Preliminary objections of Myanmar

INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
APPLICATION OF THE CONVENTION ON
THE PREVENTION AND PUNISHMENT OF
THE CRIME OF GENOCIDE
THE GAMBIA
v.
MYANMAR
PRELIMINARY OBJECTIONS OF
THE REPUBLIC OF THE UNION OF MYANMAR
20 JANUARY 2021

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TABLE OF CONTENTS
TABLE OF ABBREVIATIONS AND DEFINED TERMS v
INTRODUCTION 1
I. FIRST PRELIMINARY OBJECTION: The Court lacks jurisdiction,
or alternatively the application is inadmissible, as the real applicant in
these proceedings is the Organisation of Islamic Cooperation 11
A. Introduction 11
B. The Organisation of Islamic Cooperation 18
C. Events relevant to this case 22
D. The real applicant in these proceedings is in fact the OIC 43
E. The Court accordingly lacks jurisdiction 51
F. Alternatively, the application of The Gambia is inadmissible 57
G. Conclusion 62
II. SECOND PRELIMINARY OBJECTION: The application is
inadmissible, as The Gambia lacks standing to bring this case before
the Court under Article IX of the Genocide Convention 65
A. Introduction 65
B. Distinguishing the right to invoke State responsibility from standing
before the Court 67
C. Article IX of the Genocide Convention does not provide for the
possibility of an actio popularis 68
1. Relevant jurisprudence of the Court 68
a. Advisory Opinion on Reservations to the Genocide
Convention 68
b. Barcelona Traction case 69
c. Nuclear Tests cases 72
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d. Cases brought under Article IX of the Genocide
Convention 72
e. Obligation to Prosecute or Extradite case 74
2. The content, structure and drafting history of the Genocide
Convention all exclude the possibility of an actio popularis 80
a. Content and structure of the Genocide Convention and its
Article IX 80
b. Drafting history of Article IX Genocide Convention 85
3. A comparison with the law of State responsibility confirms the
exclusion of an actio popularis 91
D. In any event, The Gambia lacks standing since any standing of noninjured
Contracting Parties is subsidiary to that of specially-affected
Contracting Parties 96
III. THIRD PRELIMINARY OBJECTION: The application is
inadmissible, as The Gambia cannot validly seise the Court due to
Myanmar’s reservation to Article VIII of the Genocide Convention 109
A. Introduction 109
B. The Court’s position on Article VIII of the Genocide Convention 111
C. Scope of Article VIII of the Genocide Convention 112
1. Valid seisin of the Court as a necessary precondition for the
Court to exercise its jurisdiction under Article IX of the
Genocide Convention 112
2. Article VIII of the Genocide Convention governs the seisin of
the Court 114
a. Wording of Article VIII of the Genocide Convention 114
b. Wording of Article VIII v. wording of Article IX of the
Genocide Convention 120
c. Drafting history of Article VIII of the Genocide
Convention 122
d. Object and purpose of Article VIII of the Genocide
Convention 132
e. Conclusion 135
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D. Legal effect of Myanmar’s Article VIII reservation 135
1. Introduction 135
2. Content of Myanmar’s Article VIII reservation 136
3. Permissibility of Myanmar’s Article VIII reservation 144
E. Conclusion 146
IV. FOURTH PRELIMINARY OBJECTION: The Court lacks
jurisdiction, or alternatively the application is inadmissible, as there
was no dispute between The Gambia and Myanmar on the date of filing
of the Application instituting proceedings 149
A. Introduction 149
B. Applicable legal principles 151
1. Necessity for the existence of a dispute 151
2. Necessity for the dispute to exist at the time of filing of the
application 152
3. Definition of a “dispute” 157
4. The requisite degree of particularity 163
5. The requirement that the “view” be a legal claim 173
6. Proof of the existence of a “dispute” 178
C. The facts relied on by The Gambia do not establish the existence of a
dispute 184
1. General 184
2. The May 2018 Dhaka Declaration 188
3. The 9 May 2018 statement by the Myanmar Ministry of Foreign
Affairs 191
4. The 2018 FFM report 193
5. The 25 September 2018 statement of the President of The
Gambia 195
6. OIC Res. No. 4/46-MM of March 2019 196
7. OIC Res. No. 61/46-POL of March 2019 199
8. Lack of response to OIC Res. No. 4/46-MM 203
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9. Adoption of the Final Communiqué of the fourteenth Islamic
Summit Conference in May 2019 204
10. The 2019 FFM report 206
11. The 16 September 2019 FFM Detailed Findings 208
12. The 26 September 2019 statement of the Vice-President of The
Gambia 209
13. The 29 September 2019 statement of the Union Minister for the
Office of the State Counsellor of Myanmar 210
14. The 11 October 2019 note verbale 212
15. The lack of response by Myanmar to the 11 October 2019 note
verbale 217
D. The dispute submitted to the Court was not The Gambia’s dispute 219
E. Conclusion 221
SUBMISSION 222
LIST OF ANNEXES AND CERTIFICATION 225
v
TABLE OF ABBREVIATIONS
AND DEFINED TERMS
2011 ILC Draft
Articles
ILC Draft Articles on the Responsibility of International
Organizations, 2011
2018 FFM report Report of the independent international fact-finding mission on
Myanmar, 27 August 2018 (submitted on 12 September 2018)
2019 FFM Detailed
Findings
Detailed findings of the Independent International Fact-Finding
Mission on Myanmar, 16 September 2019
2019 FFM report Report of the independent international fact-finding mission on
Myanmar, 8 August 2019
AG Application instituting proceedings of The Gambia, 11 November
2019
Application Application instituting proceedings of The Gambia, 11 November
2019
Convention
Against Torture
UN Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 10 December 1984
ECOSOC UN Economic and Social Council
FFM UN Independent International Fact-Finding Mission on Myanmar
The Gambia Republic of The Gambia
Genocide
Convention
Convention on the Prevention and Punishment of the Crime of
Genocide, 9 December 1948
IC Charter Charter of the Islamic Conference, 4 March 1972
ILC International Law Commission
ILC Draft Articles
on State
Responsibility
ILC Draft Articles on Responsibility of States for Internationally
Wrongful Acts, 2001
vi
MG Memorial of The Gambia, 23 October 2020
Myanmar Republic of the Union of Myanmar
OG Observations of the Republic of The Gambia for the Hearing on
Provisional Measures, 2 December 2019
OIC Organisation/Organization of Islamic Cooperation
OIC Ad Hoc
Committee
Ad Hoc Ministerial Committee on Accountability for Human Rights
Violations Against the Rohingyas established by OIC Res. No.
59/45-POL
OIC Charter Charter of the Organisation/Organization of the Islamic Conference,
14 March 2008 (as amended)
POM Preliminary Objections of Myanmar, 20 January 2021
Provisional
Measures Order
Order of the Court on the Request for the Indication of Provisional
Measures, 23 January 2020
UN United Nations
UNCLOS United Nations Convention on the Law of the Sea, 10 December
1982
USD United States dollars
USSR Union of Soviet Socialist Republics
1
INTRODUCTION
1. By an application dated 11 November 2019 and filed with the Registry of the Court on
the same date (the “Application”), the Republic of The Gambia (“The Gambia”)
instituted the present proceedings against the Republic of the Union of Myanmar
(“Myanmar”) alleging violations by Myanmar of the Convention on the Prevention
and Punishment of the Crime of Genocide (the “Genocide Convention”).1
2. The only basis for the jurisdiction of the Court invoked by The Gambia2 in its
application is Article 36, paragraph 1, of the Statute of the Court3 in conjunction with
Article IX of the Genocide Convention.4
3. The application of The Gambia included a request for the indication of provisional
measures by the Court. The Court held hearings on this request on 10-12 December
2019. By an Order of 23 January 2020 (the “Provisional Measures Order”), the
Court indicated certain provisional measures. One of these provisional measures
required Myanmar to submit a report to the Court on all measures taken to give effect
to the Provisional Measures Order within four months from the date of that Order, and
requires Myanmar to submit further reports every six months thereafter, until a final
decision on the case is rendered by the Court.
4. In compliance with that provisional measure, Myanmar submitted its first such report
on 22 May 2020, and its second report on 23 November 2020.
1 Done at Paris, 9 December 1948, UNTS, vol. 78, p. 277. The text of the English version of the Genocide
Convention is reproduced in the Memorial of The Gambia (“MG”), vol. II, Annex 1. The official Chinese,
English, French, Russian and Spanish versions are annexed to these Preliminary Objections of Myanmar
(“POM”), Annex 1.
2 See The Gambia’s Application instituting proceedings of 11 November 2019 (“AG”), paras. 16-19, 22 and
120; MG, para. 2.1.
3 Article 36, paragraph 1, of the Statute of the Court relevantly provides that “The jurisdiction of the Court
comprises … all matters specially provided for … in treaties and conventions in force”.
4 Article IX 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”.
2
5. At the hearing on provisional measures in December 2019, Myanmar argued that the
Court lacked prima facie jurisdiction to deal with the case, and that The Gambia lacked
prima facie standing to bring the case.
6. In the Provisional Measures Order, the Court found that, prima facie, it had jurisdiction
to deal with the case and that The Gambia had prima facie standing to submit the
dispute to the Court. However, those findings were made only on a prima facie basis,
and for the sole purpose of determining whether the requirements for the indication of
provisional measures were met. The Provisional Measures Order made clear that:
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.5
7. On 23 October 2020, pursuant to the order of the Court dated 23 January 2020 fixing
the time limits for the Memorial and the Counter-Memorial, as amended by a
subsequent order of 18 May 2020, The Gambia filed its Memorial.
8. Pursuant to Article 79bis, paragraph 1, of the Rules of Court, Myanmar now hereby
raises objections to the jurisdiction of the Court to deal with the merits of the case, and
to the admissibility of the application, and requests that these preliminary objections
be determined before any further proceedings on the merits.6
9. The mandatory effect of Article 79bis, paragraph 3, of the Rules of Court is that upon
receipt by the Registry of these preliminary objections, proceedings on the merits shall
be suspended.7
5 Provisional Measures Order, para. 85.
6 Article 79bis, paragraph 1, sentence 1, of the Rules of Court provides: “When the Court has not taken any
decision under Article 79, an objection by the respondent to the jurisdiction of the Court or to the
admissibility of the application, or other objection the decision upon which is requested before any further
proceedings on the merits, shall be made in writing as soon as possible, and not later than three months
after the delivery of the Memorial.”
7 Article 79bis, paragraph 3, of the Rules of Court provides: “Upon receipt by the Registry of a preliminary
objection, the proceedings on the merits shall be suspended and the Court, or the President if the Court is
not sitting, shall fix the time-limit for the presentation by the other party of a written statement of its
3
10. Myanmar raises herewith four separate preliminary objections. Each of these is
properly preliminary in character. Any one of these preliminary objections alone, if
upheld by the Court, would put an end to these proceedings with a finding by the Court
either that it lacks jurisdiction to deal with any part of the merits of the case, or that
the entirety of the application is inadmissible. Each of the preliminary objections
necessitates a decision by the Court at this preliminary stage since if any of the
preliminary objections is upheld by the Court, it must refrain from examining the
merits of the case. Each of the preliminary objections can be determined without
consideration of any part of the merits of the case.
11. As the Court has held, “the object of a preliminary objection is to avoid not merely a
decision on, but even any discussion of the merits”.8 Consistently with this, and in
accordance with Article 79ter, paragraph 1, of the Rules of Court,9 these preliminary
objections do not deal in any way with the merits of the application, or with facts
relevant to the merits of the case.
12. Myanmar does, however, wish to emphasize at the outset the following.
13. First, the raising of these preliminary objections in no way signifies a lack of respect
by Myanmar for the Court and its processes. It is recalled that at the hearing on
11 December 2019, the Agent for Myanmar began by stating that:
For materially less resourceful countries like Myanmar, the
World Court is a vital refuge of international justice. We look to
the Court to establish conditions conducive to respect for
obligations arising from treaties and other sources of
international law, one of the fundamental objectives of the United
Nations Charter.10
14. At that hearing, Myanmar objected to the indication of provisional measures.
However, the Court decided in its Provisional Measures Order to indicate certain
observations and submissions, which shall include any evidence on which the party relies. Copies of the
supporting documents shall be attached.”
8 Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports
1964, p. 6, p. 44.
9 Article 79ter, paragraph 1, of the Rules of Court provides: “Pleadings with respect to preliminary
questions, or objections filed pursuant to Article 79, paragraph 2, or Article 79bis, paragraphs 1 and 3, shall
be confined to those matters that are relevant to the preliminary questions or objections.”
10 CR 2019/19, p. 12, para. 1 (Daw Aung San Suu Kyi).
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measures, and Myanmar has respected and implemented that Order. The reports
submitted by Myanmar pursuant to that Order set out the measures it has taken to give
effect to those provisional measures.
15. Secondly, the raising of these preliminary objections does not signal any lack of
appreciation on the part of Myanmar of the importance of the Genocide Convention.
Again, it is recalled that at the hearing on 11 December 2019, the Agent for Myanmar
acknowledged the Genocide Convention to be one of the most fundamental
multilateral treaties of our time, and noted that invoking that Convention is a matter of
utmost gravity.11
16. Thirdly, the raising of these preliminary objections does not mean that the Government
of Myanmar is denying that certain crimes might have been committed during the
events of 2016 and 2017, or that Myanmar lacks awareness of the broader problems
and challenges faced in relation to northern Rakhine State.
17. At the hearing on 11 December 2019, Myanmar accepted that it cannot be ruled out
that disproportionate force was used by members of the Myanmar Defence Services in
some cases in disregard of international humanitarian law, and that this was a matter
to be determined in the due course of the criminal justice process, not by any individual
in the Myanmar Government.12 Nor could all these matters fall for determination by
this Court in these proceedings given its limited jurisdiction.13
11 CR 2019/19, p. 12, para. 2 (Daw Aung San Suu Kyi).
12 CR 2019/19, p. 15, para. 15 (Daw Aung San Suu Kyi).
13 Given that the only basis of jurisdiction relied upon by The Gambia is Article IX of the Genocide
Convention, then even if all preliminary objections were rejected by the Court, its jurisdiction would on
any view be confined to alleged breaches of the Genocide Convention. The Court could have no power to
rule on alleged breaches of other obligations under international law, not amounting to genocide, such as
crimes against humanity, war crimes and human rights norms. Furthermore, the compromissory clause in
Article IX of the Genocide Convention is confined to obligations arising under the Genocide Convention,
and would not provide the Court with jurisdiction to consider claims of violations of customary international
law obligations regarding genocide. Nor does Article IX give the Court the power to determine the criminal
responsibility of any individual for alleged acts of genocide. See 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. 43, p. 104, para. 147; Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 3,
pp. 45-48, 60, 61, paras. 85-89, 124, 129.
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18. In relation to the wider problems, the cycles of inter-communal violence in northern
Rakhine State were also spoken of at the hearing in December 2019.14 The Advisory
Commission on Rakhine State, which was chaired by the late former Secretary-
General of the United Nations (“UN”), Kofi Annan, reported in 2017 that:
Rakhine enjoys fertile soils, an abundance of natural resources
and is strategically located for regional trade. Yet, today, Rakhine
State suffers from a pernicious mix of underdevelopment, intercommunal
conflict, and lingering grievances towards the central
government. The Rakhine Advisory Commission recognizes the
complexity of the problems in the state, and cautions that there
are no “quick fix” solutions to these challenges. Yet, finding a
path to move forward is an urgent task. The status quo is not
tenable. […]
[…] The state is marked by chronic poverty from which all
communities suffer, and lags behind the national average in
virtually every area. Protracted conflict, insecure land tenure and
lack of livelihood opportunities have resulted in significant
migration out of the state, reducing the size of the work force and
undermining prospects of development and economic growth.
[…]
As witnessed by the Commission during its many consultations
across Rakhine State, all communities harbour deep-seated fears,
with the legacy of the violence of 2012 fresh in many minds.
While Muslims resent continued exclusion, the Rakhine
community worry about becoming a minority in the state in the
future. Segregation has worsened the prospects for mutual
understanding. The Government has to step up its efforts to
ensure that all communities feel safe and in doing so, restore
inter-communal cohesion. Time alone will not heal Rakhine.15
19. It is obviously regrettable that there can be no “quick fix” solutions to the myriad of
social, economic, developmental and security issues that need to be addressed in this
region, which is presently additionally afflicted by an internal armed conflict involving
the terrorist insurgent group, the Arakan Army, and terrorist activity by the Arakan
Rohingya Salvation Army. However, that does not mean that the Government of
Myanmar is not resolved to addressing them. Steps that have and are being taken have
been referred to at the hearing in December 2019, and in the two reports submitted by
Myanmar so far pursuant to the Provisional Measures Order. One key objective is the
14 CR 2019/19, p. 14, para. 10 (Daw Aung San Suu Kyi).
15 Advisory Commission on Rakhine State, Towards a Peaceful, Fair and Prosperous Future for the People
of Rakhine: Final Report of the Advisory Commission on Rakhine State, August 2017, MG, vol. IV,
Annex 103, pp. 9-10.
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restoration of inter-communal cohesion, with a view to fostering a sense of unity
amongst all of the different groups in the ethnically very diverse Union of Myanmar.16
20. The four preliminary objections that Myanmar is raising all relate to the proper
functioning of the international dispute settlement system, not just in the present case,
but in any case brought within the contentious jurisdiction of the Court, and indeed, in
any inter-State case brought before any other international court or tribunal.
21. All four preliminary objections engage the fundamental principle, now so firmly
established as not to require extensive citation of authority, that:
[the Court’s] jurisdiction is based on the consent of the parties
and is confined to the extent accepted by them […] When that
consent is expressed in a compromissory clause in an
international agreement, any conditions to which such consent is
subject must be regarded as constituting the limits thereon.17
22. This fundamental principle is no less applicable in cases involving obligations of an
erga omnes or erga omnes partes character. As the Court affirmed in the Armed
Activities case:
The Court observes, however, as it has already had occasion to
emphasize, that “the erga omnes character of a norm and the rule
of consent to jurisdiction are two different things” (East Timor
(Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102,
para. 29), and that the mere fact that rights and obligations erga
omnes may be at issue in a dispute would not give the Court
jurisdiction to entertain that dispute.
The same applies to the relationship between peremptory norms
of general international law (jus cogens) and the establishment of
the Court’s jurisdiction: the fact that a dispute relates to
compliance with a norm having such a character, which is
assuredly the case with regard to the prohibition of genocide,
cannot of itself provide a basis for the jurisdiction of the Court to
16 A description of the ethnically very diverse character of Myanmar’s population, and the history since
Myanmar’s independence of internal armed conflict involving different ethnically based insurgent groups
in different parts of the country, is given in Myanmar’s First Provisional Measures Report at paragraphs 6-
34. That report then provides a background to the current conflict in Rakhine State at paragraphs 35-77.
17 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 6, p. 39, para. 88; see also,
for instance, 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,
p. 70, p. 125, para. 131; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France),
Judgment, I.C.J. Reports 2008, p. 177, pp. 200-201, para. 48; Maritime Delimitation and Territorial
Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 6,
p. 23, para. 43.
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entertain that dispute. Under the Court’s Statute that jurisdiction
is always based on the consent of the parties.
As it recalled in its Order of 10 July 2002, the Court has
jurisdiction in respect of States only to the extent that they have
consented thereto (Armed Activities on the Territory of the Congo
(New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J.
Reports 2002, p. 241, para. 57). When a compromissory clause
in a treaty provides for the Court’s jurisdiction, that jurisdiction
exists only in respect of the parties to the treaty who are bound
by that clause and within the limits set out therein (ibid., p. 245,
para. 71).18
23. The consent of Myanmar relied upon by The Gambia is the consent that Myanmar
gave when it became a party to the Statute of the Court, and a Contracting Party to the
Genocide Convention. Myanmar has given no consent going beyond the conditions
and limits of the terms of those instruments, and in particular, the terms of Article 34,
paragraph 1, of the Statute, and the terms of Articles VIII and IX of the Genocide
Convention read in the light of Myanmar’s reservations to Articles VI and VIII.
24. The contentions in the four preliminary objections set out below were all raised by
Myanmar at the provisional measures hearing in December 2019. They were
considered by the Court at that time only upon a prima facie basis. The Court is now
requested to make a definitive decision in relation to each of these preliminary
objections.
25. The first preliminary objection is that the Court lacks jurisdiction, or alternatively
that the application is inadmissible, on the ground that the real applicant in these
proceedings is the Organisation of Islamic Cooperation (the “OIC”), an international
organization. Because Article 34, paragraph 1, of the Statute of the Court provides
that “[o]nly States may be parties in cases before the Court”, it cannot deal with a case
in its contentious jurisdiction that is in reality brought by an international organization.
Furthermore, because only States can be parties to the Genocide Convention, the OIC
as an international organization is not a party to that Convention, and therefore cannot
invoke the compromissory clause in its Article IX. The determination of who is the
18 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 6, pp. 31-32, paras. 64-65.
See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 3, p. 47, para. 88.
8
real applicant in the case is a matter of substance, not a matter of form or procedure,
and it is absolutely clear from the record that in substance the real applicant in this case
is the OIC.
26. It must therefore be emphasized that any references in these preliminary objections to
The Gambia as a “party” to these proceedings, or as the “applicant” in this case, are
intended to be understood as references to the fact that The Gambia is formally named
as the applicant in the Application instituting proceedings, and in documents filed in
Court, and in orders issued by the Court. Such references are without prejudice to
Myanmar’s position that while The Gambia may, as a matter of form, be the nominal
applicant in the case, the Court must determine issues of jurisdiction and admissibility
on the basis that, as a matter of substance, the real applicant is the OIC.
27. The second preliminary objection is that The Gambia, as a non-injured Contracting
Party to the Genocide Convention, lacks standing to bring the case against Myanmar
under Article IX thereof, because the Convention does not provide for the concept of
an actio popularis. Furthermore, The Gambia is also barred from bringing the case
because Bangladesh, as the Contracting Party specially affected by the alleged
violations of the Genocide Convention purportedly committed by Myanmar, has
entered a reservation to Article IX and has thereby waived its right to settle disputes
relating to the interpretation, application or fulfilment of the Convention by bringing
a case before the Court under that provision.
28. The third preliminary objection is that The Gambia, as a non-injured Contracting
Party to the Genocide Convention, may not seise the Court with a case arising under
that Convention since Myanmar, when acceding to the Convention, has entered a
reservation to its Article VIII. This reservation precludes non-injured States, such as
in the case at hand The Gambia, from seising the Court because Article VIII addresses
the seisin of the Court, and because Myanmar’s reservation to Article VIII, read in
conjunction with its acceptance of Article IX of the Convention, limits the scope
ratione personae of Article VIII, in relation to Myanmar, to those Contracting Parties
that are injured States, thereby excluding any form of actio popularis.
29. The fourth preliminary objection is that the Court lacks jurisdiction, or alternatively
the application is inadmissible, as there was no dispute between The Gambia and
9
Myanmar on the date of filing of the Application instituting proceedings. It is for The
Gambia to demonstrate the facts underlying its case that a dispute exists. The Gambia
has identified fourteen particular facts which it says, individually or collectively,
constitute, or evidence the existence of, a dispute prior to the filing of The Gambia’s
application on 11 November 2019.
30. Most of these facts involve the adoption of resolutions by the OIC or the issuing of
reports by the Human Rights Council’s Independent International Fact-Finding
Mission on Myanmar (the “FFM”). However, the adoption or issuing of such
documents by third parties neither constitutes nor provides evidence of a dispute
between The Gambia and Myanmar, and indeed, The Gambia’s reliance on OIC
resolutions to establish the existence of a dispute if anything supports Myanmar’s first
preliminary objection that the real applicant in the proceedings is the OIC.
31. The Gambia also relies on two statements made by The Gambia in the UN General
Assembly, one press statement issued by an official of Myanmar, and one statement
made in the UN General Assembly by Myanmar, none of which refers to genocide or
the Genocide Convention. The sole direct communication between The Gambia and
Myanmar was a note verbale sent by The Gambia to Myanmar on 11 October 2019,
only one month before The Gambia filed its Application with the Court, even though
a decision to bring these proceedings before the Court had already been taken over
seven months before the note verbale was sent. For the reasons given below, it cannot
therefore be concluded from Myanmar’s failure to respond to that note verbale within
a month that a legal dispute existed between The Gambia and Myanmar on
11 November 2019.
32. Myanmar submits that the Court should accordingly find that it is without jurisdiction
to deal with the case, or alternatively that the application is inadmissible. It goes
without saying that in the event that the Court were to find, contrary to the position set
out in these preliminary objections, that the Court has jurisdiction in the case and that
The Gambia’s application is admissible, Myanmar reserves all of its rights to respond
on the merits at the appropriate subsequent phase. Nothing contained in the present
statement can be taken in any way as implying the submission by Myanmar to the
jurisdiction of the Court in this case or as an acceptance of the admissibility of the
application, or as implying any admission of any contention of The Gambia relating to
10
the merits of the case, or of the relevance, admissibility or reliability of any evidence
submitted by The Gambia relating to the merits of the case.
11
I. FIRST PRELIMINARY OBJECTION:
The Court lacks jurisdiction, or alternatively the application is
inadmissible, as the real applicant in these proceedings is the
Organisation of Islamic Cooperation
A. Introduction
33. At the provisional measures hearing before the Court on 10-12 December 2019,
Myanmar made clear its position that the Court lacked even prima facie jurisdiction,
or alternatively that the application of The Gambia was not even prima facie
admissible, on the ground that the real applicant in this case is not in fact The Gambia,
but rather the OIC.19
34. In particular, in relation to the question of the jurisdiction of the Court, Myanmar made
clear its position that the actual seisin of the Court in this case was performed by The
Gambia as chair of an OIC Ad Hoc Committee, that is to say, in The Gambia’s capacity
as an organ of the OIC, or alternatively as “proxy” (or agent) of the OIC, and not in its
capacity as a Contracting Party to the Genocide Convention.20
35. Article 34, paragraph 1, of the Statute of the Court states that “[o]nly States may be
parties in cases before the Court”. Article 36, paragraph 1, of the Statute provides that
“[t]he jurisdiction of the Court comprises all cases which the parties refer to it”. It
follows from these provisions that it is a fundamental requirement for the existence of
the Court’s jurisdiction in a case that the applicant be a State. The Court only has
jurisdiction where a case is referred to it by an applicant that is a State, and where that
applicant State is the actual party to the proceedings. The Court has no jurisdiction to
entertain a case that is referred to it by an international organization.
36. Nevertheless, despite the fact that the role of the OIC in these proceedings was one of
the major issues at the hearing in December 2019, and despite the fact that the Court
has made clear that it has not yet determined whether the Court lacks jurisdiction in
the case or whether the application is inadmissible for the reasons given by Myanmar
19 Especially CR 2019/19, pp. 41-46, paras. 3-26 (Staker).
20 Especially CR 2019/19, p. 46, para. 23 (Staker).
12
in this respect,21 the Memorial of The Gambia quite surprisingly says absolutely
nothing about this matter.
37. In the generality of cases brought before the Court, it is of course normally undisputed
that the applicant is a State, such that it is unnecessary for the application or the
pleadings to deal in detail with the question of whether this fundamental jurisdictional
requirement is met.22 In the present case, however, The Gambia has been well aware,
at the very latest since the hearing in December 2019, that in this case there is a very
significant contested issue in this respect.
38. The Court has affirmed that it “must […] always be satisfied that it has jurisdiction,
and must if necessary go into that matter proprio motu”.23 In the Fisheries Jurisdiction
case, the Court said that:
the establishment or otherwise of jurisdiction is not a matter for
the parties but for the Court itself. Although a party seeking to
assert a fact must bear the burden of proving it […], this has no
relevance for the establishment of the Court’s jurisdiction, which
is a “question of law to be resolved in the light of the relevant
facts” […] [T]here is no burden of proof to be discharged in the
matter of jurisdiction. Rather, it is for the Court to determine
from all the facts and taking into account all the arguments
21 See paragraph 6 above.
22 See, for instance, Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections,
Judgment, I.C.J. Reports 2004, p. 279, p. 299, para. 46: “It is the view of the Court that it is incumbent
upon it to examine first of all the question whether the Applicant meets the conditions laid down in
Articles 34 and 35 of the Statute and whether the Court is thus open to it. Only if the answer to that question
is in the affirmative will the Court have to deal with the issues relating to the conditions laid down in
Articles 36 and 37 of the Statute of the Court … There is no doubt that Serbia and Montenegro is a State
for the purpose of Article 34, paragraph 1, of the Statute. However, the objection was raised by certain
Respondents … that Serbia and Montenegro did not meet, at the time of the filing of its Application on
29 April 1999, the conditions set down in Article 35 of the Statute.” (Emphasis added.) See, to the same
effect, Legality of Use of Force (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment,
I.C.J. Reports 2004, p. 429, pp. 448-449, para. 45; Legality of Use of Force (Serbia and Montenegro v.
France), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 575, p. 594, para. 45; Legality of Use
of Force (Serbia and Montenegro v. Germany), Preliminary Objections, Judgment, I.C.J. Reports 2004,
p. 720, pp. 739-740, para. 44; Legality of Use of Force (Serbia and Montenegro v. Italy), Preliminary
Objections, Judgment, I.C.J. Reports 2004, p. 865, p. 885, para. 45; Legality of Use of Force (Serbia and
Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1011, pp. 1030-
1031, para. 45; Legality of Use of Force (Serbia and Montenegro v. Portugal), Preliminary Objections,
Judgment, I.C.J. Reports 2004, p. 1160, p. 1179, para. 45; Legality of Use of Force (Serbia and Montenegro
v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 1307, p. 1326, para. 44.
23 Appeal relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Judgment, I.C.J. Reports 1972,
p. 46, p. 52, para. 13; 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, p. 43, p. 91,
para. 118; Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J.
Reports 2012, p. 99, p. 118, para. 40.
13
advanced by the Parties, “whether the force of the arguments
militating in favour of jurisdiction is preponderant, and to
‘ascertain whether an intention on the part of the Parties exists to
confer jurisdiction upon it”’.24
39. Furthermore, this passage in the Fisheries Jurisdiction case was concerned with an
issue relating to the interpretation and application of a reservation contained in one of
the parties’ declarations under Article 36, paragraph 2, of the Statute. It was not
concerned with the existence of a fact material to one of the fundamental requirements
for jurisdiction contained in the text of the Statute of itself. That case can in this respect
be contrasted with the Nuclear Arms and Disarmament cases. In the latter cases, there
was an issue as to the existence of a dispute between the parties at the time of the filing
of the applications by the Marshall Islands, which was one of the fundamental
requirements for jurisdiction contained in the text of the Statute itself. The Court
affirmed in those cases that “While it is a legal matter for the Court to determine
whether it has jurisdiction, it remains for the Applicant to demonstrate the facts
underlying its case that a dispute exists”.25
40. In relation to the requirement of the existence of a dispute, the Court has furthermore
held that “The Court’s determination of the existence of a dispute is a matter of
substance, and not a question of form or procedure”,26 that “Whether a dispute exists
is a matter for objective determination by the Court which must turn on an examination
24 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 432,
p. 450, paras. 36-37.
25 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports
2016, pp. 851-852, para. 44, also separate opinion of Judge Owada, p. 879, para. 8 (“In making this
objective determination, the Court has always been led to consider whether the party claiming the existence
of a dispute (i.e., the applicant) has established by credible evidence that its claim is positively opposed by
the other party (i.e., the respondent)”). To similar effect, see 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, p. 255, p. 272, para. 41; Obligations
concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament
(Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016, p. 552,
p. 569, para. 41.
26 E.g., 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,
p. 255, p. 270, para. 35; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 565, para. 32; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 849, para. 38.
14
of the facts”,27 and that “A mere assertion is not sufficient to prove the existence of a
dispute”.28
41. The approach taken in those cases to determining the existence of a dispute should be
followed in relation to the determination of whether or not the applicant in a case is a
State. Both the fact of the existence of a dispute, and the fact that the applicant in the
case is a State, are facts that must be established in order to satisfy fundamental
jurisdictional requirements imposed in every case by the very terms of the Court’s
Statute.
42. Thus, the question whether the applicant in the case is a State must be a matter of
substance, and not a question of form or procedure. That is to say, the Court must
determine who in substance is the real applicant in the case. Furthermore, this question
must be a matter for objective determination by the Court, which must turn on an
examination of the relevant facts. Additionally, it remains for the applicant to provide
evidence to demonstrate the facts underlying the contention that the real applicant in
the case is a State.
43. This means that in any case where the identity of the real applicant is in issue, the
Court must look beyond the narrow question of who, as a matter of form and
procedure, is named in the application as the applicant or is appearing in oral
proceedings before the Court.29 Just as a mere assertion by an applicant that a dispute
exists between it and the respondent will not suffice to establish the existence of a
dispute, the mere assertion by a State formally named as applicant in the application
that it is the real applicant in the case will not suffice to establish that this is indeed the
27 E.g., 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,
p. 255, p. 270, para 36; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 567, para. 36; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 849, para. 38.
28 E.g., Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J.
Reports 2007, p. 832, p. 874, para. 138, quoting South West Africa (Ethiopia v. South Africa; Liberia v.
South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328.
29 Thus, in 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, p. 43, p. 73, para. 67, the
Court said at the outset of its judgment that “The Court has first to consider a question concerning the
identification of the Respondent Party before it in these proceedings”.
15
case. If in fact, upon examination of the evidence and the substance of the matter, it
transpires that the real applicant in the case is an international organization, and that
the State named in the application is merely acting on its behalf, as its de facto or de
jure organ or agent, or merely as its proxy in fact, then the Court will lack jurisdiction
by virtue of Article 34, paragraph 1, and Article 36, paragraph 1, of the Statute.
44. A determination that the named applicant State is, in substance, not the real applicant
will be a simple and straightforward matter in circumstances where both the real
applicant, and the State named in the application as the applicant, declare openly and
expressly that the latter is bringing the proceedings on behalf of the former. A
determination of who is the real applicant may be more complex in other cases, where
there is no such overt acknowledgement. In cases of the latter kind, the Court is
required to undertake a consideration of the evidence and circumstances as a whole.
Relevant evidence might relate to matters such as who actually took the decision to
bring the proceedings, who has ultimate authority to determine what claims are made
in the application and how the proceedings are conducted, and who is funding the
proceedings.
45. The present case is of the former kind. It is simple and straightforward. Both the OIC
and The Gambia have on multiple occasions acknowledged that The Gambia brings
these proceedings on behalf of the OIC, having been expressly tasked by the OIC to
do so. Other OIC Members States have confirmed this, and other States, the
international media, non-governmental organizations, and others, openly refer to this
precise fact. In such circumstances, it is clear that the OIC is the real applicant in this
case, even without any closer examination of the facts and evidence. However, if such
a closer examination were to be undertaken, this will confirm the fact that the OIC is
indeed the real applicant in the current proceedings.
46. Where consideration of the substance of the matter leads to the conclusion that the real
applicant in the case is not the State formally named as applicant in the application,
then the jurisdiction of the Court must fall to be determined on the basis of the status
of the true applicant.
47. Thus, if the applicant named in the application is State A, but the Court finds that in
substance the real applicant is State B, then the question of the jurisdiction of the Court
16
falls to be determined on the basis that the applicant State is State B. In such a case,
if the sole basis of jurisdiction invoked in the application is the compromissory clause
in a treaty to which State A and the respondent State are parties, but to which State B
is not, then the Court will have no jurisdiction in the case. However, if State B is also
a party to that treaty without any relevant reservation, and if all jurisdictional
requirements are otherwise met in relation to State B, and if the Court is satisfied that
State A has been duly authorized to bring the case on behalf of State B, then the Court
might well have jurisdiction, notwithstanding that proceedings are brought in the name
of State A on behalf of State B.
48. On the other hand, if the applicant named in the application is State A, but the Court
finds that in substance the real applicant is an international organization, or a nongovernmental
organization, or a corporation or other entity, then the Court will
inevitably lack jurisdiction in the case. This is because only States may be parties in
cases before the Court in accordance with Article 34 of the Court’s Statute.
49. Myanmar accordingly submits that in the present case, because the real applicant is the
OIC, an international organization, the Court lacks jurisdiction.
50. Myanmar submits in the alternative that even if it were the case (sed quod non) that
the jurisdiction of the Court falls to be determined solely by reference to who is named
as applicant in the application instituting proceedings, an application would
nonetheless be inadmissible if, in reality, the case is brought by the named applicant
on behalf of another State or entity that could not itself have brought the proceedings
as the applicant in the case. As a matter of general principle, even if the Court has
jurisdiction in a case, it should decline to exercise that jurisdiction if the effect of doing
so would in substance lead to a circumvention of the limitations on the Court’s
jurisdiction. The function of the Court is to decide legal disputes between States
entitled to appear before it. If, in substance, an exercise of jurisdiction would lead the
Court to decide a dispute brought by a State or entity not entitled to appear before it,
then a refusal by the Court to exercise that jurisdiction would be necessary to safeguard
the Court’s judicial function.
51. Furthermore, it could additionally amount to an abuse of process for a State or entity
which cannot itself bring a case before this Court to circumvent the limits of the
17
Court’s jurisdiction by using a nominal applicant State to bring proceedings on its
behalf, and could amount to an abuse of process on the part of the nominal applicant
State to seek to facilitate this.
52. It may well be that there are proponents of the view that the jurisdiction of the Court
should be expanded, to enable contentious cases to be brought by international
organizations, or even by non-governmental organizations, and other entities such as
private corporations. However, it is clear that any steps in this direction could be
achieved only by amendments to the Court’s Statute. Unless and until any relevant
amendment is made to the Statute, and none appears likely in the foreseeable future, it
remains the duty of the Court to give effect to the existing provisions of the Statute
concerning its jurisdiction which, as the Court has consistently emphasized, are based
on the consent of the States Parties thereto.
53. It is unnecessary to speculate as to the wide range of potential abuses that might be
practised if the possibility of bringing cases before the Court via the use of “proxy”
applicant States was open to other States, international organizations, nongovernmental
organizations, corporations and other entities. Such a possibility would
for instance raise the prospect of corporations with their own commercial agendas
simply paying a willing State to be named as applicant in a case brought before the
Court, in which the corporation and its legal advisors would be given the liberty by the
government of the applicant State to conduct the entire proceedings as they please. It
would also raise the prospect of a State with no particular interest in the subject matter
of a case agreeing to be the nominal applicant in proceedings before the Court on
behalf of another State or entity, in return for that other State’s or entity’s support in
relation to a completely unrelated matter. Such possibilities would run completely
counter to what States Parties to the Statute of the Court have consented to, which is
that the Court’s function is to decide real disputes that exist between the actual parties
to the case, in circumstances where the Court has jurisdiction over those parties in
relation to the subject matter of that dispute.30
30 See, for instance Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, I.C.J.
Reports 2005, p. 6, pp. 22-25, paras. 39-46, in which the Court, referring to earlier case law, affirmed that
in determining whether a dispute was of a kind that falls within the terms of a particular compromissory
clause, it is required to determine the “source or real cause” of the dispute.
18
54. In cases before the Court involving the use of a “proxy” State as the nominal applicant,
it is likely in practice to be impossible for the respondent State or the Court to know
exactly what communications and dealings have taken place between the nominal
applicant State and the real applicant. The confidentiality of the dealings between the
two in relation to the matter is likely to be closely guarded. However, the jurisdiction
of the Court (or alternatively, admissibility of the application) should not turn on the
nature of the precise dealings between the two, or the exact motivations of the proxy
State for agreeing to bring the proceedings. Rather, in any case in which it is
established that the State named in the application instituting proceedings is not the
real applicant in the case, as a matter of principle, the jurisdiction of the Court, or
alternatively the admissibility of the application, must be determined by reference to
the identity of the real applicant.
