instituting Proceedings, Gambia refers to reports (of 2018 and 2019) of the Independent International Fact-Finding Mission on Myanmar, stating that their findings are “especially significant” (para. 10). It refers primarily to two detailed reports on the findings of the Mission, namely, the “Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar” (of 17.09.2018)Footnote 3 and the “Detailed Findings of the Independent International Fact-Finding Mission on Myanmar” (of 16.09.2019)Footnote 4.
19. Gambia's Application refers, furthermore, to the condensed report presented to the U.N. Human Rights Council on 12.09.2018Footnote 5. The aforementioned consolidated reports submitted to the U.N. Human Rights Council, of 12.09.2018Footnote 6 of 08.08.2019Footnote 7, in addition to the extensive “Detailed Findings” of 16.09.2019 (cf. infra), all cited by Gambia in its Application, contain passages deserving particular attention, which I proceed to summarize in sequence.
1. Mission's Report on Myanmar of 12.09.2018
20. In considering allegations of grave violations of human rights, the 2018 U.N. Fact-Finding Mission Report focuses on three emblematic situations, namely: the crisis in Rakhine State; the hostilities in Kachin and Shan States; and the infringement on the exercise of fundamental freedoms and the issue of hate speech (para. 15). As to the crisis in Rakhine State, the Mission states that the Government of Myanmar has implemented policies and practices over decades which have steadily marginalized the Rohingya people, and led to their “extreme vulnerability”, resulting in “a continuing situation of severe, systemic and institutionalized oppression from birth to death” (para. 20).
21. The Mission Report outlines as a cornerstone of this oppression of the Rohingya their lack of legal status (para. 21), their restrictions to food, health and educationFootnote 8, disclosing “a looming catastrophe for decades” (para. 22). It then refers to “[o]ther discriminatory restrictions”, such as those to freedom of movement, to marriage authorization, to reproduction, and to birth registration (para. 23).
22. The Mission, moreover, addresses grave violations of human rights which took place during the outbreak of violence in 2012, as well as during the “clearance operations” of 2017 (paras. 24–54). In relation to Kachin and Shan States, the Report notes that similar patterns of conduct by security forces (Tatmadaw soldiers and others) were witnessed, including violations against ethnic and religious minorities committed with persecutory intent (paras. 55–70).
23. The Report further dwells upon the continuing systematic oppression of the Rohingya in Myanmar, with persisting violence and restrictive policies on the Rohingya (paras. 49–51), including unlawful killings and torture of civilians (against men, women and children — paras. 60 -61). Moreover, it also refers to the systematic appropriation of vacated Rohingya land (para. 50), sexual violence (para. 62), and forced labour (paras. 60–61 and 63–64).
24. The 2018 Mission Report further addresses hate speech, noting dehumanizing and stigmatizing language against the Rohingya and Muslims in general, used by extremist Buddhist groups, which has been condoned and mirrored by the Myanmar authorities themselves (para. 73). The 2018 Mission Report determines, as hallmarks of Tatmadaw operations (paras. 75–82), the following ones: a) the targeting of civilians (paras. 76–78); b) sexual violence as a recurrent feature (para. 79); c) exclusionary rhetoric and systematic discriminatory policies against the Rohingya (paras. 80–81); d) and impunity within the Tatmadaw and in Myanmar more generally (paras. 82, 95–98 and 100).
25. The Mission finds, on the basis of the information it has collected, that it has reasonable grounds to conclude that serious crimes under international law have been committed, considering separately genocide, crimes against humanity, and war crimes (paras. 83–89). As to genocide (paras. 84–87), the Report suggests that the crimes in Rakhine State and the manner whereby they were perpetrated are similar in nature, gravity and scope to facts which have allowed genocidal intent to be established in other contexts (paras. 85–86).Footnote 9
26. Furthermore, the Mission states that the primary perpetrator of grave violations of human rights and of crimes under international law, in relation to the facts at issue, was the Tatmadaw, with the contribution of civilian authorities by way of inaction, denial of wrongdoing, blocking independent investigation, and destroying evidence (paras. 90–94).Footnote 10 Successive paragraphs refer to evidence relating to alleged genocide against the Rohingya people.
27. The Report addresses the systematic oppression of the Rohingya through governmental policies implemented over decades, including restrictions on citizenship, freedom of movement, marriage authorization, reproduction, and birth registration (paras. 20–23). In devoting attention to the escalation of violence in 2012 (paras. 24–30), it singles out, in particular: a) the plan to instigate violence and amplify tensions through a campaign of hate and dehumanization of the Rohingya (para. 25); b) the complicity of Myanmar security forces through inaction or active participation in the violence against the Rohingya (para. 26); c) displacement, and restrictions on freedom of movement, on the right to education and on the right to vote (paras. 29–30).
28. The 2018 Mission Report then dwells upon the “clearance operations” conducted by Myanmar security forces against the Rohingya in 2017 (paras. 31–54), including, in particular: a) the disproportionate and targeted attacks on the Rohingya villages (para. 33), and the modus operandi of these targeted attacks (para. 34); b) the level of pre-planning and design of the attacks (paras. 35, 43, 45–46, 48 and 53); c) the violence being perpetrated by Myanmar security forces, with the participation of some male civilians of different ethnic groups (paras. 52–53); d) the indiscriminate killing (paras. 36–37 and 39–41); e) the sexual violence (paras. 36 and 38–39); f) the widespread targeted destruction of Rohingya-populated areas (para. 42).
2. Mission's Report on Myanmar of 08.08.2019
29. The 2019 Mission Report proceeds to the consolidation of its findings on conflict-related human rights issues in Rakhine, Chin, Shan and Kachin States, with a view to its handover to the Independent Investigative Mechanisms for Myanmar; it also provides an update on the situation of the Rohingya (paras. 76–94). The Mission notes that, despite mass displacement of the Rohingya people, some 600,000 Rohingya are estimated to remain in Rakhine State in Myanmar, and continue to be subjected to discriminatory policies, including segregation and restricted movement, deprivation of citizenship, physical attacks, arbitrary arrests, and other violations of their human rights (para. 76).
