‘Never Again’? Global Accountability for Genocide in The Gambia v. Myanmar

Written by Audrey Lo

Edited by Tyler Kim

Audrey is an undergraduate student in the Dual BA Program between Sciences Po and Keio University, studying Economics. Her academic interests include international relations and development economics.

Over 30,000 dead. More than a million refugees. Tens of thousands raped. Hundreds of villages razed to the ground. This is the devastating plight of the Rohingya today in Myanmar, more than half a century after the world said ‘never again’ following the horrors of the Holocaust (Shoah).

On 11 November 2019, The Gambia filed a historic submission to the International Court of Justice (ICJ) instituting proceedings against Myanmar, concerning alleged violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’) in relation to the persecution of the Rohingya Muslim minority. This case marked the first instance of a non-injured state with no direct connection to the alleged crimes bringing a claim against another state based on its membership under the Genocide Convention, challenging the boundaries of international legal enforcement. 

The Gambia v. Myanmar brings an unprecedented opportunity for international justice mechanisms to scrutinize and intervene in the abuse of Myanmar’s military junta against the Rohingya minority, potentially paving the way for an end to the impunity enjoyed by the military since it first took power in 1962, which has enabled the continued persecution. The ICJ’s establishment of principles surrounding third-party intervention and its interpretation of evidence hold potential influence on future genocide cases and the effectiveness of the Genocide Convention itself.

This article examines the legal significance of The Gambia v. Myanmar, focusing on three key aspects: (1) the role of third-party state interventions in reinforcing collective accountability under the Genocide Convention, (2) the evidentiary and legal hurdles encountered in establishing genocidal intent, and (3) the broader implications for international legal mechanisms in addressing human rights crises. Ultimately, the core issue remains whether judicial interventions can serve to effectively deter genocide and move us towards a reality of atrocities ‘never again’ happening, or remain symbolic gestures without robust enforcement mechanisms.

Context: The Rohingya Crisis

The Rohingya are a predominantly Muslim ethnic group in Myanmar’s western Rakhine State. Denied citizenship since 1982, they are also the world’s largest stateless population, and have faced systemic discrimination and violence for decades [1]. In 2017, a military crackdown – ostensibly in response to militant attacks to reinstate stability in the region – renewed violence, escalating into mass killings, sexual violence, and the burning of villages, forcing over 700,000 Rohingya to flee the country. A 2018 United Nations Fact-Finding Mission concluded that Myanmar’s actions constituted ‘serious human rights violations and abuses’ and ‘should be investigated and prosecuted in an international criminal tribunal for genocide’, prompting international condemnation of the abuses [2].

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide

The Genocide Convention was the first human rights treaty adopted by the United Nations General Assembly on 9 December 1948 and entered into force on 12 January 1951, with 153 signatories to date. Its preamble recognizes the “great losses on humanity” that genocide has inflicted throughout history, and the need for international cooperation to “liberate humankind from such an odious scourge” [3]. The Genocide Convention obligates countries to take measures to prevent genocide and establishes a legal framework to prosecute and punish perpetrators of genocide, aiming to protect vulnerable groups from mass atrocities. Article II of the Convention defines genocide as acts committed with ‘intent to destroy, in whole or in part, a national, ethnical, racial, or religious group’. 

Myanmar has been a party to the Genocide Convention since 1956, and The Gambia since 1978. 

The Gambia v. Myanmar: Legal Significance and Implications

Third-party Intervention: Reinforcing Collective Accountability

Genocide is considered one of the most heinous crimes of concern to the international community, invoking a need for the collective responsibility of all states to prevent and stop genocide. The Gambia v. Myanmar highlights this point through The Gambia’s initiation of proceedings as a non-injured state and the third-party interventions of other states.