55. In the present case, as is demonstrated below, the public record makes it absolutely
clear that the real applicant in this case is the OIC, and that The Gambia brings these
proceedings as the OIC’s organ, agent or proxy.
56. The arguments in relation to this preliminary objection are structured as follows.
Paragraphs 57-68 below set out relevant background information on the OIC.
Paragraphs 69-137 below then set out the events relevant to this preliminary objection.
In the light of these matters, paragraphs 138-161 demonstrate that the OIC is indeed
the real applicant in this case. Paragraphs 162-185 below accordingly elaborate in
further detail the reasons why the Court consequentially lacks jurisdiction in this case.
Paragraphs 186-206 below then deal with the alternative reasons why, in the
circumstances, the application of The Gambia is inadmissible.
B. The Organisation of Islamic Cooperation
57. The OIC is an international organization, formerly known as the Organization of the
Islamic Conference. It was established by the Charter of the Islamic Conference,31
which entered into force on 28 February 1973 (the “IC Charter”).32 The IC Charter
31 Done at Jeddah on 4 March 1972, UNTS, vol. 914, p. 103, POM, Annex 5.
32 Ibid., p. 111, footnote 1.
19
was replaced by the Charter of the Organization of the Islamic Conference (the “OIC
Charter”), done at Dakar on 14 March 2008,33 which entered into force on 2 April
2017 in accordance with Article XI of the IC Charter.34
58. The text of the OIC Charter, as amended by three subsequent amendments, appears
inter alia on the OIC website.35 One of these subsequent amendments changed the
name of the organization to its current name. The other two are not material to the
present case.
59. According to the OIC’s website, it presently has 57 Member States.36,37 The Gambia
is a Member State. Other Member States include Bangladesh, Indonesia, Malaysia,
the Maldives, Nigeria, Pakistan, Turkey and Saudi Arabia.
60. The objectives of the OIC are set out in Article 1 of the OIC Charter, which states in
part as follows:
The objectives of the Organisation of Islamic Cooperation shall
be:
[…]
16. To safeguard the rights, dignity and religious and cultural
identity of Muslim communities and minorities in non-
Member States;
17. To promote and defend unified position on issues of
common interest in the international fora; […]
61. Article 29, paragraph 1, of the OIC Charter further provides that “The budget of the
General Secretariat and Subsidiary Organs shall be borne by Member States
proportionate to their national incomes”. Article 29, paragraph 2, stipulates that:
The Organisation may, with the approval of the Islamic Summit
or the Council of Foreign Ministers, establish special funds and
33 POM, Annex 12.
34 Ibid., p. 1.
35 POM, Annex 13.
36 POM, Annex 90.
37 Article 3, paragraph 1, of the OIC Charter provides that “The Organisation is made up of 57 States member
of the Organisation of Islamic Cooperation and other States which may accede to this Charter in accordance
with Article 3 paragraph 2”: POM, Annex 13.
20
endowments (waqfs) on voluntary basis as contributed by
Member States, individuals and Organisations. These funds and
endowments shall be subjected to the Organisation’s financial
system and shall be audited by the Finance Control Organ
annually.
62. Article 5 of the OIC Charter lists the organs of the OIC. The first two listed are the
Islamic Summit and the Council of Foreign Ministers.
63. The Islamic Summit is dealt with in Articles 6 to 9 of the OIC Charter. Article 6
provides that the “Islamic Summit is composed of Kings and Heads of State and
Government of Member States and is the supreme authority of the Organisation”.
Article 7 provides that:
The Islamic Summit shall deliberate, take policy decisions and
provide guidance on all issues pertaining to the realization of the
objectives as provided for in the Charter and consider other issues
of concern to the Member States and the Ummah.
64. The Council of Foreign Ministers is dealt with in Article 10 of the OIC Charter.
Article 10, paragraph 1, provides that the Council of Foreign Ministers shall be
convened once a year in one of the Member States. Article 10, paragraph 4, provides
that:
The Council of Foreign Ministers shall consider the means for
the implementation of the general policy of the Organisation by:
a. Adopting decisions and resolutions on matters of common
interest in the implementation of the objectives and the
general policy of the Organisation;
b. Reviewing progress of the implementation of the decisions
and resolutions adopted at the previous Summits and
Councils of Foreign Ministers;
c. Considering and approving the programme, budget and
other financial and administrative reports of the General
Secretariat and Subsidiary Organs;
d. Considering any issue affecting one or more Member States
whenever a request to that effect by the Member State
concerned is made with a view to taking appropriate
measures in that respect;
e. Recommending to establish any new organ or committee;
f. Electing the Secretary General and appointing the Assistant
Secretaries General in accordance with Articles 16 and 18
of the Charter respectively;
21
g. Considering any other issue it deems fit.
65. Article 16 provides that “The General Secretariat shall comprise a Secretary-General,
who shall be the Chief Administrative Officer of the Organisation and such staff as the
Organisation requires”. Article 17 provides that:
The Secretary General shall assume the following
responsibilities:
[…]
b. Follow-up the implementation of decisions, resolutions and
recommendations of the Islamic Summits, and Councils of
Foreign Ministers and other Ministerial meetings;
c. Provide the Member States with working papers and
memoranda, in implementation of the decisions, resolutions
and recommendations of the Islamic Summits and the
Councils of Foreign Ministers;
d. Coordinate and harmonize, the work of the relevant Organs
of the Organisation;
e. Prepare the programme and the budget of the General
Secretariat;
f. Promote communication among Member States and
facilitate consultations and exchange of views as well as the
dissemination of information that could be of importance to
Member States;
g. Perform such other functions as are entrusted to him by the
Islamic Summit or the Council of Foreign Ministers; […]
66. Article 22 stipulates that:
The Organisation may establish Subsidiary Organs, Specialized
Institutions and grant affiliated status, after approval of the
Council of Foreign Ministers, in accordance with the Charter.
67. Article 23 specifies that:
Subsidiary organs are established within the framework of the
Organisation in accordance with the decisions taken by the
Islamic Summit or Council of Foreign Ministers and their
budgets shall be approved by the Council of Foreign Minister.
68. Of the 57 Member States of the OIC, 13 are not parties to the Genocide Convention
(Indonesia, Brunei-Darussalam, Chad, Djibouti, Suriname, Sierra Leone, Somalia,
Oman, Guyana, Qatar, Cameroon, Mauritania and Niger), an additional five are parties
22
but have made reservations to Article IX of the Convention to the effect that their
consent to the bringing of proceedings before this Court is required in each individual
case (Bahrain, Bangladesh, Malaysia, Morocco and Yemen), and a further two have
made reservations to the effect that they do not accept the jurisdiction of the Court
pursuant to Article IX at all (United Arab Emirates and Algeria).38
C. Events relevant to this case
69. The forty-fifth session of the Council of Foreign Ministers of the OIC was held in
Dhaka, Bangladesh, on 5 and 6 May 2018.
70. Already several weeks beforehand, it had been announced by the Foreign Minister of
Bangladesh that at this session, the “Rohingya problem in its humanitarian and human
rights aspects is going to get prominence”, and that there would be “a separate sideline
session on the humanitarian challenges of the Muslim world with special focus on the
Rohingyas on 6 May 2018”.39
71. At this session, the OIC Council of Foreign Ministers adopted OIC Res. No. 59/45-
POL.40 This resolution provides for the establishment of a new OIC Ad Hoc
Ministerial Committee on Accountability for Human Rights Violations Against the
Rohingyas (the “OIC Ad Hoc Committee”). The operative paragraphs of the
resolution state as follows:
The OIC member states decide to:
1. Establish a 10-member ad hoc Ministerial Committee on
Accountability for human rights violations against the
Rohingya (MCCAR) including the OIC Secretariat, to be
chaired by the Gambia;
38 MG, vol. II, Annex 2.
39 Bangladesh, Ministry of Foreign Affairs, “Statement by H.E. Mr. Md Shahriar Alam, MP, Hon’ble State
Minister for Foreign Affairs of Bangladesh at BIISS-organised seminar at BICC on the theme- “Upcoming
45th Council of Foreign Ministers (CFM) of OIC, Dhaka: Revisiting A Shared Journey; 10: 10 AM”,
updated 29 March 2018, POM, Annex 108. See also, for instance, United News of Bangladesh
(Bangladesh), “PM to open OIC-CFM Saturday; Rohingya issue on focus”, 2 May 2018, POM, Annex 141.
40 OIC Res. No. 59/45-POL, On The Establishment of an OIC Ad Hoc Ministerial Committee on
Accountability for Human Rights Violations Against the Rohingyas, May 2018, POM, Annex 91.
23
2. The ad hoc committee will,
a. Engage to ensure accountability and justice for gross
violations of international human rights and
humanitarian laws and principles;
b. Assist in information gathering and evidence collection
for accountability purposes
c. Mobilize and coordinate international political support
for accountability for the Human Rights Violations
against the Rohingys in Myanmar
d. Collaborate with the international bodies, such as,
office of the United Nations High Commissioner for
Human Rights, United Nations Security Council, and
other international and regional mechanisms.
72. The full membership of the OIC Ad Hoc Committee appears not to have been made
public. However, it appears that in addition to The Gambia and the OIC Secretariat,
its members include Bangladesh and Malaysia,41 two States that have made
reservations to Article IX of the Genocide Convention (see paragraph 68 above).
73. At that same session of the OIC Council of Foreign Ministers in May 2018, the Foreign
Ministers and Heads of Delegations of Member States of the OIC adopted the “Dhaka
Declaration”.42 This document includes the statement that:
We welcome the resolution adopted on the situation of the
Rohingya community of Myanmar and in this regard, agree to
address the accountability issue for the violations of human rights
against the Rohingyas in Myanmar through formation of an ad
hoc ministerial committee, to be chaired by Gambia […]43
74. Subsequently, on 25 September 2018, the President of The Gambia said in a statement
at the UN General Assembly that:
As the upcoming Chair of the next OIC summit, The Gambia has
undertaken, through a Resolution, to champion an accountability
41 The resolution itself indicates that two of its members are The Gambia and the OIC Secretariat. Press
releases issued by the Embassy of Bangladesh in The Hague and by the Malaysian Ministry of Foreign
Affairs indicate that those States are also members. See Embassy of Bangladesh, The Hague, Press Release,
“Bangladesh supports OIC backed initiative by The Gambia in the International Court of Justice (ICJ)”,
12 November 2019 (final paragraph), POM, Annex 112, and paragraph 117 below.
42 MG, vol. VII, Annex 203.
43 Ibid., para. 17.
24
mechanism that would ensure that perpetrators of the terrible
crimes against the Rohingya Muslims are brought to book.44
75. According to a 22 January 2019 press release issued by the OIC,45 a coordination
meeting for the Members of the OIC Ad Hoc Committee was convened on the sidelines
of the Senior Officials Meeting Preparatory to the forty-sixth session of the OIC
Council of Foreign Ministers. The press release indicates that the meeting, chaired by
The Gambia, discussed the preparations and agenda of the inaugural session of the
OIC Ad Hoc Committee due to be held in Banjul, The Gambia, on 10 February 2019.
76. On 10 February 2019, the OIC Ad Hoc Committee held its inaugural meeting in The
Gambia. According to a report in an online newspaper in The Gambia:
The Organisation for Islamic Cooperation (OIC) Ad Hoc
Ministerial Committee on Accountability for Human Rights
Violations Against the Rohingya ended Sunday its meeting in
The Gambia with a renewed commitment to apply more pressure
on Myanmar as the Muslim minority continues to face
persecution.
“The OIC must not leave it to others alone to demand
accountability for crimes committed against fellow Muslims,
especially when the affected Muslim community constitutes a
minority in a State as the Rohingyas are in Myanmar,” said The
Gambia’s Justice Minister Aboubacarr Tambadou in a statement
delivered during the inaugural meeting of the OIC Ad Hoc
Ministerial Committee held at Labranda Coral Beach Resort &
Spa in Brufut. […]
Tambadou added that the Rohingya crisis provides the OIC with
a unique opportunity to assert its leadership role in matters
affecting Muslim minority communities across the globe.
These minority groups, he argued, deserve the collective voice,
support and solidarity of the OIC. He then added: “The OIC must
therefore speak for them. When international crimes are
committed against them, it must be the responsibility of the OIC
to lead international calls for accountability. […]
The meeting, which was attended by a panel of experts, adopted
a series of measures that would be tabled before the Council of
44 UN General Assembly, 73rd Session, 7th Plenary Meeting, Address by Mr. Adama Barrow, President of
the Republic of the Gambia, UN doc. A/73/PV.7 (25 September 2018), p. 6, MG, vol. III, Annex 41.
45 OIC, Press Release, “OIC Convenes Coordination Meeting for Ministerial Committee on Accountability
for Human Rights Violations against the Rohingya”, 22 January 2019, POM, Annex 92.
25
Foreign Ministers in March this year in Abu Dhabi, United Arab
Emirates.46
77. Details of the “series of measures” adopted at that meeting of the OIC Ad Hoc
Committee, for tabling before the next session of the OIC Council of Foreign
Ministers, have not been made public. However, as explained below, other documents
indicate that it involved the bringing of proceedings before this Court.47 This statement
made in the media in The Gambia by its Justice Minister in February 2019 already
indicated that this was an initiative of the OIC.
78. The forty-sixth session of the Council of Foreign Ministers of the OIC was then held
in Abu Dhabi on 1 and 2 March 2019. At that session, a resolution was adopted in
terms almost identical to the 2018 OIC resolution referred to in paragraph 71 above
(“OIC Res. No. 60/46-POL”).48
79. At that same session, the Council of Foreign Ministers of the OIC also adopted a
further resolution (“OIC Res. No. 61/46-POL”).49 A preambular paragraph to this
resolution read as follows:
Welcoming the inaugural meeting of the OIC Ad Hoc Ministerial
Committee on Accountability for Human Rights Violations
Against the Rohingya, held in Banjul, Republic of the Gambia,
on 10 February 2019, and welcoming also the Ad Hoc
Committee’s plan of action as reflected in the report of the
inaugural meeting.
80. The operative paragraphs of this resolution stated:
The OIC Member States decide to:
1. Endorse the Ad Hoc Committee’s plan of action to engage
in international legal measures to fulfill the Ad Hoc
Committee’s mandate;
46 Kairo News (The Gambia), “OIC Piles Pressure on Myanmar”, 11 February 2019 (emphasis added), POM,
Annex 143. See also Freedom Newspaper (The Gambia), “OIC Pushes for Increased Pressure on
Myanmar”, 10 February 2019, POM, Annex 142.
47 See paragraphs 81-84 below.
48 OIC Res. No. 60/46-POL, On The Establishment of an OIC Ad hoc Ministerial Committee on
Accountability for Human Rights Violations Against the Rohingyas, March 2019, POM, Annex 93.
49 OIC Res. No. 61/46-POL, The Work of the OIC Ad hoc Ministerial Committee on Accountability for
Human Rights Violations Against the Rohingya, March 2019, POM, Annex 94.
26
2. Call upon member states to contribute voluntarily to the
budget of the plan of action and to assist the General
Secretariat to allocate other resources needed to implement
the plan of action.
3. Decide to remain seized of this matter.50
81. The OIC Ad Hoc Committee’s “plan of action” referred to in this resolution has not
been made public. However, the adoption of this second OIC resolution in 2019 is
described in two press releases issued by the Ministry of Foreign Affairs of
Bangladesh. The first, dated 1 March 2019, states:
At the 46th session of the OIC Council of Foreign Ministers
today in Abu Dhabi, Bangladesh Foreign Minister Dr. A K Abdul
Momen, MP called for collective action to ensure accountability
and justice to the Rohingyas and their immediate repatriation to
their homeland in the Rakhine state of Myanmar. He was
referring to the OIC’s decision to pursue the legal path to justice
through the International Court of Justice (ICJ) – as was decided
in the Banjul meeting of the OIC Ministerial Committee early
last month this year.51
82. This press release contains no relevant reference to The Gambia, other than to state
that the February 2019 meeting of the OIC Ad Hoc Committee had been held in The
Gambia.52
83. The second press release of the Ministry of Foreign Affairs of Bangladesh, dated
4 March 2019, states:
OIC, in a major diplomatic breakthrough, unanimously adopted
a resolution to move at the International Court of Justice (ICJ)
for establishing the legal rights of the Rohingyas and addressing
50 The same session of the OIC Council of Foreign Ministers also adopted OIC Res. No. 4/46-MM, On The
Situation of the Muslim Community in Myanmar, MG, vol. VII, Annex 204, which stated (at p. 24,
para. 34) that the Council “Calls upon Members of the OIC Ad hoc Ministerial Committee on
Accountability for Human Rights Violations Against the Rohingya to carry out the tasks of ensuring
accountability and justice for gross violations of international human rights and humanitarian laws and
principles; Assisting in information gathering and evidence collection for accountability purposes;
Mobilizing and coordinating international political support for accountability for the Human Rights
Violations against the Rohingya in Myanmar”.
51 Bangladesh, Ministry of Foreign Affairs, Press Release, “Foreign Minister calls for fighting international
terror and repatriation of the Rohingya to their homeland in Myanmar”, 1 March 2019, updated 3 March
2019 (emphasis added), POM, Annex 109.
52 The only other reference in this press release to The Gambia is in the final sentence, which, dealing with
unrelated matters, states that “The Foreign Minister also met his counterparts from the Maldives, Indonesia,
the Gambia, Malaysia and several other key Ministers on the sidelines of the CFM and discussed issues
related to cooperation in Blue Economy, production, finance and trade”.
27
the question of accountability and justice. The resolution to
pursue a legal recourse through the ICJ came after a long series
of negotiations to seek accountability for crimes committed
against humanity and gross violation of human rights in the case
of the Rohingyas in Myanmar.
The Gambia led the process with a ten-member high-powered
ministerial committee. The Committee’s first meeting was cochaired
by the Gambia in Banjul last month on the 10th of
February. It recommended taking legal steps for establishing
legal rights on the principles of international law – specifically
the Genocide Convention and other Human Rights and
Humanitarian Law principles.
This unanimous measure sets a precedent for [the] OIC in
pursuing the legal path to justice to address crimes committed
against humanity and for establishing the legal rights of the
Rohingya population to their rightful homeland in the Rakhine
state of Myanmar.
The Committee’s decision was endorsed in a full-fledged
resolution and adopted in the final session of the 46th Council of
Foreign Ministers in Abu Dhabi on the last day of the Council
meeting. Bangladesh Foreign Minister Dr. A K Abdul Momen
led a high-powered delegation to the Council and to the
negotiations in the Special Committee in this regard.53
84. The OIC Journal also published an article following this session of the OIC Council
of Foreign Ministers which stated that the OIC Ad Hoc Committee had decided by
consensus at its inaugural meeting on 10 February 2019 “that the Ad Hoc Committee’s
[sic] would pursue legal action against Myanmar before the International Court of
Justice”, and that “This course of action was subsequently approved by the 46th Session
OIC Council of Foreign Ministers […] with the adoption of Resolution No. 61/46”.54
85. Several observations can be made at this stage.
86. First, it is apparent from these documents that the proposal to bring a case before this
Court was formulated by the OIC Ad Hoc Committee at its inaugural meeting on
10 February 2019, and that this proposal was endorsed by the OIC Council of Foreign
Ministers in March 2019 in Resolution No. 61/46.
53 Bangladesh, Ministry of Foreign Affairs, Press Release, “OIC Okays Legal Action Against Myanmar at the
International Court of Justice (ICJ) in Abu Dhabi”, 4 March 2019 (emphasis added), POM, Annex 110.
54 OIC, “Ad Hoc Ministerial Committee on Accountability for Human Rights Violations Against the
Rohingya Meets in Gambia”, OIC Journal, No. 42, January-April 2019, p. 24 (emphasis added), POM,
Annex 95.
28
87. Secondly, it is obvious that if it had been The Gambia that had wanted to bring a case
before this Court against Myanmar, it would not have needed the approval or the
endorsement of the OIC to do so. Nor would it have been necessary within the OIC to
have a “long series of negotiations”, leading to “a major diplomatic breakthrough”, or
for the OIC to adopt a formal resolution endorsing a plan of action of the OIC Ad Hoc
Committee. Once it is established that the plan of action of the OIC Ad Hoc Committee
involved bringing these proceedings against Myanmar before this Court, it is evident
that the negotiations, diplomatic breakthrough and formal OIC resolution were
necessary because the OIC itself proposed to bring the case. Thus, the press releases
of the Ministry of Foreign Affairs of Bangladesh indicate that the OIC Ad Hoc
Committee “recommended” bringing a case before this Court, and that the OIC
Council of Foreign Ministers “endorsed” this. These press releases refer to “collective
action” which “sets a precedent for the OIC in pursuing the legal path to justice”.55
According to the earlier February 2019 statement of The Gambia’s Minister for
Justice,56 “the Rohingya crisis provides the OIC with a unique opportunity to assert its
leadership role”.57 The article in the OIC Journal states that the OIC Ad Hoc
Committee would pursue legal action before the Court. Operative paragraph 1 of OIC
Res. No. 61/46-POL makes clear that the taking of the agreed “international legal
measures” would “fulfill the Ad Hoc Committee’s mandate”.
88. A further 30 May 2019 press release issued by the Ministry of Foreign Affairs of
Bangladesh states that:
He [the Foreign Minister of Bangladesh] appreciated the Gambia
led initiative of taking legal recourse to establish Rohingya rights
and address their justice question at the International Court of
Justice against Myanmar. 58
55 Emphasis added.
56 See paragraph 76 above.
57 Emphasis added.
58 Bangladesh, Ministry of Foreign Affairs, Press Release, “Foreign Minister highlights the need for solidarity
among the member states of OIC”, 30 May 2019 (emphasis added), POM, Annex 111.
29
89. Tellingly, this press release, once again, does not speak of The Gambia bringing a case
before this Court, but rather speaks of an initiative to bring a case before this Court,
and says only that this initiative is being led by The Gambia.
90. Subsequently, on 31 May 2019, the fourteenth Islamic Summit Conference was held
in Makkah (Mecca), Saudi Arabia. The Final Communiqué of that Islamic Summit
Conference states at paragraph 47:
The Conference affirmed its support for the ad hoc ministerial
committee on human rights violations against the Rohingyas in
Myanmar, using all international legal instruments to hold
accountable the perpetrators of crimes against the Rohingya. In
this connection, the Conference urged upon the ad hoc
Ministerial Committee led by the Gambia to take immediate
measures to launch the case at the International Court of Justice
on behalf of the OIC.59
91. The French version of this document states:
La Conférence a confirmé son soutien au Comité ministériel ad
hoc chargé d’examiner les violations des droits humains
perpétrées contre les musulmans Rohingyas au Myanmar en
recourant aux instruments juridiques internationaux pour amener
les auteurs des crimes commis contre les Rohingyas à rendre
compte de leurs actes. À cet égard, la Conférence a exhorté le
Comité ministériel ad hoc dirigé par la Gambie à prendre des
mesures immédiates pour engager la procédure nécessaire devant
la Cour internationale de Justice au nom de l’OCI.60
92. This Final Communiqué could not be clearer. In it, the Islamic Summit, an organ and
the supreme authority of the OIC,61 requests the OIC Ad Hoc Committee, another OIC
organ, “to take immediate measures to launch the case at the International Court of
Justice on behalf of the OIC”. It states unequivocally that measures to launch the case
before this Court are to be taken by the OIC Ad Hoc Committee, and that the OIC Ad
Hoc Committee is to do so on behalf of the OIC. The Gambia is referred to here only
in its capacity as the leader of the OIC Ad Hoc Committee.
59 Final Communiqué of the 14th Islamic Summit Conference, 31 May 2019, pp. 10-11, para. 47, MG,
vol. VII, Annex 205 (emphasis added), referred to in AG, fn. 31 and accompanying text.
60 Ibid., French version, POM, Annex 96.
61 See paragraph 63 above.
30
93. This Final Communiqué is referred to in a 3 June 2019 press release of the Office of
the President of The Gambia, which states that:
The government of The Gambia has been tasked by the
Organization of Islamic Cooperation to use all international legal
instruments to hold accountable the perpetrator of crimes against
the Rohingyas in Myanmar.
The 2019 Makkah Summit asked The Gambia to lead a strong
ad hoc Ministerial Committee to take immediate measures to
launch the case at the International Court of Justice on behalf of
the OIC.62
94. This statement of the Office of the President of The Gambia is equally clear. Measures
to launch the case before this Court were to be taken by the OIC Ad Hoc Committee
on behalf of the OIC. As leader of the OIC Ad Hoc Committee, The Gambia had been
“tasked” by the OIC to take the necessary action.
95. A press release of The Gambia’s State House on 6 July 2019 then announces the
conclusions of a Cabinet meeting in The Gambia held on 4 July 2019 in the following
terms:
The Hon Attorney General and Minister of Justice presented a
paper on the OIC proposal for The Gambia to lead the
international legal action against Myanmar at the International
Court of Justice. […]
Cabinet has approved the proposal of the OIC for The Gambia to
lead the international legal action against Myanmar at the
International Court of Justice (ICJ). Cabinet also approved the
appointment of the Hon Attorney General and Minster of Justice
to represent The Gambia throughout the proceedings at the ICJ.63
96. Thus, the Government of The Gambia itself announced that the proceedings before
this Court were being brought on the proposal of the OIC, and that the role of The
Gambia pursuant to this OIC proposal was to “lead” the action. The Government of
The Gambia also announced that it “approved” the OIC proposal. In short, the press
release is confirmation by the Office of the President of The Gambia that The Gambia
62 The Gambia, Office of the President, Press Release, “OIC tasks The Gambia to lead ICJ case against
Myanmar”, 3 June 2019 (emphasis added), POM, Annex 119.
63 The Gambia, Office of the President, Press Release, “Cabinet approves transformation of GTTI into
University of Science, Technology and Engineering”, 6 July 2019, POM, Annex 120. See also, for
instance, Panapress (Senegal), “Gambian gov’t approves OIC proposal to lead legal action against
Myanmar at ICJ”, 6 July 2019, POM, Annex 144.
31
is bringing these proceedings before this Court not only on behalf of, but at the behest
of, the OIC.
97. This perception was shared within the United Nations. On 10 July 2019, at the fortyfirst
session of the Human Rights Council, the Special Rapporteur on the situation of
human rights in Myanmar stated that:
I welcome the decision by the Organisation of Islamic
Cooperation to pursue a case at the International Court of
Justice under the Genocide Convention.64
98. Significantly, no mention at all is made of The Gambia in this statement. This
statement of the Special Rapporteur is evidence that outside the OIC itself, it was
understood internationally that the proposed proceedings were to be brought by the
OIC.
99. A report of the OIC Ad Hoc Committee dated 25 September 201965 then says as
follows:
4. The Meeting called upon all Member States to support the
work of the Ad Hoc Ministerial Committee to pursue justice
and accountability for the Rohingya people;
5. The Meeting reiterated that the decision to pursue a legal
case in the International Court of Justice (ICJ) was endorsed
by Resolutions at the 46th CFM in Abu Dhabi and by the
Final Declaration of the 14th OIC Heads of State Summit in
Makkah Al Mukarramah; […]
7. The Meeting was briefed by The Gambia on the legal case
to be presented to the International Court of Justice (ICJ) in
line with Council of Foreign Ministers and Summit
decisions;
8. The Meeting acknowledged The Gambia’s prerogative to
select a legal firm to pursue the case in the ICJ and took note
of The Gambia’s choice of the legal firm;
9. The Meeting acknowledged the substantial costs required to
proceed with the legal case and called upon all OIC Member
States to provide assistance on a voluntary basis, in
64 UN Office of the High Commissioner for Human Rights, Oral Update to 41st Session of the Human Rights
Council by the Special Rapporteur on the situation of human rights in Myanmar [10 July 2019] (emphasis
added), POM, Annex 80.
65 OIC, Report of the Ad Hoc Ministerial Committee on Human Rights Violations Against the Rohingya,
OIC/ACM/AD-HOC ACCOUNTABILITY/REPORT-2019/FINAL, 25 September 2019, POM, Annex 97.
32
accordance with the principles of burden-sharing and shared
responsibility, and in the spirit of Islamic solidarity;
10. The Meeting invited the Chair of the Ad Hoc Ministerial
Committee and the OIC Secretary General to coordinate
contacts with Member States and other international
partners for raising funds for the legal case at the ICJ and to
supervise those funds and any disbursements thereof.
11. The Meeting requested the Chair of the Ad Hoc Ministerial
Committee to provide comprehensive briefing, including on
the financial and legal process, to the Committee and submit
a comprehensive report to the next meeting of the Council
of Foreign Ministers;
12. The Meeting recommended adding an item on pledges for
the legal case undertaken by The Gambia to the agenda of
the 47th session of the Council of Foreign Ministers.
13. The Meeting also requested the Islamic Development Bank
(IsDB) and the Islamic Solidarity Fund (ISF) to provide
necessary assistance to Ad Hoc Committee in pursuing its
mandate and with the legal case;
100. This document makes clear that these proceedings before the Court are funded by
contributions from OIC Member States66 (as was already envisaged by paragraph 2 of
OIC Res. No. 61/46-POL),67 that supervision of the funds is entrusted to the Chair of
the OIC Ad Hoc Committee and the OIC Secretary-General,68 and that assistance was
also requested from the Islamic Development Bank and the Islamic Solidarity Fund.69
Paragraph 8 of this document is also noteworthy, in its acknowledgement of the right
of The Gambia to select the law firm to pursue the case. If The Gambia were the real
applicant in this case, its prerogative to make its own choice of legal representatives
would be so evident as to require no mention. This paragraph indicates that in the
context of this OIC initiative, The Gambia needed to be authorized by the OIC to make
that choice, the authorization being given via this decision of the OIC Ad Hoc
Committee.
66 Ibid., paras. 9-12.
67 See paragraphs 79 and 80 above.
68 OIC, Report of the Ad Hoc Ministerial Committee on Human Rights Violations Against the Rohingya,
OIC/ACM/AD-HOC ACCOUNTABILITY/REPORT-2019/FINAL, 25 September 2019, para. 10, POM,
Annex 97.
69 Ibid., para. 13.
33
101. A media article dated 25 September 2019 then states that the Prime Minister of
Malaysia, in the context of this OIC meeting:
praised the Organisation of Islamic Conference (OIC) for
attempting to seek legal redress for the stateless Rohingya
through the International Court of Justice, saying that other
countries should support the OIC […]70
102. This article makes no mention of The Gambia.
103. On 26 September 2019, The Gambia’s Vice-President made a statement in the UN
General Assembly, in which she said:
The Gambia is ready to lead concerted efforts to take the
Rohingya issue to the International Court of Justice on behalf of
the Organization of Islamic Cooperation, and we call on all
stakeholders to support that process.71
104. This statement by the Vice President of The Gambia, legally binding upon The
Gambia, again confirms that the proceedings before this Court are brought on behalf
of the OIC, and that The Gambia’s role is merely to lead that OIC initiative under the
supervision of the OIC.
105. According to media reports, at an event in The Hague on 20 October 2019, The
Gambia’s then Attorney-General and Minister of Justice, Mr. Abubacarr Marie
Tambadou, announced that he had instructed lawyers for the case on 4 October 2019.72
On 11 October 2019, only seven days later, the Permanent Mission of The Gambia to
the United Nations sent a note verbale to the Permanent Mission of Myanmar to the
United Nations stating that The Gambia “understands” Myanmar to be in ongoing
breach of its obligations “under the [Genocide] Convention and under customary
70 South China Morning Post (China), “Mahathir blasts Myanmar and United Nations over Rohingya
‘genocide’”, 25 September 2019, POM, Annex 146. See also New Straits Times (Malaysia), “Dr M slams
UN, Myanmar govt over Rohingya crisis”, 25 September 2019, POM, Annex 145: “He [the Prime Minister
of Malaysia] commended the Organisation of Islamic Conference’s (OIC) effort to bring the matter to the
International Court of Justice, and hopes that other countries would support OIC to ensure the perpetrators
do not get away with the heinous crimes they have committed”.
71 A/74/PV.8 p. 31, columns 1-2, MG, vol. III, Annex 51 (emphasis added), referred to in AG, fn. 36 and
accompanying text.
72 United News of Bangladesh (Bangladesh), “Genocide: Gambia to file case against Myanmar at ICJ”,
20 October 2019, POM, Annex 147.
34
international law”.73 On 11 November 2019, The Gambia then filed with the Registry
of the Court the Application instituting proceedings in the present case.
106. Most significantly, on 11 November 2019, the day that the application was filed with
the Court, Foley Hoag LLP, the law firm representing The Gambia in these
proceedings, posted a press release on its website, stating that:
The Gambia, acting on behalf of the 57 Member States of the
Organization of Islamic Cooperation, today filed a historic
lawsuit in the International Court of Justice, in The Hague,
seeking to hold Myanmar accountable under international law for
State-sponsored genocide against its minority Muslim
population, known as the Rohingya. […]
The suit has been fully endorsed by the OIC, an
intergovernmental organization composed of States with large or
majority Muslim populations. The OIC appointed The Gambia,
an OIC member, to bring the case on its behalf.74
107. This press release thus states not once, but twice, that these proceedings are brought
by The Gambia on behalf of the OIC. It further states that The Gambia was
“appointed” by the OIC to bring this case on the OIC’s behalf.
108. This press release of Foley Hoag was disseminated in full text by Business Wire,75
from which it was further disseminated by other news services including Associated
Press76 and Bloomberg.77 Business Wire also issued French, Spanish, German, Dutch
and Italian versions of this Foley Hoag press release.78
73 That note verbale, at OG, Annex 1, is reproduced for convenience at POM, Annex 121.
74 Foley Hoag LLP, “Foley Hoag Leads The Gambia’s Legal Team in Historic Case to Stop Myanmar's
Genocide Against the Rohingya”, 11 November 2019, POM, Annex 132 (emphasis added).
75 Business Wire, “Foley Hoag Leads The Gambia’s Legal Team in Historic Case to Stop Myanmar's
Genocide Against the Rohingya”, 11 November 2019, POM, Annex 133. (Business Wire is a company
that disseminates full-text press releases from companies and organizations to news media, financial
markets and other audiences.)
76 Associated Press, “Foley Hoag Leads The Gambia’s Legal Team in Historic Case to Stop Myanmar's
Genocide Against the Rohingya”, 11 November 2019, POM, Annex 139.
77 Bloomberg, “Foley Hoag Leads The Gambia’s Legal Team in Historic Case to Stop Myanmar's Genocide
Against the Rohingya”, 11 November 2019, POM, Annex 140.
78 The French version states that “L'OCI a nommé la Gambie pour porter l'affaire en son nom”: POM,
Annex 134. The other language versions are at POM, Annexes 135, 136, 137 and 138.
35
109. It is utterly inconceivable that Foley Hoag would have issued a press release in these
terms without express instructions from their client. The statement in that press release
could not have been clearer. The Gambia had been appointed by the OIC to bring this
case on its behalf. Thus, at the exact moment that these proceedings were commenced,
the message that was broadcast to the world by the legal representatives of the
applicant, and then published in six languages, was that the case was brought on behalf
of the OIC, by the OIC’s appointee.
110. On the same day, the Foreign Minister of Bangladesh was quoted as stating that “[t]he
Organization of Islamic Cooperation (OIC) states have taken a stand against the
crimes. Gambia has proceeded the lawsuit on behalf of the OIC and we appreciate it”.79
On 17 November 2019, the Foreign Minister of Bangladesh said in a further speech
that:
We are also encouraged by the recent submission of case by
Gambia to the International Court of Justice on behalf of
OIC group under the Genocide Convention 1948.80
111. On 24 November 2019, the OIC itself issued a press release stating that:
The case was filed by the Republic of The Gambia, as Chair of
the OIC Ad Hoc Ministerial Committee on Accountability for
Human Rights Violations Against the Rohingya, for violations
by Myanmar of the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide.
[…]
The Gambia, as Chair of this Committee was tasked with
submitting the case to the ICJ, following a decision by the OIC
Heads of State, during the 14th Islamic Summit Conference,
31 May 2019 in Makkah AlMukarramah.81
112. This press release makes clear once more that The Gambia, in its capacity as chair of
the OIC Ad Hoc Committee, has been tasked by the OIC to bring these proceedings
79 Anadolu Agency (Turkey), “Gambia files Rohingya genocide case against Myanmar”, 11 November 2019,
POM, Annex 149 (emphasis added).
80 Bangladesh, Ministry of Foreign Affairs, “Opening Remarks by Hon’ble Foreign Minister at the Inaugural
Session of the 6th International Conference on Bangladesh Genocide and Justice”, updated 17 November
2019, POM, Annex 113 (emphasis added).
81 OIC, Press Release, “OIC Welcomes first hearing of Legal Case on accountability for crimes against
Rohingya”, 24 November 2019, POM, Annex 98 (emphasis added).
36
on behalf of the OIC. The French version of the press release is even clearer in this
respect, stating that:
La République de Gambie, en sa qualité de président du Comité
ministériel spécial de l'OCI sur la responsabilité en matière de
violations des droits de l'homme contre les Rohingya, a porté
plainte pour violation par le Myanmar de la Convention de 1948
pour la prévention et la répression du crime de génocide.
[…]
La Gambie, en tant que présidente de ce comité, avait pour tâche
de soumettre l'affaire à la CIJ, à la suite d'une décision de la
Chefs d'Etat de l'OCI, lors de la 14ème Conférence au sommet
islamique, le 31 mai 2019 à Makkah Al-Mukarramah.82
113. An article in a Bangladesh newspaper dated 26 November 2019 reports that an official
of the Ministry of Foreign Affairs of Bangladesh had stated that “a genocide case was
filed against Myanmar by the OIC”.83
114. An article dated 4 December 2019 then reports the following question and answer
being given in an interview with the Foreign Minister of Malaysia:
Do you support Gambia bringing a case against Myanmar at the
International Court of Justice?
Indirectly, we are supporting the Gambia initiative, because we
are a member of the OIC, and this is a decision that was made
through the OIC […] I know that Gambia cannot do it alone, in
terms of resources. The OIC secretariat will have to decide as to
how member countries play a role.84
115. On 29 December 2019, the OIC issued a further press release, stating that:
It is to be recalled that the Republic of The Gambia, as Chair of
the OIC Ad Hoc Ministerial Committee on Accountability for
Human Rights Violations against the Rohingya, has filed a legal
case in the International Court of Justice against Myanmar for
82 OIC, Press Release, “L’OCI se félicite de la première audience de l’affaire judiciaire sur la responsabilité
pour les crimes contre Rohingya”, 24 November 2019, POM, Annex 99 (emphasis added).
83 Bangladesh Post (Bangladesh), “Myanmar under global pressure”, 26 November 2019, POM, Annex 153.
84 The Interpreter, “In conversation: Malaysia’s Foreign Minister on great power rivalry”, 4 December 2019,
POM, Annex 155 (italics in the original).
37
violating its obligations under the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide.85
116. An OIC press release dated 23 January 2020,86 the day that the Court issued its order
on provisional measures in this case, refers again to the case being brought “by The
Gambia, as Chair of the OIC Ad Hoc Ministerial Committee on Human Rights
Violations Against the Rohingya”.
117. A press release issued that same day by the Ministry of Foreign Affairs of Malaysia
confirms that87 “On behalf of the OIC, The Gambia, in its capacity as Chair of the
aforementioned [OIC Ad Hoc] Committee, brought the case before the ICJ”. This is
of some significance, given that the press release also indicates that Malaysia was one
of the members of the OIC Ad Hoc Committee.