30. The Mission focuses its discussion on movement restrictions as “one of the clearest indicators of their chronic persecution”, noting that such restrictions have tightened since the violence perpetrated in 2012, as well as the ways in which the movement restrictions affect access by the Rohingya to economic, social and cultural rights (such as health services, education, and livelihoods) (paras. 77–78 and 80). The Mission also addresses internment camps, wherein some 126,000 Rohingya were still living, subject to appalling conditions, with no foreseeable plan for relocation (para. 82).
31. The Mission adds that the Government of Myanmar appears to be continuing its plan to keep the Rohingya off their lands and further to segregate them, according to satellite imagery and witness testimony about the construction of new camps for displaced Rohingya refugees (para. 84). The Mission further notes the continued discrimination with respect to citizenship laws and forcing Rohingya to accept national verification cards through threat and intimidation (paras. 86–87).
32. The Mission's update Report indicates that the situation of the Rohingya remains largely unchanged, and warns, as to genocide, that it has reasonable grounds to conclude that there is a strong inference of genocidal intent on the part of the State, that there is a serious risk of recurrence of genocidal actions, and that Myanmar is failing in its obligations to prevent, investigate, and enact legislation to criminalize and punish genocide (paras. 89–90).
33. The Report refers to evidence relating to the alleged genocide against the Rohingya people, encompassing: a) ongoing chronic persecution measures, including movement restrictions affecting the Rohingya's access to economic, social, and cultural rights (paras. 76–81); b) internment camps for displaced Rohingya, with the Government of Myanmar continuing its plan to keep the Rohingya off their lands and segregated (paras. 82–84); c) forced labour, including Rohingya being forced to build new camps for the displaced Rohingya (para. 88); d) continued discrimination with respect to citizenship laws and forcing Rohingya to accept national verification cards through threat and intimidation (paras. 86–87).
34. The Mission concludes that the situation of the Rohingya remains largely unchanged and the Myanmar Government's acts “continue to be part of a widespread and systematic attack that amounts to persecution and other crimes against humanity against the Rohingya in Rakhine State” (para. 89). It adds that
“the Mission also has reasonable grounds to conclude that there is a strong inference of genocidal intent on the part of the State, that there is a serious risk that genocidal actions may recur, and that Myanmar is failing in its obligation to prevent genocide, to investigate genocide, and to enact effective legislation criminalizing and punishing genocide” (para. 90).
3. Mission's “Detailed Findings” on Myanmar of 16.09.2019
35. Shortly after its Report of 08.08.2019, the Mission submitted to the U.N. Human Rights Council the extensive “Detailed Findings” on Myanmar, of 16.09.2019, as a complementary factual information (in 190 pages).Footnote 11 The document starts with a summary of the forms of grave violations incurred into (para. 2), the determination of State responsibility (paras. 45 and 58–59) and the need of reparations (paras. 42–43). The “detailed findings” cover violence in distinct forms (including beatings), torture and cruel treatment, forced labour (paras. 190–194), deprivation of food and of humanitarian relief (paras. 172–175),Footnote 12 as well as deprivation of health and of land (paras. 139–140).
36. According to the document, violence also encompassed forced displacement of persons and human trafficking (para. 589), as well as other war crimes, amidst humiliation or degradation (para. 192). It stressed the prohibition of torture as one of jus cogens, as a peremptory norm of customary international law (para. 389). Those grave breaches, — it warned, — disclosed the need of assertion of State responsibility, keeping in mind the continuity of the intent of genocide (paras. 230, 233, 238, 667 and 669).
37. The document devoted particular attention to the endeavours of the U.N. Mission (reports of 2018–2019) to infer the “genocidal intent under the rules of State responsibility” on the part of the State of Myanmar (para. 223, and cf. para 220). In the words of the “detailed findings”,
“The Mission has identified seven indicators from which it inferred genocidal intent to destroy the Rohingya people as such, all based on the consideration of indicators of genocidal intent in international case law: first, the Tatmadaw's extreme brutality during its attacks on the Rohingya; second, the organized nature of the Tatmadaw's destruction; third, the enormity and nature of the sexual violence perpetrated against women and girls during the “clearances operations”; fourth, the insulting, derogatory, racist and exclusionary utterances of Myanmar officials and others prior, during and after the “clearance operations”; fifth, the existence of discriminatory plans and policies, such as the Citizenship Law and the NVC process, as well as the Government's efforts to clear, raze, confiscate and build on land in a manner that sought to change the demographic and ethnic composition of Rakhine State, the goal being to reduce the proportion of Rohingya; sixth, the Government's tolerance for public rhetoric of hatred and contempt for the Rohingya; and seventh, the State's failure to investigate and prosecute gross violations of international human rights law and serious violations of international humanitarian law, both as they were occurring and after they occurred. These seven indicators also allow the Mission to infer that the State did not object and in fact endorsed the Tatmadaw's “clearance operations” and the manner in which they were conducted.
Every one of these indicators is linked to the acts or omissions of Myanmar State organs, including the military, other security forces, ministries, legislative bodies, the UEHRD and other civilian institutions. Collectively they demonstrate a pattern of conduct that infers genocidal intent on the part of the State to destroy the Rohingya, in whole or in part, as a group. For reasons explained in its 2018 report, there is no reasonable conclusion to draw, other than the inference of genocidal intent, from the State's pattern of conduct” (paras. 224–225).