The Gambia initiated proceedings against Myanmar under Article 9 of the Convention [4], on the grounds that Myanmar had violated obligations under the Convention by failing to prevent and punish acts of genocide committed against the Rohingya population. The Gambia’s application sets a precedent as the first case brought by a state not directly injured under the Genocide Convention, invoking the erga omnes partes principle, which obliges all states to take action when obligations under a multilateral treaty are breached, in view of their common values and concern for compliance [5]. The ICJ affirmed that The Gambia’s legal standing rested on the Genocide Convention’s ‘common interest’ framework, where all states parties to the Convention share a common interest in ensuring the prevention and punishment of acts of genocide, emphasizing that the Convention’s purpose transcends bilateral disputes to protect ‘humanitarian and civilizing objectives’. This approach mirrors the ICJ’s earlier reasoning in Belgium v. Senegal (2012), where the Court affirmed that obligations under the Convention against Torture are owed to the international community collectively, enabling non-injured states to seek compliance [6]. 

Third-party interventions further reinforced this collective duty. Article 63 of the ICJ Statute permits states to intervene in cases involving the interpretation of treaties to which they are parties, traditionally viewed as a procedural right to protect individual state interests [7]. On 3 July 2024, the ICJ deemed admissible the joint declaration of intervention under Article 63 of the ICJ Statute by six states (Canada, Denmark, France, Germany, the Netherlands, and the United Kingdom), as well as the declaration of intervention by the Maldives. Since then, another four states (Slovenia, the Democratic Republic of the Congo, Belgium, and Ireland) have filed declarations of intervention. The Court’s admission of these interventions built on the precedent of Bosnia and Herzegovina v. Serbia and Montenegro, which recognized genocide prevention as an erga omnes obligation owed to all states. The intervention of third-party states in The Gambia v. Myanmar reflects a growing recognition of genocide prevention as a collective duty and normalization of third-party engagement to address systemic violations. By permitting non-injured states to intervene, the ICJ tacitly endorsed the principle that genocide prevention transcends bilateral disputes. 

On 28 January 2024, the ICJ amended Article 82 of its Rules such that declarations of intervention under Article 63 must now be filed before the deadline for the respondent’s Counter-Memorial, an earlier cutoff than the previous deadline at the start of oral proceedings. Together with the growing trend of third-party intervention amplifying claims as seen in recent cases like Ukraine v. Russian Federation and South Africa v. Israel, this amendment to protect procedural efficiency and ensure interventions focus on legal interpretation rather than politicized public condemnation could set the stage for greater use of multilateral enforcement mechanisms for global accountability under the Genocide Convention.

Proving Genocidal Intent: Evidentiary Challenges

Having affirmed The Gambia’s standing to bring the case to the ICJ, the Court faces significant evidentiary and legal hurdles in linking Myanmar’s state policies to the specific ‘intent to destroy’ required under Article II of the Genocide Convention. The Gambia’s application relies extensively on findings by the UN Fact-Finding Mission, which identified systematic denial of legal rights to the Rohingya and state participation in pervasive hate campaigns as particularly indicative of genocidal intent. These reports detail a pattern of persecution, including restrictions on marriage, movement, and access to citizenship, as well as widespread violence and dehumanization.

The ICJ’s provisional measures order of 23 January 2020 acknowledged the facts presented as prima facie evidence of “a real and imminent risk of irreparable prejudice” to the Rohingya, but avoided definitive findings of genocide[8]. This judicial caution reflects the Court’s historically stringent approach to evidentiary standards in genocide cases. In both Bosnia and Herzegovina v. Serbia and Montenegro and Croatia v. Serbia, the Court emphasized the need for “fully conclusive” evidence of genocidal intent, rejecting broad inferences of intent from patterns of systemic violence. In the Bosnia case, despite acknowledging large-scale atrocities, the Court concluded that Serbia had not incurred responsibility for genocide due to the absence of direct proof of specific intent, such as explicit orders or official state policies targeting the group [9].

This high standard of proof surfaces a critical tension within the Genocide Convention’s framework: the collective enforcement mechanisms envisioned by the Convention are undermined by the evidentiary burdens inherent in proving state-level genocidal intent. In practice, perpetrators of genocide rarely articulate explicit genocidal objectives in formal documents, making it extremely difficult to meet the Court’s criteria. 