118. A report of United News of Bangladesh dated 11 February 202088 indicates that the
OIC was to hold a pledging conference during the upcoming forty-seventh session of
the Council of Foreign Ministers, then scheduled to be held in Niger on 3 and 4 April
2020, to mobilize resources for the case.
119. A media item dated 1 March 2020 reports the Permanent Representative of Saudi
Arabia to the United Nations as saying:
The ICJ [provisional measures] decision was the result of the
efforts exerted by the OIC members states in New York and the
Contact Group on Rohingya Muslims of Myanmar headed by the
Kingdom [of Saudi Arabia] […]89
120. A press release issued by the Ministry of Foreign Affairs of the Maldives dated
11 March 2020 says:
85 OIC, Press Release, “OIC General Secretariat Welcomes UNGA Resolution Condemning Abuses against
Rohingya”, 29 December 2019, POM, Annex 100 (emphasis added).
86 OIC, Press Release, “OIC welcomes ICJ decision ordering Myanmar to stop genocide against Rohingya”,
23 January 2020, POM, Annex 101.
87 Malaysia, Ministry of Foreign Affairs, Press Release, “Order by the International Court of Justice (ICJ) on
The Gambia’s Request for the Indication of Provisional Measures”, 23 January 2020, POM, Annex 125.
88 United News of Bangladesh (Bangladesh), “ICJ case against Myanmar: OIC to convene pledging
conference”, 11 February 2020, POM, Annex 163.
89 Arab News (Saudi Arabia), “OIC contact group discusses Rohingya protection with UN chief”, 1 March
2020, POM, Annex 164.
38
In 2019, during the OIC’s Council of Foreign Ministers meeting
held in Abu Dhabi, United Arab Emirates, the OIC adopted a
unanimous resolution to file a case at the ICJ to restore the
human rights of all Rohingya people. In 2019, during the 14th
Islamic Summit held in Makkah, Saudi Arabia, the Heads of
States of the OIC endorsed the Final Communique of the Summit
which gave authority to The Gambia, on behalf of the OIC, to
pursue the case at the ICJ with a view to restoring the basic
human rights of the Rohingya people, and to hold the perpetrators
accountable.90
121. This press release thus indicates that the OIC gave authority to The Gambia to bring
this case on behalf of the OIC.
122. In a July 2020 speech, the Foreign Minister of Bangladesh said that:
We would also like to highlight the issues of justice and
accountability and enlighten the youth about the exemplary role
played by OIC in lodging the case against Myanmar in the
International Court of Justice (ICJ).91
123. At the beginning of that speech, opening salutations are addressed inter alia to the
Prime Minister of Bangladesh, the OIC Secretary-General, and the Justice Minister
and Attorney-General of The Gambia, Mr. Jallow, indicating that all of these were
personally present at the occasion of the giving of this speech by the Foreign Minister
of Bangladesh.92 Given that this is the case, it is especially significant that the speech
makes no mention of the role of The Gambia in these proceedings before the Court,
but speaks only of “the exemplary role played by OIC in lodging the case”.
124. In a press release dated 30 September 2020, the OIC said:
The OIC Ad Hoc Ministerial Committee on Accountability for
Human Rights Violations against the Rohingya held a
consultative meeting at the level of Permanent Representatives
in Riyadh on 30 September 2020.
90 Maldives, Ministry of Foreign Affairs, Press Release, “Organization of Islamic Cooperation welcomes
decision of the Government of Maldives to file a declaration of intervention in the International Court of
Justice, in support of the Rohingya people”, 11 March 2020, updated 25 June 2020 (emphasis added), POM,
Annex 126.
91 Bangladesh, Ministry of Foreign Affairs, “Speech of Hon’ble Foreign Minister on the Inauguration
Ceremony of the OIC Youth Capital – Dhaka 2020”, updated 28 July 2020, POM, Annex 113.
92 According to OIC Youth Capital, “‘Dhaka OIC Youth Capital 2020’ Has Officially Launched”, 28 July
2020, POM, Annex 174, this was a virtual ceremony, and the inauguration program was attended by the
Prime Minister and Foreign Minister of Bangladesh, the Secretary-General of the OIC, and the Justice
Minister and Attorney-General of The Gambia, Mr. Jallow.
39
During the meeting, the Secretary-General of the Organisation of
Islamic Cooperation (OIC), Dr. Yousef A. Al-Othaimeen,
reviewed the practical positive steps taken by the OIC to sensitize
the international community of the plight of the Rohingya and
the OIC’s strong commitment to the principles of justice and
accountability for human rights violations committed against the
Rohingya, particularly within the framework of the legal case
filed with the International Court of Justice (ICJ) against
Myanmar.
The Secretary-General also commended the states that made
financial contributions to support the costs of the case, thanking
them for their prompt response. He further urged the other
Member States to support this case for human rights, which was
applauded and welcomed by the international community.
During the meeting, the participants exchanged views on the
development of the case and ways to support it.93
125. Of significance is that there is once again no mention of The Gambia in this press
release, which presents the proceedings before this Court solely as being an initiative
of the OIC.
126. Tweets by the OIC (using the handle @OIC_OCI) on the same day state that:
During the meeting, the Secretary-General, Dr. Yousef Al-
Othaimeen, reviewed the positive & tangible steps taken by the
organization to raise awareness of the international community
about the plight of the Rohingya, especially by instituting a case
against Myanmar at the ICJ.94
127. A further press release of the OIC dated 7 October 202095 announces that the OIC
Secretary-General had urged Member States to support the fund set up by the OIC
General Secretariat to support the proceedings before this Court, and that a financial
grant to this fund had been made by the Islamic Solidarity Fund, which was deposited
in the OIC account in response to the Secretary-General’s appeal. Again, significantly,
this press release makes no mention at all of The Gambia.
93 OIC, Press Release, “OIC Ad Hoc Ministerial Committee on Accountability for Human Rights Violations
against Rohingya holds consultative meeting in Riyadh”, 30 September 2020, POM, Annex 102.
94 POM, Annex 103.
95 OIC, Press Release, “OIC Secretary General Thanks the ISF for its Support in Financing the Rohingya Case
at the ICJ”, 7 October 2020, POM, Annex 104.
40
128. A statement on the OIC Facebook account dated 19 October 202096 indicates that the
OIC Ad Hoc Committee was to hold a virtual meeting the next day. Further relevant
details are not given, although it is noted that the meeting was to be held three days
before the Memorial of The Gambia was filed.
129. A press release issued on 26 November 2020 by Oicgambia Secretariat, an
organization under the purview of the Office of the President of The Gambia,97 states
that the matters to be discussed at the forty-seventh session of the OIC Council of
Foreign Ministers to be held in Niger on 27 and 28 November 2020 would include “the
Gambia-backed Rohingya case at the International Court of Justice”.98 It is
noteworthy that this press release speaks not of a case brought by The Gambia, but of
a case “backed” by The Gambia.
130. At this forty-seventh session, the OIC Council of Foreign Ministers adopted OIC Res.
No. 59/47-POL,99 which contained a preambular paragraph:
Commending the Ad Hoc Ministerial Committee, Chaired by The
Gambia to pursue the case of genocide and human rights
violations against the Rohingya at the International Court of
Justice
and an operative paragraph stating that the OIC:
Continue to support the Ad Hoc Committee’s plan of action to
engage in international legal measures including at the ICJ to
fulfill the Ad Hoc Committee’s mandate100
as well as a further operative paragraph stating that the OIC Ad Hoc Committee will
continue to:
96 POM, Annex 105.
97 The website of this organization states that “The Oicgambia Secretariat was established in May 2018 to
lead the government of The Gambia’s efforts to host the 14th Summit of the Heads of State and Government
of the Organization of Islamic Cooperation (OIC) in The Gambia in May 2019. However, due to time
constraints, the 2019 Gambia summit was postponed to April 2022. The Secretariat is a charitable
organization under the purview of the Office of the President.”: see POM, Annex 123.
98 POM, Annex 122.
99 OIC Res. No. 59/47-POL, On the Work of the OIC Ad hoc Ministerial Committee on Accountability for
Human Rights Violations Against the Rohingyas, November 2020, POM, Annex 106.
100 Ibid., para. 2.
41
a. Engage to ensure accountability and justice for gross
violations of international human rights and humanitarian
laws and principles, […]
e. Follow up the case at the ICJ in support of The Gambia till
a final verdict is issued
f. Follow up ICJ’s notification of its order of provisional
Measures to the UN Security Council Pursuant to Article 41
(2) of the Statute of the ICJ […]101
131. This resolution thus confirms again that these proceedings have been brought, and
continue to be conducted, by the OIC Ad Hoc Committee.
132. This same resolution also contains calls for OIC Member States to contribute to the
account set up by the OIC Secretariat to receive contributions to support the
proceedings before this Court, and invites the OIC Secretary-General to arrange
pledging sessions of OIC Member States.102
133. At the same session, the OIC Council of Foreign Minister also adopted OIC Res. No.
4/47-MM,103 which states amongst other matters that the OIC Council of Foreign
Ministers:
37. Reiterates its support for The Gambia, as Chair of the Ad
hoc Ministerial Committee on Accountability for Human
Rights Violations Against the Rohingya for the legal case in
the International Court of Justice (ICJ) against Myanmar for
genocide actions on the Rohingya minority.
38. Commends the Gambia, Chair of the OIC Ad Hoc
Ministerial Committee for initiating a legal case at the
International Court of Justice (ICJ) on behalf of the OIC to
end the culture of impunity by bringing the perpetrators to
justice for gross violations of international human rights and
humanitarian laws and principles.104
101 Ibid., para. 7.
102 Ibid., paras. 3-5.
103 OIC Res. No. 4/47-MM, On the Situation of the Muslim Community in Myanmar, November 2020, POM,
Annex 107.
104 Emphasis added.
42
134. This resolution thus reaffirms yet again that the proceedings before the Court are
brought by The Gambia “as Chair of the Ad Hoc Ministerial Committee”, and are
brought “on behalf of the OIC”.
135. According to a 30 November 2020 item on the official Twitter account of the Attorney
General’s Chambers and Ministry of Justice of The Gambia, the Minister of Justice of
The Gambia, Mr. Dawda Jallow, when updating the OIC Council of Foreign Ministers
on these proceedings on 27 November 2020, stated that the case before this Court is
“among the noblest initiatives ever of the Islamic Organisation”.105
136. An article of the Bangladesh national news agency, BSS (Bangladesh Sangbad
Sangstha), dated 28 November 2020, reported that at this forty-seventh session of the
OIC Council of Foreign Ministers, Bangladesh announced that it had donated 500,000
United States dollars (“USD”) to the OIC for financing the legal costs in this case.106
According to this report, The Gambia stated that it needs approximately USD 5 million
to fund the case, that The Gambia was calling on all OIC States to make donations,
and that Saudi Arabia, Turkey and Nigeria had also made donations. According to the
report, the Justice Minister of The Gambia stated that “unfortunately” the law firm
representing The Gambia was yet to receive any significant payment for its legal
services rendered since September 2019, that the law firm had recently been paid USD
300,000, and that this was less than 10 per cent of the amount owed to it. This suggests
that The Gambia is not paying any of the legal fees itself, which are paid from the OIC
fund as, when and to the extent that donations are made by OIC Member States to the
OIC.
137. According to a subsequent article of BSS dated 6 December 2020,107 to that date, the
OIC fund for financing these proceedings had drawn contributions totalling USD 1.2
million. Bangladesh was the largest donor, having donated USD 500,000. Other
donors were Saudi Arabia (USD 300,000), Turkey, Nigeria and Malaysia (who had
donated USD 100,000 each), and the Islamic Solidarity Fund (which had donated USD
105 POM, Annex 124.
106 Bangladesh Sangbad Sangstha (BSS) (Bangladesh), “Bangladesh disburses USD 500,000 to OIC over
Rohingya genocide case”, 28 November 2020, POM, Annex 167.
107 Bangladesh Sangbad Sangstha (BSS) (Bangladesh), “OIC draws US$ 1.2 million for Gambia to run
Rohingya genocide case”, 6 December 2020, POM, Annex 168.
43
100,000). The Gambia said that it urgently needed USD 5 million to pay its lawyers.
The eventual legal costs to the end of the proceedings were expected to be over USD
10 million. This article confirms that the largest contributor to the financial costs of
these proceedings by far is Bangladesh, and appears to confirm that The Gambia itself
intends to bear none of the costs.
D. The real applicant in these proceedings is in fact the OIC
138. The above documents, which are all official documents issued by the OIC, or by OIC
Member States, or are media reports of statements made by officials of the OIC or of
OIC Member States, present a clear picture: The Gambia brings these proceedings on
behalf of and at the behest of the OIC, and The Gambia has been “appointed” or
“tasked” by the OIC to do so in its capacity as chair of the OIC Ad Hoc Committee.
139. These documents include a clear statement made by The Gambia’s legal
representatives in these proceedings, confirming this to be the case. In this press
release, The Gambia’s legal representatives state not once, but twice, that the
proceedings are brought by The Gambia on behalf of the OIC, and state that the OIC
has appointed The Gambia, an OIC member, to bring the case on the OIC’s behalf (see
paragraphs 106 to 109 above). The Islamic Summit, the supreme authority of the OIC,
in its Final Communiqué of the fourteenth Islamic Summit Conference, called upon
the OIC Ad Hoc Committee to take immediate measures to launch this case before the
Court on behalf of the OIC. Press releases of the Office of the President of The
Gambia, and of the OIC itself, confirm that The Gambia has been tasked by the OIC
to bring these proceedings on its behalf (see paragraphs 93, 94, 111 and 112 above),
and that The Gambia is acting in its capacity as chair of the OIC Ad Hoc Committee
(see paragraphs 111, 112, 115, 116, 117, 130, 133 and 134 above).
140. The documents referred to above are sufficient to establish clearly that, as a matter of
fact and substance, the real applicant in these proceedings is the OIC.
141. It is therefore unnecessary to look more closely at the evidence and the circumstances
in order to determine the identity of the true applicant. However, any more detailed
44
consideration of the evidence would in fact only confirm that the true applicant is the
OIC.
142. First, the evidence confirms that the OIC organs were responsible for the actual
decision to bring this case before the Court. The evidence indicates that this is not a
case of The Gambia deciding first to bring proceedings before the Court, and then
asking the OIC for support to assist it in doing so. Nor is this even a case of The
Gambia approaching the OIC to say that it was thinking of bringing proceedings before
this Court, and asking the OIC whether it would provide support in the event that the
Gambia were to do so. Rather, what the evidence shows is the following. A proposal
for the OIC Ad Hoc Committee to bring proceedings before this Court was
recommended by the OIC Ad Hoc Committee in February 2019, endorsed by the OIC
Council of Foreign Ministers in March 2019, and approved by the Islamic Summit in
May 2019. The Gambia itself then only subsequently approved this OIC proposal at
a meeting of the Cabinet of The Gambia on 4 July 2019. The decisions of these OIC
organs were not decisions to the effect that OIC Member States should support The
Gambia in The Gambia’s bringing of its own case before the Court. Rather, these
decisions of these OIC organs were to the effect that proceedings should be brought
before the Court on behalf of the OIC, by the OIC Ad Hoc Committee, or by The
Gambia as chair of the OIC Ad Hoc Committee.
143. Furthermore, since the decision to bring these proceedings was taken by the OIC, the
OIC Ad Hoc Committee has remained actively involved. At a meeting on
25 September 2019, The Gambia briefed the OIC Ad Hoc Committee on the case, and
the Ad Hoc Committee requested the Chair of the OIC Ad Hoc Committee “to provide
comprehensive briefing […] and submit a comprehensive report to the next meeting
of the Council of Foreign Ministers”. As noted in paragraphs 99 and 100 above, at
that meeting, the OIC Ad Hoc Committee also authorized The Gambia to choose the
law firm to represent the applicant in these proceedings. The OIC Ad Hoc Committee
then met again, on 20 October 2020, just days before the Memorial of The Gambia
was filed.
144. Secondly, the evidence also demonstrates that the applicant’s legal costs in these
proceedings are being funded entirely by the OIC, from a special OIC fund established
for this purpose, which is financed by donations of OIC member States. The evidence
45
is that the donors to this fund so far have been Bangladesh, Saudi Arabia, Nigeria,
Malaysia and Turkey, and the Islamic Solidarity Fund.108 There is no indication that
anything at all has been paid towards the proceedings by The Gambia itself, or that
The Gambia has any intention of doing so. Indeed, the website of Human Rights
Watch indicates that in an interview, counsel with that organization gave the following
answer to the following question:
Q. Some people say that with all Gambia’s economic and
political problems, why do we need to spend our energies on this?
A. First of all, the Organization of Islamic Cooperation is paying
all the fees, so this doesn’t cost The Gambia anything. Indeed,
the goodwill and positive publicity that The Gambia is garnering
all around the world with this move will certainly comeback to
benefit the people of The Gambia, in reputation and
recognition.109
145. In any event, even if The Gambia were contributing part of the legal costs itself, that
would not change the fact that the real applicant in the case is the OIC. Indeed, even
if The Gambia were paying all of the costs itself, that would not of itself necessarily
mean that the real applicant is not the OIC. However, the fact that none of the legal
costs are being paid by The Gambia, and that all of the legal costs are being paid by
the OIC from a specially established OIC fund, is certainly a consideration relevant to
confirming that the real applicant is the OIC and not The Gambia.
146. The 25 September 2019 report of the OIC Ad Hoc Committee110 suggests that the OIC
special fund financing this case is jointly administered by the Chair of the OIC Ad Hoc
Committee and the OIC Secretary-General, while OIC Res. No. 59/47-POL refers to
“the setting up of an Account by the OIC Secretariat”.111 While precise details are not
known, the available evidence thus suggests that The Gambia is not in control of the
funds that have been donated for purposes of financing the applicant’s case in these
proceedings. Control over the funds is exercised jointly by the chair of the OIC Ad
108 See paragraphs 136 and 137 above.
109 Human Rights Watch, “What Makes Gambia a Good Champion Of The Cause of The Rohingyas, Interview
with Reed Brody”, 16 December 2019, POM, Annex 171.
110 See paragraph 99 above.
111 OIC Res. No. 59/47-POL, On the Work of the OIC Ad hoc Ministerial Committee on Accountability for
Human Rights Violations Against the Rohingyas, November 2020, operative para. 4, POM, Annex 106.
46
Hoc Committee and the OIC Secretary-General, and by virtue of Article 29 of the OIC
Charter (see paragraph 61 above), these funds are presumably subject to the OIC
financial system and to audit by the OIC Finance Control Organ. Furthermore, such
control or influence over these funds that The Gambia may have is not enjoyed by The
Gambia directly, but rather exists only by virtue of The Gambia’s current status as
chair of the OIC Ad Hoc Committee, which may be brought to an end by a decision of
the OIC at any moment.
147. Thirdly, in determining who is the real applicant in these proceedings, a consideration
which of itself may not be conclusive, but which is certainly relevant, is that at the
provisional measures hearing before the Court on 10-12 December 2019, the official
representation of The Gambia included three high-ranking officials of the OIC. These
were the OIC’s Assistant Secretary-General for Political Affairs, the OIC Director of
Legal Affairs, and the Adviser to the OIC Secretary-General. It is questionable how
likely it would be for three such high-ranking officials of an international organization
to be part of a State’s official representation before the Court throughout a three-day
hearing, if the international organization’s only role was to provide financial assistance
or other support.
148. Fourthly, it is noteworthy that various statements have been made by Government
Ministers of other OIC Member States, and press releases have been issued by
Governments of other OIC Member States, and even by the OIC itself, that refer to the
OIC initiative of bringing these proceedings before the Court without mentioning The
Gambia at all (see paragraphs 81, 82, 97, 98, 100, 101, 102, 122, 123, 124, 125 and
127 above).
149. Fifthly, it is noted that the fact that these proceedings are brought by The Gambia on
behalf of the OIC has also been widely reported in the media in different countries and
47
regions,112 on websites of governments113 and NGOs,114 and even on the website of
the United Nations.115 It is noteworthy that a report published in September 2019 by
Fortify Rights states that:
The Organization of Islamic Cooperation (OIC), through the
Government of the Gambia, intends to bring a case regarding the
crime of genocide against Rohingya to the International Court of
Justice (ICJ) […]116
112 Aljazeera (Qatar), “Gambia files Rohingya genocide case against Myanmar at UN court”, 11 November
2019 (“The Gambia filed the case on behalf of the Organisation of Islamic Cooperation”), POM,
Annex 148; Anadolu Agency (Turkey), “Gambia files Rohingya genocide case against Myanmar”,
11 November 2019 (“Gambia has proceeded the lawsuit on behalf of the OIC and we appreciate it,”
[Bangladesh Foreign Minister] Momen told Anadolu Agency”), POM, Annex 149; Deutsche Welle
(Germany), “Gambia files genocide case against Myanmar”, 11 November 2019 (“The country filed the
case on behalf of the Organization of Islamic Cooperation”), POM, Annex 150; Jakarta Post (Indonesia),
“RI defends approach to Rohingya problem”, 19 November 2019 (“… bringing the country [The Gambia]
to the International Court of Justice (ICJ) on behalf of the Organisation of Islamic Cooperation (OIC)”),
POM, Annex 152; Liberté (Algeria), “Les états de l’OCI saisissent la Cour internationale de justice”,
1 December 2019 (“Les 57 états membres de l'Organisation de la coopération islamique (OCI) ont mandaté,
hier la Gambie pour entamer une action judiciaire devant la Cour internationale de justice (CIJ) contre la
Birmanie”), POM, Annex 154; Bangkok Post (Thailand), “Myanmar in the dock”, 9 December 2019 (“…
accusations of genocide brought against [Myanmar] by The Gambia, on behalf of the 57-member
Organisation of Islamic Cooperation (OIC)”), POM, Annex 156; Courrier international (France), “Aung
San Suu Kyi va défendre la Birmanie, accusée du génocide des Rohingyas”, 9 December 2019 (“La Gambie
… agit au nom de l’Organisation de la coopération islamique (OCI)”), POM, Annex 157; Egypt Today
(Egypt), “Nobel ‘peace laureate’ defends genocide against Rohingya Muslims”, 11 December 2019
(“Gambia filed the case on behalf of the 57-nation Organization of Islamic Cooperation”), POM,
Annex 158; Sydney Morning Herald (Australia), “'She won't be spared': Rohingya refugees reject Aung
San Suu Kyi's genocide denial”, 12 December 2019 (“A legal team from Gambia, acting on behalf of the
57-country Organisation of Islamic Cooperation”), POM, Annex 159; New Straits Times (Malaysia), “NST
Leader: Hallmarks of genocide”, 12 September 2020 (“a case brought by The Gambia on behalf of the 57-
member Organisation of Islamic Cooperation”), POM, Annex 166.
113 For instance, United Kingdom, House of Commons, “Myanmar: January 2020 update”, Briefing Paper, No.
8443, 7 January 2020, p. 9 (“In November 2019 The Gambia brought a case to the ICJ against Myanmar
on behalf of the Organisation of Islamic Cooperation (OIC)”), POM, Annex 129; Canada, Global Affairs
Canada, Minister of Foreign Affairs – Transition book, November 2019 (“… Gambia on behalf of the
Organization for Islamic Cooperation (OIC) is expected to file, on November 11, a case against Myanmar
at the International Court of Justice (ICJ) …”), POM, Annex 117.
114 International Crisis Group, “Myanmar at the International Court of Justice”, 10 December 2019 (“The
Gambia … brought this case on behalf of the 57-member Organisation of Islamic Cooperation”), POM,
Annex 170; Alison Smith and Francesca Basso (No Peace Without Justice), “Justice for the Rohingya:
What has happened and what comes next”, Coalition for the International Criminal Court, 13 February
2020 (“In November 2019, The Gambia took on the Rohingya case on behalf of a larger collective of States,
the Organization of Islamic Cooperation (OIC)”), POM, Annex 173.
115 UN News, “Top UN court orders Myanmar to protect Rohingya from genocide”, 23 January 2020 (“The
case against Myanmar was brought to the ICJ in November by The Gambia, on behalf of the Organization
of Islamic Cooperation (OIC)”), POM, Annex 88; ONU Info, “La CIJ ordonne au Myanmar de prendre des
mesures d’urgence pour protéger les Rohingya”, 23 January 2020 (“La Gambie, qui a déposé sa requête au
nom de l’Organisation de la coopération islamique (OCI)”), POM, Annex 89.
116 Fortify Rights, “Tools of Genocide”: National Verification Cards and the Denial of Citizenship of Rohingya
Muslims in Myanmar, September 2019, POM, Annex 169.
48
150. This emphasizes that the proceedings are brought by the OIC, and that The Gambia is
a mere vehicle through which the OIC does so.
151. Indeed, an article published in the Daily Sun in Bangladesh states that:
The country’s [Bangladesh’s] biggest diplomatic success of the
year [2019] was convincing Organisation of Islamic Cooperation
(OIC) to take Myanmar to International Court of Justice (ICJ)
through Gambia for violating the Genocide Convention 1948.117
152. At the hearing on 12 December 2019, counsel for The Gambia contended that it was
The Gambia which proposed the adoption of OIC Resolution No. 59/45, and that this
was simply a case of The Gambia seeking the support of other OIC Member States.118
In its Provisional Measures Order, the Court also said that:
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.119
153. However, for the reasons above, even if it were the case that it was The Gambia which
proposed the adoption of OIC Resolution No. 59/45 (as to which, see below), it is not
the case that The Gambia was simply seeking the support of other OIC Member States.
The resolutions and decisions of the OIC referred to above do not provide for the
giving of support to The Gambia to enable The Gambia to bring its own case before
the Court, but rather provide for the bringing of proceedings before the Court on behalf
of the OIC. The evidence is that the decision to bring proceedings on behalf of the
OIC was taken only after lengthy negotiations leading to a “diplomatic breakthrough”.
154. Indeed, OIC Resolution No. 59/45 itself, which The Gambia claims to have introduced,
does not provide for OIC Member States to give support to The Gambia to enable The
Gambia to bring a case before the Court. On the contrary, that resolution provided for
the establishment of a 10-member OIC Ad Hoc Committee, and set out the activities
which that committee was to undertake (see paragraph 71 above).
117 Daily Sun (Bangladesh), “Challenges Ahead For Bangladesh”, 3 January 2020, POM, Annex 161.
118 CR 2019/20, p. 23, para. 3 (d’Argent).
119 Provisional Measures Order, para 25.
49
155. Thus, even if it were the case that it was The Gambia that proposed the adoption of
OIC Resolution No. 59/45, that proposal was for the OIC to establish an OIC
committee to take action, not a proposal for the OIC to support action to be taken by
The Gambia.
156. Furthermore, and in any event, there is insufficient evidence before the Court to reach
any conclusion as to exactly which OIC member States made which proposals, and
what course the negotiations took internally within the OIC. These details as far as
Myanmar is aware have never been made public. However, what is clear is the
outcome. Ultimately, what the OIC decided was to establish the OIC Ad Hoc
Committee, and to task the chair of that committee, in its capacity as such, to bring
proceedings before this Court on behalf of the OIC. This is the situation that the Court
must address when determining who is the real applicant in these proceedings, and
what the real dispute before the Court is. It is immaterial for this purpose whether this
is the same situation that The Gambia initially proposed, or whether The Gambia
originally made a different proposal that was modified in the course of the “long series
of negotiations” at the OIC, or whether or not it was even The Gambia that made the
initial proposal to the OIC.120
157. As noted above, the 11 November 2019 press release of Foley Hoag states that The
Gambia was “appointed” by the OIC to bring these proceedings. Certain reports in the
media and on other websites similarly refer to The Gambia being “chosen” for this
purpose. For instance, on 11 November 2019, the New York Times reported:
Gambia, a small West African country with a largely Muslim
population, was chosen to file the suit on behalf of the 57-nation
120 The evidence in this respect is unclear. One commentator states for instance: “As I understand it, this
Organization for Islamic Cooperation was talking about one of their member-states bringing a case for quite
a while. The interest there is that the Rohingya are a Muslim minority in a Buddhist state. Gambia ended
up being the state that took up that challenge”. See Vox, “The top UN court ordered Myanmar to protect
the Rohingya. An expert explains what it means”, 24 January 2020, POM, Annex 162. In an interview on
the Human Rights Watch website, the associate director of that organisation’s international justice
programme answers a question as follows: “You needed to find a country to bring the case before the ICJ.
How did that work? When we first started raising this, at the UN in New York and in Canada and with
other countries that had spoken out on genocide against the Rohingya, they said, what a creative, interesting
idea—it’s not going to happen. We reached out to countries that had ratified the Genocide Convention in
Europe, Africa, Asia and the Americas. Then, out of nowhere, the West African nation of Gambia made
public their intention to move ahead. I wish we could claim credit!”. See Human Rights Watch, “Interview:
Landmark World Court Order Protects Rohingya from Genocide”, 27 January 2020, POM, Annex 172.
50
Organization of Islamic Cooperation, which is also paying for the
team of top international law experts handling the case.121
158. A 13 December 2019 article in the Dhaka Tribune further states as follows:
Now, a question is popping up in the minds of many people: Why
did The Gambia file the case, not Bangladesh, as it is directly
most affected by the atrocities against the Rohingya?
There are, apparently, two main reasons.
Bangladesh wanted to avoid a direct confrontation with
Myanmar by filing the case, as it is bilaterally engaged with
Myanmar in relation to the repatriation of hundreds of thousands
of Rohingya sheltered in Cox’s Bazar.
Dhaka and Naypyitaw also signed some bilateral instruments to
repatriate the displaced people. Myanmar is reluctant to begin the
repatriation anyway. The filing of the case by Bangladesh would
have allowed Myanmar the opportunity to further dilly dally the
repatriation process.
Bangladeshi and foreign diplomats have observed that Dhaka has
done the right thing by not filing the case.
The Gambia was chosen to file the case as it is the chair of the
Organisation of Islamic Cooperation’s (OIC) ad hoc ministerial
committee on accountability for human rights violations against
the Rohingya that was established at the 45th OIC council of
foreign ministers meeting in Dhaka over May 5-6, 2018.
As the case was filed on behalf of the OIC, it will have the
backing of the 57-member organization of the Muslim majority
countries to make the case stronger. Furthermore, the OIC is
funding the case.122
159. According to another website:
Gambia’s unlikely intervention came about through a series of
circumstances. The Organisation of Islamic Cooperation (OIC)
had been looking for a way to stand up for the Rohingyas and
sponsored Gambia out of its 57 members to lead on the case.
“Gambia was seen as the right country to do it. It was important
121 New York Times (United States), “Myanmar Genocide Lawsuit Is Filed at United Nations Court”,
11 November 2019, POM, Annex 151.
122 Dhaka Tribune (Bangladesh), “Why didn’t Bangladesh lodge the case with the ICJ?”, 13 December 2019,
POM, Annex 160.
51
that it was a democratic country with relatively clean hands,”
says Reed Brody, legal counsel for Human Rights Watch.123
160. These items are consistent with the fact that it was the OIC that made a conscious
decision as to which of the OIC Member States should be tasked with bringing these
proceedings on behalf of the OIC.
161. As has been argued above, in view of the express acknowledgement by the OIC and
The Gambia that the latter brings these proceedings on behalf of the OIC, it is
unnecessary to consider in detail all of the evidence of the surrounding facts and
circumstances. To the extent that these are considered, they confirm the position that
the real applicant in the case is the OIC. Furthermore, for the reasons set out above,
there is no burden of proof on Myanmar to show exactly what arrangements have been
agreed between the OIC and The Gambia (see paragraph 54 above). On the contrary,
it remains for The Gambia as the applicant to demonstrate the facts underlying its case
that it is the real applicant in these proceedings (paragraphs 39 to 42 above). The
Gambia has not demonstrated these facts. Indeed, as has been mentioned, its Memorial
does not even address the issue.
E. The Court accordingly lacks jurisdiction
162. As argued above, the Court’s determination of who is the real applicant in the
proceedings is a matter of substance, and not a question of form or procedure. The
fundamental jurisdictional requirement that the applicant must be a State is in this
respect analogous to the fundamental jurisdictional requirement that there be a dispute
between the parties at the time of filing of the application.
163. It is clear why the identification of the real applicant in the case must be a matter of
substance, rather than a matter of form or procedure.
164. First, if the matter were one of mere form or procedure, the fundamental jurisdictional
requirement that the applicant must be a State would be wide open to circumvention.
Any international organization (or other entity) seeking to bring proceedings before
123 Equal Times, “Gambia’s genocide case against Myanmar shows that smaller countries can also help balance
the scales of international justice”, 27 March 2020, POM, Annex 165.
52
the Court through the device of using a State as the nominal applicant in the case is
hardly likely to identify the real applicant in the application itself. If the matter were
one of form or procedure, or if it were to be determined solely by reference to who is
named as the applicant in the application, the contentious jurisdiction of the Court
would in practice be opened up to international organizations, as well as to nongovernmental
organizations, commercial corporations and other entities, provided that
they could find a State willing to act as the nominal applicant in the case, and further
provided that they took care not to disclose in the application who the real applicant
is. An interpretation of Article 34, paragraph 1, of the Statute that permitted this would
clearly deprive that provision of its intended effect.
165. Secondly, if the applicant State is in reality bringing the application on behalf of an
international organization, or other entity, it would be pointless to suggest that the
international organization or other entity can only be regarded as the real applicant in
the case if it has validly conferred legal authority on the applicant State to bring the
proceedings on its behalf. This is because an international organization or other entity
can never be a legally valid party to a case before the Court, and therefore can never
validly confer authority on a State to bring proceedings before this Court on its behalf.
To put it simply, an applicant State may be able in fact to bring proceedings before
this Court on behalf of an international organization, but cannot do so in law. The
question whether the real applicant in the case is the State named in the application or
an international organization must therefore necessarily be a question of fact and not a
question of law.
166. For this reason, the question of whether the OIC is the real applicant in these
proceedings does not require a consideration of whether the OIC has validly and
lawfully conferred authority and power on The Gambia to act on behalf of the OIC in
these proceedings. The only issue that falls to be addressed is whether in fact The
Gambia brings these proceedings on behalf of the OIC, and whether in fact the real
applicant is the OIC.
167. This is consistent with the approach taken by the International Law Commission
(“ILC”) in Article 7 of its 2011 Draft Articles on the Responsibility of International
53
Organizations (the “2011 ILC Draft Articles”),124 which deals with situation where
“an organ of a State […] is placed at the disposal of another international
organization”.125 That provision, which was referred to at the hearing on 12 December
2019 by counsel for The Gambia,126 is not in fact pertinent to the present case, for
reasons given below. However, it is nonetheless relevant to note that the ILC’s
commentary to draft Article 7 indicates that even under this provision, “effective
control over” an organ of a State for purposes of this provision is “based […] on the
factual control that is exercised over the specific conduct taken by the organ or agent
placed at the receiving organization’s disposal”.127
168. Such a degree of factual control exists in this case. The decision to undertake a
particular activity (the bringing of proceedings before this Court) is a decision that has
been taken by the OIC, by two of its principal organs, one of which is its supreme
authority. The Gambia has been “appointed” and “tasked” by the OIC to carry out this
activity on behalf of the OIC. In carrying out this task on behalf of the OIC, The
Gambia reports to an OIC Ad Hoc Committee, which in turn reports to the OIC
Council of Foreign Ministers. The Gambia’s role in this activity is being funded by
the OIC, from a special OIC fund that The Gambia does not control.
169. In any event, while the question is one of fact, there is also no obvious basis for
suggesting that the OIC has not validly conferred legal authority on The Gambia to
bring these proceedings on its behalf, if one disregards the point that it is legally
impossible validly to confer on a State the authority to bring a case before the Court
on behalf of an international organization.
170. While it is clear that many organs of many international organizations consist of a
number of member States (such as the UN General Assembly, Security Council, or
124 ILC, Draft articles on the responsibility of international organizations, adopted by the International Law
Commission at its sixty-third session, Yearbook of the International Law Commission, 2011, vol. II, Part
Two, pp. 46-105, extract at POM, Annex 71.
125 Article 7 of those ILC Draft Articles (POM, Annex 71) provides that “The conduct of an organ of a State
or an organ or agent of an international organization that is placed at the disposal of another international
organization shall be considered under international law an act of the latter organization if the organization
exercises effective control over that conduct”.
126 CR 2019/20, pp. 23-24, para. 6 (d’Argent).
127 Yearbook of the International Law Commission, 2011, vol. II, Part Two, p. 57, POM, Annex 71.
54
Economic and Social Council (“ECOSOC”)), there is no reason in principle why it
would not also be possible for the constituent documents of an international
organization to provide that one of its organs shall consist of a single member State
only (whether that State is appointed to be that organ indefinitely, or for a fixed period).
Where a single State constitutes an organ of an international organization, acts of the
State in question when acting in the capacity of that organ of that international
organization will be acts of that organ of that international organization.
171. This is consistent with Article 2 (c) of the 2011 ILC Draft Articles,128 which provides
that:
“organ of an international organization” means any person or
entity which has that status in accordance with the rules of the
organization.
172. Similarly, there is nothing in principle to prevent an international organization from
conferring on one of its member States the authority to act as the agent of the
international organization in relation to a specific transaction or matter.
173. This is in turn consistent with Article 2 (d) of the 2011 ILC Draft Articles, which
provides that:
“agent of an international organization” means an official or
other person or entity other than an organ, who is charged by the
organization with carrying out, or helping to carry out, one of its
functions, and thus through whom the organization acts.
174. As noted above, at the hearing on 12 December 2019, counsel for The Gambia referred
to Article 7 of these Draft Articles, which provides that:
The conduct of an organ of a State or an organ or agent of an
international organization that is placed at the disposal of another
international organization shall be considered under international
law an act of the latter organization if the organization exercises
effective control over that conduct.
175. However, this particular provision is not material to the present case.
176. First, this is not a case of an organ of The Gambia (its Minister for Justice and Agent
of The Gambia in these proceedings) being placed at the disposal of the OIC. Rather
128 Ibid., p. 40.
55
it is The Gambia itself, a State, that is bringing these proceedings before the Court on
behalf of the OIC. It is The Gambia itself that is the nominal applicant State in these
proceedings. It is The Gambia itself that is a party to the Statute of the Court, that is a
Contracting Party to the Genocide Convention, that is an OIC member State, and that
is chair of the OIC Ad Hoc Committee. It may be that The Gambia, as a State, can
only act via its own organs and agents. However, The Gambia has not placed any of
its organs or agents at the disposal of the OIC. Rather, The Gambia itself, as a State,
has been tasked by the OIC with bringing these proceedings on behalf of the OIC.
Article 7 of the of the 2011 ILC Draft Articles simply does not deal with this situation.
177. Secondly, and in any event, Article 7 is not the only means by which conduct of State
organs may be attributable to an international organization. If the rules of an
international organization make a particular organ of a particular State an organ of the
international organization itself for certain purposes, then that State organ when acting
as such would be an organ of the international organization in accordance with
Article 2 (c) of those Draft Articles, and that conduct would be considered conduct of
the international organization in accordance with Article 6, paragraph 1, which
provides that:
The conduct of an organ or agent of an international organization
in the performance of functions of that organ or agent shall be
considered an act of that organization under international law,
whatever position the organ or agent holds in respect of the
organization.
178. In this situation, there would be no need to refer to Article 7 to determine whether that
conduct of the State organ in question is attributable to the international organization.
179. Article 7 of the Draft Articles is a provision that is additional to the other Draft
Articles. It provides that the conduct of an organ of a State may be attributable to an
international organization in certain circumstances, even where that organ of that State
is not an organ of the international organization within the meaning of Article 2 (c),
and is not an agent of the international organization in accordance with the meaning
of Article 2 (d). Article 7 is not intended to read down or limit the effect of other
provisions of the Draft Articles.
