Intervening in The Gambia’s Quest for Establishing Myanmar’s Responsibility for Atrocities on the Rohingya: Symbolism or Substance?

Canada and the Netherlands have expressed their willingness to join the ongoing Gambian case against Myanmar for settling the latter’s responsibility for atrocities perpetrated on the Rohingya in its Rakhine province.[1] They have also made a clarion call to all state parties to the Genocide Convention to join the fight at the International Court of Justice (“ICJ”) for ensuring accountability for the atrocities perpetrated on the Rohingya.[2] Unlike proceedings in some other international dispute settlement bodies such as the World Trade Organization, applying for intervening in a case before the ICJ is relatively scant.[3] This write-up would seek to address the right of Canada and the Netherlands to intervene and what value it may or may not add to the resolution of the dispute.

It may be important to note that like Gambia, Canada and the Netherlands seem to be asserting a legal interest in the matter, and not just a general interest in the interpretation of a treaty which is the subject matter of the dispute.[4] Article 81 (2) (c) of the ICJ Rules expects that in an application under Article 62 of the ICJ Statute, the intervening state explains the “basis of jurisdiction which is claimed to exist as between the State applying to intervene and the parties to the case.”[5] The ICJ used to follow the requirement somewhat literally, but after the Land, Island and Maritime Frontier Dispute Case,[6] the matter seems to be settled. In that case, an ad hoc chamber of the Court observed that Nicaragua could intervene even without satisfying any jurisdictional link.[7] However, if there is no jurisdictional link, the intervening state/s would not become a party/parties, and the judgment of the ICJ would not be binding on such party/parties.

Based on the Court’s provisional order of January 23, 2020, it may be said that the Court has accepted the existence of a legal dispute, albeit prima facie, between The Gambia and Myanmar.[8] Again, in Nicaragua, the ICJ has observed that although the Court need not be fully satisfied of the jurisdiction, at least “it ought not to indicate such measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded.”[9] Indeed, unless at least prima facie existence of jurisdiction is found, the Court may have to confront a rather odd situation that it may discover at the merit stage that it has issued provisional measures in a case in which it manifestly lacked jurisdiction—as explained here.[10] Thus, in arguendo, we assume there is a legal dispute between The Gambia and Myanmar, and as state parties to the Genocide Convention, the standing of Canada and the Netherlands seem to be equally plausible, should they choose to join as parties. The erga omnes character of the obligation to prevent genocide would give further credence to this line of argument. This has already been recognised by the Court in its provisional order in which the Court stated “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”.[11]

The brief diplomatic statement does not mention whether the proposed intervention would take place under Article 62 or 63 of the Statute of the International Court of Justice (“Statute”). However, given the nature of wordings in the Canadian and Dutch diplomatic statement, it possibly indicates that the two states would intervene as parties invoking Article 62 of the Statute (though not yet sure either as a party or non-party), and not merely under Article 63 which is regarding the interpretation of the Genocide Convention. If that happens, this should mean that they would take a more active part in the proceedings. At the same time, this would probably mean that they would be taken to be representing the same interest as that of The Gambia and hence, be treated as one party only for the purpose of appointment of an ad hoc judge.

The ICJ practice indicates that not only the application to intervene has been rare, the ICJ allowing states to intervene as a third party invoking Article 62 of the Statute has also been very few and far between, see e.g. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Order on Application to Intervene by Equatorial Guinea).[12] The relatively restrained approach may be attributable to a desire of the ICJ to ensure that its proceedings do not become too complex or that original parties do not end up getting embroiled in matters not envisaged before by the parties. However, given the erga omnes nature of the obligation of the Genocide Convention and the identical nature of the footing of The Gambia and the two intervening parties, it would seem that their application to intervene could be a persuasive one. This would be even more so when we note that The Gambia’s case is not on the basis of a joint declaration by the parties, but on the basis of a unilateral application invoking a treaty provision, i.e. Article IX of the Genocide Convention.[13]

Considering the intellectual richness of the Gambian legal team, it will be interesting to see how much more value would be added by the legal expertise of the two intervening parties. That said, there could be strategic and moral support to the Gambian case, and the brief diplomatic statement implies that the two intervening parties would focus on “crimes related to sexual and gender based violence.”[14] Assuming that the legal teams of The Gambia, Canada, and the Netherlands liaise closely, one may expect that such a special focus on parts of the issues pending before the ICJ would ensure a more efficient allocation of resources of state parties battling Myanmar in the case. On the other hand, any lack of coordination could unnecessarily complicate and delay the proceedings. However, as the parties would, in essence, fight for the same cause, coordination between them would be expected.

Suppose we note that the interest of Canada and the Netherlands would be devoted to the crimes related to gender-based violence. In that case, a second possibility of seeking to intervene under Article 62,[15] but as a non-party with a limited right to participate in the proceedings, may also be an option. And even if they choose to do so, Canada and the Netherlands would be able to make submissions to the Court and thus, eventually making a contribution to the final judgment, and ultimately, to the progressive development of international law. The same may be said to the prospect of yet another option, i.e. an intervention as a party to the Genocide Convention[16] solely regarding matters of interpretation of the Convention. Joining the fight with The Gambia may, of course, have at least another construction that instead of filing a petition to join the ICJ’s proceedings, the good Samaritans may help The Gambia in pooling resources to fight the case.[17] Even this minimal involvement could be a positive contribution rather than expressing mere solidarity with The Gambia.