Myanmar’s obstruction of the investigation further exacerbated these challenges. The government has refused to grant investigators access to Rakhine State and dismissed the mass killings, sexual violence, and village burnings documented by the UN Fact-Finding Mission’s 2018 report as counterinsurgency measures [10]. The destruction of Rohingya identity documents and refusal to investigate crimes also created a “policy vacuum,” complicating efforts to attribute intent to state organs. Myanmar’s non-cooperation with international investigations not only obstructs direct evidence gathering but also perpetuates the opacity around the state’s intention, complicating the ICJ’s task of establishing genocidal intent. Without direct access to evidence, the ICJ relied on patterns of conduct, such as systematic restrictions on marriage and movement, to infer the plausible risk of genocidal aims. 

The Gambia v. Myanmar hence reflects the enduring challenge of proving genocidal intent at the state level, revealing a gap between the Genocide Convention’s ideals and the practical realities of hurdles in pursuing international justice. Additionally, while beyond the scope of this essay, it is worth noting developments in the obtention of evidence with the pervasiveness of social media platforms today. In the case The Gambia v. Facebook in the United States, a US magistrate judge ordered Facebook to disclose materials relating to the perpetration of ethnic hatred against the Rohingya, signalling new avenues for gathering proof in the digital age, potentially reshaping the evidentiary scene for international law.

Limitations to enforcement

The 2020 unanimous order of provisional measures marked a watershed moment in international judicial recognition of the precarious situation of the Rohingya in Myanmar. The legally binding provisional measures order required Myanmar to take measures to prevent the risk or possible recurrence of genocide against the Rohingya minority and to preserve evidence of the 2017 attacks, as well as to report periodically on its compliance [11]. 

While the measures affirmed the Genocide Convention’s preventive mandate, Myanmar’s compliance has been largely procedural rather than substantive. Although the government has submitted the required reports to the Court, these remain confidential and inaccessible to the public and other stakeholders, as is standard practice at the ICJ for such reports. Meanwhile, independent organizations such as Human Rights Watch and Amnesty International continue to document grave abuses against the Rohingya, with approximately 600,000 still confined to camps in Myanmar as of 2022, and refugee numbers continue to rise. In December 2024, a UN General Assembly resolution expressed ‘deep concern’ about Myanmar’s ongoing non-compliance with the ICJ’s order [12]. 

Some scholars have called for the ICJ to lift the confidential status of Myanmar’s reports and make them publicly available, such that other actors, such as international organizations and even the Rohingya themselves, can better assess Myanmar’s compliance, and for States parties to assess their own obligations under the Genocide Convention. This enables these actors to more actively engage in pressing for Myanmar’s full compliance with the protective measures ordered. This could potentially reinforce the erga omnes partes obligations at the core of The Gambia v. Myanmar, highlighting that adherence to the Genocide Convention is a collective responsibility of the international community.

Enforcement of ICJ orders, however, ultimately depends on political will, crucially that of the United Nations Security Council (UNSC). Under Article 41(2) of the ICJ Statute, the UNSC is notified of provisional measures, but it has the authority to take further action only if it chooses to do so. Theoretically, the UNSC could implement a binding resolution for Myanmar to lift restrictions on the Rohingya's freedom of movement, eliminate restrictions on humanitarian access to Rakhine State and repeal discriminatory laws. However, in practice, the Council has been deadlocked on this crisis, partly due to China and Russia's opposition to action on Myanmar and their threat to veto any resolution. The historic first UNSC Resolution 2669 on Myanmar in 2022, demanding an end to violence, failed to address the Rohingya crisis.

Existing alternative accountability pathways include the use of universal jurisdiction, which enables national courts to prosecute individuals accused of the most serious international crimes, including genocide. In Argentina, in 2019, the Burmese Rohingya Organisation UK and six female Rohingya survivors filed a case against Myanmar’s civilian and military leaders for genocide and crimes against humanity, leading to the issuance of arrest warrants for Senior General Min Aung Hlaing and 24 other Myanmar military officials [13]. Separately, the International Criminal Court is investigating crimes committed against the Rohingya, and an arrest warrant for Min Aung Hlaing has been requested by the prosecutor. 