180. Thirdly, the 2011 ILC Draft Articles are concerned with questions of the responsibility
of international organizations. In the present case, no issue of the responsibility of the
56
OIC arises. The Court is not called upon to decide whether conduct of The Gambia
before the Court in these proceedings engages the responsibility of the OIC. Indeed,
Myanmar accepts that any judgment or order that the Court might issue in these
proceedings would not be binding on the OIC because judgments and orders are
binding only on the parties, and the OIC is incapable of being a party to these
proceedings. As the Court is presently concerned with the question whether the OIC
is in substance the real applicant in these proceedings, and not with the question of
whether the OIC is responsible for acts of The Gambia, the 2011 ILC Draft Articles
are wholly irrelevant to these proceedings.
181. If it were necessary to establish that The Gambia is duly authorized by the OIC to bring
these proceedings on its behalf, that requirement would be satisfied in the present case.
The bringing of these proceedings by the OIC (apart from the fact that the OIC is
incapable of being a party to proceedings before the Court) would appear to fall within
the general objectives of the OIC in Article 1, paragraph 16, of the OIC Charter. The
establishment of the OIC Ad Hoc Committee appears to be an exercise of the power
to establish subsidiary organs conferred by Articles 22 and 23 of the OIC Charter,
having been approved by both the OIC Council of Foreign Ministers and then endorsed
by the Islamic Summit, the latter being the supreme authority of the OIC. The bringing
of these proceedings before the Court by the OIC Ad Hoc Committee on behalf of the
OIC has been expressly authorized by the Islamic Summit. The special fund
established by the OIC to finance these proceedings appears to be an exercise of the
power in Article 29, paragraph 2, of the OIC Charter.
182. However, ultimately it does not matter whether the Islamic Summit and the OIC
Council of Foreign Ministers acted in accordance with the requirements of the OIC
Charter when establishing the OIC Ad Hoc Committee, approving its plan of action,
and conferring on The Gambia the function of bringing these proceedings on behalf of
the OIC. Whether or not the requirements of the OIC Charter have been fully complied
with, it remains the case that as a matter of fact and substance, the OIC has appointed
The Gambia to bring the case on its behalf, and The Gambia acted on the OIC’s behalf
when it filed the application in this case.
183. In this particular case, that factual situation could not be clearer. Official resolutions
and other documents issued by the OIC, statements made by The Gambia’s Minister
57
of Justice and Office of the President, and a press release issued by The Gambia’s legal
representatives in these proceedings, all expressly acknowledge this to be the case.
Whether The Gambia is legally acting as an organ of the OIC, or legally acting as an
agent of the OIC, or whether The Gambia is in law neither an organ nor an agent of
the OIC, as a matter of fact and of substance, The Gambia is bringing these
proceedings on behalf of the OIC. The Gambia in fact acts as a nominal or “proxy”
applicant State to enable these proceedings to be brought by the OIC, given that the
OIC itself as an international organization is incapable of being a party to cases before
the Court.
184. There can thus be no question but that the real applicant in these proceedings is the
OIC.
185. The Court accordingly lacks jurisdiction, first because the OIC is not capable of being
a party to proceedings before the Court (Article 34, paragraph 1, of the Statute), and
additionally because the OIC is not a party to the Genocide Convention such that the
compromissory clause in Article IX does not apply to confer jurisdiction on the Court
in this case.
F. Alternatively, the application of The Gambia is inadmissible
186. Even if, contrary to the submissions above, it were the case that the Court is not
deprived of jurisdiction by virtue of the fact that the real applicant in the case is an
international organization (sed quod non), the application of The Gambia would in the
circumstances of this case be inadmissible.
187. It is unnecessary to repeat all of the arguments above. Myanmar submits that the same
arguments, if they do not deprive the Court of jurisdiction, would result in rendering
the application inadmissible. The reasons have already been given in paragraph 50
above. If, in substance, an exercise of jurisdiction would lead the Court to decide a
dispute brought by a State or entity not entitled to appear before it, then a refusal by
the Court to exercise that jurisdiction would be necessary to safeguard the Court’s
judicial function. A use of the Court’s procedures in a way that does not formally
deprive the Court of jurisdiction, but which would in substance, if not in law, result in
58
an exercise of jurisdiction that would be contrary to the intentions of the Statute, and
outside the intended consent given by States when becoming parties to the Statute and
the Genocide Convention, should not be permitted by the Court. Put simply, a claim
or application should not be admissible if it amounts in practice to a direct
circumvention of an express limitation on the Court’s jurisdiction, even if the Court
formally would have jurisdiction to deal with it.
188. This conclusion follows from considerations of judicial propriety, the integrity of the
Court as an institution, and the principle that the jurisdiction of the Court ultimately
rests always on the consent of the parties.
189. This conclusion is independent of any consideration of principles of abuse of process.
Nevertheless, a consideration of those principles would also lead to the conclusion that
using the Court’s procedures in a way that circumvents express limitations on its
jurisdiction can amount to an abuse of process, either generally, on in the
circumstances of particular cases.
190. The Court’s established case law indicates that it is only in exceptional circumstances
that the Court should reject a claim based on a valid title of jurisdiction on the ground
of abuse of process, and that there has to be clear evidence that the applicant’s conduct
amounts to an abuse of process.129
191. In this case, the conduct of The Gambia is clear: it has brought these proceedings on
behalf of the OIC, an international organization, in its capacity as chair of an OIC Ad
Hoc Committee.
192. Abuse of process (or abuse of procedure) has been defined by one commentator as
follows:
In a synthetic definition, it can be said that abuse of procedure
consists in the use of procedural instruments and entitlements
with a fraudulent, malevolent, dilatory, vexatious, or frivolous
intent, with the aim to harm another or to secure an undue
advantage to oneself, with the intent to deprive the proceedings
(or some other related proceedings) of their proper object and
129 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary Objections,
Judgment, I.C.J. Reports 2019, p. 7, pp. 42-43, para. 113; Immunities and Criminal Proceedings
(Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports 2018, p. 292, p. 336,
para. 150.
59
purpose or outcome, or with the intent to use the proceedings for
aims alien to the ones for which the procedural rights at stake
have been granted (e.g., pure propaganda).130
193. The proper purpose of proceedings in the contentious jurisdiction of the Court is to
settle disputes between States, and furthermore, to settle disputes between the States
who are the actual parties to the case before the Court. That has not been the purpose
of the proceedings brought in the present case. The Gambia and the OIC use the
proceedings for aims alien to the ones for which the procedural rights at stake have
been granted, namely for the aim of enabling an international organization to be a party
to proceedings before the Court. Any dispute in this case, if one existed at all (sed
quod non) would be between the OIC and Myanmar. However, that dispute could not
be one under the Genocide Convention (to which the OIC cannot be a party), nor could
that dispute be settled by the Court due to the terms of Article 34 of the Statute.
Furthermore, The Gambia has used the procedures of the Court in a way that deprives
the proceedings of their proper outcome. Had the OIC been named as the applicant in
the proceedings, the proper outcome would have been that the Registrar of the Court
would have sent a standard letter to the OIC referring the OIC to Article 34 of the
Statute,131 and the application would not have even been transmitted to Myanmar by
the Registrar.
194. Thus, the bringing of proceedings by The Gambia on behalf of the OIC, in an attempted
circumvention of the requirement in Article 34, paragraph 1, of the Statute, in and of
itself, can be characterised as an abuse of process.
195. Other circumstances further contribute to the abusive nature of the proceedings in this
particular instance.
196. As is apparent from the exposition of the facts above, the proposal to bring a case
against Myanmar was formulated by the OIC Ad Hoc Committee at its inaugural
meeting on 10 February 2019, and that proposal was approved by the OIC Council of
Foreign Ministers at its forty-sixth session on 1 and 2 March 2019.
130 R. Kolb, “General Principles of Procedural Law”, in A. Zimmermann et al. (eds.), The Statute of the
International Court of Justice: A Commentary (third edn., 2019), pp. 998-999, POM, Annex 25.
131 P. Dupuy and C. Hoss, “Article 34”, in A. Zimmermann et al. (eds.), The Statute of the International Court
of Justice: A Commentary (third edn., 2019), pp. 668-669, POM, Annex 22.
60
197. This means that the decision to bring a case against Myanmar before this Court had
been taken by the OIC even before there was even arguably any dispute between The
Gambia and Myanmar.
198. Of the 14 events said by The Gambia to evidence the existence of a dispute between
The Gambia and Myanmar,132 the only ones that had already occurred at the time that
the decision was taken by the OIC on 1 and 2 March 2019 to bring these proceedings
were the first four (the adoption of the Dhaka Declaration in May 2018, the issuing of
a press statement by Myanmar on 9 May 2018, the submission of the first report of the
FFM (Independent International Fact-Finding Mission on Myanmar) on 12 September
2018, and the making of a statement by the President of The Gambia in the UN General
Assembly on 25 September 2018). For the reasons given in paragraphs 578 to 624
below, none of these four events could on any view conceivably be sufficient to
establish the existence of a dispute between The Gambia and Myanmar as at 1-2 March
2019, when the decision was taken by the OIC to bring these proceedings. It is abusive
to take a firm decision to bring proceedings before this Court before a dispute even
exists, and then only subsequently to seek to establish the existence of a dispute for
that very purpose.
199. This abusiveness is compounded by other circumstances of this case. The decision to
bring proceedings before the Court was taken in March 2019. Despite this, Myanmar
was not notified thereafter by the OIC or The Gambia either of the fact that the OIC
and The Gambia intended to bring these proceedings, or that the OIC and The Gambia
had reached a firm decision to contend specifically that Myanmar is in breach of the
Genocide Convention. It was only some seven and a half months after the decision to
bring these proceedings had already been taken that The Gambia sent Myanmar the
11 October 2019 note verbale stating that The Gambia “understands” Myanmar to be
in ongoing breach of its obligations under the Genocide Convention and under
customary international law.133 Even then, the note verbale did not state that The
Gambia intended to bring a case before the Court, despite the fact that a decision to do
so had been taken months earlier.
132 See paragraph 578 below.
133 POM, Annex 121.
61
200. The Gambia could have sought to spend that seven and a half months presenting its
position to Myanmar and seeking to negotiate with Myanmar in relation to the matter.
It did not do so. Prior to the note verbale sent by The Gambia to Myanmar on
11 October 2019, none of the subsequent events relied on by The Gambia as
establishing the existence of a dispute between The Gambia and Myanmar134 involved
direct communications of any kind whatsoever between these two States, and none of
those subsequent events contained accusations by The Gambia that Myanmar was in
breach of its obligations under the Genocide Convention.
201. Despite not raising the matter with Myanmar for some seven and a half months, The
Gambia then filed the Application instituting these proceedings exactly one month
after sending Myanmar the note verbale of 11 October 2019. In the application, The
Gambia spoke of the “extreme urgency” of the situation,135 without disclosing that the
decision to bring the proceedings had in fact already been taken by the OIC some eight
and a half months earlier, and that it had been under consideration within the OIC for
even longer.
202. The Gambia then claims that its 11 October 2019 note verbale called for a response by
Myanmar within a month, notwithstanding that the note verbale gave no time limit for
an expected response, notwithstanding that it was a very short two-page document that
The Gambia itself had taken over seven months to write, and notwithstanding that this
document contained the most broad and sweeping unparticularised claim that stated
no more than that The Gambia considered the reports of the FFM to be “well supported
by the evidence” and that The Gambia was “disturbed by Myanmar’s absolute denial
of those findings and its refusal to acknowledge and remedy its responsibility for the
ongoing genocide”.
203. There was absolutely no way that Myanmar could have given consideration to all of
the details of the FFM reports referred to in the note verbale, and to all of the evidence
referred to in the FFM report which Myanmar did not even have, and to give a
considered reply thereto within a month (see further paragraphs 686 to 719 below). It
is clear that The Gambia was in fact not expecting a considered response to the note
134 That is, events (5) to (14) referred to in paragraph 578 below.
135 AG, paras. 113, 131, 132.
62
verbale, and that The Gambia deliberately sent it very shortly before filing its
Application instituting proceedings, as a pretext for claiming that a dispute existed at
the time of filing the application.
204. The Gambia, instead of presenting any position to Myanmar that The Gambia
considered Myanmar to be in breach of the Genocide Convention, thus spent the eight
months following the March 2019 decision to bring these proceedings engaging with
other OIC member States, to organise the bringing of proceedings before this Court.
It was only after Foley Hoag had actually been engaged by The Gambia and instructed
to bring the proceedings that the note verbale was even sent to Myanmar.
205. This is thus not a case where an applicant State has filed an application instituting
proceedings, seeking the judicial settlement of a legal dispute that has arisen between
that State and the respondent State. Rather, the OIC decided in March 2019 to bring
these proceedings, and The Gambia agreed to act in its capacity as chair of an OIC Ad
Hoc Committee to give effect to that OIC initiative, even though no dispute between
The Gambia and Myanmar existed at the time. And it was only then that The Gambia
took steps to provide the appearance of a dispute having arisen between it and
Myanmar under the Genocide Convention.
206. For these reasons, the bringing of these proceedings does also constitute an abuse of
process on the part of The Gambia. The application is accordingly also inadmissible
on that basis.
G. Conclusion
207. Article 34, paragraph 1, of the Statute of the Court states that “Only States may be
parties in cases before the Court”. It is a fundamental requirement for the existence of
the Court’s jurisdiction in a case that the applicant be a State. Whether the applicant
is a State is a matter for objective determination by the Court, which must turn on an
examination of the facts. The Court’s determination is a matter of substance, and not
a question of form or procedure. A mere assertion is not sufficient to prove that the
applicant is indeed a State. It is for the applicant to demonstrate the facts underlying
its case that the real applicant is a State. (See paragraphs 38 to 43 above).
63
208. In the present case, The Gambia has been aware at the very latest since December 2019
of Myanmar’s position that the real applicant in this case is the OIC. Despite this, The
Gambia has not in its Memorial demonstrated the facts underlying its case that the real
applicant is The Gambia and not the OIC. The material before the Court demonstrates
that both the OIC and The Gambia have expressly acknowledged that The Gambia
brings these proceedings on behalf of the OIC, having been tasked by the OIC to do
so, and this fact is openly referred to by other States, the international media, nongovernmental
organizations, and others. In the circumstances, no closer examination
of the facts and circumstances is required in order to determine that the OIC is in
substance the real applicant. In any event, even if a closer examination were
undertaken, the material before the Court would merely confirm the fact that the OIC
is indeed the real applicant. The Court accordingly lacks jurisdiction.
209. Alternatively, even if (sed quod non) the Court had jurisdiction, the application would
be inadmissible as it amounts in practice to a direct circumvention of an express
limitation on the Court’s jurisdiction. This would be so, whether or not the application
amounted to an abuse of process, although in the circumstances of the present case,
the application can also be characterized as an abuse of process.

65
II. SECOND PRELIMINARY OBJECTION:
The application is inadmissible, as The Gambia lacks standing to
bring this case before the Court under Article IX of the Genocide
Convention
A. Introduction
210. In its Application instituting proceedings, The Gambia says nothing about its standing
to bring a case against Myanmar under Article IX of the Genocide Convention. In its
Memorial, it devotes a bare three pages to this issue.136
211. This is despite the fact that the present case is fundamentally different both to previous
cases dealt with by the Court under the Genocide Convention, as well as to the
Obligation to Prosecute or Extradite case.137
212. In contrast to the cases previously brought under Article IX of the Genocide
Convention, in particular the Trial of Pakistani Prisoners of War case,138 the Bosnian
Genocide case,139 the Croatia Genocide case,140 and the Armed Activities on the
Territory of the Congo (New Application: 2002) case,141 in the present case The
Gambia, unlike the applicant States in those earlier cases, has no link whatsoever to
the facts of the case. Nor is there any territorial connection between The Gambia and
the alleged violations of the Genocide Convention for which Myanmar purportedly
bears responsibility, nor are there any other relevant links between either the alleged
offenders or the victims of the purported Convention violations on the one hand, and
The Gambia on the other.
136 MG, vol. I, pp. 40-43.
137 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012, p. 422.
138 Trial of Pakistani Prisoners of War, Interim Protection, Order of 13 July 1973, I.C.J. Reports 1973, p. 328.
139 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, p. 43.
140 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Judgment, I.C.J. Reports 2015, p. 3.
141 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction and Admissibility, Judgement, I.C.J. Reports 2006, p. 32.
66
213. As to the case previously brought under Article 30 of the UN Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the
“Convention Against Torture”),142 namely the Obligation to Prosecute or Extradite
case,143 there are also relevant differences to the present case. The applicant State in
that case, Belgium, had a relevant link to the facts of the case in that at least some of
the alleged victims were residing in Belgium and possessed its nationality.
Furthermore, as will subsequently be shown, the Convention Against Torture, unlike
the Genocide Convention, is characterized by an underlying aut dedere aut judicare
principle that specifically confers rights on otherwise non-injured States.
214. In other words, what The Gambia has now put before the Court for the first time ever
is a naked form of actio popularis. Not only does the applicant State have no relevant
link to the facts of the case, but Bangladesh, a State which most obviously is a
specially-affected State, could not have instituted these proceedings without the
consent of Myanmar because of a reservation that it has made to Article IX of the
Genocide Convention.
215. It is against this background that Myanmar will demonstrate that The Gambia lacks
standing to bring this case before the Court. In doing so, Myanmar will first show that
the Genocide Convention, and notably its Article IX, does not grant non-injured
Contracting States standing to claim alleged violations of the Convention. The
arguments as to this limb of this second preliminary objection will be first devoted to
demonstrating the crucial distinction between the right to invoke State responsibility
under general international law and standing before the Court (see paragraphs 217 to
221 below). It will then specifically show that Article IX of the Genocide Convention,
given the Court’s jurisprudence on the matter so far (see paragraphs 222 to 259 below),
as well as the content, structure and drafting history of the Genocide Convention (see
paragraphs 260 to 295 below), does not provide for the possibility of an actio
popularis. Finally, it will also be shown that this result is confirmed by a comparison
with the law of State responsibility (see paragraphs 296 to 309 below).
142 POM, Annex 9.
143 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012, p. 422.
67
216. In the alternative, Myanmar will establish that a non-injured Contracting Party to the
Genocide Convention (such as in this case The Gambia) may not bring a case against
another Contracting Party, where a third Contracting Party that is specially affected by
the alleged Convention violations (in this case Bangladesh) could not itself have
brought such a claim due to its reservation to the compromissory clause in Article IX
of the Convention (see paragraphs 310 to 350 below).
B. Distinguishing the right to invoke State responsibility from standing before
the Court
217. It is well-recognized in the Court’s jurisprudence that for a State to be able to bring a
case before the Court, that State must have a protected legal interest to do so. As Judge
Jessup put it, “there is no generally established ‘actio popularis’ in international
law”.144 The burden is thus on The Gambia to show not only that the Genocide
Convention provides for such right as a matter of principle, but that this principle also
applies in the specific circumstances of this very case. Yet, as Myanmar will proceed
to demonstrate, The Gambia cannot rely on such a right, at least not in the specific
circumstances of the case at hand.
218. At the outset, it is however crucial to highlight the distinction between the right to
invoke another State’s responsibility on the one hand, and, on the other hand, the
fundamentally different question whether a State has standing to bring a claim before
this Court. The former is dealt with inter alia in Article 48 of the International Law
Commission’s Draft Articles on State Responsibility.145 However, even if it were
established that a non-injured Contracting Party to the Genocide Convention has the
right to invoke another State’s responsibility for alleged violations of that Convention
as a matter of customary international law, this would not determine the fundamentally
different question as to whether such an obligation could be enforced by bringing a
case before the Court, that is to say, the question whether third, non-injured
Contracting Parties have standing before this Court.
144 South West Africa, Second Phase, Dissenting Opinion of Judge Jessup, I.C.J. Reports 1966, p. 387.
145 ILC, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries
(2001), pp. 126-128, MG, vol. II, Annex 15.
68
219. This has been confirmed by the Court in the East Timor case,146 where the Court
expressly held that the erga omnes character of a norm does not exempt an applicant
State from fulfilling otherwise applicable jurisdictional preconditions for the bringing
of a case before the Court.
220. Hence, even if one were to accept arguendo the existence of obligations erga omnes
arising under general international law or the existence of obligations erga omnes
partes arising under the Genocide Convention, this would not of itself lead to the
recognition of an actio popularis under the Convention.
221. On the contrary, as will be shown, State practice and opinio juris as highlighted in
cases brought before the Court, as well as in the Court’s jurisprudence itself, confirm
that there needs to be at least some form of a “connecting” factor in order for a State
to have standing before the Court to enforce obligations which are of an erga omnes
partes character. Or, to put it otherwise, it will be shown that only States that are
specially affected by an alleged breach of a treaty containing obligations erga omnes
partes have standing to bring a claim before the Court.
C. Article IX of the Genocide Convention does not provide for the possibility
of an actio popularis
1. Relevant jurisprudence of the Court
a. Advisory Opinion on Reservations to the Genocide Convention
222. It does not need mentioning that it was in the Court’s 1951 advisory opinion on
reservations to the Genocide Convention that the Court found that there was a
universal condemnation of genocide.147 Yet, given the very subject-matter of the
request for an advisory opinion that was then before the Court, there was no need for
the Court to even consider the issue of whether individual non-injured States were
146 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, 102, para. 29.
147 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, I.C.J. Reports 1951, p. 23.
69
entitled to invoke the responsibility of other Contracting Parties for alleged failure to
comply with their obligations under the Genocide Convention.
223. Even less did the Court, contrary to what The Gambia seems to imply in its
Memorial,148 take any position in its advisory opinion on the different question of
whether non-injured States, such as The Gambia in this case, would have standing
before the Court to enforce such obligations in a contentious case. Rather, the very fact
that the Court then envisaged the possibility of entering reservations to the Genocide
Convention, reservations to its Article IX having been the most common ones at the
time, indicates that it was the Court’s position that it is compatible with that treaty’s
object and purpose to even preclude injured States from bringing cases before the
Court.
b. Barcelona Traction case
224. It also does not need mentioning that it was in the Barcelona Traction case that the
Court dealt for the first time in a contentious case with the issue of erga omnes
obligations and possible legal consequences flowing therefrom. Nothing in the Court’s
obiter dictum in that case however sustains The Gambia’s claim to have standing in
the case at hand.
225. Apart from anything else, the Court in this dictum only dealt with obligations “of a
State towards the international community as a whole”,149 that is to say, with
obligations erga omnes as such. The Court did not say anything about obligations erga
omnes partes. In that case, the Court stated that the prohibition of genocide had
“entered into the body of general international law”.150 If anything, the Court thereby
only found that it is in situations where a State is claiming violations of the customary
law prohibition of genocide that the underlying obligation would exist vis-à-vis the
international community at large. Yet, the Court has, time and again, been very careful
148 MG, vol. I, p. 42, para. 2.25.
149 Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 32, para. 33.
150 Ibid. p. 32, para. 34, quoting Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23.
70
to distinguish between violations of the prohibition of genocide that exists under
customary international law on the one hand, and violations of the Genocide
Convention on the other. Notably, the Court’s jurisprudence confirms that in a case
brought before it under Article IX of the Convention, the Court is not in a position to
consider alleged violations of the customary-law based prohibition of genocide,151 and
it goes without saying that the same principle upheld by the Court must then also apply
as far as the issue of standing is concerned.
226. Hence, even if one were to assume that a non-injured State could, in the light of the
Court’s Barcelona Traction dictum, have standing to bring a case before the Court
against another State for claimed violations of the customary law prohibition of
genocide under Article 36, paragraph 2, of the Court’s Statute, quod non, this would
still not mean that the same non-injured State could then also bring a case under
Article IX of the Genocide Convention for alleged treaty violations of that
Convention.
227. This important distinction between possible obligations erga omnes on the one hand,
and obligations erga omnes partes on the other, is also reflected in Article 48 of the
2001 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts
(the “ILC Draft Articles on State Responsibility”). The respective
subparagraphs (a) and (b) of Article 48, paragraph 1, draw a careful distinction
between a situation where the obligation allegedly breached is owed to a group of
States including the non-injured State invoking responsibility (lit. a), and a situation
where the obligation is owed to the international community as a whole (lit. b). In the
former case, the obligation is established for the protection of the collective interest of
the group, that is to say, it is an obligation erga omnes partes. In the latter case, the
obligation is owed to the international community as a whole, that is to say, it is an
obligation erga omnes. The Barcelona Traction dictum dealt with the latter situation.
However, the Court is now facing a situation which, if anything, would be a situation
of the former kind on which the Court did not take a position back in 1970. Hence,
even if the Barcelona Traction dictum were interpreted as addressing not only the
151 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Judgment, I.C.J. Reports 2015, p. 47, para. 88; Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America). Merits, Judgment, I.C.J. Reports 1986, p. 96,
para. 179.
71
existence of obligations erga omnes, but also the issue of standing in proceedings
before the Court to enforce erga omnes obligations, that dictum would still not be
pertinent to the issue of The Gambia’s claim to standing in the present case.
228. Furthermore, and even more importantly, even if one were to assume arguendo that
the Barcelona Traction dictum does indeed address obligations erga omnes partes,
quod non, the dictum does not address the issue as to whether or not States that are not
specially-affected States could vindicate either obligations erga omnes or obligations
erga omnes partes, either by way of bringing a case before the Court, or by way of
countermeasures. In fact, the Barcelona Traction dictum does not provide that the
violation of obligations erga omnes in general, or even less the violation of certain
specific treaty-based obligations, would support proceedings in the nature of an actio
popularis by a non-injured State. As Australia had put it in the East Timor case:
The Court [in Barcelona Traction] did not say that every
obligation erga omnes would support proceedings in the nature
of an actio popularis.152
229. This result is confirmed by the fact that in the Barcelona Traction case, it was only
Judge Ammoun who reflected on this issue in his separate opinion,153 a fact which
makes the silence of the judgment itself and of the vast majority of the other Judges
on this point even more significant and telling.
230. Indeed, years later, the Court was even warned, among others by Judge Castro, that
the Barcelona Traction obiter dictum should be taken “cum grano salis” (with a grain
of salt) and must not be understood as enabling an actio popularis. Rather, he
considered that any applicant had to demonstrate that a right of its own had been
violated.154
231. Finally, when the Court came to revise its Rules of Court extensively, leading to the
1978 version, the Court did not introduce any new provision which would have
152 East Timor (Portugal v. Australia), Counter-Memorial of the Government of Australia, 1 June 1992, p. 119,
para. 262.
153 Barcelona Traction, Light and Power Company, Limited, Separate Opinion of Judge Ammoun, I.C.J.
Reports 1970, pp. 325-327.
154 Nuclear Tests (Australia v. France), Dissenting Opinion of Judge de Castro, I.C.J. Reports 1974, p. 387.
72
accommodated the concept of the possibility of an actio popularis being brought
before the Court.155
c. Nuclear Tests cases
232. In the same vein, when New Zealand and Australia respectively brought the Nuclear
Tests cases, they did so as States that were specially affected by France’s nuclear tests
in their region and the nuclear fallout they produced on their territories.156 These were
not cases of actio popularis, invoking a breach of erga omnes obligations by France,
by States who were not specially affected.
d. Cases brought under Article IX of the Genocide Convention
233. The cases that have been brought before the Court on the basis of Article IX of the
Genocide Convention point in the same direction. Not only was it a specially-affected
State that brought each of these cases on the basis of Article IX, but in none of these
cases did the parties, nor indeed the Court, ever allude to the possibility that any State,
even a non-injured State, could have brought these very cases in any event by way of
an actio popularis.
234. The first of these cases, the Trial of Pakistani Prisoners of War case,157 self-evidently
dealt with alleged violations, by India, of the Genocide Convention in relation to the
treatment of nationals of the applicant State, and thus did not involve any form of actio
popularis.
155 M. Shaw, Rosenne’s Law and Practice of the International Court: 1920-2015, vol. III (2016), p. 1205,
POM, Annex 29.
156 Nuclear Tests (Australia v. France), Memorial on Jurisdiction and Admissibility submitted by the
Government of Australia, 23 November 1973, p. 335 et seq., paras. 451-461; Nuclear Tests (New Zealand
v. France), Memorial on Jurisdiction and Admissibility submitted by the Government of New Zealand,
29 October 1973, pp. 208-209, paras. 203-205.
157 Cf.: Trial of Pakistani Prisoners of War (Pakistan v. India), Application instituting proceedings, 11 May
1973.
73
235. The same holds true for the Bosnian Genocide case, where the applicant State
specifically asked the Court to request the respondent State to cease and desist from
committing acts of genocide “against the People and State of Bosnia and
Herzegovina”.158 While the Court noted the erga omnes character of the obligations
contained in the Genocide Convention,159 it again did not take any stance on the right
of third, non-injured States to bring a case under the Convention. In other words, the
issue of the standing of non-injured States was neither argued by the parties, nor was
there a need for the Court to address the matter.
236. Quite to the contrary, Judge Oda stressed in his declaration attached to the 1996
judgment on jurisdiction and admissibility in the Bosnian Genocide case that the legal
obligations arising under the Genocide Convention are:
borne in a general manner erga omnes by the Contracting Parties
in their relations with all the other Contracting Parties to the
Convention - or, even, with the international community as a
whole – but are not obligations in relation to any specific and
particular signatory Contracting Party.160
237. This approach is also consistent with the view of the late Robert Ago, who also took
the position that it is the international community at large rather than non-injured
States individually that is the bearer of a right of reaction when it comes to violations
of the Genocide Convention161 – a view later reflected in and confirmed by the
reformulation of draft Article 54 of the ILC Draft Articles on State Responsibility
which will be further discussed below.162
238. Furthermore, in the Croatia Genocide case, as well as in the various Legality of Use
of Force cases, where again Article IX of the Genocide Convention was used as a
158 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Application instituting proceedings, 20 March 1993, para. 133.
159 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 616,
para. 31.
160 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, Declaration of Judge Oda, I.C.J. Reports 1996, p. 626, para. 4.
161 R. Ago, “Obligations Erga Omnes and the International Community”, in J.H.H. Weiler et al. (eds.),
International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility
(1989), p. 238, POM, Annex 18.
162 See paragraphs 296 to 309 below.
74
jurisdictional basis, Croatia and the Federal Republic of Yugoslavia, as the respective
applicant States, brought the cases exclusively as injured States in relation to acts of
genocide allegedly committed against their respective populations.163 They did so
without even alluding in any manner whatsoever to the concept of standing of noninjured
States, and without any suggestion that the possibility of such standing was
inherent in the violation of obligations of an erga omnes partes character.
239. The same holds true for the case brought by the Democratic Republic of the Congo
against Rwanda, in which the former again unequivocally stated that it brought its case
to protect its own population rather than by way of acting in the interest of the
international community,164 that is to say, once again acted as an injured State only.
e. Obligation to Prosecute or Extradite case
240. Finally, the Court’s judgment in the case concerning Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal), on which The Gambia
attempts to rely,165 also does not constitute a precedent for a pure actio popularis
brought under the Genocide Convention. Two aspects need to be noted in this respect.
241. First of all, Belgium did consider itself to be an injured or specially-affected State.
Secondly, and even more importantly, that case was brought under the Convention
Against Torture, a treaty which contains obligations that are critically different to those
contained in the Genocide Convention. This holds true, in particular, for those
obligations the violation of which by Senegal Belgium was invoking.
163 See e.g. Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Application instituting proceedings, 2 July 1999, p. 2; Legality of Use of Force
(Yugoslavia v. United Kingdom of Great Britain and Northern Ireland), Application instituting
proceedings, 29 April 1999, p. 3 et seq.; Legality of Use of Force (Yugoslavia v. Canada), Application
instituting proceedings, 29 April 1999, p. 3 et seq.
164 In its application the DRC accordingly stated that by its application “… la République Démocratique du
Congo entend qu'il soit mis fin au plus tôt à ces actes de violations graves des droits de l'homme à l'égard
de ses populations …” (emphasis added); see Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), Application instituting proceedings,
28 May 2002, p. 1.
165 AG, p. 42, para. 124; MG, vol. I, p. 40, para. 2.24.
75
242. As to the first point, Belgium had made it unequivocally clear that it:
is not only a “State other than an injured State”, but has also the
right to invoke the responsibility of Senegal as an “injured State”
under Article 42 (b) (i) of the Articles on State Responsibility
[…]166
since Belgium considered itself to be “affected by the breach in a way which
distinguishes it from the generality of other States to which the obligation is owed”.167
243. Indeed, Belgium was in a particular position as compared to all other States Parties to
Convention Against Torture because, in this particular case, it had availed itself of the
specific right under Article 5 of the Convention Against Torture168 to exercise
jurisdiction and to request extradition. This was formally acknowledged by the Court
when it stated that:
Belgium based its claims not only on its status as a party to the
Convention but also on the existence of a special interest that
would distinguish Belgium from the other parties to the
Convention and give it a specific entitlement […]169
244. Aside from this, the aut dedere aut judicare obligation contained in Article 7,
paragraph 1, of the Convention Against Torture170 is closely linked to the right of the
other States Parties to that Convention, after extradition, to exercise criminal
jurisdiction over the person concerned. As the Court confirmed:
if the State in whose territory the suspect is present has received
a request for extradition in any of the cases envisaged in the
provisions of the Convention [against Torture], it can relieve
itself of its obligation to prosecute by acceding to that request.171
166 Sir Michael Wood acting as Counsel and Advocate for Belgium in the case concerning the Questions
relating to the Obligation to Prosecute and to Extradite (Belgium v. Senegal), Verbatim Record of Public
Sitting of 19 March 2012, CR 2012/6, p. 54, para. 60.
167 Ibid.
168 POM, Annex 9.
169 Questions relating to the Obligation to Prosecute and to Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012, p. 449, para. 66 (emphasis added).
170 POM, Annex 9.
171 Questions relating to the Obligation to Prosecute and to Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012, para. 95.
76
245. Furthermore, the Convention Against Torture, unlike the Genocide Convention,
embodies the principle of universal jurisdiction. As the Court put it in 2012:
The Convention against Torture thus brings together 150 States
which have committed themselves to prosecuting suspects in
particular on the basis of universal jurisdiction.172
246. It is this treaty-specific fact, namely that all States Parties to the Convention Against
Torture have a legally protected interest arising under the treaty either themselves to
prosecute persons responsible for torture, or to have them prosecuted on the same basis
of universal jurisdiction by any other State Party regardless of any nationality link
between the prosecuting State, the alleged offender, the purported victims of the treaty
violations or the place where the alleged treaty violation occurred, which significantly
distinguishes the Convention Against Torture from the Genocide Convention. It was
precisely this specific element that in the specific circumstances of that case justified
the finding that Belgium had standing to raise violations of the Convention Against
Torture without the Court first being required to make a positive finding as to the status
of Belgium as a specially-affected State under the Convention Against Torture.
247. This finding by the Court in this case is therefore fully in line with what has previously
been stated by an eminent scholar writing on the interest to sue under international
law, namely that:
the right to bring an action in the public interest does not ensue
from general international law; such a right must have been
agreed upon – expressly or impliedly – between the States
concerned in a treaty or on an ad hoc basis.173
248. In sharp contrast to the Convention Against Torture, however, Article VI of the
Genocide Convention only provides, as confirmed by the Court’s jurisprudence, for
an obligation to exercise territorial jurisdiction. As the Court put it unequivocally in
the Bosnian Genocide case, “Article VI only obliges the Contracting Parties to institute
and exercise territorial criminal jurisdiction”174 rather than universal jurisdiction.
172 Ibid., para. 75 (emphasis added).
173 P. van Dijk, Judicial Review of Governmental Action and the Requirement of an Interest to Sue (1980),
POM, Annex 20.
174 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, p. 226, para. 442 (emphasis
added).
77
Accordingly, the Genocide Convention, unlike the Convention Against Torture, from
its inception did not envisage any form of enforcement by the Contracting Parties,
other than by those on whose territory the acts in question were committed. Unlike the
Convention Against Torture, the Genocide Convention therefore does not contain an
implied agreement to accept the standing of a non-injured State to bring cases before
the Court. Moreover, Myanmar has entered a reservation to Article VI of the Genocide
Convention, to which The Gambia has not objected, to the effect that Article VI cannot
be interpreted:
as giving foreign Courts and tribunals jurisdiction over any cases
of genocide […] committed within the […] territory” of
Myanmar.175
249. Accordingly, Myanmar has made clear from the moment of its accession its
understanding that the Genocide Convention does not confer on other Contracting
Parties the ability to enforce the prohibition of acts of genocide arising under the
Convention when committed on the territory of Myanmar – a position that was not
challenged by The Gambia when it itself acceded to the Genocide Convention.
250. These same considerations as to the specific characteristics of the Convention Against
Torture, which then trigger the treaty-specific ability even of non-injured States to
bring cases before the Court under that treaty’s compromissory clause, apply mutatis
mutandis to Article 6, paragraph 2, of the Convention Against Torture.176 This
provision contains an obligation to open an investigation which constitutes a
preliminary step in the process towards a possible criminal investigation and eventual
prosecution for acts of torture. It is only the non-fulfilment of this obligation which
then triggers the right of all other States Parties to the Convention Against Torture to
request extradition.
251. Accordingly, it was these specific features of the Convention Against Torture that led
the Court in this case to make a positive finding as to Belgium’s standing – treatyspecific
features of the Convention Against Torture that are not found in the Genocide
Convention. Thus, even if one were to assume that the obligations under the
175 UN Secretary General, Depositary Notification of 29 March 1956, CN.25.1956, MG, vol. II, Annex 5.
176 POM, Annex 9.
78
Convention Against Torture otherwise possess an erga omnes partes character, the
absence of the same critical features in the Genocide Convention means that the
decision in the Obligation to Prosecute or Extradite case is not of direct relevance to
the present case.
252. Furthermore, even leaving aside these specific differences between the two
conventions, it has to be noted that the Genocide Convention was drafted and adopted
almost 40 years prior to the Convention Against Torture. Can it really be assumed that
the drafters of the Genocide Convention wanted, as early as 1948, not only to provide
in the Convention for obligations erga omnes partes, but also to invest all Contracting
Parties with unlimited standing? Can it really be assumed that in 1948 they would
have wanted to do so without introducing any form of jurisdictional filter found in
similar treaties, thereby providing for the possibility of bringing an actio popularis?
Can the drafters of the Genocide Convention have really intended this in 1948, when
the first ever reference to an actio popularis in the case law of this Court was in the
South West Africa cases in 1966, in which the Court said177 that “although a right of
this kind [an actio popularis] may be known to certain municipal systems of law, it is
not known to international law as it stands at present”?
253. Thus, although there was considerable confusion among the drafters as to the scope of
the Genocide Convention’s compromissory clause,178 it cannot be seriously argued
that as early as 1948 the drafters intended to provide for a possibility for any
Contracting Party, even a State not specially affected by an alleged violation of the
Convention, to bring proceedings before the Court against any other Contracting Party.
It certainly cannot be assumed that they considered that this possibility was provided
for in the text that they adopted, which contained no provision even hinting at its
existence, much less expressly providing for it. In that regard it must also be noted
that in the meantime no consensus has been expressed by the Contracting Parties to
the Genocide Convention within the meaning of Article 31, paragraph 3 (a) and (b) of
the Vienna Convention on the Law of Treaties179 to the effect that the Convention
177 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 47, para. 88.
178 Cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, Declaration of Judge Oda, I.C.J. Reports 1996, p. 628, para. 5.
179 POM, Annex 4.
79
would embrace the concept of an actio popularis. Rather to the contrary, as shown
above, in those situations where cases were brought before the Court under Article IX
of the Genocide Convention, they were always brought by specially-affected
Contracting Parties.