38. The “detailed findings”, furthermore, revealed a temporal perspective of the grave breaches: it pointed out that, even before the occurrences of violence against the Rohingya in 2012 and 2016–2017, leading to the forced displacement and exodus of those victimized: there were other periods of violence, — it added, — such as the military operations in 1977, which led some 200,000 Rohingya to flee to Bangladesh; this again happened in 1992 (amidst killings, torture, rape and other violations), which led 260,000 Rohingya to flee to Bangladesh (paras. 202–205 and 214–215).
39. Still in this temporal perspective, the document identified in the 1982 Citizenship Law of Myanmar as discriminatory against the Rohingya people, denying them citizenship and other “fundamental rights”, causing them “great physical or mental suffering” constituting “crime against humanity” (paras. 101–106 and 216). It added that there was need of further investigation of the facts, so as to render justice (para. 226), given the grave violations committed mainly by the Tatmadaw (the Myanmar military) of the International Law of Human Rights and International Humanitarian Law (para. 457), as well as of the U.N. Convention on the Rights of the Child (para. 527).
40. Over the last decades those violations have established a level of continuing oppression against the Rohingya rendering their life in Myanmar unbearable. They had to face the denial of their rights, and even of legal status and identity. State-sanctioned laws and policies “occurred in the context of State-sanctioned discriminatory rhetoric”, with “institutionalized oppression” amounting to persecution (para. 210). The attacks against “Myanmar's Rohingya population” were undertaken with “genocidal intent”, and ever since the Mission's 2018 Report “the situation of the 600,000 Rohingya remaining in Myanmar is worse after another year of living under deplorable conditions” (paras. 212–213).
IV. International Fact-Finding: Reports of the U.N. Special Rapporteur on Human Rights in Myanmar
41. In its Application, Gambia further notes that the U.N. Human Rights Council's Special Rapporteur on the Situation of Human Rights in Myanmar (Ms. Yanghee Lee) has carried out extensive fact-finding on Myanmar's campaign against the Rohingya.Footnote 13 The Special Rapporteur, in addition to her statements made at the U.N. Human Rights Council, also submitted reports to it, on the situation of human rights in Myanmar, including a recent report presented on 30.08.2019.Footnote 14 Two of her earlier reports (of 02.05.2019Footnote 15 and 20.08.2018Footnote 16) are also of particular interest in relation to allegations of genocide against the Government of Myanmar.
1. Report of the Special Rapporteur on the Situation of Human Rights in Myanmar (of 30.08.2019)
42. In her Report of 30.08.2019, the Special Rapporteur on the Situation of Human Rights in Myanmar, referring to armed conflict and violence, addresses reports of ongoing violent attacks against the Rohingyas (and property) in the context of the conflict with the Arakan Army in Rakhine State (para. 40). She observes that living conditions for the Rohingya in northern Rakhine State “remain dreadful”, with continuing reports of beatings, killings, and the burning of houses and rice stores (para. 40).
43. She outlines the need to conduct policies “in a rights-based manner”, and to put an end to the root-causes of forced displacement of persons (para. 44). Moreover, as to internally displaced persons, the Special Rapporteur points out that, in central Rakhine State, “128,000 Rohingya and Kaman people remain interned in camps where they have lived in squalid conditions since 2012”, with restrictions on their freedom of movement (para. 45).
44. The Special Rapporteur (Ms. Yanghee Lee) then warns that, if the process being pursued continues, it will result in the permanent segregation of displaced Rohingya and Kaman communities in Rakhine (para. 45). As to Rohingya refugees, she expresses her view that “Myanmar has entirely failed to dismantle the system of persecution under which the Rohingya in Rakhine continue to live. While this situation persists, it is not safe or sustainable for refugees to return” (para. 54).Footnote 17
2. Report of the Special Rapporteur on the Situation of Human Rights in Myanmar (of 02.05.2019)
45. Earlier on, in her Report of 02.05.2019, the Special Rapporteur notes that the campaign to impose national verification cards on the Rohingya is continuing unabated, and the Rohingya are still required to apply for permission to leave their villages in accordance with existing restrictions on their movement (para. 34). Furthermore, in relation to Rohingya refugees, the Special Rapporteur observes that the conditions for voluntary, safe, dignified and sustainable returns do not exist, despite the Governments of Bangladesh and Myanmar having agreed to begin repatriation in mid-November 2018 (para. 43).
46. She addresses the overcrowded conditions for the Rohingya refugees in Bangladesh, as well as the fear of refugees of forced repatriation following the aforementioned agreement between the Governments of Bangladesh and Myanmar (paras. 41–43). The Special Rapporteur (Ms. Yanghee Lee) further notes that this planned repatriation has caused high levels of fear and anxiety among the refugee population at the prospect of forced return, leading some refugees to go into hiding or even attempt to take their own lives to avoid forced return to Myanmar (para. 43).
47. And, as to institutionalized hate speech, she expresses alarm at its pervasive nature, particularly due to the use of hate speech by senior governmental officials (para. 51). She warns that “hate speech and misinformation” have come from “public institutions linked to the military” (para. 53), and calls for definitely avoiding to teach children ideas promoting “racial superiority and communal disharmony”, removing “all incendiary passages from all textbooks” (para. 52).
3. Report of the Special Rapporteur on the Situation of Human Rights in Myanmar (of 20.08.2018)
48. Even earlier, in her Report of 20.08.2018, the Special Rapporteur condemns the widespread and systematic violations of the International Law of Human Rights and International Humanitarian Law committed by the Tatmadaw against the Rohingya population in Myanmar for decades, with particular attention to the armed conflict and situations of violence from March 2018 (para. 36). She declares that there is “credible information” that the 33rd and 99th Light Infantry Divisions of the Tatmadaw were among those responsible for perpetrating “extreme violence against the Rohingya population in northern Rakhine State” (as from 25.08.2017) (para. 37), including massacres involving “the killings of many men, women and children, beatings, rapes and the burning of houses” (paras. 38–39).Footnote 18
49. The Special Rapporteur (Ms. Yanghee Lee) specifically addresses sexual violence, stating that “the widespread threat and use of sexual violence” was part of the “Tatmadaw's strategy of humiliating, terrorizing and collectively punishing the Rohingya community” and forcing them “to flee and prevent their return” (para. 48). She also expresses concern in relation to the dire living conditions in the internment camps, given the continuing violence and discrimination against the Rohingya in Rakhine State, as well as in relation to its intended closure of the camps to hasten the return of displaced persons to their places of origin (paras. 52–53).