While these alternative pathways provide hope for justice, they depict a fragmented approach to accountability. This patchwork system of enforcement enunciates the gap between international legal ideals and the practical realities of ensuring justice for persecuted communities like the Rohingya. Greater efficiency and coordination in collective enforcement mechanisms would serve to bolster the Gambia v. Myanmar ICJ case as a crucial platform to draw attention to the situation in Myanmar, emphasize adherence to the Genocide Convention, and reinforce global accountability to bring atrocities to justice.  

Conclusion

After decades of maltreatment and violence in Rakhine State, The Gambia v. Myanmar has brought hope for acts against the Rohingya to finally be brought to justice. The ICJ’s expansive interpretation of standing and intervention rights of The Gambia and other third-party states strengthens the Genocide Convention’s normative framework and reinforces the international community’s collective interest in ensuring adherence to the Convention. Nonetheless, challenges remain to overcome the barrier of state sovereignty and attain a high standard of proof, and work towards enforcing greater compliance with provisional measures. In crises of utmost urgency like the Rohingya crisis, international law must move beyond symbolism, working with the UNSC and other UN organs to strengthen the protection of human rights by increasing pressure on states to adhere to treaty obligations. ‘Never again’ cannot merely be a performance of words – we need sustained multilateral commitment to the enforcement of legal mechanisms. With hearings on The Gambia v. Myanmar expected to begin this year, this will be a case to watch for the evolution of genocide prevention enforcement and vulnerable groups’ protection in international justice.

Bibliography

[1] USA for UNHCR, Rohingya Refugee Crisis Explained, August 22, 2024, https://www.unrefugees.org/news/rohingya-refugee-crisis-explained/.

[2] United Nations Human Rights Council, Report of the Independent International Fact-Finding Mission on Myanmar, A/HRC/52/21, 2023, https://www.ohchr.org/sites/default/files/Documents/HRBodies/HRCouncil/FFM-Myanmar/A_HRC_39_64.pdf.

[3] UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, United Nations, Treaty Series, vol. 78, p. 277, December 9, 1948, https://www.refworld.org/legal/agreements/unga/1948/en/13495.

[4] Article 9 of the 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.”

[5] Institut de Droit International, Resolution on the Obligations Erga Omnes in International Law, Article 1 (2005), https://www.idi-iil.org/app/uploads/2017/06/2005_kra_01_en.pdf.

[6] International Court of Justice, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J Reports 2012, p. 422, https://www.icj-cij.org/case/144/judgments.

[7] United Nations, Statute of the International Court of Justice, Article 63, June 26, 1945, https://www.icj-cij.org/en/statute.

[8] International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Order of 23 January 2020, I.C.J. Reports 2020, p. 3, https://www.icj-cij.org/sites/default/files/case-related/178/178-20200123-ORD-01-00-EN.pdf.

[9] Amanda Bills, “Revisiting the Standard of Proof for Charges of Exceptional Gravity before the International Court of Justice”, Max Planck Yearbook of United Nations Law Online 26, 1 (2023): 108–144, https://brill.com/view/journals/mpyo/26/1/article-p108_8.xml?language=en.

[10] Human Rights Watch, “Developments in Gambia’s Case Against Myanmar at the International Court of Justice,” February 14, 2022, https://www.hrw.org/news/2022/02/14/developments-gambias-case-against-myanmar-international-court-justice.

[11] Erin Farrell Rosenberg et al., “Provisional Measures in The Gambia v. Myanmar Case Before the ICJ: The Case for Making Myanmar’s Report Public,” Newslines Institute for Strategy and Policy, May 22, 2021, https://newlinesinstitute.org/wp-content/uploads/20210522-Gambia-v-Myanmar-ICJ-Rohingya-NISAP-1.pdf.

[12] UN General Assembly Resolution 79/182, UN Doc. A/RES/79/182, December 19, 2023, https://docs.un.org/en/A/RES/79/182.

[13] Human Rights Watch, “Developments in The Gambia’s Case Against Myanmar at the International Court of Justice,” February 14, 2022, https://www.hrw.org/news/2022/02/14/developments-gambias-case-against-myanmar-international-court-justice#whatother.