254. Besides, where States have been willing to accept the possibility of some form of actio
popularis being brought under a treaty’s compromissory clause, as in the case of the
Convention Against Torture, the compromissory clause has contained stricter
requirements for the bringing of a case before the Court than those found in Article IX
of the Genocide Convention.
255. In fact, in the case of the Convention Against Torture, the compromissory clause in its
Article 30, paragraph 1,180 provides that a State Party to that Convention can refer a
dispute concerning the interpretation or application of that Convention to the Court
only if the dispute cannot first be settled by negotiation, and only after the dispute has
then been submitted to arbitration and the parties have been unable to agree on the
organization of the arbitration.
256. In the case of the 2019 ILC Draft Articles on Prevention and Punishment of Crimes
Against Humanity,181 the compromissory clause in its Article 15 only permits a State
to submit a dispute concerning the interpretation or application of those Draft Articles
to the Court if the dispute cannot be settled by negotiation, and only then if none of
the parties has instead opted for the dispute to be settled by arbitration.
257. In the case of the International Convention on the Suppression and Punishment of the
Crime of Apartheid, the compromissory clause in its Article XII182 provides for a joint
seisin of the Court by both parties to the dispute only, and, as in the case Article 15 of
the ILC Draft Convention on Prevention and Punishment of Crimes Against Humanity,
subjects the possibility of submitting a dispute to the Court to an exception where the
parties have agreed to some other form of settlement.183
180 POM, Annex 9.
181 POM, Annex 81.
182 POM, Annex 6.
183 POM, Annex 81.
80
258. In contrast, the Genocide Convention does not contain any of those additional
safeguards which aim at precluding a proliferation of disputes being brought before
the Court by States parties that do not have a genuine specific legal interest of their
own, which distinguishes their legal position from that of all other States parties.
259. In this context it is particularly worth noting that in its 1951 Advisory Opinion on
Reservations to the Genocide Convention, the Court observed that the intention of the
drafters of the Genocide Convention had been that the Convention should be ratified
by as many States as possible.184 Had the drafters at that time considered that the text
of Article IX of that Convention, as finally adopted, might one day be understood as
allowing for an actio popularis, it is reasonable to assume that they would have not
adopted the compromissory clause in that form since the aim of achieving universal
participation would have thereby been made significantly more difficult, if not
impossible.
2. The content, structure and drafting history of the Genocide
Convention all exclude the possibility of an actio popularis
a. Content and structure of the Genocide Convention and its
Article IX
260. At the outset, it is noted that the Genocide Convention does not contain any kind of
reference to the possibility of a non-injured State bringing a case before the Court, that
is to say, there is no indication in the text of the Convention itself that would
specifically contemplate such a possibility.
261. Furthermore, Article IX of the Genocide Convention is more limited as compared to
other compromissory clauses such as, inter alia, Article 30 of the Convention Against
Torture. This also confirms that the compromissory clause in the Genocide Convention
does not contemplate the possibility of an actio popularis.
184 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, I.C.J. Reports 1951, p. 24.
81
262. In particular, Article 30 of the Convention Against Torture,185 like Article 22 of the
International Convention on the Elimination of All Forms of Racial Discrimination,186
Article 29 of the Convention on the Elimination of All Forms of Discrimination
against Women,187 Article 92 of the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families,188 as well as Article 42
of the International Convention for the Protection of All Persons from Enforced
Disappearance,189 all refer to the possibility of “all disputes” (“tout différend”, “toda
controversia” and “Любой спор” in the respective French, Spanish and Russian
versions) arising under those respective treaties being brought before the Court.
263. In using the comprehensive term “all disputes” or “tout différend”, those other
compromissory clauses might thereby possibly envisage that even disputes as to the
interpretation or application of the respective treaty arising between a State party
allegedly committing a treaty violation on the one hand, and a non-injured or notspecially-
affected State party on the other, could be brought before the Court.
264. In contrast thereto, Article IX of the Genocide Convention does not contemplate that
“all disputes” or “any disputes” arising under that treaty can be brought before the
Court. Instead, Article IX of the Genocide Convention refers only to “disputes”
between the Contracting Parties. The same holds true for the French and Spanish
versions of the Genocide Convention. The French version refers to “les différends”
rather than to “des différends” or “tout différend”. The Spanish version refers to “las
controversias” rather than to “toda controversia”. This omission of the word
“any”/“tout”/“toda” cannot be ignored.
265. Furthermore, within the text of Article IX of the Genocide Convention, very shortly
after the reference to “disputes” or “les différends”, there is in fact a usage of the word
“any” in the English version, and corresponding expressions in the other language
versions. The English version goes on to speak of “any of the other acts enumerated
185 POM, Annex 9.
186 POM, Annex 3.
187 POM, Annex 7.
188 POM, Annex 10.
189 POM, Annex 11.
82
in article III”.190 The French version correspondingly proceeds to refer to “quelconque
des autres actes énumérés à l'article III”. The Spanish version uses the expression
“cualquiera de los otros actos enumerados en el artículo III”.191 This confirms that the
text of Article IX of the Genocide Convention itself draws a distinction between, on
the one hand, a reference to the entire spectrum of occurrences of something (“any”,
“tout” or “toda”), and a reference that is only to specific kinds of occurrences of
something (for example, “Disputes between the contracting parties”).
266. Similarly, and in the specific context of disputes arising under the Genocide
Convention, the very last part of Article IX refers to “any of the parties to the dispute”
being able to request that a dispute be submitted to the Court. In other words,
Article IX of the Genocide Convention thus foresees that not any dispute may be
brought before the Court, but that once a relevant dispute has arisen, any party to that
dispute may then unilaterally request that such dispute be submitted to the Court.
Otherwise, the text of Article IX of the Genocide Convention would, just like
Article 30 of the Convention Against Torture, have also used the term “any” in relation
to the “dispute” that can be brought before the Court, and not just in relation to the
parties to the dispute.
267. This result is further confirmed by a juxtaposition of Article IX of the Genocide
Convention with its Article VIII. As will be demonstrated later in relation to
Myanmar’s third preliminary objection, Article VIII of the Genocide Convention
(inter alia) governs the seisin of the Court, and if nothing else, it is Myanmar’s
reservation to Article VIII that precludes non-injured States from bringing a case
against Myanmar relating to the interpretation or application of the Genocide
Convention.
268. The Gambia claims that Article VIII of the Genocide Convention solely “applies to a
procedure that is separate and distinct from adjudication”,192 and that Article IX
constitutes the only provision of the Convention governing the seisin of the Court.193
190 Emphasis added.
191 Emphasis added.
192 MG, vol. I, p. 31, para. 2.5.
193 Ibid.
83
However, even if it were to be assumed, merely arguendo and for the time being only,
that Article VIII of the Genocide Convention does only govern the seisin of organs of
the United Nations other than the Court, then Article VIII, even on The Gambia’s own
understanding of that provision, makes it clear that the seisin of the political organs
can be effected, as Article VIII puts it, by “[a]ny Contracting Party”, “[t]oute Partie
Contractante” or “[t]oda Parte contratante”194 to the Convention, regardless of whether
that Contracting Party is an injured or a non-injured State, that is, regardless of whether
it is specially affected by the alleged treaty violation or not.
269. Therefore, on any view, the expression “any Contracting Party” as it appears in
Article VIII of the Genocide Convention can be contrasted with the expression “the
Contracting Parties” which is used in Article IX. According to The Gambia’s own
position, any Contracting Party would be entitled to seise competent organs of the
United Nations other than the Court pursuant to Article VIII, whereas pursuant to
Article IX, the only parties entitled to request that a dispute be submitted to the Court
would be “the Contracting Parties”. The different expressions “any Contracting Party”
and “the Contracting Parties” must be intended to have different meanings. Therefore,
even if one were to accept The Gambia’s contention that Article VIII “opens the door
for a […] (non-judicial) ‘actio popularis’”,195 Article IX, given its divergent wording,
would close the door to a judicial actio popularis.
270. The drafting process leading to the adoption of Article VIII of the Genocide
Convention further confirms that the involvement of the political organs of the United
Nations was intended to be as broad as possible in order to allow for an effective
prevention and suppression of genocidal acts.
271. In fact, the first draft of the Secretariat already provided that under what was to become
Article VIII of the Genocide Convention, the organs of the United Nations could be
called upon in cases of alleged acts of genocide taking place “in any part of the
world”.196 While the wording of the subsequent draft prepared by the Ad Hoc
194 Emphasis added.
195 B. Schiffbauer in C. Tams et al. (eds.), Convention on the Prevention and Punishment of the Crime of
Genocide: A Commentary (2014), Art. VIII, p. 278, POM, Annex 28.
196 UNSG, Draft Convention on the Crime of Genocide, UN doc. E/447, 26 June 1947, draft Art. XII, p. 9,
POM, Annex 34.
84
Committee was slightly different, the discussion within the Ad Hoc Committee
confirms that the broad concept underlying Article VIII to the Genocide Convention
was nevertheless retained. This is confirmed not only by the broad wording then used
by the Ad Hoc Committee, which referred to “any case of violation of this
convention”,197 but also by the fact that the majority of the Committee members
considered that any party to the Convention, even if it was not a Member of the United
Nations, should be enabled by the future Article VIII of the Genocide Convention to
call upon the United Nations to take appropriate action.198
272. Even draft proposals providing for a more limited personal scope of Article VIII were
still driven by the common idea that the best way to prevent and suppress genocide
was by concerted action by States, be they specially affected or not by the alleged
genocidal acts, through the political organs of the United Nations.199
273. In other words, there was a clear consensus among States participating in the process
of negotiating Article VIII of the Genocide Convention that Article VIII could be
triggered by each and every Contracting Party to the Genocide Convention. If those
same States, simultaneously also involved in the process of negotiating Article IX, had
similarly wanted to also enable any Contracting Party to the Genocide Convention,
injured or non-injured, to be entitled to bring a case before the Court under Article IX
of the Convention, it would have been most natural, if not necessary, to use in
Article IX the same “any Contracting Party” formulation already used in Article VIII,
or the “any dispute” formulation akin to Article 30 of the Convention Against Torture.
Indeed, if that had been the intention, it would have been more natural to align
Article IX with Article VIII by for example stating in Article IX that:
Any Contracting Party may submit to the International Court of
Justice a dispute relating to the interpretation, application or
197 UN, Ad Hoc Committee on Genocide, Draft Convention on Prevention and Punishment of the Crime of
Genocide, UN doc. E/AC.25/12, 19 May 1948, draft Art. VIII (emphasis added), POM, Annex 42.
198 See discussion and voting in the Ad Hoc Committee on Genocide, UN doc. E/AC.25/SR.20, 4 May 1948,
pp. 4-5 and E/AC.25/SR.20/Corr.1, POM, Annex 41.
199 UN, Draft Convention on Genocide, Communications received by the Secretary-General, Communication
received from the United States of America, UN doc. A/401/Add.2, 30 September 1947, at pp. 12-13
(comments on draft Art. XII), POM, Annex 35. The Comments of the United States are also contained in:
UN, Comments by Governments on the Draft Convention prepared by the Secretariat, Communications
from non-governmental organizations, UN doc. E/623, 30 January 1948, in H. Abtahi and P. Webb, The
Genocide Convention: The Travaux Préparatoires, vol. I (2008), p. 549, POM, Annex 37.
85
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.
274. Furthermore, if the intention of Article IX of the Genocide Convention had indeed
been, as The Gambia claims, to put in place a system of judicial actio popularis akin
to the political actio popularis enshrined in Article VIII of the Genocide Convention,
one would expect to be able to trace a debate relating to Article IX akin to the one
referred to above that took place with regard to the broad scope of Article VIII. Yet,
there is none. Rather, to the contrary, as will be shown below,200 the travaux
préparatoires relating to Article IX confirm that no judicial actio popularis was
envisaged.
275. The Gambia cannot have it both ways. Either it is Article VIII of the Genocide
Convention that governs the seisin of the Court (as Myanmar respectfully submits is
the case and will show later in more detail), or it is Article IX. If it is Article VIII,
then non-injured States may seise the Court with disputes arising under the Genocide
Convention, unless barred by a valid reservation to Article VIII, which is the case
here.201 If it is Article IX, then the clear contrast in wording between Article VIII and
Article IX demonstrates that Article IX is not intended to have the same broad scope
of allowing an unlimited right for any Contracting Party to seise the Court.
276. This result that Article IX of the Genocide Convention does not provide for the right
of non-injured Contracting Parties to bring cases before the Court, based on the actual
wording and overall structure of the Convention, is further confirmed by the drafting
history of Article IX.
b. Drafting history of Article IX Genocide Convention
277. Apart from the fact that, as will be shown later in relation to Myanmar’s third
preliminary objection,202 the drafting history of Article IX of the Genocide Convention
200 See paragraphs 277 to 295 below.
201 See the third preliminary objection of Myanmar below.
202 See paragraphs 402 to 435 below.
86
confirms the close interrelationship between Articles VIII and IX of the Convention,
the travaux préparatoires relating to Article IX of the Convention alone also confirm
that Article IX was not meant to provide that “any” dispute could be validly brought
before the Court.
278. The first draft of what was to become Article IX of the Genocide Convention (then
draft Article XIV) prepared by the Secretary-General had provided that:
Disputes relating to the interpretation or application of this
Convention shall be submitted to the International Court of
Justice.203
279. In a communication dated 30 September 1947, the United States then however
suggested inserting the words “between any of the High Contracting parties”204 after
the word “disputes”.205 The draft compromissory clause, as then proposed by the
United States, would accordingly have read as follows:
Disputes between any of the High contracting parties relating to
the interpretation or application of this Convention shall be
submitted to the International Court of Justice.206
280. During the consideration of what had become in the meantime draft Article X (now
Article IX of the Genocide Convention) at the Sixth Committee of the General
Assembly, the United Kingdom referred both to draft Article VII (which dealt inter
alia with the creation of a competent international tribunal to punish persons charged
with genocide), and to draft Article X. It suggested replacing the text of draft
Article VII by the following:
Where the act of genocide […] is, or is alleged to be the act of
the State or Government itself or of any organ or authority of the
State or Government, the matter shall, at the request of any other
party to the present Convention, be referred to the International
203 UNSG, Draft Convention on the Crime of Genocide, UN doc. E/447, 26 June 1947, p. 10, draft Article XIV,
POM, Annex 34.
204 Emphasis added.
205 UN, Draft Convention on Genocide, Communications received by the Secretary-General, Communication
received from the United States of America, UN doc. A/401/Add.2, 30 September 1947, at p. 14 (comments
on draft Art. XIV), POM, Annex 35. The Comments of the United States are also contained in: UN,
Comments by Governments on the Draft Convention prepared by the Secretariat, Communications from
non-governmental organizations, UN doc. E/623, 30 January 1948, in H. Abtahi and P. Webb, The
Genocide Convention: The Travaux Préparatoires, vol. I (2008), p. 551, POM, Annex 37.
206 Emphasis added.
87
Court of Justice whose decision shall be final and binding. Any
acts or measures found by the Court to constitute acts of genocide
shall be immediately discontinued or rescinded and if already
suspended shall not be resumed or reimposed.207
281. This proposal, by referring to the ability of any other of the Contracting Parties to the
Genocide Convention to seise the Court, would have indicated clearly the possibility
of an actio popularis. In addition, for draft Article X the United Kingdom proposed
the following text:
In addition to the cases contemplated by Article VII of the
present Convention all disputes between the High Contracting
Parties relating to the interpretation or application of the
Convention shall, at the request of any party to the dispute, be
referred to the International Court of Justice.208
282. Belgium then submitted a sub-amendment to this British amendment on draft
Article VII which read as follows:
Any dispute relating to the fulfilment of the present undertaking
or to the direct responsibility of a State for the acts enumerated
in Article IV [now Article III of the Genocide Convention] may
be referred to the International Court of Justice by any of the
Parties to the present Convention. […]209
283. A few days later, Belgium and the United Kingdom submitted a joint amendment to
the draft compromissory clause, which now read as follows:
Any dispute between the High Contracting Parties relating to the
interpretation, application or fulfilment of the present
Convention, including disputes relating to the responsibility of a
State for any of the acts enumerated in article II and IV, shall be
submitted to the International Court of Justice, at the request of
any of the High Contracting Parties.210
207 UNGA, Sixth Committee, Genocide: Draft Convention and Report of the Economic and Social Council,
United Kingdom: Further amendments to the Draft Convention (E/794), Corrigendum, UN doc.
A/C.6/236/Corr.1, 19 October 1948 (emphasis added), POM, Annex 46.
208 UNGA, Sixth Committee, Genocide: Draft Convention and Report of the Economic and Social Council,
United Kingdom: Further amendments to the Draft Convention (E/794), UN doc. A/C.6/236, 16 October
1948, p. 2 draft Art. X (emphasis added), POM, Annex 45.
209 UNGA, Sixth Committee, Genocide: Draft Convention and Report of the Economic and Social Council,
Belgium: Amendment to the United Kingdom Amendments to Articles V and VII (A/C.6/236 & 236
Corr.1), UN doc. A/C.6/252, 6 November 1948 (emphasis added), POM, Annex 47.
210 UNGA, Sixth Committee, Genocide – Draft Convention and Report of the Economic and Social Council,
Belgium and United Kingdom: Joint Amendment to article X of the draft Convention (E/794), UN doc.
A/C.6/258, 10 November 1948 (emphasis added), POM, Annex 48.
88
284. It is noteworthy that at this stage draft Article X (now Article IX of the Genocide
Convention) still referred both to “any” form of dispute arising under the Convention,
and to disputes being submitted to the Court at the request of “any” of the High
Contracting Parties.
285. It was then during the debate on this proposal at the Sixth Committee that India
proposed an amendment to this draft article by which the words “at the request of any
of the High Contracting Parties”211 at the end of draft Article X (now Article IX of the
Genocide Convention) were substituted by the words “at the request of any of the
parties to the dispute”.212
286. In making this proposal, India stated that the joint Belgian/UK amendment referred to
above:
would make it possible for an unfriendly State to charge, on
vague and unsubstantial allegations, that another State was
responsible for genocide within its territory.213
287. During the debate in the Sixth Committee, India’s proposal met with approval and the
last part of draft Article X (now Article IX of the Genocide Convention) was
accordingly changed to its current wording.214
288. This confirms that the drafters thought that a claim under draft Article X (now
Article IX of the Genocide Convention) could only be brought before the Court by a
State that was involved in a genuine dispute that might arise under the future Genocide
Convention between a Contracting Party allegedly committing genocide and another
Contracting Party specially affected by such alleged treaty violations. At the same
time, it was, as just shown, undisputed that not any of the High Contracting Parties
should be able to seise the Court.
211 UNGA, Sixth Committee, Hundred and Third Meeting, Continuation of the consideration of the draft
convention on genocide [E/794]: report to the Economic and Social Council [A/633] (12 November 1948),
UN doc. A/C.6/SR.103, UN doc. A/C.6/SR.103, pp. 428 fn. 1, 437 Mr. Sundaram (India), POM, Annex 51.
212 Ibid., p. 428 fn 1.
213 Ibid., p. 437 et seq. Mr. Sundaram (India) (emphasis added).
214 UNGA, Sixth Committee, Hundred and Fourth Meeting, Continuation of the consideration of the draft
convention on genocide [E/794]: report to the Economic and Social Council [A/633] (13 November 1948),
UN doc. A/C.6/SR.104, p. 447, POM, Annex 52.
89
289. It was in line with this approach that the Drafting Committee then deleted the word
“any” at the very beginning of what was to become Article IX of the Genocide
Convention,215 which again confirms the intended limited scope of that provision. This
further confirms that Article IX of the Genocide Convention, unlike for instance
Article 30 of the Convention Against Torture, was not meant to provide for the right
of each and every Contracting Party, be it specially affected by alleged treaty violations
or not, to seise the Court with any such claim.
290. Shabtai Rosenne has captured the essence of this debate in the following words:
The first [aspect] is the refusal of the negotiating States in the
General Assembly to accept a compromissory clause which
would have allowed, and possibly obliged, any State party to the
Convention to institute proceedings, and the decision to limit the
right to seise the Court to a State party to a dispute concerning
the interpretation, application or fulfilment of the Convention.
Without prejudice to Article 63 of the Statute of the International
Court of Justice, this shuts out the slight opening that the
unamended texts might have given to the idea of an actio
popularis in relation to the erga omnes obligations of the
Genocide Convention, initiated by a third State as an original
party.216
291. This understanding of the Genocide Convention’s compromissory clause is also
mirrored in an unchallenged statement made by the United States representative in the
Sixth Committee of the General Assembly immediately prior to the adoption of the
text of the Genocide Convention. He confirmed that “responsibility” within the
meaning of Article IX of the Genocide Convention had to be understood as
“responsibility to another State for damages inflicted […] to the subjects of the
plaintiff State”,217 or that at the least, in order for a Contracting Party to the Genocide
215 UNGA, Sixth Committee, Genocide: Draft Convention and Report of the Economic and Social Council
(E/794), Draft resolutions proposed by the Drafting Committee, UN doc. A/C.6/289, 23 November 1948,
p. 3, POM, Annex 55.
216 S. Rosenne, “War Crimes and State Responsibility”, Israel Yearbook on Human Rights, vol. 24 (1994),
POM, Annex 27.
217 UNGA, Sixth Committee, Hundred and Thirty-Third Meeting, Continuation of the consideration of the
draft convention on genocide [E/794]: report to the Economic and Social Council [A/633] (2 December
1948), UN doc. A/C.6/SR.133, p. 704 Mr. Gross (United States), POM, Annex 56.
90
Convention to be able to bring a case under its Article IX, the respective dispute must
be one “concerning the interests of subjects of the plaintiff State”.218
292. This interpretation of the Genocide Convention’s compromissory clause by the United
States reflects the drafting history of Article IX, and this interpretation, as just
mentioned, met with no objection just before the text of the Convention was about to
be adopted by the Sixth Committee of the General Assembly. Just as was the case as
far as the interpretation of Article 12 of the United Nations Convention on
Jurisdictional Immunities of States and Their Property was concerned, with which the
Court had to deal in the case concerning Jurisdictional Immunities of the State,219 no
State questioned this interpretation. This interpretation was then also reflected in the
recommendation of United States Acting Secretary of State James E. Webb, endorsed
by United States President Harry S. Truman, in his message to the United States Senate
seeking its advice and consent to enable the United States Government to ratify the
Convention. That report of the Acting Secretary of State stated that it was the
understanding of the United States Government that:
article IX shall be understood in the traditional sense of
responsibility to another state for injuries sustained by nationals
of the complaining state in violation of principles of international
law, and shall not be understood as meaning that a state can be
held liable in damages for injuries inflicted by it on its own
nationals.220
293. This position was then reiterated as late as 1985, when the Committee on Foreign
Relations of the United States Senate, in a report which led to the ratification of the
Genocide Convention by the United States, provided the following interpretation of
Article IX of the Genocide Convention:
The Court is also directed to hear disputes “relating to the
responsibility of a State for genocide or for any other acts
enumerated in Article III.” This is understood in the traditional
sense of responsibility to another state for injuries sustained by
218 Ibid.
219 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports
2012, p. 99, p. 130, para. 69.
220 United States of America, Senate, Report of the Acting Secretary of State, an enclosure to the “Message
from the President of the United States”, in The Genocide Convention: Hearings before a Subcommittee of
the Committee on Foreign Relations, Eighty-first Congress, Second Session, 23-25 January and 9 February
1950, p. 5, POM, Annex 130.
91
nationals of the complaining state in violation of principles of
international law.221
294. It is evident that this interpretation by the United States is not compatible with the very
concept of non-injured Contracting Parties being able to bring an actio popularis as
The Gambia attempts to do.
295. To conclude, as shown, the drafting history of the Genocide Convention confirms that
there is no basis for the recognition of a pure actio popularis under that Convention.
While every State to which an erga omnes partes obligation is owed may have an
interest in compliance with that obligation, and may even be entitled to invoke the
claimed breach in international relations, this is not sufficient when it comes to
establishing standing to bring a claim before this Court. In fact, allowing a pure actio
popularis under the Genocide Convention would cause an uncontrollable proliferation
of disputes that might, rather than foster peace and security, destabilize international
relations.
3. A comparison with the law of State responsibility confirms the
exclusion of an actio popularis
296. It is in particular the debate within the ILC and the reactions of States to the work of
the ILC concerning what is now Article 54 of the ILC Draft Articles on State
Responsibility222 that further confirms that, absent a specific treaty-based reference in
a given treaty, third States not specially affected by an alleged treaty violation are not
in a position to remedy such violation of international law, be it by taking countermeasures,
be it by bringing a case before the Court under a compromissory clause
contained in such treaty.
221 Report of the Committee on Foreign Relations United State Senate together with Additional and
Supplemental Views on The International Convention on the Prevention and Punishment of the Crime of
Genocide, Executive O., 81st Congress, 1st session, July 18, 1985, p. 12, POM, Annex 131 (emphasis
added).
222 POM, Annex 69.
92
297. While there is no need to go through the extensive work of the ILC on the issue of
State responsibility in detail, it suffices to recall the fate of what was Article 54 in the
2000 version of the ILC’s Draft Articles on State responsibility to confirm this.
298. As the Court is fully aware, the very broad draft Article 54 of the 2000 version of the
ILC Draft Articles on State Responsibility had provided for a right of all States,
including non-injured States, to take countermeasures in response to an alleged serious
breach of an erga omnes obligation. This 2000 version had accordingly provided:
Article 54
Countermeasures by States other than the injured State
[…]
2. In the cases referred to in article 41, any State may take
countermeasures, in accordance with the present Chapter in the
interest of the beneficiaries of the obligation breached.223
299. However, this proposed right of non-injured States to take counter-measures in
situations of serious violations of erga omnes obligations evoked, as the ILC itself
openly acknowledged, strong opposition among many States.224 The then Special
Rapporteur even noted tellingly at that time that what was contained in draft Article 54
(2000) had “no basis in international law”.225 It is exactly for that reason that the
current Article 54 of the ILC Draft Articles on State Responsibility, as adopted and of
which the General Assembly later took note, does not recognize the right of noninjured
States to take counter-measures even in a situation where serious violations of
international law within the meaning of Article 40 of those Draft Articles are alleged
to have been committed. As the Court is fully aware, Article 54 of the ILC Draft
Articles on State Responsibility merely provides as follows:
Article 54
223 ILC, State responsibility, Draft articles provisionally adopted by the Drafting Committee on second reading,
UN doc. A/CN.4/L.600, 21 August 2000, p. 15 (emphasis added), POM, Annex 64 (pages 12-14 of this
document are at MG, vol. II, Annex 12).
224 ILC, Report of the International Law Commission on the work of its fifty-second session (2000), UN doc.
A/CN.4/513, 15 February 2001, paras. 175-177, 181, POM, Annex 65 (pages 15-17 of this document are
at MG, vol. II, Annex 16).
225 ILC, Fourth report on State responsibility by Mr. James Crawford, Special Rapporteur, UN doc
A/CN.4/517, 2 April 2001, para. 72, POM, Annex 66.
93
Measures taken by States other than an injured State
This chapter does not prejudice the right of any State, entitled
under article 48, paragraph 1, to invoke the responsibility of
another State, to take lawful measures against that State to ensure
cessation of the breach and reparation in the interest of the
injured State or of the beneficiaries of the obligation breached.226
300. The ILC’s commentary accompanying the ILC Draft Articles on State Responsibility
confirmed, if there was any need, that “the current state of international law on
countermeasures taken in the general or collective interest is uncertain”227 and that
“State practice is sparse and involves a limited number of States”228 only. Accordingly,
the ILC concluded that:
there appears to be no clearly recognized entitlement of States
referred to in article 48 [of the ILC Draft Articles on State
Responsibility] to take countermeasures in the collective
interest.229
301. It follows that even if one were to accept arguendo the erga omnes partes character of
the obligations underlying the Genocide Convention, this might mean that a notspecifically-
affected, that is to say, non-injured, Contracting Party would have the right
to demand cessation of violations and performance of obligations in the interests of
the beneficiaries of the obligation breached, but they would not have the right to take
countermeasures. Rather, it would remain the international community at large,
through action taken within the framework of international organizations and in
particular through the UN Security Council, that is called upon in such a scenario to
take appropriate measures.
302. Yet, taking countermeasures in response to violations of obligations erga omnes partes
on the one hand, and bringing a case before the Court on the other, are simply two
ways of vindicating erga omnes obligations. Both enforcement mechanisms provided
for in international law simply constitute two sides of the same coin. This has been
226 POM, Annex 69.
227 Ibid., p. 139.
228 Ibid.
229 Ibid.
94
confirmed in the Court’s jurisprudence specifically with regard to Article IX of the
Genocide Convention.
As the Court has put it, bringing a case under Article IX of the
Genocide Convention is only one amongst other “particular
method[s] of settling a dispute relating to the interpretation,
application or fulfilment of the Convention”.230
303. At the same time, the taking of countermeasures is another way, as Article 49 of the
ILC Draft Articles on State Responsibility231 confirms, to induce a State to comply
with its obligations under international law, that is, in the case at hand, to comply with
its obligations under the Genocide Convention, and by doing so also to settle a dispute
that has arisen under the Genocide Convention.
304. It would accordingly be surprising, to say the least, to now find that the Genocide
Convention entitles a non-injured Contracting Party to settle a dispute with respect to
a claimed violation of that Convention that it claims has arisen with another
Contracting Party by submitting that case to the Court, while not entitling that State at
the same time to take countermeasures against the Contracting Party alleged to be in
breach of the Convention.
305. Indeed, as indicated above, the ILC found, in the context of countermeasures, that the
proposition that an erga omnes obligation could be vindicated by a non-injured, notspecially-
affected State was not acceptable for the international community at large,
and indeed had no basis in international law. That being the case, it is hardly
conceivable that this unacceptable proposition could be put into effect by using another
method of dispute settlement, given the Court’s above-mentioned statement that
bringing a case before the Court and taking countermeasures are simply two analogous
methods of dispute settlement.
306. In fact, finding an actio popularis to be admissible even where no clear text-based
indications to that effect may be found in the treaty in question would lead to
contradictory results. Certainly, this would mean that a non-injured State could bring
a case under Article IX of the Genocide Convention against another Contracting Party
230 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction and Admissibility, Judgement, I.C.J. Reports 2006, p. 32, para. 67.
231 POM, Annex 69.
95
to the Genocide Convention. Assuming that the Court then renders a judgment finding
that the respondent State is in the process of committing violations of the Genocide
Convention, and is continuing to do so, other non-injured States, which find
themselves in the same position as the applicant State would still not be entitled to take
countermeasures, according to the view of the ILC in its commentary to Article 54 of
the ILC Draft Articles on State Responsibility that there does not exist an entitlement
of such States to take countermeasures in the collective interest.
307. Conversely, it would have far-reaching effects if the Court were to find that noninjured
States have standing to bring claims of alleged treaty violations before the
Court even where the relevant treaty contains neither express provisions nor clear textbased
indications allowing for this. It would follow that all such non-injured States
could then also take countermeasures regardless of whether the relevant treaty contains
a compromissory clause or not, and regardless of whether the State taking such
countermeasures has itself made a reservation to the treaty excluding the effect of the
compromissory clause.
308. Accordingly, and in line with Article 31, paragraph 2 (c), of the Vienna Convention
on the Law of Treaties,232 which requires any treaty interpretation to take place within
the framework of other relevant rules of international law, a treaty such as the
Genocide Convention lacking any clear indication to that effect, cannot be said to
provide for the possibility of an actio popularis to be brought by a non-injured State
not possessing any link whatsoever to the relevant factual situation.
309. On the whole therefore the 1948 Genocide Convention cannot be said to have provided
for the right of non-injured Contracting Parties to bring cases before the Court under
its Article IX. Yet, even if the Court were to find otherwise as a matter of principle,
the specific circumstances of the case now before the Court would still preclude the
Court from finding that The Gambia has standing to bring the case under Article IX.
232 POM, Annex 4.
96
D. In any event, The Gambia lacks standing since any standing of non-injured
Contracting Parties is subsidiary to that of specially-affected Contracting
Parties
310. In any event, even if it were now to be assumed, arguendo, that Contracting Parties
that are not specially affected may have standing to submit a dispute to the Court under
Article IX of the Genocide Convention as a matter of principle, such standing would
still be subsidiary to, and dependent on, the ability of specially-affected States to bring
a case under the same compromissory clause. The effect of this in the specific
circumstances of the case now before the Court is that The Gambia lacks standing to
bring this case against Myanmar under Article IX of the Genocide Convention.
311. The question of standing of non-injured States cannot be seen in clinical isolation.
Rather, it has to be seen in connection with both the conduct and sovereign decisions
of States specially affected by the alleged violations of international law, as well as in
the context of the limitations on the Court’s jurisdiction, which in this case is
exclusively based on Article IX of the Genocide Convention.
312. In fact, the most natural State to have brought the present case is Bangladesh.
Bangladesh is not only one of the neighbouring countries to Myanmar, but is also the
country where a significant number of the displaced persons, said to be victims of the
alleged genocide, are currently living.
313. In fact, statements and media reports referred to above in relation to Myanmar’s first
preliminary objection indicate that Bangladesh has been closely involved in the
initiative to bring this case before the Court.233 Indeed, the FFM (Independent
International Fact-Finding Mission on Myanmar) stated in its 2019 report that it:
welcome[d] the efforts of States, in particular Bangladesh and
the Gambia […] to […] pursue a case against Myanmar before
the International Court of Justice under the Convention on the
Prevention and Punishment of the Crime of Genocide.234
314. According to press reports in Bangladesh, the Government of that country had already
rejected such idea on political grounds, because “Bangladesh wanted to avoid a direct
233 See in particular paragraphs 69, 70, 72, 81, 82, 83, 136, 137 and 151 below.
234 Report of the independent international fact-finding mission on Myanmar, UN doc. A/HRC/42/50,
8 August 2019, para. 107 (emphasis added), MG, vol. III, Annex 47.
97
confrontation with Myanmar by filing the case”235 and given that both Governments
“also signed some bilateral instruments to repatriate the displaced people”.236
Diplomats of Bangladesh further observed that Bangladesh has done the right thing by
not itself filing the case.237
315. Bangladesh acceded to the Genocide Convention on 5 October 1998. Even more
important for purposes of the Court’s jurisdiction, however, is the fact that Bangladesh,
when it acceded to the Genocide Convention, entered a reservation as to Article IX of
the Convention. This reservation provides that in case of any dispute arising under
Article IX, the consent of all parties to the dispute will be required in each case.238
316. This means, given that the Court has repeatedly upheld the validity of reservations to
Article IX,239 that the reciprocal application of Bangladesh’s reservation would bar
Bangladesh from bringing a case under Article IX of the Genocide Convention against
Myanmar unless Myanmar were to consent to such exercise of jurisdiction by the
Court.
317. The same also holds true for all other neighbouring countries of Myanmar with the
exception of Laos. Each of Myanmar’s other neighbours is either not a Contracting
Party to the Genocide Convention at all (Thailand), or has entered a reservation to
Article IX to the effect that the submission of any dispute under that provision to the
Court requires the consent of all parties to the dispute (India, Bangladesh), or has
entered a reservation to Article IX to the effect that the compromissory clause does not
apply to it at all (China). Therefore, none of Myanmar’s other neighbouring States
(except Laos) could have brought the matter to the Court’s attention under Article IX
of the Genocide Convention either.
235 Dhaka Tribune, “Why didn't Bangladesh lodge the case with ICJ?”, 13 December 2019, POM, Annex 160.
236 Ibid.
237 Ibid.
238 The reservation is set out in MG, vol. II, Annex 2, p. 3, column 2.
239 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction and Admissibility, Judgement, I.C.J. Reports 2006, p. 33, para. 69; Legality of Use
of Force (Yugoslavia v. United States of America), Provisional Measures, Order of 2 June 1999, I.C.J.
Reports 1999, p. 924, paras. 24-25; Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures,
Order of 2 June 1999, I.C.J. Reports 1999, p. 772, paras. 32-33.
98
318. The fact that it was The Gambia as a non-injured State that brought the case against
Myanmar under Article IX of the Genocide Convention thus has to be seen in light of
both the political unwillingness and inability of Bangladesh to bring a case against
Myanmar under the Genocide Convention on its own given its Article IX reservation.
In other words, in bringing this case, The Gambia is trying to circumvent the otherwise
existing limitations on the Court’s jurisdiction under Article IX to the Genocide
Convention. This patent attempt to circumvent the reciprocal effects of reservations,
and to undermine the fundamental principle of consensual jurisdiction, has to be
further seen in the context of the general law of State responsibility. In its work on
State responsibility, the ILC in fact confirmed that “the implementation of State
responsibility is in the first place an entitlement of the ‘injured State’”.240
319. The ILC’s former Special Rapporteur on the matter accordingly stated in unequivocal
terms that even if many States, or indeed all States, share a certain legal concern, when
it comes to reactions to violations of erga omnes or erga omnes partes norms, the
priority of specially-affected States ought to be recognized.241
320. In fact, the ILC itself considered that providing for the right of non-injured States to
invoke the responsibility of the responsible State merely constituted a progressive
development of international law rather than a codification of the lex lata.242 Moreover,
this progressive development, provided for in Article 48, paragraph 2, of the ILC Draft
Articles on State Responsibility,243 was only intended to ensure that where there is no
State that is individually injured, some third entity would be able to invoke the
responsibility of the violating State in the interest of the beneficiaries of the obligation
breached.
321. The ILC wanted thereby to strike a careful balance between the collective interest in
upholding community interests on the one hand, and the countervailing interest in not
240 ILC, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001),
p. 117 (emphasis added), MG, vol. II, Annex 15.
241 J. Crawford, State Responsibility: The General Part (2013), p. 367, POM, Annex 19.
242 Cf. ILC, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries
(2001), p. 127, MG, vol. II, Annex 15.
243 Ibid.
99
encouraging the proliferation of disputes on the other.244 However, in cases like the
present, in which there is a specially-affected State, i.e., Bangladesh, no such balance
needs to be achieved and no recourse to Article 48 of the ILC Draft Articles on State
Responsibility is necessary, since in such a case the specially-affected State – here
Bangladesh – not only has the right to invoke the responsibility of the State that is
allegedly in breach of the Convention – here Myanmar – but is also entitled to take
appropriate measures to bring to an end those alleged violations of international law.
322. In such a situation it is neither necessary, nor indeed desirable, that each and every one
of the other States parties to the relevant treaty should then also be able not only to
invoke such responsibility, but also to take steps to vindicate that right. In fact, such
steps by third, non-injured States could well be contrary to the position taken by the
specially-affected State, and might prove to be counterproductive to the solution of the
underlying dispute that exists primarily, if not exclusively, between the injured State
party and the State party allegedly violating the rights of this injured State party.
323. Granting non-injured States the freedom to react as they think fit would ignore the
overriding right of the specially-affected State to decide whether the violations of its
rights should be invoked at all, and if so when, and which steps should ultimately be
taken to vindicate that right as would best serve its interests. Such a right of non-injured
States to override the discretion of the injured State in relation to the matter might
easily lead to misuse.
324. The very reluctance, if not clear opposition, of the vast majority of the international
community of States vis-à-vis the broad 2000 version of draft Article 54 of the ILC
Draft Articles on State Responsibility confirms that States were acutely aware of such
a danger and that they therefore did not want such a scenario to turn into a rule of
customary international law.