50. The Special Rapporteur's concern also encompasses the ongoing discrimination in citizenship laws in Myanmar, with the lack of citizenship status of the Rohingya people in Myanmar, and the lack of recognition of refugee status for the Rohingya people in Bangladesh (paras. 58–60 and 62). She notes that, according to statements from newly arrived Rohingya refugees in Cox's Bazar, conditions for the Rohingya in Rakhine State have “worsened significantly since before the violence of August 2017 as a result of heightened movement restrictions, lack of access to livelihoods, education, health and basic services, and ongoing violence, intimidation and extortion by security forces” (para. 61).
51. Furthermore, discriminatory laws, including those relating to freedom of movement, family registration, marriage and birth, remain in place (para. 61). The Special Rapporteur notes that pressure by security forces for the Rohingya to accept national verification cards has led to violence (para. 62). As to the destruction of Rohingya villages, the Special Rapporteur notes that bases for security forces, reception and transit centres for repatriation and model villages — which have historically been used to encourage the resettlement of Buddhists to Rakhine State, displacing the Muslim population, — have been built on land that was previously home to the Rohingya (para. 63).
52. The Special Rapporteur (Ms. Yanghee Lee) comes to the conclusion that the aforementioned situation in Myanmar calls for accountability, and “[j]ustice and the right of victims to reparation should not be contingent on any political or economic interest”, keeping in mind that “there can be no genuine or meaningful accountability unless the victims’ concerns are addressed” (para. 73). To that effect, she presents a series of recommendations (paras. 75–80).
V. Provisional Measures of Protection and the Imperative of Overcoming the Extreme Vulnerability of Victims
53. The U.N. reports above reviewed give accounts of great suffering on the part of the numerous victims of the tragedy in Myanmar; further to those who were killed or died, the surviving ones remain in a situation of extreme vulnerability. I ascribe considerable importance to human vulnerability, to which I have always been attentive, and I shall address this point further in the following paragraphs of the present part V of the Separate Opinion.
54. The Provisional Measures of Protection just ordered by the ICJ in the cas d'espèce aim to safeguard the fundamental rights of the surviving victims. The suffering of victims has marked presence in the writings of thinkers along the centuries. May I here just recall that, in the mid-XXth. century, Cecília Meireles observed, in her poem “Os Mortos/The Ones Who Died” (1945):
“Creio que o morto ainda tinha chorado, depois da morte:
enquanto os pensamentos se desagregavam,
depois de o coração se acostumar de ter parado. (…)
Creio que o morto chorou depois da morte.Chorou por não ter sido outro. (…)
Mas sobre seus olhos havia uns outros, mais infelizes,
que estavam vendo, e entendendo, e continuavam sem nada.
Sem esperança de lágrima.
Recuados para um mundo sem vibração.
Tão incapazes de sentir que se via o tempo de sua morte.
Antiga morte já entrada em esquecimento.
Já de lágrimas secas”.
[“I believe that the one who died had still cried, after death:
while the thoughts disaggregated themselves,
after the heart gets used to have stopped. (…)
I believe the one who died cried after death.
Cried for not having been someone else. (…)
But over his eyes there were some others, more unfortunate ones, who were seeing, and understanding, and remained without anything. Without hope of tear.
Moved back into a world without vibration.
So incapable of feeling that one was seeing the time of their death.
Ancient death already entered into oblivion.
Already of dry tears”. — [My own translation].
1. The Legacy of the II World Conference on Human Rights (1993), in Its Attention to Human Vulnerability
55. May I now turn to another issue of particular importance here. In the course of the work of the II World Conference on Human Rights (Vienna, 1993), — as I recall in my memories of it, — a special attention was turned to vulnerable persons and groups in great need of protection, so as to overcome their defenselessness.Footnote 19 There was stress on the need of positive measures and obligations to this effect.Footnote 20 The II World Conference on Human Rights left an important legacy, as found in its final document, the Vienna Declaration and Programme of Action, — of which I keep a very good memory, having participated in the work of its Drafting Committee.
56. One of the key points of the 1993 Declaration and Programme of Action was its special attentiveness to discriminated or disadvantaged persons, to vulnerable persons and groups, to the poor and the socially excluded, in sum, to all those in greater need of protection.Footnote 21 It was not surprising that the 1993 World Conference was particularly attentive, inter alia, to the condition of vulnerable groups and persons, — as the issue which was already under the attention of U.N. organs.
57. In effect, due to the endeavours of international supervisory organs at global and regional levels, numerous lives had been spared, reparations for damages had been awarded, legislative measures had been adopted or modified for the sake of protection, wrongful administrative practices had to the same effect been terminated.Footnote 22 Its legacy as a whole is to be kept in mind nowadays,Footnote 23 given the subsequent and current occurrence of atrocities against human beings.
58. In the adjudication by the ICJ of recent cases pertaining to human violence affecting vulnerable victims, I have deemed it fit to focus on the legacy of the II World Conference on Human Rights in relation to the vulnerability of the victims. Thus, in my three extensive Dissenting Opinions in the three cases of the Obligation of Nuclear Disarmament (Judgments of 10.05.2016 — cf. infra), in my firm support of that universal obligation I drew attention to the focus on “attention on vulnerable segments of the populations” and the concern with “meeting basic human needs” (para. 124).