Again, during the hearings for the provisional order, Myanmar authorities have sought to impugn the motive of The Gambia as a litigant and has insinuated that it was nothing but a proxy for the Organisation of Islamic Cooperation (“OIC”).[18] However, that issue of OIC’s overt and (possibly covert too) backing of the Gambian case did not have any bearing on the ICJ at the provisional order stage. The Court observed that “the fact that The Gambia may have sought and obtained the support of other States or international organizations in its endeavor to seise the Court does not preclude the existence between the Parties of a dispute relating to the Genocide Convention”.[19]  In any case, to malign the Canadian and Dutch case by labelling them as a proxy for the OIC would be implausible. While this may not legally be an issue, politically this would give the case somewhat more legitimacy.

When a third party/parties want to invoke a legal interest by intervening under Article 62 of the ICJ Statute, it is necessary that the application would be filed with the Registry of the Court as soon as possible and save in extraordinary circumstances, not later than the end of the written stage of the proceedings.[20] Given that The Gambia and Myanmar are due to submit their memorial and counter-memorial on October 23, 2020 and July 23, 2021 respectively,[21] Canada and the Netherlands would have ample time to formally communicate their intention to intervene in the case. While the ICJ Statute does not explicitly say this, a literal reading of Article 62 would connote that a third party/parties may not request for intervening at the provisional measure stage.[22] This is because, under Article 41, the Court only indicates provisional measures,[23] and Article 62 envisages decision in the case.[24] Regardless of how the intervention would play out before the Court, the willingness of states to take part in judicially determining state responsibility for genocide should itself be an encouraging development for those who believe in the dictates of international law. This should also serve as a powerful reminder to the perpetrators of atrocities that the legal challenge to their activities may come from many quarters.

Md. Rizwanul Islam is an Associate Professor at Department of Law, North South University. He gratefully acknowledges the comments of Nafiz Ahmed and Sajid Hossain, on a draft of this essay.

This is a guest blog post and in no way represents the views of the Fordham International Law Journal.

___

[1] See Government of the Netherlands, Joint statement of Canada and the Kingdom of the Netherlands regarding Intention to Intervene in The Gambia v. Myanmar Case at the International Court of Justice (Sept. 2, 2020), https://www.government.nl/documents/diplomatic-statements/2020/09/02/joint-statement-of-canada-and-the-kingdom-of-the-netherlands-regarding-intention-to-intervene-in-the-gambia-v.-myanmar-case-at-the-international-court-of-justice.

[2] See Id.

[3] Excluding the current case, only in 15 previous ICJ cases, requests seem to have been made for intervention (of which 10 under Article 62 and 5 under Article 63). See List of All Cases, INTERNATIONAL COURT OF JUSTICE, https://www.icj-cij.org/en/list-of-all-cases/introduction/asc.

[4] See Government of the Netherlands, supra note 1 (noting that Article 63 of the Statute of the International Court of Justice provides for expressing such an interest in the interpretation of a treaty).

[5] Statute of the International Court of Justice, June 26, 1945, art. 62, 59 Stat. 1055, T.S. No. 993, reprinted in 3 Bevans 1179 (hereinafter: ICJ Statute).

[6] See Case Concerning the Land, Island and Maritime Frontier Dispute (El Sal./Hond.) (Nicar. Intervening), Judgement, 1990 I.C.J. 92, 135 (Sept. 13), available at https://www.icj-cij.org/files/case-related/75/075-19900913-JUD-01-00-EN.pdf.

[7] See Id. at 131-36.

[8] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gam v. Myan.), Provisional Order, 2020 I.C.J. 2, 10 (Jan. 23,), available at https://www.icj-cij.org/files/case-related/178/178-20200123-ORD-01-00-EN.pdf (stating that “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.”).

[9] Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U. S.), Provisional Measures, 1984 I.C.J. Rep 169, 179 (May 10), available at https://www.icj-cij.org/public/files/case-related/70/070-19840510-ORD-01-00-EN.pdf.

[10] Dimitris Kontogiannis, Provisional Measures in Ukraine v. Russia: From Illusions to Reality or a Prejudgment in Disguise?, EJIL:TALK! (Nov. 8, 2019), https://www.ejiltalk.org/provisional-measures-in-ukraine-v-russia-from-illusions-to-reality-or-a-prejudgment-in-disguise/ / (last visited Oct. 4, 2020).

[11] Provisional Order, supra note 8, at 13.

[12] See generally Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Order on Application to Intervene by Eq. Guinea) 1999 I.C.J. Rep 1029 (Oct. 21).

[13] See Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277.

[14] Government of the Netherlands, supra note 1.

[15] See supra note 5, at art. 62.

[16] See Id., art. 63.

[17] Brian McGarry, Third-State Intervention in the Rohingya Genocide Case: How, When, and Why? [Part II], OPINIONJURIS, (Sept. 11, 2020), http://opiniojuris.org/2020/09/11/third-state-intervention-in-the-rohingya-genocide-case-how-when-and-why-part-ii/.

[18] Provisional Order, supra note 8, at 9

[19] Id.

[20] See 1978 International Court of Justice Rules of the Court, R. 82, Acts and Docs., available at https://www.icj-cij.org/en/rules.

[21] See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gam v. Myan.), Order, 2020 (18 May).

[22] See supra note 5, at art. 62.

[23] See supra note 5, at art. 41.

[24] See supra note 5, at art. 62.