325. More specifically, as far as the Genocide Convention with its current 152 Contracting
Parties is concerned, accepting such a possibility would mean that each of those 136
Contracting Parties that has not entered any reservation to its Article IX could bring a
244 ILC, Fourth report on State responsibility by Mr. James Crawford, Special Rapporteur, UN doc
A/CN.4/517, 2 April 2001, p. 11, para. 42, POM, Annex 66; J. Crawford, State Responsibility: The General
Part (2013), p. 367, POM, Annex 19.
100
case against any of the other 135 Contracting Parties that have not entered such a
reservation either. They could do so even where the injured State itself has either
indicated that it does not believe violations of the Genocide Convention are taking
place, or wishes to settle the dispute in some other manner such as by negotiations.
They could even do so where the injured State has itself deliberately decided not to
seek recourse to the Court, either because it considers that this would not be the
appropriate course even though it could do so, or because it decided to enter a
reservation to Article IX when it became a Contracting Party to the Genocide
Convention. They could do so even after the injured State has reached an amicable
settlement that brings an end to the real dispute, with the result that no dispute arising
under the Genocide Convention could ever be settled unless every Contracting Party
to the Convention gave agreement to such settlement.
326. This recognition that it is the primary right of an injured Contracting Party to the
Genocide Convention to decide for itself if, and how and when, to invoke the
responsibility of another State, and that non-injured Contracting Parties have merely a
subsidiary right in this respect, is also reflected in Article 45 of the ILC Draft Articles
on State Responsibility, which reads as follows:
Article 45
Loss of the right to invoke responsibility
The responsibility of a State may not be invoked if:
(a) the injured State has validly waived the claim;
(b) the injured State is to be considered as having, by reason of
its conduct, validly acquiesced in the lapse of the claim.245
327. It should be noted at this juncture that proposals246 were made during the drafting of
what was to become Article 45, suggesting that the provision should spell out that an
injured State could not waive its claims in the case of an alleged breach of an erga
omnes obligation, or that such a waiver would not preclude other States from invoking
245 POM, Annex 69.
246 ILC, Yearbook of the International Law Commission, 2001, vol. II, Part One, p. 78 (Netherlands and
Republic of Korea), POM, Annex 68; ILC, Yearbook of the International Law Commission, 2001, vol. I,
p. 115 (Mr. Economides), POM, Annex 67.
101
the breach of an erga omnes obligation. However, none of these proposals garnered
sufficient support, and accordingly none of those were included in this provision.
328. While it is true that the ILC’s commentary to Article 45 mentions that other States
should remain able to “express” their interest if a claim concerning a breach of an erga
omnes obligation has been waived by the injured State, such “expression” cannot
include a formal invocation of that interest in terms of Article 48 of the ILC Draft
Articles on State Responsibility, as such a result would clearly contradict Article 48,
paragraph 3. In fact, Article 48, paragraph 3,247 confirms that any invocation of
responsibility under Article 48, paragraph 1, is, in the case of an alleged violation of
an erga omnes or erga omnes partes obligation, subject to the requirements of
Article 45. Paragraph 3 reads:
Article 48
Invocation of responsibility
[…]
3. The requirements for the invocation of responsibility by an
injured State under articles 43, 44 and 45 apply to an invocation
of responsibility by a State entitled to do so under paragraph 1.
329. This confirms that indeed even obligations erga omnes partes or erga omnes may be
validly waived by an injured State, with the ensuing effect that third, non-injured States
are then barred from invoking that violation, and even more so are barred from taking
steps to vindicate such alleged violations.
330. This view was also clearly expressed by the United Kingdom when commenting on
what is now Article 48 of the ILC Draft Articles on State Responsibility:
If there is an injured State, it can make the claim itself. If it
chooses not to claim, the position should be treated as analogous
to a waiver under draft article 46 [now Article 45 of the ILC
Articles on State Responsibility] and, just as the injured State
loses thereby the right to invoke the responsibility of the claim,
so should the possibility of the claim being made by others on its
behalf be extinguished.248
247 MG, vol. II, Annex 15.
248 ILC, Yearbook of the International Law Commission, 2001, vol. II, Part One, p. 81, POM, Annex 68.
102
331. Myanmar submits that the same must hold true a fortiori where the specially-affected
State has, by entering a reservation to Article IX of the Genocide Convention, waived
its right to vindicate the responsibility of the alleged wrongdoing State by bringing the
case before the Court.
332. As has been mentioned, Bangladesh as the specially-affected State, unlike Myanmar,
made the sovereign decision to enter a reservation to Article IX of the Genocide
Convention when it acceded to the Genocide Convention, which Myanmar respects. It
is also worth noting that The Gambia has also not objected to Bangladesh’s
reservation. Bangladesh is thus precluded from invoking the responsibility of
Myanmar under the Genocide Convention before the Court in the absence of
Myanmar’s express consent.
333. Put another way, and to paraphrase Article 45 of the ILC Draft Articles on State
Responsibility, Bangladesh has thereby waived the right to invoke Article IX of the
Genocide Convention vis-à-vis all other Contracting Parties to the Genocide
Convention in relation to violations of that treaty which, as in the case at hand,
specially affect Bangladesh, and is barred from doing so without the consent of the
State allegedly in breach of the Convention. It follows that other, non-injured
Contracting Parties to the Genocide Convention are similarly so barred, even assuming
that they would otherwise have both the right to invoke the alleged violations of the
Genocide Convention and also standing to do so, quod non.
334. This conclusion creates no lacuna in the enforcement of the obligations under the
Genocide Convention.
335. First of all, Bangladesh could have decided to withdraw its reservation to Article IX
of the Genocide Convention when the alleged genocidal acts unfolded in Myanmar
and started to affect it. In not choosing this option, Bangladesh deliberately decided
that its own interest never to have proceedings brought against it under Article IX of
the Genocide Convention without its consent was more important than its potential
ability to invoke Myanmar’s alleged responsibility under the Genocide Convention
before the Court.
336. Additionally, even if Bangladesh did not want to take this step, there would still have
been possibilities for it to react to Myanmar’s alleged responsibility under the
103
Genocide Convention other than by bringing proceedings before the Court. Amongst
other possibilities, Bangladesh could have resorted to countermeasures, or could have
formally seised the political organs of the United Nations with the matter. In that regard
it must be noted that both the General Assembly and the Security Council have in the
past taken action when faced with alleged violations of the Genocide Convention,
including by taking enforcement measures under Chapter VII of the UN Charter, such
as economic sanctions, the creation of ad hoc criminal tribunals or referrals to the
International Criminal Court. It stands therefore to reason that such action could also
have been requested by Bangladesh, possibly leading to similar measures if indeed
genocide were to be found to be taking place in Myanmar.
337. Furthermore, if the Court were to embrace the possibility of an actio popularis under
Article IX of the Genocide Convention, such a development might serve as a
disincentive for States to become parties to the Genocide Convention or similar
treaties, or at the very least lead to even more States making reservations to Article IX
of the Genocide Convention and to compromissory clauses in similar treaties when
becoming parties to them.
338. As a matter of fact, powerful States would in particular be encouraged, even more so
than today, to make reservations to compromissory clauses on becoming parties to
multilateral international conventions, should they decide to become parties at all. In
doing so they would thus be shielded against cases being brought against them before
the Court under such treaties on the basis of the relevant compromissory clause. At the
same time, those powerful States could encourage or provide incentives to other less
powerful States depending politically or economically on them, who have not entered
such reservations, to bring cases before the Court de facto on their behalf.
339. Hence, a powerful State (State A) that has made a reservation to Article IX of the
Genocide Convention would be protected against the possibility of having proceedings
brought against it before this Court under Article IX of the Genocide Convention, in
the event that State A was ever alleged to be in breach of that Convention. This would
be so, even if the allegation was made by a State (State B) that was specially affected
by the alleged breach, and even if State B itself had made no reservation to Article IX.
However, if State A was ever specially affected by an alleged breach of the Genocide
Convention by State B, then State A, notwithstanding its own reservation, could still
104
enlist the assistance of a non-affected Contracting Party that has made no such
reservation (State C) to bring proceedings before the Court under Article IX instead of
State A. The result would be that no proceedings could be brought before the Court
against State A in respect of an alleged breach of the Genocide Convention that
specially affects State B, but State A could in practice still achieve the bringing of
proceedings against State B in respect of an alleged breach that specially affects State
A. The would be contrary to the fundamental principle of reciprocity in international
law, in circumstances where State B has become a party to the Genocide Convention
in good faith without any reservation to Article IX.
340. Even more importantly, such a step could seriously endanger the equality of the parties
in proceedings brought before the Court under Article IX of the Genocide Convention.
As the Court’s previous experience confirms, cases brought before the Court pursuant
to Article IX of the Genocide Convention not infrequently deal with situations of
armed conflict and the ensuing cross-boundary movement of persons. This is
particularly apparent from the Bosnian Genocide case and the Croatia Genocide case,
which serve as telling examples of the possible wide-reaching effects on the equality
of parties of the approach underlying The Gambia’s application.
341. If one were to accept arguendo for a moment The Gambia’s line of argument, and if
one were to further assume that Croatia had not been bound by Article IX of the
Genocide Convention (either because it was not a party to the Genocide Convention
at all, or due to an Article IX reservation) each and every one of the other 135
Contracting Parties to the Genocide Convention not maintaining an Article IX
reservation, including The Gambia, could still have brought a case against Serbia for
the alleged acts of genocide purportedly committed on Croatian territory for which
Serbia was allegedly responsible. At the same time, however, given that Croatia was
either not a party to the Genocide Convention or due to the presumed Croatian
reservation to Article IX, Serbia would not have been able to bring a counter-claim
against Croatia, nor could Serbia have brought a separate distinct case against Croatia
for the alleged genocidal acts committed against members of the Serbian ethnic
minority living in Croatia during their forced displacement from Croatia. In this
hypothetical example, Serbia would have been barred from bringing such a claim
against Croatia although those very acts were committed in the close vicinity, and as
105
part of the very same armed conflict taking place on the territory of Croatia, during
which Serbia had allegedly committed genocidal acts.
342. Put another way, The Gambia’s approach would mean that the Court might only be
able to deal with alleged genocidal acts committed by one side of the same conflict,
while alleged genocidal acts of the same nature taking place at the same time and
possibly even at the same location would necessarily be outside the Court’s purview.
343. This example confirms that the principle underlying Article 45 of the ILC Draft
Articles on State Responsibility, barring non-injured States from bringing a claim
against a State allegedly violating an erga omnes partes rule when a specially-affected
State has waived such right, also applies where the specially-affected State has waived
its procedural entitlement to bring a case before the Court by entering a reservation to
a compromissory clause, as Bangladesh did when it acceded to the Genocide
Convention.
344. Finally, accepting the possibility of an actio popularis is also not compatible with the
principles underlying Articles 59, 60 and 61 of the Court’s Statute. Apart from
anything else, any judgment rendered in a case brought under Article IX of the
Genocide Convention in the form of an actio popularis would only bind the noninjured
applicant and the respondent State, i.e. in the case at hand, The Gambia and
Myanmar, and would thus also only acquire the force of res judicata between those
two States by virtue of Article 60 of the Statute of the Court.
345. Thus, in the present case, if the Court were to find that it has jurisdiction and that The
Gambia, despite being a non-injured Contracting Party, has standing (quod non), and
if the Court were then to decide the case in favour of Myanmar, then any of the other
135 remaining non-injured Contracting Parties to the Genocide Convention who have
not entered an Article IX reservation would not have to accept the Court’s rejection of
The Gambia’s claims as the judgment would not be binding on them under Article 59
of the Court’s Statute. Any other such Contracting Party, not bound by the judgment,
including States who have been actively involved in the bringing of the present
proceedings, and including those who have actually financed the present proceedings,
could thus thereafter bring mutatis mutandis the same case before the Court once again
and ask the Court to decide the matter again. They could do so even if they relied on
106
exactly the same evidence as The Gambia. Alternatively, in the new proceedings they
might seek to introduce additional evidence, without being limited by the requirements
of Article 61 of the Court’s Statute.
346. In other words, if The Gambia in such a scenario was unsuccessful in these
proceedings, if could under Article 61 of the Statute request a revision of the original
judgment on the basis of additional evidence only if such additional evidence had
previously been unknown to it, and if its ignorance of that evidence had not been due
to negligence. However, if an actio popularis was possible, any of the other noninjured
Contracting Parties would not be limited in the same manner when bringing a
new case against Myanmar. They could thus easily circumvent the carefully tailored
limitations inherent in Article 61 of the Statute.
347. Indeed, if the second Contracting Party was then unsuccessful in the second
proceedings brought against Myanmar, a third Contracting Party could then bring a
third set of proceedings, and so on, until all 135 of the States who are Contracting
Parties to the Genocide Convention with no reservation to Article IX had brought such
a case, or until the Court finally decided one of the cases in the applicant State’s favour.
In other words, Myanmar would be at risk not only of double jeopardy, but multiple
jeopardy.
348. The Gambia should therefore not be allowed to undermine the general principle of the
law of State responsibility according to which it is first and foremost the speciallyaffected
State that has locus standi to invoke the responsibility of another State, or to
circumvent Bangladesh’s Article IX reservation. By de facto acting as agent of a group
of States, including Bangladesh, which had already decided months before Myanmar
had even been made aware of The Gambia’s claim to bring the current case, The
Gambia has therefore unravelled the delicate balance of which the former ILC Special
Rapporteur on State responsibility has spoken, namely the balance between upholding
community interests and preventing a proliferation of disputes.
349. For the reasons above, The Gambia does not have standing to bring this case before
the Court under Article IX of the Genocide Convention, either because the Genocide
Convention does not enshrine the concept of an actio popularis at all, or because in
the specific circumstances of the case at hand The Gambia is barred from so doing
107
because Bangladesh, as the State specially affected by the alleged violations of the
Genocide Convention, has entered a reservation to Article IX of the Convention.
350. Aside from this, even if one were now to assume arguendo that the position were
otherwise, quod non, The Gambia’s right to seise the Court with its case would, as will
now be shown in Myanmar’s third preliminary objection, nevertheless be barred by
virtue of Myanmar’s reservation to Article VIII of the Genocide Convention.

109
III. THIRD PRELIMINARY OBJECTION:
The application is inadmissible, as The Gambia cannot validly seise
the Court due to Myanmar’s reservation to Article VIII of the
Genocide Convention
A. Introduction
351. In the arguments above in relation to Myanmar’s second preliminary objection, it has
been demonstrated that The Gambia lacks standing to bring this case against Myanmar
for alleged violations of the Genocide Convention given that The Gambia is a noninjured
State that is not specially affected by the alleged breach, and, alternatively,
given that Bangladesh, which is the specially-affected State, would be barred from
bringing this case due to Bangladesh’s own reservation to Article IX of the Genocide
Convention.
352. In this third preliminary objection, Myanmar will now demonstrate that even if the
Court were to find against Myanmar in relation to the second preliminary objection,
quod non, The Gambia would still be precluded from bringing this case given the
reservation that Myanmar made to Article VIII of the Genocide Convention when it
acceded to that Convention. This is due to the fact that a valid seisin of the Court is a
mandatory precondition before a case may be brought before the Court under
Article IX of the Genocide Convention (see paragraphs 365 to 369 below). This seisin
of the Court is governed, as confirmed by its wording (see paragraphs 370 to 401
below), its drafting history (see paragraphs 402 to 435 below), as well by its very
object and purpose (see paragraphs 436 to 442 below) by Article VIII of the
Convention. It thus follows that Myanmar, by entering a reservation to Article VIII,
while accepting Article IX of the Convention as such, has precluded not speciallyaffected
Contracting Parties to the Genocide Convention from bringing a case against
Myanmar under the Convention’s compromissory clause (see paragraphs 445 to 473
below). This reservation to Article VIII is permissible and valid (see paragraphs 445
to 473 below).
353. Article VIII of the Genocide Convention provides in French as follows:
Toute Partie contractante peut saisir les organes compétents de
l’Organisation des Nations Unies afin que ceux-ci prennent,
conformément à la Charte des Nations Unies, les mesures qu’ils
jugent appropriées pour la prévention et la répression des actes
110
de génocide ou de l’un quelconque des autres actes énumérés à
l’article III.249
354. In English it states that:
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.250
355. When Myanmar (then Burma) acceded to the Genocide Convention on 14 March
1956, it submitted a reservation to Article VIII in the following terms:
With reference to article VIII, the Union of Burma makes the
reservation that the said article shall not apply to the Union.251
356. It is noted at the outset that this third preliminary objection, based on Myanmar’s
reservation to Article VIII of the Genocide Convention, is advanced in the alternative
to the second preliminary objection. That is to say, the Court would not need in the
case at hand to decide whether or not as a matter of principle non-injured Contracting
Parties such as The Gambia have standing to bring cases under Article IX of the
Genocide Convention if it were to uphold this third preliminary objection based on
Myanmar’s valid reservation to Article VIII of the Convention. Conversely, it would
not need to consider this third preliminary objection if it upheld the second preliminary
objection.
357. In the event that this third preliminary objection does arise for consideration, Myanmar
demonstrates in the arguments below that The Gambia, as a Contracting State to the
Genocide Convention that is not injured in relation to the breaches of that Convention
alleged in its Application, is barred from seising the Court by virtue of Myanmar’s
reservation to Article VIII.
249 Emphasis added.
250 Emphasis added.
251 Ratification with Reservation by Burma, Convention of 9 December 1948 on the Prevention and
Punishment of the Crime of Genocide, C.N.25.1956. of 29 March 1956, MG, vol. II, Annex 5.
111
358. The arguments below will thus first analyse the scope and relevance of Article VIII of
the Genocide Convention, and then, secondly, turn to the legal effect of Myanmar’s
reservation to that article.
359. The Genocide Convention contains two distinct, yet interrelated, provisions addressing
the relationship between the Contracting Parties to the Convention on the one hand,
and the organs of the United Nations on the other, namely its Articles VIII and IX.
360. As will be shown, while Article VIII of the Genocide Convention provides for the
seisin of organs of the United Nations (including the Court) to prevent and suppress
acts of genocide, Article IX of the Convention then provides for the ensuing specific
question of the Court’s exercise of jurisdiction once it has been validly seised.
B. The Court’s position on Article VIII of the Genocide Convention
361. It is noted at the outset that The Gambia is mistaken when it claims that the Court, in
its order of 8 April 1993 in the Bosnian Genocide case, has already dismissed
Article VIII of the Genocide Convention as being relevant to the seisin of the Court,
and has already held that the Court’s seisin is only governed by Article IX.252 On the
contrary, the Court in that order left it deliberately open whether or not Article VIII of
the Genocide Convention is applicable to the Court as one of the “competent organs
of the United Nations”.253 Furthermore, in that order the Court only had to deal with,
and indeed only dealt with, the sole question whether Article VIII of the Genocide
Convention confers on the Court any functions or competence additional to those
provided for in its Statute.254
362. It is also noted that in the Provisional Measures Order in the current case the Court
considered that:
252 MG, p. 31, para. 2.5.
253 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional
Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 3, p. 23, para. 47.
254 Ibid. The Court said in this decision that “… the Court considers Article VIII, even assuming it to be
applicable to the Court as one of the ‘competent organs of the United Nations’, appears not to confer on it
any functions or competence additional to those provided for in its Statute …” (emphasis added).
112
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 […]255
363. It is true that the Court then went on to express the provisional view that it might be
only Article IX of the Convention which is relevant to the seisin of the Court in the
present case.256 However, to state the obvious, the Court expressed that view on a
prima facie basis only, and without prejudging 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,257 and indeed without having had the benefit of full written and
oral arguments submitted by the parties given the time constraints inherent in
proceedings on provisional measures.
364. It is against this background that the interrelationship between Articles VIII and IX of
the Genocide Convention, as well as their respective scope, fall to be addressed.
C. Scope of Article VIII of the Genocide Convention
1. Valid seisin of the Court as a necessary precondition for the Court to
exercise its jurisdiction under Article IX of the Genocide Convention
365. As the Court confirmed early on in its jurisprudence, the concept of “seisin of the
Court” is distinct from the notion of the Court’s jurisdiction ratione materiae.258
366. This distinction between jurisdiction ratione materiae and seisin was then even more
clearly brought to the fore in the Court’s judgment in the Qatar/Bahrain case. There,
the Court confirmed that:
255 Provisional Measures Order, para. 35.
256 Ibid.
257 Ibid., para. 85.
258 See already, Nottebohm case (Liechtenstein v. Guatemala), Preliminary Objection, I.C.J. Reports 1953,
p. 111, p. 122; M. Shaw, Rosenne’s Law and Practice of the International Court: 1920-2015, vol. III
(2016), p. 1182, POM, Annex 29.
113
the Court is unable to entertain a case so long as the relevant basis
of jurisdiction has not been supplemented by the necessary act of
seisin […]259
or as paraphrased by Judge Shahabuddeen:
the correct method of seisin is a condition-precedent to the
exercise of jurisdiction.260
367. Put another way, it is only once the Court is capable of being, and has been, validly
seised of a case that the Court may then exercise its contentious jurisdiction.261 Seisin
(and its preconditions) thus constitutes, to use the Court’s own words, “a procedural
step independent of the basis of jurisdiction invoked”262 by the applicant.
368. Furthermore, the Court has also confirmed that:
parties to treaties […] are free to make their consent to the seisin
of the Court, and hence the Court’s jurisdiction, subject to
whatever pre-conditions, consistent with the Statute, as may be
agreed between them […]263.
369. It is exactly that situation that the Court is facing in the case at hand. While Article VIII
of the Genocide Convention generally provides for the possibility for any Contracting
Party to seise the Court in order for the Court to take action for the prevention and
suppression of acts of genocide, Myanmar has through its reservation to that provision
excluded the ability of non-injured States to so seise the Court.
259 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1995, p. 6, p. 23 para. 43.
260 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1995, p. 6, Dissenting Opinion of Judge Shahabuddeen, p. 60.
261 M. Shaw, Rosenne’s Law and Practice of the International Court: 1920-2015, vol. III (2016), p. 1182,
POM, Annex 29.
262 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1995, p. 23, para. 43; Arbitral Award of 3 October 1899 (Guyana
v. Venezuela), Jurisdiction of the Court, Judgment of 18 December 2020, para. 117.
263 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the case concerning
the Continental Shelf (Tunis v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, p. 216, para. 43.
114
2. Article VIII of the Genocide Convention governs the seisin of the
Court
a. Wording of Article VIII of the Genocide Convention
370. It goes without saying that the interpretation of a given treaty norm, in this case the
interpretation of Article VIII of the Genocide Convention, must first and foremost be
based upon its actual wording.
371. As already previously mentioned, Article VIII of the Genocide Convention provides
that:
Toute Partie contractante peut saisir les organes compétents de
l’Organisation des Nations Unies afin que ceux-ci prennent,
conformément à la Charte des Nations Unies, les mesures qu’ils
jugent appropriées pour la prévention et la répression des actes
de génocide ou de l’un quelconque des autres actes énumérés à
l'article III.264
372. In English it stipulates that:
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.265
373. Article VIII therefore regulates, subject to any valid reservations thereto, the right of
Contracting Parties to the Genocide Convention:
(a) to seise (“saisir”)
(b) all competent organs of the United Nations
(c) to take action which is within their competences under the Charter of the United
Nations
(d) in order to prevent or suppress violations of the Genocide Convention.
264 Emphasis added.
265 Emphasis added.
115
374. It will thus be now shown that the Court figures among the “competent organs” of the
United Nations within the meaning of Article VIII of the Genocide Convention.
Accordingly, Article VIII of the Genocide Convention provides for the possibility for
a Contracting State, albeit only as a matter of principle and subject to any valid
reservation made by a Contracting Party to that provision, to seise the Court in order
for it to take appropriate steps under the Court’s Statute for the prevention and
suppression of acts of genocide.
375. It is trite that the Court, unlike its predecessor, has been established, as is confirmed in
Article 7 of the UN Charter and reiterated in Article 1 of the Court’s Statute in
unequivocal terms, as one of the organs of the United Nations. As Article 1 of the
Statute puts it:
[t]he International Court of Justice [was] established by the
Charter of the United Nations as the principal judicial organ of
the United Nations […]266
376. Significantly, the text of Article VIII of the Genocide Convention does not contain any
kind of qualifier that would limit its scope to the political organs, or to only some
specific UN organs. Article VIII of the Genocide Convention simply refers to “the
competent organs” of the United Nations. If given its ordinary meaning, the expression
“competent organs” would necessarily cover all relevant UN organs in a
comprehensive manner. Nothing in the text of the Genocide Convention provides that
this expression is to be given a more limited meaning. There is therefore nothing to
exclude any category of UN organs from the scope of Article VIII.267
377. This alone creates at the very least a presumption that the text of Article VIII, which
does not exclusively refer to the political organs of the United Nations, and even less
to only some of its political organs such as the Security Council, was meant to
encompass all of its organs, including its principal judicial organ, namely the Court.
Otherwise, the actual text of Article VIII of the Genocide Convention would have
either specifically identified those UN organs it had exclusively in mind, or would
266 Emphasis added.
267 See, mutatis mutandis, 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), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 585, para. 61.
116
have specifically excluded others. Instead, the drafters opted to use the allencompassing
formulation “the competent organs of the United Nations”.
378. This conclusion that the expression “competent organs of the United Nations” in
Article VIII is all-encompassing and thus also includes the Court, is further confirmed
by the fact that, as the Court has confirmed in its own well-established jurisprudence,
there exists no hierarchy between the Court on the one hand, and the political organs
of the United Nations on the other.268 Accordingly, an interpretation of Article VIII of
the Genocide Convention according to which that provision regulates simultaneously
both the seisin of the Court, as well as that of the political organs of the United Nations,
does not run counter to the Court’s status as the principal judicial organ of the United
Nations. Furthermore, and as is again confirmed by the Court’s jurisprudence, the fact
that this interpretation of Article VIII of the Genocide Convention thereby leaves open
the possibility of a concurrent seisin of both the Court and one or more of its political
organs is not a reason militating against the acceptance of the correctness of this
interpretation. The Court has said in respect of its relationship with the Security
Council that there is not
anything irregular in the simultaneous exercise of their
respective functions by the Court and the Security Council.269
379. Indeed, there have been instances in the past where the main political organs of the
United Nations have been seised with situations where simultaneously allegations of
acts of genocide were pending before the Court under the Genocide Convention.270
268 Cf. Competence of the General Assembly for the admission of a State to the United Nations, Advisory
Opinion, I.C.J. Reports 1950, p. 4, 8; V. Gowlland-Debbas and M. Forteau, “Article 7, UN Charter”, in A.
Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary (third edn.,
2019), Art. 7 UN Charter, MN. 22, POM, Annex 24.
269 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J.
Reports 1980, p. 21 para. 40.
270 For instance, both the Security Council and the General Assembly dealt with the situation in Bosnia and
Herzegovina while the case between Bosnia and Herzegovina and the Federal Republic of Yugoslavia—
later Serbia and Montenegro—was pending before the Court: UNSC, resolution 819 (1993), UN doc.
S/RES/819 (1993), 16 April 1993, POM, Annex 58; UNSC, resolution 838 (1993), UN doc. S/RES/838
(1993), 10 June 1993, POM, Annex 59; UNSC, resolution 1004 (1995), UN doc. S/RES/1004 (1995),
22 July 1995, POM, Annex 61; UNSG, Summary Statement by the Secretary-General on matters of which
the Security Council is seized and on the stage reached in their consideration, UN doc. S/1998/44/Add.28,
24 July 1998, p. 4, POM, Annex 63; UNSG, Summary Statement by the Secretary-General on matters of
which the Security Council is seized and on the stage reached in their consideration, UN doc.
S/2002/30/Add.49, 20 December 2002, p. 3, POM, Annex 70; UNGA, resolution 48/88, The situation in
Bosnia and Herzegovina, UN doc. A/RES/48/88, 20 December 1993, POM, Annex 60; UNGA, resolution
117
380. The conclusion that Article VIII of the Genocide Convention regulates not only
recourse to the political organs of the United Nations, but also the seisin of the Court,
is further confirmed by the fact that Article VIII uses the notion of “competent organs”.
Notably, the Court’s Statute itself uses the term “competence”/
“compétence”/”competencia” in the English, French and Spanish versions of the
heading of Chapter 2, as well as in the French and Spanish versions of Article 36, in
order to describe the extent of the Court’s jurisdiction.
381. Additionally, the expression “take […] action” (in French, “prennent […] les
mesures”) in Article VIII of the Genocide Convention must be broadly interpreted, to
include measures to be taken by the Court in the exercise of its contentious jurisdiction.
This is for one because a narrow interpretation of the notion of “action” would,
contrary to the Court’s own jurisprudence, limit it to “action” to be undertaken by the
Security Council within the framework of Chapter VII of the UN Charter.271
382. What is more is that the French version of the Court’s Statute on at least two occasions,
namely in Articles 41 and 49, itself uses exactly the same terminology of “mesures”
to be taken by the Court. Hence, the provision in Article VIII of the Genocide
Convention that competent UN organs may “pren[dre] […] les mesures” is again in
line with the layout of the Court’s Statute. The provision that competent organs may
“take […] action” found in Article VIII of the Genocide Convention accordingly
encompasses action to be taken by the Court in the exercise of its contentious
jurisdiction under Article IX of the Genocide Convention.
383. Moreover, given that the Court’s Statute forms an integral part of the Charter of the
United Nations as per Article 92 of the latter, it follows that the reference in
Article VIII of the Genocide Convention to measures taken “under the Charter of the
50/193, Situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and
the Federal Republic of Yugoslavia (Serbia and Montenegro), UN doc. A/RES/50/193, 22 December 1995,
POM, Annex 62; Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of 8 April
1993, I.C.J. Reports 1993, p. 3; id., Judgment, I.C.J. Reports 2007, p. 43.
271 See mutatis mutandis, Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter),
Advisory Opinion, I.C.J. Reports 1962, pp. 164-165.
118
United Nations” encompasses measures to be taken by the Court under the Court’s
Statute.
384. Both the authentic French and Spanish versions of Article VIII refer to the ability of
the Contracting Parties to “saisir” (in French) or “recurrir a” (in Spanish) – i.e., seise
– the competent organs of the United Nations with a request. The fact that these are
terms typically used in relation to court proceedings generally272 further confirms that
the Court is one of the organs covered by Article VIII, and that Article VIII therefore
governs the seisin of the Court.
385. This is further confirmed by the explanations on the respective word’s origin and
meaning provided by both the Dictionnnaire de l’Académie Française and the
Diccionario de la lengua española of the Real Academia Española, which are notably
the two official dictionaries of France and Spain respectively. They each state that the
term “saisir” (in French) and “recurrir” (in Spanish) is traditionally found and still used
in juridical contexts, especially in procedural contexts to describe the process of
requesting or approaching a competent judge or Court on the basis of its respective
statute.273
386. There is no indication, either in the wording of Article VIII, or in its drafting history,
that it was meant to depart from that common understanding of the term “saisir” or
“recurrir a”, as used in the French and the Spanish versions of that provision
respectively.
387. This result is also corroborated by the fact that in some other provisions of the UN
Charter, where the Court is clearly not included within the scope of the provision, the
relevant wording, while still using the expression “call upon” in the English language
version, does not use the term “saisine” or “saisir” in French.274 E contrario, the
deliberate use of the term “saisir” in the French version of Article VIII of the Genocide
272 B. Schiffbauer, “Article VIII”, in C. Tams et al. (eds.), Convention on the Prevention and Punishment of
the Crime of Genocide: A Commentary (2014), Art. VIII, p. 275, MN 13, POM, Annex 28; See also: Real
Academia Española, Diccionario de la lengua española: “recurrir”, POM, Annex 32; Dictionnaire de
L’Académie Française: “saisir”, POM, Annex 31.
273 Real Academia Española, Diccionario de la lengua española: “recurrir”, POM, Annex 32; Dictionnaire de
L’Académie Française: “saisir”, POM, Annex 31.
274 Cf. Articles 33, 40, 41, and 44 of the Charter of the United Nations.
119
Convention (as opposed for instance to the term “inviter” as used in the French version
of Article 33, paragraph 2, of the UN Charter) must be understood as a confirmation
that it is indeed also the seisin of the Court that is being regulated by Article VIII of
the Genocide Convention. Finally, the last part of Article VIII of the Genocide
Convention refers to the purpose of a possible seisin of one of the competent organs
of the United Nations, namely for such organ to take action:
for the prevention and suppression of acts of genocide or any of
the other acts enumerated in article III” of the Convention.
388. It is of course the Court, provided it has been validly seised in line with Article VIII
of the Genocide Convention, and is also in a position to exercise its jurisdiction on the
basis of Article IX, which can make legally binding findings on violations of the
Genocide Convention by Contracting Parties, including findings that one has failed to
prevent genocide275 or has failed to punish presumed perpetrators of genocide.276
These are obviously measures to suppress acts of genocide. What is more is that the
adoption of provisional measures by the Court in genocide cases constitutes the
example par excellence of preventive measures taken to avoid the occurrence of acts
of genocide within the meaning of Article VIII of the Genocide Convention.
389. Accordingly, the Court is indeed clearly in a position, as is contemplated by
Article VIII of the Genocide Convention, to take action for the “prevention and
suppression of acts of genocide”. This reinforces not only the argument that
Article VIII of the Genocide Convention indeed encompasses the seisin of the Court,
but also underlines the close interrelationship that exists between Article VIII of the
Genocide Convention on the one hand, and its Article IX on the other.
390. This result, i.e. that it is Article VIII of the Genocide Convention, rather than its
Article IX, that endows non-injured States with the right to seise the Court with an
allegation of a violation of the Genocide Convention, if such right of non-injured States
275 See 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, p. 43, 238.
276 Cf.: 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, p. 43.
120
exists at all in the first place, quod non, is further established by a comparison of the
wording of Article VIII of the Genocide Convention with that of its Article IX.
b. Wording of Article VIII v. wording of Article IX of the
Genocide Convention
391. Article VIII of the Genocide Convention expressis verbis provides for the right of any
Contracting Party (“[t]oute Partie contractante”) to seise the competent organ of the
United Nations with a request to take action under the UN Charter, of which the
Court’s Statute forms an integral part, for the prevention and suppression of acts of
genocide.
392. Article VIII of the Genocide Convention does not, therefore, contain any limitation as
to which Contracting Parties may take such a step under that provision. Article VIII
may be invoked by a Contracting Party that is an injured State, or by one that is not
injured and not specially affected by the claimed violation of the Convention. This
right is subject only to any applicable reservation that has been made to Article VIII
by a relevant Contracting Party.
393. In contrast thereto, Article IX of the Genocide Convention, which circumscribes the
Court’s jurisdiction, does not contain similarly broad language. In particular, the
English language version of Article IX does not contain the word “any”. It does not
state that “any” dispute between “any” Contracting Parties may be submitted to the
Court. Rather, it states that “disputes” between “the” Contracting Parties may be
submitted to the Court. Similarly, had the drafters wanted to provide in Article IX that
all Contracting Parties have the right to seise the Court, it would have been more
natural to refer in the French version of Article IX to “des différends entre des Parties
contractantes” (“disputes between contracting parties”) rather than “les différends
entre les Parties contractantes”.
394. The wording of Article IX of the Genocide Convention thus stands in sharp contrast
to that of compromissory clauses such as, for example, Article 33 of the European
Convention on Human Rights, which reads:
121
Any High Contracting Party may refer to the Court any alleged
breach of the provisions of the Convention and the Protocols
thereto by another High Contracting Party.277
395. This Article 33, negotiated and adopted soon after the Genocide Convention, unlike
Article IX of the Genocide Convention, thus explicitly provides for the right of any
High Contracting Party to bring before the European Court of Human Rights any
alleged breach of the European Convention on Human Rights by any High Contracting
Party. Article 33 itself therefore unequivocally provides for the right of all Contracting
Parties to the European Convention on Human Rights to seise the European Court of
Human Rights even if the applicant State qualifies only as a non-injured State.
396. In clear contrast thereto, the Genocide Convention distinguishes between a broad
power to seise the Court contained in Article VIII, which may be exercised by any
Contracting Party, and a more limited compromissory clause in Article IX, which does
not contain a reference to “any” State being entitled to invoke the provision, or indeed
even to “any” dispute arising under the Genocide Convention being capable of being
brought before the Court under this compromissory clause.
397. It is also telling that Article 30 of the Convention Against Torture, once again, unlike
Article IX of the Genocide Convention, is a compromissory clause that expressly
applies to “any” dispute arising under the Convention Against Torture, and which
enables such disputes to be brought before the Court. Hence, just like in the case of the
European Convention on Human Rights, there was no need to include in the
Convention Against Torture a separate provision akin to Article VIII of the Genocide
Convention in order to enable even non-injured Contracting Parties to seise the Court
with a dispute arising under the Convention Against Torture.
398. In that regard it is also telling that during the drafting of what was to become Article IX
of the Genocide Convention (and which was then still draft Article X), India
deliberately and successfully moved to replace the words “at the request of any of the
High Contracting Parties” (which would have rendered Article IX of the Genocide
Convention more akin to Article 30 of the Convention Against Torture or Article 33
277 POM, Annex 2 (emphasis added).
122
of the European Convention on Human Rights) with the words “at the request of any
of the parties to the dispute”.278
399. Hence, a textual interpretation of Article VIII of the Genocide Convention in line with
its ordinary meaning, as well as a comparison of its wording with the wording of
Article IX of the Genocide Convention, confirms the result that it is Article VIII of the
Genocide Convention rather than its Article IX that regulates, and indeed as a matter
of principle also provides for, the ability of Contracting Parties to the Genocide
Convention to seise the Court whenever they consider that there is a need for the Court
to take appropriate action to prevent and/or to suppress acts of genocide.
400. It is exactly this difference that explains why it is logical that Myanmar, while entering
a reservation to Article VIII of the Genocide Convention, did not at the same time enter
a reservation to Article IX when it acceded to the Genocide Convention. Myanmar’s
Article VIII reservation has the effect of precluding the seisin of the Court by “any
Contracting Party” (“[t]oute Partie contractante”), i.e. Contracting Parties to the
Genocide Convention that are not injured States. It thus has the effect of precluding
any form of actio popularis by any Contracting Party that is not specially affected. On
the other hand, Myanmar’s Article VIII reservation does not preclude, nor was it meant
to ever preclude, the Court from exercising jurisdiction provided it is validly seised by
an injured State.
401. This result as to the scope of Article VIII of the Genocide Convention is further
confirmed by the drafting history leading to the adoption of that provision.
c. Drafting history of Article VIII of the Genocide Convention
402. General Assembly resolution 96 (I), adopted on 11 December 1946 during the first
session of the General Assembly, inter alia requested ECOSOC “to undertake the
278 UNGA, Sixth Committee, Hundred and Third Meeting, Continuation of the consideration of the draft
convention on genocide [E/794]: report to the Economic and Social Council [A/633] (12 November 1948),
UN doc. A/C.6/SR.103, p. 428, fn. 1, POM, Annex 51; UNGA, Sixth Committee, Hundred and Fourth
Meeting, Continuation of the consideration of the draft convention on genocide [E/794]: report to the
Economic and Social Council [A/633] (13 November 1948), UN doc. A/C.6/SR.104, p. 447, POM,
Annex 52.
123
necessary studies, with a view to drawing up a draft convention on the crime of
genocide to be submitted to the next regular session of the General Assembly”.279
Pursuant to that resolution, in June 1947 the UN Secretary-General, pursuant to a
subsequent resolution of ECOSOC, produced a “Draft Convention on the Crime of
Genocide”.280 This draft281 already contained both a draft Article XII on the ability of
Contracting Parties to seise the organs of the United Nations whenever there were
serious reasons for suspecting that acts of genocide were committed, as well as a draft
article XIV containing a compromissory clause that was the precursor to the current
Article IX of the Genocide Convention.