59. I added that a basic concern of the II World Conference on Human Rights
“— as I have pointed out on distinct occasions along the last two decadesFootnote 24 — can be found in the recognition of the legitimacy of the concern of the international community as a whole with the conditions of living of all human beings everywhere. The placing of the well-being of peoples and human beings, of the improvement of their conditions of living, at the centre of the concerns of the international community, is remindful of the historical origins of the droit des gens”Footnote 25 (para. 125).
60. Moreover, I have retaken my considerations on the matter in my subsequent Separate Opinion in the ICJ's Order (of 19.04.2017) in the case of the Application of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) (Ukraine versus Russian Federation), wherein I have stressed the relevance of provisional measures of protection in a situation of a strong adversity and sufferings of the victimized persons. I have proceeded, in this new and long Separate Opinion, to elucidate a series of issues, some of which raised also now in the cas d'espèce.
61. It is not my intention to reiterate here all my clarifications made and examined in my Separate Opinion of almost three years ago. May I just refer briefly here to some of the points I have made on that occasion in the ICJ's decision in that case opposing Ukraine to the Russian Federation. To start with, I have examined the treatment of human vulnerability — including cases of extreme vulnerability — in the case-law of contemporary international tribunals, such as the ICJ, the Inter-American Court of Human Rights (IACtHR) and the European Court of Human Rights (ECtHR) (paras. 12–20).
62. In my examination of such treatment in successive cases, I have pondered, inter alia, that
“It is significant that, in our times, cases pertaining to situations of extreme adversity or vulnerability of human beings have been brought to the attention of the ICJ as well as other international tribunals. This is, in my perception, a sign of the new paradigm of the humanized international law, the new jus gentium Footnote 26 of our times, sensitive and attentive to the needs of protection of the human person in any circumstances of vulnerability. The case-law of international human rights tribunals is particularly illustrative in this respect” (para. 17).
63. In the same case of Ukraine versus Russian Federation, — I have gone on, — a worrisome illustration of the urgent need for provisional measures of protection was provided by the continuous indiscriminate shelling of the civilian population from all sides, in densely populated areas (in east of Ukraine), in breach of the International Law of Human Rights and of International Humanitarian Law (paras. 27–28). Non-compliance with the needed provisional measures of protection generates the responsibility of the State, with legal consequences (para. 8).
64. The gravity of the situation in the cas d'espèce, — I have proceeded, — required provisional measures of protection, oriented by the principle pro persona humana, pro victima (para. 85). This, — I have added, —
“requires the ICJ to go beyond the strict inter-State dimension (the one it is used to, attached to a dogma of the past), and to concentrate attention on victims (including the potential ones),Footnote 27 — be they individuals,Footnote 28 groups of individuals,Footnote 29 peoples or humankind,Footnote 30 as subjects of international law, — and not on inter-State susceptibilities. Human beings in vulnerability are the ultimate beneficiaries of provisional measures of protection, endowed nowadays with a truly tutelary character, as true jurisdictional guarantees of preventive character” (para 86).
65. I have then warned that the need of greater attention to human vulnerability was to be carefully faced with full awareness of the pressing need to secure protection to the affected human beings (paras. 87–88). The principle of humanity comes to the fore (para. 90), permeating the whole corpus juris of contemporary international law, with “a clear incidence on the protection of persons in situations of great vulnerability. (…) Human beings stand in need, ultimately, of protection against evil, which lies within themselves” (para. 91).
2. International Case-Law and the Need of Properly Addressing Human Vulnerability
a) Support for the Relevance of Consideration of Vulnerability of the Victims
66. The II World Conference on Human Rights remained faithful to the legacy of the 1948 Universal Declaration of Human Rights, and provided responses to new challenges. The warning of the Universal Declaration has been kept in mind, to the effect that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind” (preamble, para. 2). The Declaration further warns that “it is essential, if man is not compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” (preamble, para. 3). And it asserts that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” (preamble, para. 1).
67. International case-law is gradually reckoning the need of properly addressing human vulnerability. Within the ICJ, I have been constantly attentive to this needed development. Thus, in my Separate Opinion in the ICJ's Order of Provisional Measures of Protection (of 18.07.2011) in the case of the Temple of Preah Vihear (Cambodia versus Thailand), I pointed out that there have been cases where the ICJ, in indicating such measures, like in the cas d'espèce, “most significantly went beyond the inter-State dimension, in expressing its concern also for the human persons (les personnes humaines) in situations of risk, or vulnerability and adversity” (para. 74).
68. In my Separate Opinion in the ICJ's Judgment (on reparations, of 19.06.2012) in the case of A.S. Diallo (Guinea versus D.R. Congo), I pondered that measures adopted for the rehabilitation of those victimized in cases of grave violations of their rights, “have intended to overcome the extreme vulnerability of victims, and to restore their identity and integrity” (para. 84). Earlier on, in the same case of A.S. Diallo (merits, Judgment of 30.11.2010), I related, in my Separate Opinion, the pressing need to overcome the situation of vulnerability or even defenselessness of victims to the principle of humanity in its wide dimension (para. 105).
69. On other occasions, likewise, I have addressed the matter in the ICJ: for example, in my Dissenting Opinion in the case of the Jurisdictional Immunities of the State (Judgment of 03.02.2012), I drew attention to the increased vulnerability of victimized persons (para. 175); and in my Separate Opinion in the case of the Obligation to Prosecute or Extradite (Judgment of 20.07.2012), I considered the vulnerability and rehabilitation of victims (para. 174). All these ponderations, in addition to others, are duly systematizedFootnote 31.
b) Invocation of Occurrence of Extreme Human Vulnerability.
