The Gambia v. Myanmar: What is in it for Pakistan?

By Kamran Adil

Since 9/11, India has been propagating the view that Pakistan is the epicenter of terrorism in the region. Conversely, despite sincere efforts by Pakistan to unearth the truth through evidence-based investigations, India has rejected every opportunity to work jointly and investigate acts of terrorism by following an evidence-based approach. In the latest case before the International Court of Justice (ICJ) between the Gambia and Myanmar, the question of ‘evidence’ with respect to violations of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948[1] (Genocide Convention) was determined, in part, by reference to the doctrine of ‘plausible rights’. This approach may be considered by Pakistan in building up its case at multilateral fora against India that is treading a path no different to the one followed by Myanmar. This article will briefly present the salient points of the ICJ’s Preliminary Order in this case and discuss the ways in which they may be utilized by Pakistan in articulating its diplomatic stance.

FACTS

The persecution and human rights violations of Myanmar’s Rohingya Muslims is well documented. In recent years, a surge of violations of international human rights and international humanitarian law were reported on by many organizations. Pursuant to these developments, and after successive rounds and sessions at the Human Rights Council (HRC), under the mandate of the HRC, the Independent International Fact-Finding Mission (IIFFM) submitted its report.[2] The mandate of the IIFFM ended in September, 2019. The IIFFM Report noted the following:

“The mission welcomes the efforts of States, in particular Bangladesh and the Gambia, and the Organization of Islamic Cooperation 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.”[3]

Accordingly, based on the Report of the IIFFM, the matter was brought by the Gambia to the ICJ. The specific facts have been noted by the Order as:

“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.”[4]

THE ORDER 

The Order is of an interim nature. It only addresses the provisional measures part of the request of the Gambia. The salient law points discussed are stated below with brief analytical comments:

JURISDICTION

The Gambia relied on the compromissory clause of the Genocide Convention that reads:

“Disputes between the Contracting Parties relating to the interpretation, application or fulfillment 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] (emphasis provided)

Insofar as jurisdiction for provisional measures[6] was concerned, the Gambia is required to prove four conditions; namely, that prima facie jurisdiction can be established, that the measures requested must be linked to the rights forming the subject matter of the proceedings, that the rights whose protection is sought are plausible, and there is urgency.

The test for prima facie jurisdiction requires that the Court[7] “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.”[8]

Existence of Dispute and Legal Standing of the Gambia

As shown in the compromissory clause of the Genocide Convention, the existence of a ‘dispute’ is a precondition to invoke the jurisdiction of the court. Myanmar countered by arguing that there is no dispute between the Gambia and Myanmar. Secondly, it insisted that the Gambia had no legal standing to file the case. With regards to the first plea, the Court found that there was a ‘dispute’ regarding application of the Genocide Convention between the parties; its reasons were based on the case law of the ICJ, which can be summarized as:

1. A dispute between States exists where they hold clearly opposite views concerning the question of the performance or non-performance of certain international obligations[9];
2. The claim of one party must be “positively opposed” by the other[10]
3. The Court cannot limit itself to noting that one of the parties maintains that a dispute exists, and the other denies it[11]
4. the dispute is one which the Court has jurisdiction ratione materiae (subject matter jurisdiction) to entertain[12]
5. In principle, the date for determining the existence of a dispute is the date on which the application is submitted to the Court”[13].
6. The existence of a dispute is a matter for objective determination by the Court; it is a matter of substance and not of form or procedure[14].

Myanmar also argued that the Gambia was acting as a ‘proxy’[15] on behalf of the Organization of Islamic Countries (OIC) and that it was in circumvention of Article 34 of the ICJ Statute. The argument was not accepted by the Court as all the proceedings were instituted by the Gambia in its own name. In addition, the Gambia asserted that its legal standing was based on the erga omnes partes[16] (towards all parties) character of the obligations under the Genocide Convention.