403. The said draft Article XII specifically stated that:
Irrespective of any provisions in the foregoing articles, should
the crimes as defined in this Convention be committed in any part
of the world, or should there be serious reasons for suspecting
that such crimes have been committed, the High Contracting
Parties may call upon the competent organs of the United Nations
to take measures for the suppression or prevention of such crimes
[…]282
404. This confirms the drafter’s understanding that it was draft Article XII (i.e. now
Article VIII of the Genocide Convention) that was specifically meant to regulate the
ability of the Contracting Parties to seise organs of the United Nations in relation to
genocide allegedly committed “in any part of the world”.283 The words “in any part
of the world” were not included in the envisaged compromissory clause.
405. Already that first draft of what is now Article VIII of the Genocide Convention
therefore, i.e. draft Article XII, by explicitly making reference to alleged acts of
genocide occurring “in any part of the world”, addressed the issue of the possible right
of non-injured States to seise any relevant organs of the United Nations in order for
279 MG, vol. II, Annex 4.
280 ECOSOC, resolution 47 (IV), Crime of genocide, Resolutions adopted by the Economic and Social Council
during its Fourth Session from 28 February to 29 March 1947, UN doc. E/325, 28 March 1947, pp. 33-34,
POM, Annex 33.
281 UNSG, Draft Convention on the Crime of Genocide, UN doc. E/447, 26 June 1947, pp. 9-10, POM,
Annex 34.
282 UNSG, Draft Convention on the Crime of Genocide, UN doc. E/447, 26 June 1947, p. 9 (emphasis added),
POM, Annex 34.
283 Emphasis added.
124
them to then take appropriate action to suppress and prevent acts of genocide. What
is more, the comment by the Secretary-General to then draft Article XII indicated that
the considered position of the Secretary-General was that the proposed provision
would broadly cover:
any action by the United Nations intended to prevent or stop
these crimes.284
406. The words “any action by the United Nations” would certainly also encompass action
to be taken by the Court, which is one of the organs of the United Nations.
407. This is confirmed by the comment of the Secretary-General with regard to draft
Article XIV, i.e. the compromissory clause now contained in Article IX of the
Genocide Convention. In that comment the Secretary-General specifically justified his
selection of the Court as the future forum for the settlement of disputes arising under
the future convention on the basis of the fact that the Court did constitute one of the
organs of the United Nations.285 Yet, if the Court was perceived to be an organ of the
organization for purposes of draft Article XIV (now Article IX of the Genocide
Convention), it must obviously also have been considered to constitute such an organ
for the purpose of draft Article XII (now Article VIII Genocide Convention).
408. During the ensuing debate in the Ad Hoc Committee on Genocide, set up by ECOSOC,
which had in turn been requested by the General Assembly to continue the work on
the draft genocide convention,286 the Committee adopted a slightly revised text of what
was then already draft Article VIII, and which was already mutatis mutandis identical
to the current Article VIII of the Genocide Convention. It is however particularly
noteworthy that within the Ad Hoc Committee a controversial debate did arise as to
whether, and if so which, specific UN organs should be mentioned as the organs
capable of being seised pursuant to that provision.
284 UNSG, Draft Convention on the Crime of Genocide, UN doc. E/447, 26 June 1947, p. 46 (emphasis added),
POM, Annex 34.
285 UNSG, Draft Convention on the Crime of Genocide, UN doc. E/447, 26 June 1947, p. 51, POM,
Annex Annex 34.
286 See UNGA, resolution 180 (II), Draft convention on genocide, UN doc. A/RES/180(II), 21 November
1947, POM, Annex 36.
125
409. It was the Union of Soviet Socialist Republics (the “USSR”) that proposed that the
Security Council should be the only UN organ that should be mentioned in draft
Article VIII, and that such seisin of the Security Council should be made
compulsory.287 The USSR was seconded by Poland, which stated that:
provision had to be made for the intervention of the only organ
of the United Nations invested with authority to take decisions,
that is, the Security Council.288
410. In the discussion of the Ad Hoc Committee both aspects of the USSR proposal were
however criticized. The obligatory notification of the Security Council was rejected,289
and it was furthermore held to be better not to mention only one specific organ of the
United Nations in draft Article VIII.
411. In particular the representative of the United States:
favoured a provision allowing cases of genocide to be referred to
the various organs of the United Nations competent to deal with
them.290
In the same vein, the Chinese delegate took the position that there could be situations
in which it would be more appropriate to refer to other UN organs than the Security
Council, and therefore he “preferred a provision similar to article XII of the draft
convention prepared by the Secretariat”291 which had referred to all competent organs
of the United Nations. In the next session the Chinese delegate affirmed his opposition
to the USSR proposal stating that:
287 UN, Report of the Ad Hoc Committee on Genocide, 5 April to 10 May 1948, UN doc. E/794, 24 May 1948,
p. 34, POM, Annex 43.
288 UN, Ad Hoc Committee on Genocide, Summary Record of the Eighth Meeting (13 April 1948), UN doc.
E/AC.25/SR.8, 17 April 1948, p. 18 (emphasis added), POM, Annex 38.
289 UN, Ad Hoc Committee on Genocide, Summary Record of the Ninth Meeting (14 April 1948), UN doc.
E/AC.25/SR.9, 21 April 1948, p. 5, POM, Annex 39.
290 UN, Ad Hoc Committee on Genocide, Summary Record of the Eighth Meeting (13 April 1948), UN doc.
E/AC.25/SR.8, 17 April 1948, p. 20; emphasis added, POM, Annex 38.
291 UN, Ad Hoc Committee on Genocide, Summary Record of the Eighth Meeting (13 April 1948), UN doc.
E/AC.25/SR.8, 17 April 1948, p. 19. (emphasis added), POM, Annex 38.
126
states should be given the option […] of having recourse to the
appropriate organ of the United Nations.292
412. In the Ad Hoc Committee it was (the Republic of) China which therefore introduced a
proposed draft Article IV (which later, albeit with slight changes, became draft
Article VIII). This draft Article IV provided for the possibility to seise all relevant
organs of the United Nations rather than limiting this possibility to the Security
Council. This Chinese proposal accordingly read:
Any Signatory to this Convention may call upon any competent
organ of the United Nations to take such action as may be
appropriate under the Charter for the prevention and suppression
of genocide.293
413. Despite some renewed attempts by the USSR to again limit the scope of the article to
the Security Council only, which were however rejected by a vote,294 mutatis mutandis
the same text as the previous draft Article IV was then included in the Ad hoc
Committee’s draft,295 which thus contained the reference to “any competent organ of
the United Nations”.296 Article VIII of the Ad hoc Committee’s draft accordingly read:
A party to this Convention may call upon any competent organ
of the United Nations to take such action as may be appropriate
under the Charter for the prevention and suppression of genocide.
[…]297
292 UN, Ad Hoc Committee on Genocide, Summary Record of the Ninth Meeting (14 April 1948), UN doc.
E/AC.25/SR.9, 21 April 1948, p. 3 (emphasis added), POM, Annex 39.
293 UN, Ad Hoc Committee on Genocide, Draft Articles for the inclusion in the Convention on Genocide
proposed by the delegation of China on 16 April 1948, UN doc. E/AC.25/9, Article IV (emphasis added),
POM, Annex 40.
294 UN, Ad Hoc Committee on Genocide, Summary Record of the Twentieth Meeting (26 April 1948), UN
doc. E/AC.25/SR.20, 4 May 1948, p. 4 and E/AC.25/SR.20/Corr.1, POM, Annex 41; see also M. Ventura,
“The Prevention of Genocide as a Jus Cogens Norm? A Formula for Lawful Humanitarian Intervention”,
in C. Jalloh and O. Elias (eds.), Shielding Humanity: Essays in International Law in Honour of Judge Abdul
G. Koroma (2015), p. 304, POM, Annex 30.
295 UN, Ad Hoc Committee on Genocide, Draft Convention on Prevention and Punishment of the Crime of
Genocide, UN doc. E/AC.25/12, 19 May 1948, Article VIII, POM, Annex 42.
296 Ibid. (emphasis added).
297 Ibid. (emphasis added).
127
414. The debate as to which UN organs should be encompassed by draft Article VIII then
resurfaced in the debate on the draft convention in the Sixth Committee of the General
Assembly.
415. The USSR again tried to replace the existing draft which, as mentioned, referred to the
seisin of “any competent organ”, with a draft article that would make exclusive
reference to the Security Council.298
416. The USSR was supported by France, which shared the view that any such possibility
to seise organs of the United Nations should be limited to the possibility to call upon
the Security Council to take action.299 This then led to a joint Soviet-French proposal
which still only contained an exclusive reference to the Security Council.300
417. Peru however rejected such a limitation, explicitly stating that “measures to be taken
against genocide should be juridical”.301
418. As it was not acceptable to the majority of delegates to limit the scope of the article to
the possibility of seising the Security Council, the Iranian delegate at that juncture
proposed adding the words “or of the General Assembly” after the words “Security
Council” as contained in the joint Soviet-French proposal. 302 This proposal, which
would nonetheless have still limited the scope of Article VIII to the possibility of
seising the two main political organs of the United Nations, was however also not
accepted as it was still considered too restricted.
298 UNGA, Sixth Committee, Genocide – Draft Convention and Report of the Economic and Social Council,
Union of Soviet Socialist Republics: Amendments to the draft convention (E/794), UN doc.
A/C.6/215/Rev.1, 9 October 1948, p. 3, proposed Article VIII, POM, Annex 44.
299 UNGA, Sixth Committee, Hundred and First Meeting, Continuation of the consideration of the draft
convention on genocide [E/794]: report to the Economic and Social Council [A/633] (11 November 1948),
UN doc. A/C.6/SR.101, pp. 409-410, Mr. Chaumont (France), POM, Annex 49.
300 UNGA, Sixth Committee, Hundred and First Meeting, Continuation of the consideration of the draft
convention on genocide [E/794]: report to the Economic and Social Council [A/633] (11 November 1948),
UN doc. A/C.6/SR.101, pp. 409ff, POM, Annex 49.
301 UNGA, Sixth Committee, Hundred and First Meeting, Continuation of the consideration of the draft
convention on genocide [E/794]: report to the Economic and Social Council [A/633] (11 November 1948),
UN doc. A/C.6/SR.101, p. 410, Mr. Maûrtua (Peru) (emphasis added), POM, Annex 49.
302 UNGA, Sixth Committee, Hundred and First Meeting, Continuation of the consideration of the draft
convention on genocide [E/794]: report to the Economic and Social Council [A/633] (11 November 1948),
UN doc. A/C.6/SR.101, p. 412, Mr. Abdoh (Iran), POM, Annex 49.
128
419. Tellingly, the United States delegate in the Sixth Committee clarified that any
reference in draft Article VIII to only the Security Council would contradict draft
Article X (now Article IX of the Genocide Convention), saying that providing a
reference to the Security Council could lead States to “avoid submitting their disputes
to the International Court of Justice”303 under the convention’s envisaged
compromissory clause. He thus thereby already highlighted the interrelationship
between the scope of draft Article VIII on the one hand, and the exercise by the Court
of its contentious jurisdiction under draft Article X (now Article IX of the Genocide
Convention) on the other.
420. This approach was then supported by the delegates of both Belgium and Denmark,
who reinforced the idea of mentioning “all the competent organs of the United
Nations”.304 Yet, and once again, this cannot be understood but as a reference that was
not limited to the Security Council and the General Assembly. Otherwise, these two
latter speakers would obviously have aligned themselves with the above-mentioned
proposal previously made by the Iranian delegate to add a reference to the General
Assembly in addition to the reference to the Security Council as the only relevant
organs of the United Nations that could be seised under draft Article VIII.
421. While a decision was then first reached in the Sixth Committee to delete draft
Article VIII in toto, the debate on draft Article VIII was later reopened in light of new,
additional proposals.305 In particular the USSR, France and Iran had come to an
agreement to submit a joint proposal on draft Article VIII which once again read as
follows:
The High Contracting Parties may call the attention of the
Security Council or, if necessary, of the General Assembly to the
cases of genocide and of violations of the present Convention
303 UNGA, Sixth Committee, Hundred and First Meeting, Continuation of the consideration of the draft
convention on genocide [E/794]: report to the Economic and Social Council [A/633] (11 November 1948),
UN doc. A/C.6/SR.101, p. 413, Mr. Maktos (United States of America) (emphasis added), POM, Annex 49.
304 UNGA, Sixth Committee, Hundred and First Meeting, Continuation of the consideration of the draft
convention on genocide [E/794]: report to the Economic and Social Council [A/633] (11 November 1948),
UN doc. A/C.6/SR.101, p. 413, Mr. Kaeckenbeeck (Belgium) and Mr. Federspiel (Denmark), POM,
Annex 49.
305 UNGA, Sixth Committee, Hundred and Second Meeting, Continuation of the consideration of the draft
convention on genocide [E/794] : report to the Economic and Social Council [A/633] (12 November 1948),
UN doc. A/C.6/SR.102, p. 423, POM, Annex 50.
129
likely to constitute a threat to international peace and security, in
order that the Security Council may take such measures as it may
deem necessary to stop that threat.306
422. Yet, this further proposal, to limit the scope of draft Article VIII to the seisin of the
Security Council and the General Assembly only, was again defeated by 27:13 votes
with 5 abstentions.307 After the vote the delegate of the Philippines, Mr. Ingles,
explicitly stated that he had voted against the proposed amendment since:
the revised text […] would undermine the authority of some of
the organs of the United Nations. His delegation had wished to
preserve the rights of Member States to appeal to the organs [of
the United Nations] they chose.308
423. After this negative vote, the debate on draft Article VIII was accordingly considered
closed and the Sixth Committee moved on to the discussion of draft Article X
containing the proposed compromissory clause.
424. Draft Article X (which was later to become Article IX), as it then stood, read as
follows:
Disputes between the High Contracting Parties relating to the
interpretation or application of this Convention shall be
submitted to the International Court of Justice provided that no
dispute shall be submitted to the International Court of Justice,
involving an issue which has been referred to and is pending
before or has been passed upon by a competent international
criminal tribunal.309
425. Revealingly, it was as part of this debate on the envisaged compromissory clause that
Australia then re-introduced the content of draft Article VIII as a new paragraph 2 to
be added to draft Article X. Australia hereby confirmed the close relationship between
draft Article VIII (now Article VIII of the Genocide Convention) on the one hand, and
306 UNGA, Sixth Committee, Hundred and Second Meeting, Continuation of the consideration of the draft
convention on genocide [E/794] : report to the Economic and Social Council [A/633] (12 November 1948),
UN doc. A/C.6/SR.102, p. 421 (emphasis added), POM, Annex 50.
307 UNGA, Sixth Committee, Hundred and Second Meeting, Continuation of the consideration of the draft
convention on genocide [E/794] : report to the Economic and Social Council [A/633] (12 November 1948),
UN doc. A/C.6/SR.102, p. 423, POM, Annex 50.
308 UNGA, Sixth Committee, Hundred and Second Meeting, Continuation of the consideration of the draft
convention on genocide [E/794]: report to the Economic and Social Council [A/633] (12 November 1948),
UN doc. A/C.6/SR.102, p. 424 Mr. Ingles (Philippines) (emphasis added), POM, Annex 50.
309 UN, Report of the Ad Hoc Committee on Genocide, 5 April to 10 May 1948, UN doc. E/794, 24 May 1948,
p. 38, POM, Annex 43.
130
draft Article X (now Article IX of the Genocide Convention) on the other. The
Australian delegate, Mr. Dignam, notably confirmed on that occasion that:
the International Court of Justice […] was one of the competent
organs of the United Nations covered by [draft] article VIII.310
426. Accordingly, he then further stated that since previously a decision had been reached
to delete draft Article VIII, which had provided for the seisin of any competent organ
of the United Nations, thus including the Court, the Committee “[s]trictly speaking,
therefore, […] should not discuss [draft] article X [now Article IX Genocide
Convention]”.311
427. This confirmed that the Court’s exercise of jurisdiction on the basis of draft Article X
(now Article IX of the Genocide Convention) was clearly premised on the applicability
of draft Article VIII (now Article VIII of the Genocide Convention) in any given case.
Or, to put it another way, it was understood that if the Court could not be validly seised
under draft Article VIII, it would not be in a position to exercise its jurisdiction under
draft Article X. The Australian delegate therefore continued that if the debate on the
compromissory clause was to continue at all it ought to be “for the definite purpose of
rectifying the mistake of having deleted article VIII”.312
428. Although the Chairman then ruled that the Australian proposal was out of order given
the prior rejection of draft Article VIII, the Chairman was overruled by a two-thirds
majority vote,313 so that the debate on draft Article X including a newly proposed
paragraph 2 thereof could continue. This new paragraph 2 which was thus added to
draft Article X was however mutatis mutandis identical to what is now Article VIII of
the Genocide Convention. In other words, the previous draft Article VIII (now
Article VIII of the Genocide Convention) and draft Article X (now Article IX of the
310 UNGA, Sixth Committee, Hundred and Third Meeting, Continuation of the consideration of the draft
convention on genocide [E/794]: report to the Economic and Social Council [A/633] (12 November 1948),
UN doc. A/C.6/SR.103, p. 428 Mr. Dignam (Australia) (emphasis added), POM, Annex 51.
311 Ibid.
312 Ibid.
313 UNGA, Sixth Committee, Hundred and Fifth Meeting, Continuation of the consideration of the draft
convention on genocide [E/794]: report to the Economic and Social Council [A/633] (13 November 1948),
UN doc. A/C.6/SR.105, pp. 455-456, POM, Annex 53.
131
Genocide Convention) had been merged into one single provision, which once again
confirms their close interlinkage. Draft Article X, as approved, therefore read:
Any dispute between the High Contracting Parties relating to the
interpretation, application or fulfilment of the present
Convention, including disputes relating to the responsibility of a
State for any of the acts enumerated in articles II and IV, shall be
submitted to the International Court of Justice at the request of
any of the parties to the dispute.
With respect to the prevention and suppression of acts of
genocide, a party to the present Convention may call upon any
competent organ of the United Nations to take such action as may
be appropriate under the Charter of the United Nations.314
429. This amendment to draft Article X, which notably still referred in its paragraph 1 to
“any” dispute arising under the convention being capable of being submitted to the
Court, was then, after short consideration, approved.315 As part of the final drafting
process the Sixth Committee’s Drafting Committee then decided to reorganize and
renumber draft Article X, paragraph 2, as adopted, to become Article VIII of the final
draft text.316
430. This rearrangement further confirms not only the close interrelationship between
Articles VIII and IX of the Genocide Convention, but also the idea that the exercise
by the Court of its jurisdiction under Article IX is premised on the fulfilment of the
pre-condition of a valid seisin under Article VIII of the Genocide Convention.
Otherwise, it would have been more natural to retain the sequence as contained in draft
Article X, paragraphs 1 and 2, i.e. to first address the Court’s jurisdiction in one
provision, and then to address the ability to seise the competent organs of the UN in a
subsequent provision.
314 UNGA, Sixth Committee, Genocide – Draft Convention and Report of the Economic and Social Council,
Text as adopted by the Sixth Committee for articles VII to XIII of the draft Convention (E/794), UN doc.
A/C.6/269, 15 November 1948, draft article X (emphasis added), POM, Annex 54; see also M. Ventura,
“The Prevention of Genocide as a Jus Cogens Norm? A Formula for Lawful Humanitarian Intervention”,
in C. Jalloh and O. Elias (eds.), Shielding Humanity: Essays in International Law in Honour of Judge Abdul
G. Koroma (2015), p. 312, fn. 147, POM, Annex 30.
315 Ibid.
316 UNGA, Genocide: Draft Convention and Report of the Economic and Social Council, Report of the Sixth
Committee, UN doc. A/760, 3 December 1948, p. 6, POM, Annex 57.
132
431. What is therefore brought out by a consideration of this drafting process as a whole is,
first of all, that it was deliberately decided to not limit the scope of Article VIII to
include only the Security Council, or only the Security Council and the General
Assembly. Rather, Article VIII of the Genocide Convention was meant to encompass,
as its plain wording indicates, all competent organs of the United Nations, which,
given Article 7 of the UN Charter, also includes the Court.
432. Furthermore, this drafting history also demonstrates that there was also a broad
understanding that the seisin of the Court under Article VIII on the one hand, and the
exercise by the Court of its jurisdiction under Article IX on the other, were closely
interrelated, the latter being premised on the former.
433. As confirmed by the Court, those two provisions can thus indeed “be said to have
distinct areas of application”.317 Article VIII of the Genocide Convention relates, as
its text puts it, to the ability of any Contracting Party to the Genocide Convention to
“call upon” or “saisir” all competent organs of the United Nations to take action,
provided that the respective organ has jurisdiction to entertain such a request.
434. The latter, i.e. Article IX of the Genocide Convention, then regulates the competence
of one of the competent organs referred to in Article VIII, namely the Court, while the
competencies of the political organs of the United Nations to deal with any such seisin
are already regulated by the relevant provisions of the UN Charter itself.
435. This result which is brought out by the drafting of Article VIII of the Genocide
Convention is also in line with the very object and purpose of Article VIII.
d. Object and purpose of Article VIII of the Genocide Convention
436. Article VIII of the Genocide Convention, being a simple treaty-based provision only,
cannot add to or diminish the powers of the organs of the United Nations pursuant to
the UN Charter, nor the rights of UN Member States arising under the Charter to call
317 Provisional Measures Order, p. 12, para. 35.
133
upon the Security Council or the General Assembly to take appropriate action in case
of genocide.
437. Thus, if Article VIII of the Genocide Convention were to be interpreted as addressing
the issue of the seisin of the political organs of the United Nations only, but as not
regulating the question of the exclusively treaty-based seisin of the Court in cases
arising under the Genocide Convention, then Article VIII would, as former Judge Gaja
eloquently put it, be solely expository in character,318 or indeed be even completely
senseless.319 It cannot however be assumed that a treaty includes a provision that
would be redundant or meaningless. Rather, and in line with the principle of ut res
magis valeat quam pereat, any interpretation of a given treaty provision has to secure
to such clause its proper effects.320 Thus, as already the Permanent Court and this Court
have said, the clauses of an agreement:
must, if it does not involve doing violence to their terms, be
construed in a manner enabling the clauses themselves to have
appropriate effects.321
438. It follows by necessary implication that in the case at hand, Article VIII of the
Genocide Convention must be understood as regulating the right of a non-injured
Contracting Party to bring a case against another Contracting Party to that treaty,
provided such a right exists in the first place. Were it otherwise, Article VIII of the
Genocide Convention would be devoid, as shown, of any meaningful object and
purpose. This is because the seisin of the political organs of the United Nations is
already guaranteed by Article 11, paragraph 2, and Article 35 of the Charter of the
United Nations. Yet, as one commentator to the Genocide Convention has rightly
318 G. Gaja, “The Role of the United Nations in preventing and Suppressing Genocide”, in P. Gaeta (ed.), The
UN Genocide Convention – A Commentary (2009), p. 400, POM, Annex 23.
319 P.N. Drost, The Crime of State, vol. II, Genocide: United Nations legislation on international criminal law
(1959), p. 133, POM, Annex 21.
320 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of
6 February 2013, Separate Opinion of Judge Cançado Trindade, I.C.J. Reports 2013, p. 33 para. 54; see
also: Interpretation of Peace Treaties (second phase), Advisory Opinion, I.C.J. Reports 1950 p. 229.
321 PCIJ, The Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, Series A, No. 22,
p. 13, emphasis added; see also PCIJ, Acquisition of Polish Nationality, Advisory Opinion of 15 September
1923, Series B, No. 7, p. 17; PCIJ, Exchange of Greek and Turkish Populations, Advisory Opinion of
21 February 1925, Series B, No. 10, p. 25; ICJ, Corfu Channel case, I.C.J. Reports 1949, p. 24; 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, p. 70, p. 125, para. 133.
134
stated, “Article VIII is by no means a useless provision” and constitutes much “more
than a merely declaratory provision of the Genocide Convention.”322
As the Court found in the Bosnian Genocide case, Article VIII of
the Genocide Convention does not “appear […] to confer on it
[the Court] any function or competence additional to those
provided for in its Statute.”323
439. However, at the same time, Article VIII of the Genocide Convention implies that –
should the Court indeed find that a non-injured State has standing to bring a case under
the Genocide Convention even in a scenario such as that in the case at hand where the
State most concerned by the alleged genocidal acts, i.e. Bangladesh, is barred from
doing so given its own reservation to Article IX of the Genocide Convention, quod
non, it is Article VIII which would then provide for the right of any Contracting Party,
even if not specially affected by an alleged genocidal situation, to seise the Court, thus
allowing for some kind of actio popularis, if such right were to exist in a given
situation at the first place.
440. This effect of Article VIII has so far simply not been relevant, given that in all previous
cases brought under the Genocide Convention it has always been the specially-affected
State – be it Bosnia324 or Croatia325 – that has brought the case against the State
allegedly responsible for acts of genocide.
441. What is more, so far none of the parties in any of the cases in which the Court has so
far dealt with the Genocide Convention had made a reservation to Article VIII. Thus,
the Court obviously was not called upon in any of the previous cases to pronounce
upon the relevance of Article VIII for the seisin of the Court.
322 B. Schiffbauer, “Article VIII”, in C. Tams et al. (eds.), Convention on the Prevention and Punishment of
the Crime of Genocide: A Commentary (2014), Art. VIII, p. 274 MN 10, 290 MN 58, POM, Annex 28.
323 Application of the Convention on the Prevention 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 (emphasis added); see also: G. Gaja, “The Role of the United Nations in preventing and
Suppressing Genocide”, in P. Gaeta (ed.), The UN Genocide Convention – A Commentary (2009), p. 399,
POM, Annex 23.
324 Cf.: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro).
325 Cf.: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia
v. Serbia).
135
442. This is due to the obvious fact that where a Contracting Party has neither entered a
reservation to Article VIII of the Genocide Convention, nor to its Article IX, the
distinction between the seisin of the Court regulated by Article VIII, and the Court’s
jurisdiction governed by Article IX, is for all practical purposes irrelevant. For this
very reason, the point has never arisen for argument by the parties.
e. Conclusion
443. It follows that it is Article VIII of the Genocide Convention rather than its Article IX
that defines the situations in which the Court may be seised. Notably, it is Article VIII
of the Genocide Convention which provides for the possibility to seise the Court, as
the very wording of Article VIII unequivocally puts it, with any dispute arising under
the Genocide Convention, including disputes arising between the State allegedly
having violated the Convention and a non-injured State such as The Gambia.
444. This accordingly then raises the issue as to the legal effects of Myanmar’s Article VIII
reservation.
D. Legal effect of Myanmar’s Article VIII reservation
1. Introduction
445. As demonstrated above, a valid seisin constitutes a necessary precondition for the
exercise of the Court’s jurisdiction under Article IX of the Genocide Convention, and
it is, if at all, Article VIII of the Genocide Convention that provides for the right of
any Contracting Party to seise the Court with a dispute it might have with Myanmar
arising under the Genocide Convention.
446. However, it will now be shown that Myanmar’s above-mentioned reservation to
Article VIII has the legal effect of limiting the right of Contracting Parties to seise the
Court to those Contracting Parties that are specially affected by the purported
violations of the Genocide Convention allegedly committed by Myanmar. Finding
otherwise would render Myanmar’s Article VIII reservation completely redundant and
136
obsolete, such a result being contrary to well-established principles concerning the
interpretation of reservations.
2. Content of Myanmar’s Article VIII reservation
447. As will be recalled, when Myanmar (then Burma) acceded to the Genocide Convention
on 14 March 1956, it confirmed two reservations it had already submitted when
signing the Convention in 1949. Those reservations deal with Article VI and
Article VIII of the Convention respectively. They provide as follows:
(1) With reference to article VI, the Union of Burma makes the
reservation that nothing contained in the said Article shall be
construed as depriving the Courts and Tribunals of the Union of
jurisdiction or as giving foreign Courts and tribunals jurisdiction
over any cases of genocide or any of the other acts enumerated
in article III committed within the Union territory.
(2) With reference to article VIII, the Union of Burma makes the
reservation that the said article shall not apply to the Union.326
448. Myanmar notes that only two Contracting Parties to the Genocide Convention
contested the legality of Myanmar’s reservations, contending that they were
incompatible with the very object and purpose of the Convention, and only one State
now maintains such an objection.327
449. No other Contracting Parties have objected to either of these two reservations. This
holds true, in particular, for The Gambia, which, in contrast to the United Kingdom,328
did not lodge any objection to either of Myanmar’s reservations when it acceded to the
326 Ratification with Reservation by Burma, Convention of 9 December 1948 on the Prevention and
Punishment of the Crime of Genocide, C.N.25.1956. of 29 March 1956, MG, vol. II, Annex 5.
327 The objections were made by (the Republic of) China and the United Kingdom: see MG, vol. II, Annex 2,
p. 6 column 1 and p, 7 column 2. The United Kingdom maintains its objection.
328 Cf.: Declaration made by the United Kingdom of Great Britain and Northern Ireland when acceding to the
Genocide Convention, MG, vol. II, Annex 2, p. 7.
137
Genocide Convention in 1978,329 and which now seems to have accepted their
validity.330
450. Those reservations were the subject of debates in the parliament of Myanmar (then
Burma) prior to the submission of its instrument of ratification. After having confirmed
that “here in our country no genocidal act against a group based on ethnicity or religion
has ever occurred” and that there was “no reason [for that] to happen in the future”,331
the Government of Myanmar (then Burma) made it clear that the effect of its
Article VIII reservation was meant to exclude the ability of outside States to “accuse
[…] another of committing genocide and submit […] a complaint to the United
Nations”332 in order for the “relevant organs of the United Nations” to then eventually
take action.333
451. The Government of Myanmar was therefore aiming, as stated during the parliamentary
debate leading to the approval of the ratification motion, at precluding the possibility
of “the relevant organs of the United Nations” taking action where another Contracting
Party alleges that Myanmar is responsible for a violation of the Genocide Convention.
452. Neither the wording nor the underlying intention of Myanmar’s Article VIII
reservation limits its effect to precluding action being taken by the political organs of
the United Nations, or some of them, while continuing to allow Article VIII to be used
to seise the Court. Rather, the reservation was meant to be broad in nature. It must
have been intended to extend to precluding action being taken by any organ of the
United Nations, including by precluding the Court, its principal judicial organ, from
being seised by any contracting party not being an injured Contracting Party.
329 See UNTC, Convention on the Prevention and Punishment of the Crime of Genocide, Declarations and
Reservations, MG, vol. II, Annex 2.
330 MG, p. 30.
331 Myanmar, Pyithu Hluttaw, Motion for the Union Government to ratify, with two reservations, the
Convention on the Prevention and Punishment of the Crime of Genocide adopted by the General Assembly
of the United Nations in 1948, 2 September 1955, Unofficial Translation, p. 2, POM, Annex 127.
332 Ibid.
333 Ibid. (emphasis added).
138
453. This understanding of Myanmar’s Article VIII reservation is furthermore supported
by the fact that Myanmar acceded to the Genocide Convention five years after the
Court’s seminal 1951 advisory opinion on reservations to the Genocide Convention,
which had underlined the special, erga omnes character of the Genocide Convention.
This advisory opinion had thus warned Myanmar of the possibility that some States
might seek to draw from the careful and balanced statements made by the Court an
erroneously overbroad conclusion that even non-injured Contracting Parties to the
Genocide Convention would be entitled to bring an actio popularis against other
Contracting Parties.
454. In the debates in the parliament of Myanmar, the Government of Myanmar therefore
made it clear that the aim of both reservations was to exclude the possibility of “outside
interference” when it comes to events unfolding internally.334
455. At the same time, Myanmar deliberately did not, unlike many other Contracting Parties
at the time,335 enter a full-scale reservation to Article IX of the Genocide Convention.
Myanmar therefore accepted that, at least as a matter of principle, disputes arising
under the Genocide Convention can be brought before the Court. Putting the two
together, Myanmar’s reservation to Article VIII of the Genocide Convention was
meant, and has to be interpreted, as barring non-injured Contracting Parties like The
Gambia from seising the Court with a case arising under the Genocide Convention
even if otherwise the Court would have jurisdiction. Otherwise, Myanmar’s
Article VIII reservation would be devoid of any substance.
456. Myanmar is obviously aware of the position taken by the Court in the Provisional
Measures Order on this very issue. However, given the time-constraints inherent in
proceedings on provisional measures, this question was not able to be fully argued by
the parties, nor could it have been fully addressed by the Court. Myanmar is however
fully convinced that an in-depth analysis of the question will now confirm Myanmar’s
position as to the legal effects of both Article VIII of the Genocide Convention and
Myanmar’s reservation thereto.
334 Ibid.
335 Ever since the adoption of the Genocide Convention in 1948, no fewer than 30 States have entered
reservations to Article IX, some of which have in the meantime been withdrawn.
139
457. It is obvious that Myanmar, when acceding to the Genocide Convention, made a
deliberate decision to enter a reservation as to Article VIII, but to not enter a
reservation to Article IX. This decision must be given effect. As the ILC confirmed in
its 2011 Guide to Practice on Reservations to Treaties:
A reservation is to be interpreted in good faith, taking into
account the intention of its author as reflected primarily in the
text of the reservation, as well as the object and purpose of the
treaty and the circumstances in which the reservation was
formulated.336
458. In line with the Court’s jurisprudence, emphasis must thus be placed on the intention
of the author of a given reservation as one of the main elements on which interpretation
of the reservation should be based.337 Accordingly, any such interpretation must focus
on “the objective their author purports to attain”,338 “whose good faith must be
presumed”.339
459. The intention of the reserving State in turn, as the Court has confirmed:
may be deduced not only from the text of the relevant clause, but
also from the context in which the clause is to be read, and an
examination of evidence regarding the circumstances of its
preparation and the purposes intended to be served340
which circumstances may then further clarify the meaning of the reservation.341
336 ILC, Guide to Practice on Reservations to Treaties, Yearbook of the International Law Commission, 2011,
vol. II, Part Three, UN doc. A/CN.4/SER.A/2011/Add.1 (Part 3), p. 275, POM, Annex 72.
337 Anglo-Iranian Oil Co. case (United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports
1952, p. 107; Fisheries Jurisdiction case (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J.
Reports 1998, p. 454, paras. 48-49; Aegean Sea Continental Shelf case (Greece v. Turkey), Judgment, I.C.J.
reports 1978, p. 29, para. 69; ILC, Guide to Practice on Reservations to Treaties, Yearbook of the
International Law Commission, 2011, vol. II, Part Three, UN doc. A/CN.4/SER.A/2011/Add.1 (Part 3),
p. 276, POM, Annex 72.
338 ILC, Guide to Practice on Reservations to Treaties, Yearbook of the International Law Commission, 2011,
vol. II, Part Three, UN doc. A/CN.4/SER.A/2011/Add.1 (Part 3), p. 276 para. 6 [emphasis in the original],
POM, Annex 72.
339 Ibid., p. 277 para. 11; cf. also: Reservations to the Convention on Genocide, Advisory Opinion, I.C.J.
Reports 1951, p. 27.
340 Fisheries Jurisdiction case (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998,
p. 454, para. 48.
341 Aegean Sea Continental Shelf case (Greece v. Turkey), Judgment, I.C.J. Reports 1978, p. 29, paras. 63-69.
140
460. In this regard it is first crucial to recall that the right of Contracting Parties to the
Genocide Convention to seise the General Assembly or the Security Council of the
United Nations with an alleged violation of the Genocide Convention exists
independently of Article VIII of the Genocide Convention, as per Article 11,
paragraph 2, and Article 35, of the UN Charter. Accordingly, the right to seise either
of these two political organs is not dependant on Article VIII of the Genocide
Convention being applicable as between Myanmar and any Contracting Party to the
Genocide Convention seeking to bring a matter before those organs.
461. Furthermore, any reservation entered to Article VIII of the Genocide Convention with
the aim of preventing another Contracting Party from exercising its right to seise either
the General Assembly or the Security Council under Articles 11 and 35 of the UN
Charter respectively would be devoid of any legal effect. In any such situation, the
obligation to accept the right of other Contracting Parties to seise either of these two
political organs of the United Nations, as guaranteed by and provided for in the Charter
of the United Nations, would prevail over any such broadly-framed Article VIII
reservation in light of Article 103 of the UN Charter.
462. And it is exactly for this very reason that Myanmar has never questioned the legal
entitlement of other Contracting Parties to the Genocide Convention to bring to the
forum of the General Assembly or the Security Council allegations of Myanmar having
committed violations of the Genocide Convention and requesting the United Nations
to take action within the meaning of Article VIII of the Genocide Convention,
Myanmar’s valid reservation to that provision notwithstanding.342
342 See inter alia the requests and statements made by Denmark (UNGA, Official Records, Seventy-third
session, 27th plenary meeting (29 October 2018), UN doc. A/73/PV.27, p. 9, POM, Annex 76), Bangladesh
(UNGA, Official Records, Seventy-third session, 28th plenary meeting (29 October 2018), UN doc.
A/73/PV.28, p. 21, POM, Annex 77), the United States of America (UNGA, Third Committee, Official
Records, Seventy-third session, Summary record of the 50th meeting (16 November 2018), UN doc.
A/C.3/73/SR.50, p. 10, para. 63, POM, Annex 78) and Canada (UNGA, Third Committee, Official
Records, Seventy-third session, Summary record of the 50th meeting (16 November 2018), UN doc.
A/C.3/73/SR.50, pp. 14-15, para. 91, POM, Annex 78; UNGA, Third Committee, Official Records,
Seventy-third session, Summary record of the 30th meeting (23 October 2018), UN doc. A/C.3/73/SR.30,
p. 5 para. 21, POM, Annex 74) in the General Assembly, as well as those made by the United Kingdom
(UNSC, 8333rd meeting (28 August 2018), UN doc. S/PV.8333, p. 7, POM, Annex 73; UNSC, 8381st
meeting (24 October 2018), UN doc. S/PV.8381, p. 3, POM, Annex 75), France (UNSC, 8333rd meeting
(28 August 2018), UN doc. S/PV.8333, p. 8, POM, Annex 73) and the Dominican Republic (UNSC, 8477th
meeting (28 February 2019), UN doc. S/PV.8477, p. 9, POM, Annex 79) in the Security Council.
141
463. However, at the same time, interpreting Article VIII of the Genocide Convention, as
well as Myanmar’s reservation thereto, as exclusively encompassing the seisin of the
political organs of the United Nations would render both the provision itself, as well
as Myanmar’s Article VIII reservation, completely redundant and meaningless. Such
interpretation would thus run counter to the obligation to interpret it in line with the
principle of good faith.
464. Any such interpretation would in particular assume that Myanmar had at the time it
entered its Article VIII reservation either wanted to submit a completely useless
reservation, or that it had wanted to enter a reservation that runs counter to Article 103
of the UN Charter.