70. In the oral proceedings before the ICJ in the cas d'espèce, the applicant State has been attentive to the utter vulnerability of the Rohingya; thus, in the public hearing of 10.12.2019, it has referred, in this respect, to the point made by the U.N. Mission's Report (of 17.09.2018)Footnote 32 that their “extreme vulnerability” has been “a consequence of State policies and practices implemented over decades”.Footnote 33 Gambia has devoted a whole part of its oral arguments to “The Rohingya's Vulnerability to Continuing Acts of Genocide” (part IV); in assessing “the situation of the approximately 600,000 Rohingya who remain in Myanmar today” (p. 37, para. 1), it characterized their situation as “one of extreme vulnerability, with ongoing acts of genocide against them, and the grave risk that even more heinous atrocities (…) will be inflicted upon them at any time” (p. 37, para. 2).
71. Moreover, in referring to occasions in which the ICJ took note of human vulnerability in its own case-law (p. 58, paras. 9 and 11), Gambia has added that in the present case “the Rohingya are not only deprived of their political, social and cultural rights, they are threatened with massive loss of life itself, and, striking at the heart of these proceedings, with loss of their very existence as a group” (p. 58, para. 11).
72. Invocation of extreme human vulnerability is a key element to be taken into account in a decision concerning provisional measures of protection, in a case like the present one, on the Application of the Convention against Genocide. In effect, from time to time, the ICJ has been seized of cases disclosing human cruelty, always present in the history of humankind. For example, in its three Judgments in the three cases of the Obligation of Nuclear Disarmament (Marshall Islands versus United Kingdom, India and Pakistan; of 10.05.2016), as the Court has found itself — by a split majority — without jurisdiction to adjudicate them, I have appended three strong Dissenting Opinions thereto.
73. In my three dissents, I have warned as to the manifest illegality of nuclear weapons, which constitute a continuing threat to humankind as a whole. I dwelt extensively upon evil and cruelty in human relations, having deemed it fit to devote one part (XVI) of my Dissenting Opinions to “The Principle of Humanity and the Universalist Approach: Jus Necessarium Transcending the Limitations of Jus Voluntarium”, preceded inter alia by another part (VIII) on “Human Wickedness: From the XXIst. Century Back to the Book of Genesis”.
74. In this earlier part of my dissents, I have recalled the presence in the reasoning of many influential thinkers of the XXth. century (inter alii, in the middle of last century, Mahatma Gandhi and Stefan Zweig, among several others in distinct continents) warning against human wickedness with its numerous victims of the atrocities perpetrated at that time and before, and continuing nowadays. And I have stressed, in face of persistence of human cruelty, the great need of a people-centred approach, keeping in mind the fundamental right to life, with the raison d'humanité prevailing over the raison d’État.
VI. The Utmost Importance of the Safeguard of Fundamental Rights by Provisional Measures of Protection, in the Domain of Jus Cogens
1. Fundamental, Rather than “Plausible”, Rights
75. The rights protected by the present Order of Provisional Measures of Protection are truly fundamental rights, starting with the right to life, right to personal integrity, right to health, among others. The ICJ, once again, refers to rights which appear to it “plausible” (e.g., para. 56), as it has become used to, always with my criticisms. In referring to the arguments of the contending parties, only in paragraphs 46–47 of the present Order, among others, there appear ten references to “plausible”, related to rights, acts, facts, claims, genocidal intent, inferences.
76. There is great need of serious reflection on this superficial use of “plausible”, devoid of a meaning. I do not intend to reiterate here all the criticisms I have been making on resort to “plausible”, whatever that means. May I just recall that, in the course of last year (2018), on more than one occasion I dwelt upon this matter. Thus, in my Separate Opinion in the case of Application of the U.N. Convention on the Elimination of All Forms of Racial Discrimination (CERD — Qatar versus United Arab Emirates, provisional measures of protection, Order of 23.07.2018), I pondered that
“The test of so-called ‘plausibility’ of rights is, in my perception, an unfortunate invention — a recent one — of the majority of the ICJ. (…)
It appears that each one feels free to interpret so-called ‘plausibility’ of rights in the way one feels like; this may be due to the fact that the Court's majority itself has not elaborated on what such ‘plausibility’ means. To invoke ‘plausibility’ as a new ‘precondition’, creating undue difficulties for the granting of provisional measures of protection in relation to a continuing situation, is misleading, it renders a disservice to the realization of justice” (paras. 57 and 59).
77. In sequence, in the same Separate Opinion, I deemed it fit to warn inter alia that
“The so-called ‘plausibility’ of rights is surrounded by uncertainties, which are much increased in trying to add to it the so-called ‘plausibility’ of admissibility, undermining provisional measures of protection as jurisdictional guarantees of a preventive character. It is time to awaken and to concentrate attention on the nature of provisional measures of protection, particularly under human rights treaties, to the benefit of human beings experiencing a continuing situation of vulnerability affecting their rights” (para. 60).
78. Shortly afterwards, in my Separate Opinion in the case of Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Iran versus United States, provisional measures of protection, Order of 03.10.2018), I criticized the unnecessary resort by the ICJ to “plausibility” in a continuing situation of vulnerability (paras. 72–76).Footnote 34 I pondered that
“the avoidance of referring to ‘plausibility’ would have enhanced the Court's reasoning, rendering it clearer. Particularly in cases, like the present one, where the rights — the protection of which is sought by means of provisional measures — are clearly defined in a treaty, to invoke ‘plausibility’ makes no sense. The legal profession, in also indulging here in so-called ‘plausibility’ (whatever that means), is incurring likewise into absurd uncertainties” (para. 77).
79. As in the present Order of Provisional Measures of Protection we are really in face of fundamental rights (not “plausible” ones), the basic principle of equality and non-discrimination also marks its presence here. I addressed this point in my aforementioned recent Separate Opinion in the case of Application of the CERD Convention (Order of 23.07.2018 — para. 76, supra), where I pointed out that
“The advances in respect of the basic principle of equality and non-discrimination at normative and jurisprudential levels,Footnote 35 have not, however, been accompanied by the international legal doctrine, which so far has not dedicated sufficient attention to that fundamental principle; it stands far from guarding proportion to its importance both in theory and practice of Law. This is one of the rare examples of international case-law preceding international legal doctrine, and requiring from it due and greater attention” (para. 18).
