By: Justine N. Stefanelli
January 27, 2020
On January 23, 2020, the International Court of Justice (ICJ) indicated provisional measures in the case of The Gambia v. Myanmar. According to a press release issued by the Court, The Gambia requested a series of five provisional measures "to preserve . . . the rights of the Rohingya group in Myanmar, of its members and of The Gambia under the Genocide Convention." To indicate provisional measures, several conditions must be fulfilled. First, the Court must have prima facie jurisdiction over the case. On this point, the Court determined that it had jurisdiction over the case based on a finding that there exists a dispute between the Parties under Article IX of the Genocide Convention and that some of the acts of wrongdoing alleged by The Gambia may fall within the provisions of the Convention (paras. 34-35).
Second, the Court must determine that The Gambia had prima facie standing to bring this case before the Court. The Court found in the affirmative, holding that "all the States parties to the Genocide Convention have a common interest to ensure that acts of genocide are prevented" and that therefore, The Gambia has standing in this case (para. 41). Third, there must be a link between the measures sought and the rights to be protected. On this point, the Court found that a link exists between some of the provisional measures and the rights claimed (paras. 61-63).
Finally, to indicate provisional measures, the Court must find that "there is a real and imminent risk that irreparable prejudice will be caused before the Court gives its final decision." Moreover, such harm must be at risk of occurring "at any moment." By reference to several United Nations fact-finding missions, the Court concluded that "the Rohingya in Myanmar remain extremely vulnerable" and that various repatriation and reconciliation initiatives allegedly being undertaken by Myanmar are insufficient to remove such risk (paras. 71-74).
Two separate opinions to the Court's Order were filed by Vice-President Xue and Judge Cançado Trindade. Judge ad hoc Kress appended a declaration to the Court's Order. A summary of the Order is also available here.
Second, the Court must determine that The Gambia had prima facie standing to bring this case before the Court. The Court found in the affirmative, holding that "all the States parties to the Genocide Convention have a common interest to ensure that acts of genocide are prevented" and that therefore, The Gambia has standing in this case (para. 41). Third, there must be a link between the measures sought and the rights to be protected. On this point, the Court found that a link exists between some of the provisional measures and the rights claimed (paras. 61-63).
Finally, to indicate provisional measures, the Court must find that "there is a real and imminent risk that irreparable prejudice will be caused before the Court gives its final decision." Moreover, such harm must be at risk of occurring "at any moment." By reference to several United Nations fact-finding missions, the Court concluded that "the Rohingya in Myanmar remain extremely vulnerable" and that various repatriation and reconciliation initiatives allegedly being undertaken by Myanmar are insufficient to remove such risk (paras. 71-74).
Two separate opinions to the Court's Order were filed by Vice-President Xue and Judge Cançado Trindade. Judge ad hoc Kress appended a declaration to the Court's Order. A summary of the Order is also available here.
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