The elements of a dispute listed above are very interesting from the point of view of Pakistan’s stance that Kashmir is ‘disputed’. The existence of a dispute over Kashmir has been denied by India.  Pakistan could base its argument that a dispute exists by reference to the elements listed in the Order. In addition, the debate in the General Assembly[17] session on Myanmar was also used by the Court to highlight the divergence of views further establishing the existence of ‘dispute’ between the Gambia and Myanmar. Pakistan’s case on Indian Occupied Kashmir (IOK), on this count, is also strong as the divergence of opinions by the two States on the status of the territory is well established. Pakistan has long argued that Kashmir is an occupied, and after 5^th August 2019, an annexed territory, while India has made the region a union territory and contends that the matter is an internal one.

PLAUSIBLE RIGHTS AND EVIDENCE ON VIOLATION OF GENOCIDE CONVENTION

The Gambia was also required to prove that the rights asserted were plausible.[18] The Gambia sought to establish this by relying on specific details recorded in the IIFFM Report. The ICJ gave much weight to the IIFFM Report despite Myanmar’s attempts to discredit it. The plausibility of rights requirement can be considered by Pakistan to make a case against India, which is trampling upon international human rights law and international humanitarian law in Indian Occupied Kashmir. These rights violations have been documented and reported on by many international organisations. The Gambia relied heavily on the IIFFM Report, which, besides other techniques, used satellite imagery obtained through the United Nations Operational Satellite Applications Programme (UNOSAT)[19]. The admissibility of the IIFFM Report by the ICJ shows that it endorsed the methodology used in the IIFFM and the use of UNOSAT for plausible evidence collection in such cases. Pakistan may want to explore the possibility of collecting plausible material against India insofar as satellite imagery is concerned with regard to violations of humanitarian law in IOK.

PROVISIONAL MEASURES

The provisional measures in the Order are binding and require Myanmar to fulfill its obligations under the Genocide Convention. It has also added a reporting requirement under which Myanmar has to submit a report within four months to the Court on the measures taken to give effect to the Order, and thereafter, every six months. Unfortunately, the provisional measures and even the reporting requirement, it is believed, are unlikely to alleviate the sufferings of the Muslims of Myanmar.

FINAL REMARKS

As Pakistan searches for peaceful options to settle the IOK dispute with India; there is much in this case from which Pakistan may wish to to take a cue and work on diplomatically. Not least in the elements which are required to determine that there is a dispute between two countries. Pakistan should also consider the ways in which human rights and international humanitarian law violations may be documented and used in court to establish the ‘plausible’ rights required to be protected. This approach would enable Pakistan to build an effective and persuasive case at international forums and construct a strong diplomatic stance drawn from the ICJ’s own rulings.

[1] United Nations, Treaty Series, vol. 78, p. 277.

[2] Report of the Independent International Fact Finding Mission on Myanmar dated 8^th August, 2019 (A/HRC/42/50 available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/236/74/PDF/G1923674.pdf?OpenElement.)

[3] Ibid. Para 107.

[4] Ibid. Para 21.

[5] Article IX

[6] Provisional measures are indicated by the ICJ under Article 41 of the ICJ Statute, which is an annex of the UN Charter.

[7] Islamic Republic of Iran v. United States of America, Provisional Measures, Order of 3^rd October, 2018, I.C.J Reports 2018(II), p. 630, para. 24).

[8] Islamic Republic of Iran v. United States of America, Para. 16 of the Order.

[9] 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

[10] South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328

[11] Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996 (II), p. 810, para. 16..

[12] 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.

[13] 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.

[14] Para 26 of the Order.

[15] Para 23 of the Order.

[16] Para 39 of the Order.

[17] Para 27 of the Order.

[18] Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand) – Request for the indication of provisional measures, International Court of Justice (ICJ), 18 July 2011

[19] Para 11 of the Application Instituting Proceedings and Request for Provisional Measures by the Gambia.