80. I then drew attention to the sufferings affecting numerous migrants nowadays, and warned that
“Nothing has been learned from sufferings of past generations; hence the need to remain attached to the goal of the realization of justice, bearing in mind that law and justice go indissociably together. The ICJ has a mission to keep on endeavouring to contribute to a humanized law of nations, in the dehumanized world of our days” (para. 28).
It is necessary to keep in mind that the principle of equality and non-discrimination lies in the foundations of the rights safeguarded under the Convention against Genocide, and human rights Conventions, also by means of provisional measures of protection.
2. Jus Cogens under the Convention against Genocide and the Corresponding Customary International Law
81. As examined in a recent study of the developing international case-law on the matter, provisional measures of protection are nowadays endowed with an autonomous legal regime of their own,Footnote 36 which is of great significance for the protection of fundamental human rights. Such rights remain in the domain of jus cogens. This is a point which did not pass unperceived in the oral procedure before the ICJ: in the public hearing of 10.12.2019, the delegation of Gambia made a reference to such acknowledgment of jus cogens,Footnote 37 an issue which could have been addressed by the ICJ in its present Order.
82. It would not have been the first time, as the issue is present in the ICJ's case-law, though it requires nowadays further development. May I just recall, in this respect, the main points addressed by the Court so far. Thus, looking further back in time, in the aforementioned case of Armed Activities in the Territory of Congo, opposing D.R. Congo to Rwanda (cf. para. 4, supra), the ICJ recognized (in its Judgment on jurisdiction and admissibility, of 03.02.2006) the prohibition of genocide as a peremptory norm of international law (para. 64).
83. One decade earlier, in the case of Application of the Convention against Genocide (Bosnia-Herzegovina versus Serbia and Montenegro (Judgment on preliminary objections, of 11.07.1996), the ICJ observed inter alia that the terms of Article IX of the Convention against Genocide do “not exclude any form of State responsibility” (para. 32). In my understanding, State responsibility and individual criminal responsibility cannot be dissociated in cases of massacres.Footnote 38
84. The subsequent case-law of the ICJ again addressed the matter, in the aforementioned cases (cf. para. 3, supra) of Application of the Convention against Genocide, opposing Bosnia-Herzegovina to Serbia and Montenegro (Judgment of 26.02.2007), as well as of Application of the Convention against Genocide, opposing Croatia to Serbia (Judgment of 03.02.2015). On both occasions, the treatment of the matter by the Court was incomplete and unsatisfactory.
85. Thus, in its 2007 Judgment, the Court confirmed the applicability of the rules on State responsibility between States in the context of genocide (para. 167), but not without underlining that in its view the recognition of State responsibility should not be understood as making room for State crimes , thus imposing limitations on the matter (paras. 167–170). And in its 2015 Judgment, the Court briefly referred to jus cogens without considering its legal effects (para. 87).
86. In my Dissenting Opinion appended thereto, I sustained that grave violations of human rights and of International Humanitarian Law, and acts of genocide, among other atrocities, are in breach of responsibility and call for reparations to the victims. This is in line with the idea of rectitude (in conformity with the recta ratio of natural law), underlying the conception of Law (in distinct legal systems — Droit / Right / Recht / Direito / Derecho / Diritto) as a whole (paras. 318–319).
87. I then added, inter alia, that the Convention against Genocide is people-oriented (paras. 521, 529, 542 and 545), with attention needing to be focused on the segment of the population concerned, in pursuance of a humanist outlook, in the light of the principle of humanity (part XVIII). The Convention, — I further added, — calls for care to be turned to the victims, rather than to inter-State susceptibilities (paras. 494–496).Footnote 39 In sum, jus cogens is to be properly considered under the Convention against Genocide and the corresponding customary international law.
VII. Epilogue
88. In my understanding, it is necessary to take all the above considerations into account in order to secure the advances in the domain of the autonomous legal regime of provisional measures of protection. As to the cas d'espèce, it is significant that the present Order of Provisional Measures of Protection has just been adopted by the ICJ by unanimity. The measures of protection have, in my understanding, been ordered by the ICJ to safeguard the fundamental rights of those who remain, in the tragedy of Myanmar, in a continuing situation of extreme vulnerability, if not defenselessness.
89. Last but not least, may I proceed to a brief recapitulation of the main points I have deemed it fit to make, in the present Separate Opinion, in respect of provisional measures of protection under the Convention against Genocide. Primus: In a case like the present one, the provisions of the Convention conform a Law of protection (a droit de protection), oriented towards the safeguard of the fundamental rights of those victimized in a continuing situation of human vulnerability, so as also to secure the prevalence of the rule of law (la prééminence du droit).
90. Secundus: The ICJ has, along the years, been giving its contribution to the international case-law concerning the Convention against Genocide; yet, the Court's Orders on provisional measures of protection under the Convention have been rather rare, though they play their role of extending protection to the fundamental rights of persons and groups in extreme vulnerability. Tertius: In relation to the occurrences in the tragedy in Myanmar, international fact-finding has been undertaken by the Reports of the U.N. Mission on Myanmar (of 2018 and 2019), including “detailed findings”, as well as by the Reports of the U.N. Special Rapporteur on Human Rights in Myanmar (of 2018 and 2019).
91. Quartus: These successive U.N. Reports give account of a continuing situation affecting human rights of numerous persons under the Convention against Genocide. Quintus: Provisional measures of protection, like the ones indicated in the present Order, are intended to put an end to a continuing situation of extreme vulnerability of the victimized persons. Sextus: In a continuing situation of the kind, the fundamental rights requiring protection are clearly known, there being no sense to wonder whether they are “plausible”. Septimus: A continuing situation in breach of human rights is a point which has been attracting the attention of the ICJ in recent cases, at distinct stages of the proceedings.
92. Octavus: Provisional measures of protection have, in recent years, been protecting growing numbers of persons in situations of extreme vulnerability, having thus been transformed into a true jurisdictional guarantee of preventive character. Nonus: Extreme human vulnerability is a test more compelling than resort to so-called ‘plausibility’ of rights for the ordering of provisional measures of protection under the Convention against Genocide.
93. Decimus: The legacy of the II World Conference on Human Rights (Vienna, 1993) has been much contributing to the protection of human beings in situations of great vulnerability. Undecimus: Furthermore, international case-law, as the cas d'espèce shows, can serve the need of properly addressing extreme human vulnerability. Duodecimus: It is of the utmost importance the safeguard of fundamental rights by provisional measures of protection, in the domain of jus cogens, under the Convention against Genocide and the corresponding customary international law.
94. Tertius decimus: There continues to be an advance towards the consolidation of what I have been calling, along the years, the autonomous legal regime of provisional measures of protection. Quartus decimus: The historical formation of the corpus juris of international protection of the rights of the human person has much contributed to a growing awareness of the importance of the prevalence also of the basic principle of equality and non-discrimination. Quintus decimus: The present case once again shows that the determination and ordering of provisional measures of protection under the Convention against Genocide, and under human rights Conventions, can only be properly undertaken from a humanist perspective, necessarily avoiding the pitfalls of an outdated and impertinent State voluntarist outlook.
(Signed) Antônio Augusto Cançado Trindade.
Standard of plausibility Genocidal intent Protected group under the Genocide Convention.
1. I have voted in favour of all points contained in operative paragraph 86 of the Order. I also concur with the essence of the Court's reasoning. I only wish to add a few observations regarding the plausibility standard, and, in particular, regarding its connection with the questions of genocidal intent and protected groups under the Genocide Convention.
2. It would seem that the plausibility of the rights claimed as a prerequisite for the indication of provisional measures is by now quite firmly anchored in the Court's jurisprudence. At the same time, it would seem that questions remain open regarding the precise scope of the requirement and that it remains a challenge to describe the Court's standard of plausibility with precision.Footnote 1
3. The partial rejection of plausibility of the rights claimed in the Ukraine v. Russian Federation case (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, pp. 131–132, para. 75) has given rise to the interpretation that the Court has widened the scope of the plausibility requirement so that it includes, at least partially, the plausibility of breach of rights.Footnote 2 Additionally, there is the question whether the Court's Order in that case may have set a comparatively demanding standard of plausibility with respect to the mental elements of crimes in question (see, in particular, the separate opinion of Judge Owada in the aforementioned Order, I.C.J. Reports 2017, pp. 147–148, paras. 21–23). It is against this background, that Myanmar, in the current proceedings, has placed special emphasis on the Ukraine v. Russian Federation case in order to make the argument that the standard of plausibility extended to the requirement of genocidal intent and that this standard was not met (CR 2019/19, pp. 24–25, paras. 9–11 (Schabas)). As part of this argument, Myanmar further advanced the view that in “a case like this involving allegations of exceptional gravity” the Court should apply a “stricter plausibility standard” (CR 2019/19, p. 25, para. 13 (Schabas)).
4. In paragraph 56 of the Order, the Court rejects the idea of such a more stringent standard. I agree and wish to add that, rather than saying, as Myanmar has done, that a strict standard to be applied at the merits stage in case of exceptionally grave allegations, must apply “a fortiori” “at the provisional measures phase” (ibid.), one might wonder whether the distinct that is, the protective function of provisional measures does not point in the opposite direction, precisely because fundamental values are at stake.
5. Irrespective of this last consideration, it is apparent from paragraph 56 of the Order, read in its immediate context, that the Court has applied a low plausibility standard with respect to the question of genocidal intent. Whatever the correct interpretation of the standard applied in the Court's Order in the Ukraine v. Russian Federation case might be, the Court, in the present case, has not proceeded to anything close to a detailed examination of the question of genocidal intent. In that respect it seems worth recalling that, in the separate opinion he appended to the Pulp Mills case, Judge Abraham distinguished between fumus boni juris and fumus non mali juris (Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, pp. 140–141, para. 10). In my view, it is the latter formulation that captures far better the approach taken by the Court in this Order with respect to the question of genocidal intent. Drawing a distinction between the words “boni” and “non mali” may be a “subtlety”, as Judge Abraham suggested in his separate opinion. But in the present case at least, it would be an important subtlety. I make this observation also because, even on the basis of the low standard applied by the Court in this case, it is not entirely without hesitation that I have come to the conclusion that the materials provided by The Gambia so far are sufficient to enable the Court to conclude that the plausibility test was met with respect to the question of genocidal intent.
6. While the exceptional gravity of the violations alleged in this case does not justify the application of a stringent standard of plausibility as a prerequisite for the indication of provisional measures, the same exceptional gravity does justify, and perhaps even calls for emphasizing that this Order's finding on plausibility in no way whatsoever prejudges the merits.
7. This is as true for the question of genocidal intent as it is for the question whether the Rohingya in Myanmar constitute a protected group under the Genocide Convention. The Order alludes to this issue in one single sentence in paragraph 52. Here, the Court states that “the Rohingya appear to constitute a protected group within the meaning of Article II of the Genocide Convention”. I would have preferred seeing the Court express more clearly than by the mere use of the word “appear” that, with respect to the question of protected groups under the Genocide Convention, it cannot go beyond the point of plausibility at this stage of the proceedings. This preference is based, not least, on the fact that the question of protected groups under the Genocide Convention did not receive closer attention during the proceedings.
(Signed) Claus Kress.