465. Yet, as confirmed by the work of the ILC, it must be presumed that a State entering a
reservation to a treaty not only acts in good faith, but that it also wants to submit a
reservation that is able to produce legal effects.343 This result is also in line with the
Court’s own holding in the Right of Passage case, in which it said that:
It is a rule of interpretation that a text emanating from a
Government must, in principle, be interpreted as producing and
as intended to produce effects in accordance with existing law
and not in violation of it.344
466. In the case at hand this means that the only reasonable conclusion that may be drawn
from Myanmar’s Article VIII reservation is that Myanmar indeed wanted to limit the
scope ratione personae of Article VIII, by excluding non-injured Contracting States
from its operation, in the event that the Court were in the future ever to find that non-
343 ILC, Guide to Practice on Reservations to Treaties, Yearbook of the International Law Commission, 2011,
vol. II, Part Three, UN doc. A/CN.4/SER.A/2011/Add.1 (Part 3), p. 65, para. 12, 275 (Guideline 4.2.6.),
POM, Annex 72; it lies in the very nature of reservations as already shown by the definition contained in
Article 2(1)(d) of the Vienna Convention on the Law of Treaties, that they are intended to produce legal
effects, or as Reuter put it: “L’essence de la ‘réserve’ est de poser une condition l’Etat ne s’engage qu’à la
condition que certains effets juridiques du traité ne lui soient pas appliqués, que ce soit par l’exclusion ou
la modification d’une règle ou par l’interprétation ou l’application de celle-ci.” [“The essence of the
‘reservation’ is to lay down a condition: the State binds itself only on condition that certain legal effects of
the treaty are not applied to it, whether by excluding or modifying a rule or by interpreting or applying it.”]
See: P. Reuter, Introduction au Droit du Traités (third revised edn. by P. Cahiers, 1995), p. 61, POM,
Annex 26; See also: Case concerning the delimitation of the Continental Shelf between the United Kingdom
of Great Britain and Ireland, and the French Republic, Decision of 30 June 1977, UN Reports of
International Arbitral Awards, vol. XVIII, p. 40, para. 55, POM, Annex 14.
344 Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, Judgment, I.C.J.
Reports 1957, p. 142.
142
injured Contracting Parties of the Genocide Convention would otherwise be entitled
to seise the Court.
467. Otherwise, it cannot be explained why Myanmar entered a reservation to Article VIII
of the Genocide Convention in the first place, while not at the same time also entering
a full-fledged or at least a partial reservation to the Convention’s compromissory
clause contained in its Article IX.
468. Myanmar’s Article VIII reservation could thus only have been meant to, and indeed
was only meant to, preclude the seisin of the Court by “any Contracting Party”, i.e.
parties to the Genocide Convention that are not injured States. It thus has the effect of
precluding any form of actio popularis by any not-specially-affected Contracting Party
to the Genocide Convention, if such right were to exist under the Genocide Convention
in the first place. On the other hand, it does not purport to preclude, nor does it
preclude, the Court from exercising jurisdiction on the basis of Article IX of the
Genocide Convention – provided the Court has been validly seised by an injured State.
469. The Gambia has thus either misunderstood or deliberately misrepresented Myanmar’s
argument based on its Article VIII reservation when claiming that Myanmar’s
argument is that no Contracting Party to the Genocide Convention whatsoever could
bring a case against Myanmar under the Genocide Convention’s compromissory
clause. Myanmar would agree that such interpretation of Article VIII of the Genocide
Convention and Myanmar’s reservation thereto would indeed empty Article IX, and
Myanmar’s acceptance thereof, of its content.345 But that is, it bears no mentioning,
not the combined result of Myanmar’s reading of Article VIII, as confirmed by its very
wording and drafting history, and its Article VIII reservation. Rather, Myanmar’s
Article VIII reservation merely confirms that the scope ratione personae of
Article VIII, in relation to Myanmar, is limited to those Contracting Parties that are
injured States, thereby excluding any form of actio popularis – if ever the Genocide
Convention did enshrine such a concept, quod non.
345 CR 2019/20, p. 29, para. 31 (d’Argent) : “Parce que le Myanmar n’a pas accepté l’article VIII de la
convention, aucun Etat partie ne pourrait valablement saisir la Cour, alors même que, de l’aveu de l’Etat
défendeur, celui-ci a donné compétence à son égard en consentant à l’article IX. Le Myanmar vide l’article
IX de son contenu et Me Staker n’a pas expliqué ce que le consentement de l’Etat défendeur à l’article IX
et à votre compétence pouvait en ce cas signifier.”
143
470. It is exactly this difference that explains the fact that Myanmar, when acceding to the
Genocide Convention, while entering a reservation to Article VIII of the Genocide
Convention, did not enter at the same time a reservation to Article IX of the
Convention.
471. It is also only such an interpretation of both Article VIII and Myanmar’s reservation
thereto, contrary to what The Gambia wrongly claimed during the provisional
measures phase of this case,346 that leads to a result in line with the principle of good
faith. If one were indeed to follow, be it only arguendo, The Gambia’s interpretation
of Article VIII and Myanmar’s reservation thereto, both Article VIII of the Genocide
Convention as such, as well as Myanmar’s reservation thereto, would be deprived of
any relevance. As a matter of fact, both Article VIII of the Genocide Convention itself,
which in The Gambia’s view only governs the seisin of the political organs of the
United Nations but not the seisin of the Court, as well as Myanmar’s Article VIII
reservation which in The Gambia’s view only purports to exclude the right to address
the General Assembly and the Security Council, would be superseded by the relevant
provisions of the UN Charter as per its Article 103. It is difficult to see how such a
result would indeed, as claimed by The Gambia, constitute a bona fide interpretation
of Article VIII and of Myanmar’s reservation thereto. Is it really bona fide to assume
that Myanmar had wanted in 1955 to enter a reservation that would put into question
the supremacy of the Charter as contemplated in its Article 103?
472. Moreover, one cannot but wonder why The Gambia did not then object to Myanmar’s
Article VIII reservation as allegedly running counter to the requirements of the Charter
when The Gambia itself joined the Genocide Convention, given that on The Gambia’s
interpretation, the reservation would be clearly impermissible. Put otherwise, one
cannot but infer that The Gambia, when acceding to the Genocide Convention without
objecting to Myanmar’s Article VIII reservation, thereby accepted Myanmar’s
exclusion of any possible right to bring an actio popularis under the Genocide
Convention, if such right had existed at the first place, quod non.
346 CR 2019/20, pp. 28-29, paras. 30-32 (d’Argent).
144
473. Having thus defined the scope and legal effect of Myanmar’s Article VIII reservation,
it will now be demonstrated that this reservation is permissible and thus able to provide
for its intended legal effects.
3. Permissibility of Myanmar’s Article VIII reservation
474. The Court has, time and again, confirmed the permissibility of reservations to
Article IX of the Genocide Convention.347 Notably in its 2006 judgment in the Armed
Activities on the Territory of the Congo (New Application: 2002) case, the Court
stressed that such a reservation to Article IX of the Genocide Convention “bears on
the jurisdiction of the Court, and does not affect substantive obligations relating to acts
of genocide themselves under that Convention”.348 Accordingly, the Court further
found that it:
cannot conclude that the reservation [concerning Article IX of
the Genocide Convention] […] which is meant to exclude a
particular method of settling a dispute relating to the
interpretation, application or fulfilment of the Convention, is to
be regarded as being incompatible with the object and purpose of
the Convention.349
475. A fortiori this must hold even more true where, like in the case at hand, a Contracting
Party to the Genocide Convention does not prevent the Court from exercising its
contentious jurisdiction in toto, but merely limits the seisin of the Court under
Article VIII, and the ensuing exercise by the Court of its contentious jurisdiction under
Article IX, to injured States.
476. Myanmar’s situation, given its reservation to Article VIII, is thus akin to a situation
where a State Party to the Convention Against Torture has entered a reservation to that
treaty to the effect that only injured States may bring a case before the Court under
347 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction and Admissibility, Judgement, I.C.J. Reports 2006, pp. 32-33, paras. 66-70;
Legality of Use of Force (Yugoslavia v. United States of America), Provisional Measures, Order of 2 June
1999, I.C.J. Reports 1999, p. 924, paras. 24-25; Legality of Use of Force (Yugoslavia v. Spain), Provisional
Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 772, paras. 32-33.
348 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction and Admissibility, Judgement, I.C.J. Reports 2006, p. 32, para. 67.
349 Ibid. (emphasis added).
145
Article 30 of the Convention Against Torture. Under those circumstances, those States
Parties to the Convention Against Torture that could claim to be specially affected by
the State Party’s alleged violations of the Convention Against Torture could still bring
a case against the State having entered such reservation. And it is exactly such a limited
effect that is produced by Myanmar’s Article VIII reservation when it comes to the
ability of Contracting Parties to seise the Court with a case under Article IX of the
Genocide Convention.
477. Hence, Myanmar’s Article VIII reservation, properly understood, does not preclude
the Court from exercising its jurisdiction. Rather, it merely circumscribes those
Contracting Parties to the Genocide Convention that, vis-à-vis Myanmar, would have
standing to bring a case under the Genocide Convention. Accordingly, the legal effect
of Myanmar’s Article VIII reservation, as compared to the reservations to Article IX
upheld by the Court as shown above on several occasions,350 is very limited in nature.
478. First, Myanmar’s Article VIII reservation would in any event only become relevant if
the Court were to find that even non-injured States may, as a matter of principle, bring
cases before the Court under Article IX of the Genocide Convention.
479. Second, Myanmar’s Article VIII reservation would be relevant only in cases to be
brought under the Genocide Convention against Myanmar, since Myanmar is the only
Contracting Party to the Convention with such reservation. Among the other 151
Contracting Parties, Article VIII would fully come into play. Accordingly, - assuming
arguendo in the first place that the Court were to find that the Genocide Convention
encompasses the concept of actio popularis, quod non - even a non-injured
Contracting Party would have standing vis-à-vis all other 150 Contracting Parties to
bring cases under the Genocide Convention.
480. Third, even vis-à-vis Myanmar, cases could still be brought under Article IX by those
Contracting Parties said to be specially affected by alleged violations of the
Convention for which Myanmar is claimed to be responsible. Thus, even The Gambia
seems to have accepted that Bangladesh is a Contracting Party to the Genocide
Convention that is specially affected by Myanmar’s alleged failure to comply with the
350 See paragraphs 222, 223 and 474 above.
146
Convention,351 such that Bangladesh could have brought a case before the Court
against Myanmar were it not for Bangladesh’s own Article IX reservation. Thus,
unlike Myanmar, Bangladesh decided to bar the Court completely from dealing with
any cases arising under the Genocide Convention without the consent of all parties to
the dispute.
481. Fourth, as already previously shown,352 even where a specially-affected State such as
Bangladesh is not able to bring a case before the Court given its own Article IX
reservation, it might still take countermeasures against Myanmar provided Myanmar
were to commit a violation of the Genocide Convention. Put otherwise and given that,
as the Court itself put it, bringing a case before the Court under Article IX of the
Genocide Convention is but one among various methods of settling a dispute relating
to the interpretation, application or fulfilment of the Genocide Convention,353
Myanmar’s Article VIII reservation merely excludes one specific method of settling
disputes arising under the Genocide Convention, and does so with regard to noninjured
States only.
482. In fact, even Bangladesh can raise any alleged violations of the Genocide Convention
by Myanmar either bilaterally, or by calling upon the political organs of the United
Nations to take action, a Charter-based right not affected (and which could have not
been affected anyhow) in any way, as shown above,354 by Myanmar’s Article VIII
reservation.
E. Conclusion
483. As demonstrated above, Article VIII of the Genocide Convention covers and regulates
not only the seisin of the political organs of the United Nations but, as its wording, a
351 CR 2019/19, p. 53, para. 56 (Staker), CR 2019/21, pp. 14, 17, 18, paras. 15, 28, 32 (Staker). This
qualification was not challenged by The Gambia.
352 See paragraph 336 above.
353 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 32, para. 67.
354 See paragraphs 437 and 438 above.
147
comparison with the wording of its Article IX, as well as its drafting history all
confirm, also controls the seisin of the Court.
484. It has further been demonstrated that – provided the Court were to ever find that the
Genocide Convention provides for the right even of non-injured or not-speciallyaffected
States to bring cases under its compromissory clause in the first place – it is
Article VIII of the Genocide Convention that guarantees such right.
485. Accordingly, Myanmar’s limited, yet carefully calibrated Article VIII reservation,
while not setting aside the Court’s exercise of jurisdiction under Article IX of the
Genocide Convention as such, prevents non-injured States such as The Gambia from
bringing an actio popularis. It thereby serves the legitimate purpose of preventing a
misuse of the Court in a situation where a given Contracting Party to the Genocide
Convention, allegedly specially affected by the purported violations by Myanmar of
the Genocide Convention, is barred from bringing a case given the fact that it has
entered and maintains a reservation to Article IX of the Genocide Convention, while
another Contracting Party then de facto, if not de jure, brings a case on behalf of that
State.
486. It is for these reasons that the Court should give substantive and good faith effect to
both Article VIII of the Genocide Convention itself, as well as to Myanmar’s
Article VIII reservation, rather than to adopt an interpretation that would render both
devoid of any legal relevance.

149
IV. FOURTH PRELIMINARY OBJECTION:
The Court lacks jurisdiction, or alternatively the application is
inadmissible, as there was no dispute between The Gambia and
Myanmar on the date of filing of the Application instituting
proceedings
A. Introduction
487. For the Court to exercise jurisdiction in this case, a fundamental requirement must be
satisfied: at the time that The Gambia filed its Application instituting proceedings on
11 November 2019, a dispute must have existed between The Gambia and Myanmar
in relation to the claims made by The Gambia in its Application.
488. The Gambia does not appear to question the existence of this requirement. Rather,
The Gambia’s position is that the requirement is satisfied. The Gambia’s application
contends that “The Gambia has […] made clear to Myanmar that its actions constitute
a clear violation of its obligations under the [Genocide] Convention”, and that
“Myanmar has rejected and opposed any suggestion that it has violated the Genocide
Convention”.355 For the reasons elaborated below, that is however not what the record
shows.
489. This requirement of the existence of a dispute has been considered by the Court in six
cases over the last decade, in the Convention on Racial Discrimination case in 2011,356
the Obligation to Prosecute or Extradite case in 2012,357 the Sovereign Rights and
Maritime Spaces case in 2016,358 and the three Nuclear Arms and Disarmament cases
in 2016.359 These cases set out even more precisely than in the Court’s previous case
355 AG, para. 20. See also MG, para. 2.11.
356 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, p. 70.
357 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012, p. 422.
358 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 3.
359 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,
p. 255; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
2016, p. 552; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to
150
law the legal principles relating to that requirement. Whether one regards these cases
as a more detailed elaboration of principles that have long been applied in the
jurisprudence of this Court and its predecessor, or whether one regards them as going
beyond the Court’s earlier case law, the principles that they articulate must now be
regarded as the settled law of the Court.
490. The various elements that need to be cumulatively established to satisfy the
requirement for the existence of a dispute are dealt with in paragraphs 495 to 577
below. The position of Myanmar is that each of these elements must be satisfied in all
cases within the Court’s contentious jurisdiction. The alternative position of Myanmar
is that even if certain of these elements might not necessarily be mandatory in all cases,
such elements nonetheless are required to be satisfied in the circumstances of a case
such as the present, where the application instituting proceedings alleges breaches of
obligations of an erga omnes partes character, and where the applicant State is not
specially affected by the alleged breaches.
491. There are good reasons why the fundamental requirement of a pre-existing dispute
between the parties at the time of the application should be applied even more
rigorously in such circumstances. This would be so, particularly if, contrary to the
submissions of Myanmar in relation to its second preliminary objection, the Court
were to find that any Contracting Party to the Genocide Convention is able to bring a
case before this Court against any other Contracting Party to that Convention,
regardless of whether or not the applicant State is specially affected by the alleged
breach. Such a finding would raise the prospect of potentially dozens of States who
have no particular connection to the facts of a situation instituting separate proceedings
before this Court against the same respondent State in relation to the same facts,
alleging breaches of the same provisions of the Genocide Convention or other treaty
allegedly imposing obligations of an erga omnes partes character. Maintenance of the
proper functioning of the international dispute settlement system, and of the
manageability of the workload of the Court, would require particularly careful
attention to be given to whether, prior to the submission of each of those applications,
Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 2016, p. 833.
151
there genuinely was, as a matter of objective fact, a legal dispute between the applicant
State and the respondent State.
492. In the Nuclear Arms and Disarmament cases, the Court said that:
While it is a legal matter for the Court to determine whether it
has jurisdiction, it remains for the Applicant to demonstrate the
facts underlying its case that a dispute exists.360
493. Accordingly, this preliminary objection should be upheld unless The Gambia proves
the facts necessary to establish the existence of a dispute under the Genocide
Convention at the time it filed its Application instituting proceedings.
494. The only facts relied upon by The Gambia as establishing this are those set out in
paragraph 578 below. For the reasons given in paragraphs 579 to 719 below, these
facts are however not sufficient to establish the existence on 11 November 2019,
immediately before the filing of The Gambia’s application, of a dispute in relation to
the claims which are the subject matter of The Gambia’s application. Paragraphs 720
to 729 below also set out additional considerations as to why no relevant dispute
existed between The Gambia and Myanmar at that time, if The Gambia is in fact
bringing these proceedings on behalf of the OIC.
B. Applicable legal principles
1. Necessity for the existence of a dispute
495. The existence of a dispute between the parties is a mandatory precondition for any
exercise of the Court’s contentious jurisdiction. This follows from Article 38,
paragraph 1, of the Statute, which provides that the Court’s function is “is to decide in
360 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,
p. 255, p. 272, para. 41, also separate opinion of Judge Owada, p. 294, para. 8 (“In making this objective
determination, the Court has always been led to consider whether the party claiming the existence of a
dispute (i.e., the applicant) has established by credible evidence that its claim is positively opposed by the
other party (i.e., the respondent)”). To similar effect, see Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016, p. 552, p. 569, para. 41; Obligations
concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament
(Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016, pp. 851-
852, para. 44.
152
accordance with international law such disputes as are submitted to it” (emphasis
added).361
496. Additionally, in the present case the sole basis of jurisdiction invoked by The Gambia
is Article 36, paragraph 1, of the Statute, together with the compromissory clause in
Article IX of the Genocide Convention, which states that:
Disputes between the Contracting Parties relating to the
interpretation, application or fulfilment of the present
Convention, including those [that is, those disputes] 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.362
497. Thus, in the absence of a dispute, the Court has no jurisdiction because the
compromissory clause in Article IX of the Genocide Convention does not apply, and
because the proceedings fall outside the function of the Court under Article 38,
paragraph 1, of the Statute.
2. Necessity for the dispute to exist at the time of filing of the
application
498. As the Court held in the Nuclear Arms and Disarmament cases:
In principle, the date for determining the existence of a dispute is
the date on which the application is submitted to the Court …
[N]either the application nor the parties’ subsequent conduct and
statements made during the judicial proceedings can enable the
Court to find that the condition of the existence of a dispute has
been fulfilled in the same proceedings.363
361 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. 269, para. 33; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 2016 (II), p. 566, para. 33; Obligations concerning Negotiations relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary
Objections, Judgment, I.C.J. Reports 2016 (II), p. 849, para. 36.
362 POM, Annex 1 (emphasis added).
363 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012 (II), pp. 444-445, paras. 53-55; 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, p. 255, pp. 271-272, paras. 39-40; Obligations concerning
153
499. Thus, in the words of Judge Abraham, “the respondent must not discover the existence
of a claim against it by the applicant in the document instituting proceedings”.364
500. This requirement can also be explained on the basis of Article 38, paragraph 1, of the
Statute. The function of the Court is to settle existing disputes between the parties,
and not to be a forum within which new disputes can be created. As Judge Donoghue
said in the Nuclear Arms and Disarmament cases:
An application in a contentious case initiates proceedings to
settle a dispute that is “submitted to [the Court]” (Article 38,
paragraph 1, of the Statute of the Court). It is not a means to elicit
a respondent’s opposing views in order to generate a dispute
during those proceedings.365
501. The very concept of submitting a dispute to the Court for settlement necessarily
implies that the dispute must already exist at the time of its submission. Logically, it
is not possible to submit to the Court a dispute that does not yet exist.366
502. The rule that “the dispute must in principle exist at the time the Application is
submitted to the Court” is settled case law of the Court.367 It was affirmed again in the
Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall
Islands v. Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016, p. 552, p. 568,
paras. 39-40; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 2016, p. 833, p. 851, paras. 42-43.
364 See, for instance, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and
to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 2016, p. 552, declaration of Judge Abraham, p. 575, para. 3.
365 See, for instance, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and
to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 2016, p. 833, declaration of Judge Donoghue, p. 1035, para. 5.
366 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,
p. 255, pp. 271-272, para. 39; Obligations concerning Negotiations relating to Cessation of the Nuclear
Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 568, para. 39; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 851, para. 42: “when it is stated in
Article 38, paragraph 1, of the Court’s Statute that the Court’s function is ‘to decide in accordance with
international law such disputes as are submitted to it’, this relates to disputes existing at the time of their
submission”.
367 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,
p. 255, pp. 271-271, para. 39 (first sentence), para. 40 (last sentence); Obligations concerning Negotiations
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v.
Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016, p. 552, pp. 568-569, para. 39
154
Provisional Measures Order in the present case.368 Indeed, as has been noted, The
Gambia does not appear to question the existence of this rule.369
503. The settled case law is to the effect that the dispute must “in principle” exist at the time
the application is submitted to the Court. Several of the individual opinions in the
Nuclear Arms and Disarmament cases observe that the words “in principle” indicate
that the rule admits of exceptions.370 However, a rule that is expressed to apply “in
principle” is nonetheless a rule. The words “in principle” mean that the rule will apply,
unless a valid reason for not applying the rule has been established. The cases
affirming the existence of this rule do not deal with the question of exactly what
exceptions to the rule might exist. As no exception to the rule has been invoked by
The Gambia in these proceedings, the question of what possible exceptions to the rule
might exist is merely hypothetical.
504. The existence of this rule is not negated by the fact that The Gambia’s application
makes claims of violations of obligations having an erga omnes partes character. In
the Obligation to Prosecute or Extradite case,371 while the Court accepted that the erga
(first sentence), para. 40 (last sentence); Obligations concerning Negotiations relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary
Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 851, para. 42 (first sentence), para. 43 (last sentence);
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 3, p. 27, para. 52; 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. 70, p. 85, para. 30; Questions
of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports
1998, p. 9, pp. 25-26, paras. 43-45; Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 115, pp. 130-131, paras. 42-44.
368 Provisional Measures Order, para. 20, final sentence.
369 See MG, para. 1.40, in which The Gambia contends that “The facts show that there was plainly a dispute
between the Parties when The Gambia submitted its Application”. See also MG, paras 2.9 and 2.18, first
sentence.
370 See, for instance, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and
to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 2016, p. 833, dissenting opinion of Judge Yusuf, p. 869, paras. 33-34; separate opinion of Judge
Tomka, p. 890, paras. 17-18; dissenting opinion of Judge Cançado Trindade, p. 918, footnote 15; separate
opinion of Judge Sebutinde, pp. 1048-1049, para. 20; dissenting opinion of Judge Robinson, p. 1079,
para. 41; dissenting opinion of Judge Crawford, p. 1097, para. 10; dissenting opinion of Judge ad hoc
Bedjaoui, pp, 1117-1118, para. 34.
371 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012, p. 422.
155
omnes partes character of a treaty obligation might be of some relevance to standing
in cases brought under Article 30 of the Convention Against Torture,372 the Court’s
consideration of jurisdiction proceeded on the obvious premise that there still had to
be a dispute specifically between Belgium and Senegal for the Court to have
jurisdiction under the Convention Against Torture.373
505. As the Court said in the Armed Activities case:
The Court observes, however, as it has already had occasion to
emphasize, that “the erga omnes character of a norm and the rule
of consent to jurisdiction are two different things” (East Timor
(Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102,
para. 29), and that the mere fact that rights and obligations erga
omnes may be at issue in a dispute would not give the Court
jurisdiction to entertain that dispute. The same applies to the
relationship between peremptory norms of general international
law (jus cogens) and the establishment of the Court’s
jurisdiction: the fact that a dispute relates to compliance with a
norm having such a character, which is assuredly the case with
regard to the prohibition of genocide, cannot of itself provide a
basis for the jurisdiction of the Court to entertain that dispute.
Under the Court’s Statute that jurisdiction is always based on the
consent of the parties.374
506. The reference in this last sentence to the consent of the parties applies both to
Article 38, paragraph 1, of the Statute, and Article IX of the Genocide Convention, by
which the States Parties to the Statute of the Court and the Contracting Parties to the
Genocide Convention have consented only to the submission of disputes to the
Court.375
507. Indeed, the Court has specifically indicated that the requirement of an existing dispute
at the time of filing the application applies in cases alleging breaches of the Genocide
Convention. In the Nuclear Arms and Disarmament cases, the applicant State (the
372 Ibid., pp. 448-450, paras. 64-70.
373 Ibid., pp. 441-445, paras. 44-55.
374 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo
v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 6, pp. 32 and 52, paras. 64
and 125.
375 Compare Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 2016, p. 552, separate opinion of Judge Owada, p. 587, para. 4.
156
Marshall Islands) argued that the Bosnian Genocide case376 was an example of a case
where the very filing of the application sufficed to establish the existence of a dispute.
The Court rejected this contention, stating that:
while it is true that the Court did not explicitly reference any
evidence before the filing of the application demonstrating the
existence of a dispute in its Judgment in the case concerning the
Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), in the particular context of that case, which involved
an ongoing armed conflict, the prior conduct of the parties was
sufficient to establish the existence of a dispute (Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II), p. 614, paras. 27-
29). Instead, the issues the Court focused on were not the date
when the dispute arose but the proper subject-matter of that
dispute, whether it fell within the scope of the relevant
compromissory clause, and whether it “persist[ed]” at the date of
the Court’s decision. As stated above, although statements made
or claims advanced in or even subsequently to the application
may be relevant for various purposes — notably in clarifying the
scope of the dispute submitted — they cannot create a dispute de
novo, one that does not already exist […]377
508. As Judge Owada further observed in the same case:
It is true that the Court in its 1996 Judgment in the Genocide case
did not make an explicit reference to any evidence before the
filing of the Application in affirming the existence of a dispute.
However, it is important to highlight the two key elements unique
to that case. […] The first is that, in that case, Bosnia and
Herzegovina invoked the Convention on the Prevention and
Punishment of the Crime of Genocide as the source of the Court’s
jurisdiction. […] [I]n this case Yugoslavia did not contest the
“existence of a dispute” for the purposes of the seisin of the
Court, but rather questioned the “existence of a dispute for the
purposes of the compromissory clause of the Convention (i.e.,
Article IX)”, as in its view this was not an international dispute
for the purposes of the Convention. This clearly serves to
distinguish that case from other cases, where the issue was purely
“the existence of a legal dispute”. […] Furthermore, in weighing
the statements made by the parties during the course of the
proceedings, the Court “note[d] that there persists” a situation of
376 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary
Objections, Judgment, I.C.J. Reports 1996, p. 595.
377 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,
p. 255, p. 275, para. 50; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, pp. 571-572, para. 50; Obligations concerning Negotiations relating
to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, pp. 854-855, para. 54.
157
opposing views, thus signifying that a dispute had been in
existence at the time of the filing of the Application […] The use
of this language could be taken as an indication of the position
taken by the Judgment that the statements made after the filing
of the Application were referred to only as an affirmation of the
continuation of a pre-existing dispute. […] In light of these
factors, the reference in that Judgment to statements made after
the filing of the Application were due to the special
circumstances of that case and therefore should not be
understood as signaling a departure from the Court’s consistent
jurisprudence on this subject.378
509. Thus, since the dispute must exist immediately prior to the application instituting
proceedings, in principle, only documents issued and statements made up to the time
of institution of proceedings may be considered when determining the existence of a
dispute.379 While statements or evidence post-dating the application may be relevant
for various purposes, such evidence, as the Court confirmed, cannot create a dispute
de novo.
3. Definition of a “dispute”
510. Almost a century ago, in the Mavrommatis Palestine Concessions case, the Permanent
Court of International Justice defined a “dispute” as “a disagreement on a point of law
or fact, a conflict of legal views or of interests” between the parties.380 In the
intervening decades, that definition has been consistently cited by the Court.381
378 See, for instance, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and
to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 2016, p. 833, separate opinion of Judge Owada, pp. 882-883, paras. 16-18.
379 Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Preliminary Objections, Judgment, ICJ Reports 2011, p. 70, p. 85,
para. 30.
380 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
381 For instance, East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, p. 99, para. 22;
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports
2002, p. 3, p. 13, para. 27; Land and Maritime Boundary between Cameroon and Nigeria, Preliminary
Objections, Judgment, I.C.J. Reports 1998, p. 275, p. 314, para. 87; Certain Property (Liechtenstein v.
Germany), Preliminary Objections, Judgment, I.CJ. Reports 2005, p. 6, p. 18 para. 24; Armed Activities on
the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 6, p. 40, para. 90; Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2016, p. 3, p. 26, para. 50; Question of the Delimitation of the
Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast
(Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 100, pp. 138-139,
158
511. However, that “abstract and general formulation”382 is inadequate, particularly to the
extent that it could be read as suggesting that a “dispute” might exist where there is no
more than a disagreement between the parties on a point of fact with no legal
consequences turning on that disagreement, or where there is merely a conflict of legal
interests.383
512. The Court is a judicial body. Its function is accordingly confined to deciding legal
disputes.384 This is necessarily implicit in Article 38, paragraph 1, of the Statute,
which states that the function of the Court is to decide “disputes” submitted to it “in
accordance with international law”. This is further reflected in Article 36, paragraph 2,
of the Statute, which refers specifically to “legal disputes”, and in Article 36,
paragraph 3, of the UN Charter, which provides that “legal disputes should as a general
rule be referred by the parties to the International Court of Justice”.
513. For a legal dispute to exist, there must be a conflict between the parties concerning
legal rights and obligations, the resolution of such conflict having some concrete
consequence. As the Court said in the Northern Cameroons case:
The function of the Court is to state the law, but it may pronounce
judgment only in connection with concrete cases where there
exists at the time of the adjudication an actual controversy
involving a conflict of legal interests between the parties. The
para. 124; 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, p. 255, pp. 269-270, para. 34; Obligations concerning Negotiations relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2016, p. 552, p. 566, para. 34; Obligations concerning Negotiations
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United
Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 849, para. 37.
382 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
2016, p. 552, separate opinion of Judge Owada, pp. 586-587, para. 3.
383 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 319 at p. 328 (“Nor is it adequate to show that the interests of the two parties to such
a case are in conflict”).
384 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports
2016, p. 833, dissenting opinion of Vice-President Yusuf, p. 864, para. 16 (“The jurisdiction of the Court
is to be exercised in contentious cases only in respect of legal disputes submitted to it by States”), separate
opinion of Judge Bhandari, p. 1057, para. 3 (“Under Article 36, paragraph 2, and Article 38, paragraph 1,
of the Statute of the Court, it can only exercise its jurisdiction in case of a dispute between the parties. The
concept of “dispute”, and more specifically “legal dispute”, is thus central to the exercise of the Court’s
jurisdiction”).
159
Court’s judgment must have some practical consequence in the
sense that it can affect existing legal rights or obligations of the
parties, thus removing uncertainty from their legal relations.385
514. The Court has therefore emphasized, particularly in its recent case law, that for a
dispute to exist, “the two sides [must] hold clearly opposite views concerning the
question of the performance or non-performance of certain international
obligations”.386
515. However, even if two States hold clearly opposite views, if neither is aware of the view
held by the other, then it can hardly be said that the two parties are in dispute. In such
a situation they may, unbeknown to each other, hold different opinions on a particular
matter, but there is no dispute between them. Furthermore, even if party A is aware of
the clearly opposite view held by party B, it cannot be said that there is any dispute
between the parties if party B in turn has no awareness of the view held by party A.
516. The word “dispute” (or “différend”), as used in both in the Statute of the Court and in
Article IX of the Genocide Convention, must be interpreted in good faith in accordance
with the ordinary meaning to be given to the term, in accordance with the customary
international law rule of treaty interpretation reflected in Article 31, paragraph 1, of
the Vienna Convention on the Law of Treaties. So interpreted, the word “dispute” or
“différend” refers to a situation where each of two or more parties is aware of the
clearly opposite views taken by the other, and furthermore, each is aware that the other
is also so aware.
385 Case concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections,
Judgment of 2 December 1963, I.C.J. Reports 1963, p. 15, pp. 33-34.
386 Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 65, p. 74; Application of the
Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections,
Judgment, 1.C.J. Reports 1996, p. 595, p. 614, para. 29; Alleged Violations of Sovereign Rights and
Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J.
Reports 2016 (I), p. 3, p. 26, para. 50; 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, p. 255, p. 270, para. 34; Obligations concerning Negotiations
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v.
Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016, p. 552, p. 566, para. 34;
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports
2016, p. 833, p. 849, para. 37; 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. 104, p. 115, para. 22.
160
517. This is reflected in the statement in the Rights of Passage case in 1960 that it is
necessary for the parties “to adopt clearly-defined legal positions as against each
other”.387 This is also reflected in the statement that, for a dispute to exist, “it must be
shown that the claim of one party is positively opposed by the other”.388
518. In the Nuclear Arms and Disarmament cases, the Court repeated the same formulation,
with an added reference to the need to show “that the respondent was aware, or could
not have been unaware, that its views were ‘positively opposed’ by the applicant”.389
519. To put the matter another way, in order for there to be any dispute at all, the respondent
State must be aware of the positively opposed views of the applicant State. As Judge
Owada said in the Nuclear Arms and Disarmament cases:
387 Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960, I.C.J. Reports 1960, p. 6, p. 34
(emphasis added).
388 (Emphasis added.) See: South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa),
Preliminary Objections, Judgment of 21 December 1962, I.C.J. Reports 1962, p. 319, p. 328; East Timor
(Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, p. 100, para. 37; Questions of Interpretation
and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 9, p. 16,
para. 32; Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, I.C.J. Reports
2005, p. 6, p. 17, para. 24; Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
2006, p. 6, p. 40, para. 90; Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2007, p. 832, p. 849, para. 41; 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, p. 70, p. 84, para. 30; Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, p. 442,
para. 46; Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 3, p. 26, para. 50; 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, p. 255, p. 270,
para. 34; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 2016, p. 552, p. 566, para. 34; Obligations concerning Negotiations relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary
Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 849, para. 37; 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. 104, p. 115, para. 22.
389 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,
p. 255; p. 271, para. 38; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 568, para. 38; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, pp. 850, para. 41.
161
The crucial point is that the common denominator running
through these diverse cases is the element of awareness; as stated
in the Judgment, it is the awareness of the respondent which
demonstrates the transformation of a mere disagreement into a
true legal dispute between the parties. This principle requires the
applicant to establish that the respondent “was aware, or could
not have been unaware, that its views were ‘positively opposed’
by the applicant” (Judgment, para. 41). […] I have tried to
demonstrate that this element of awareness is not being
introduced in the present Judgment as another new criterion that
could be used as an alternative to other factors to establish the
existence of a dispute. In my view, this element is critical,
inasmuch as it is the “objective awareness” of the parties that
transforms a disagreement into a legal dispute. The element of
awareness therefore constitutes an essential minimum common
to all cases where the existence of a dispute is at issue.390
520. Although the Court in the Nuclear Arms and Disarmament cases speaks of awareness
by the respondent State of the positively opposed views of the applicant State, for the
reasons above, the existence of a dispute in fact requires awareness by both parties of
the positively opposed views of the respective other side. This is necessarily implicit
in the judgments in those cases. The Court found that there was no dispute at the time
of filing of the applications in those cases because the respondent States (India,
Pakistan and the United Kingdom) could not be shown to have been aware of the claim
made by the applicant State (the Marshall Islands). However, the Court in those cases
recalled the case law to the effect that “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”.391 The Court thereby assumed that for a dispute to exist, it would not have been
enough for the respondent States to have been aware of the claim made by the Marshall
Islands, but that it would also have been necessary for the respondent States to have
made their positive opposition known to the Marshall Islands, either expressly, or
through their conduct (for instance, by failing to respond when a response was called
390 For instance, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 2016, p. 833, separate opinion of Judge Owada, p. 881, paras. 13-14.
391 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,
p. 255, p. 231, para. 37; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, pp. 567-568, para. 37; Obligations concerning Negotiations relating
to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 850, para. 40. See also Interpretation of
Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, 65, 74; Questions relating to the Obligation to
Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, 422, 442, para. 46.
162
for). As the Court said in those cases, “the question whether there is a dispute in a
particular contentious case turns on the evidence of opposition of views”.392
521. This requirement for mutual awareness by both parties of their respectively positively
opposed positions does not introduce a subjective requirement into the definition of a
dispute. A determination of whether or not a party was aware of the position of the
other party does not require the Court to ascertain the subjective state of mind of the
former. The Court’s case law makes clear that the existence of a dispute is to be
determined objectively, on the basis of the evidence before the Court, and that a mere
assertion by one party is not sufficient to prove the existence of a dispute, just as a
mere denial of the existence of the dispute does not prove its non-existence either.393
The issue is thus whether, on the evidence, objectively, the party concerned was either
aware, or in the circumstances could not have been unaware, of the position of the
other party.
522. It is accepted that the requirement of awareness by each of the parties of the positively
opposed view of the other does not mean that the applicant State must necessarily
expressly notify its position to the respondent State by diplomatic note or other formal
means, or that the respondent State must notify its positively opposed views by similar
means. The existence of mutual awareness of the parties of their respective positively
opposed views, and the means by which that positive opposition can be manifested,
are two different matters. The latter issue is dealt with in paragraphs 566 to 577 below.
523. What is required is that the evidence must establish objectively that, on the particular
facts and circumstances of the case:
392 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports
2016, p. 833, p. 856, para. 57. See also pp. 848, 854, paras. 35, 50, 53; and separate opinion of Judge
Owada, p. 879, para. 7 (“It is this positive opposition manifested between the parties which transforms a
mere factual disagreement into a legal dispute susceptible of adjudication” (emphasis added). To similar
effect, see 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, p. 255, p. 276, para. 52; Obligations concerning Negotiations relating to Cessation of the Nuclear
Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 572, para. 52.
393 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 319, p. 328.
163
(a) one party has made a legal claim,
(b) the other party was aware or could not have been unaware of that legal claim,
(c) the latter party has positively opposed that legal claim, and
(d) the former party was aware or could not have been unaware of that positive
opposition.
4. The requisite degree of particularity
524. In order for a legal dispute to exist, the legal claim made by the applicant State (see
element (a) in paragraph 523 above), must be articulated with a minimum degree of
particularity. This requirement necessarily follows from a number of considerations.
525. First, in the Nuclear Arms and Disarmament cases, the Court said that:
If the Court had jurisdiction with regard to disputes resulting
from exchanges in the proceedings before it, a respondent would
be deprived of the opportunity to react before the institution of
proceedings to the claim made against its own conduct.
Furthermore, the rule that the dispute must in principle exist prior
to the filing of the application would be subverted.394
526. The Court thereby indicates both a rationale for the rule that a dispute must exist prior
to the filing of the application, as well as an element of the definition of a dispute. The
respondent State is entitled to an opportunity to react to the claim of the applicant State
before proceedings are brought before this Court. A dispute for present purposes
therefore cannot exist until the respondent State has become aware of the claim of the
applicant State in a way that enables the respondent State to give a reaction, and until
the respondent State has had an appropriate opportunity to react.
394 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,
p. 255, p. 272, para. 40; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, pp. 568-569, para. 40; Obligations concerning Negotiations relating
to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 851, para. 43.
164
527. This is not to suggest that there must necessarily be prior negotiations between the
parties before a dispute can be said to exist, unless the respective compromissory
clause provides otherwise.395 However, while prior negotiations may not necessarily
be a prerequisite for the existence of a dispute as such, the existence of an opportunity
for the respondent State to react to the claim of the applicant State is such a
prerequisite. That is to say, the respondent State must have had the opportunity to give
due consideration to the claim made by the applicant State prior to bringing the case
before the Court, and must also have been provided with a chance to indicate whether
the respondent State accepts or rejects that claim. This is no more than the logical
consequence of the requirement that for a dispute to exist, both parties must be aware
of the positively opposed position of the other party.
528. In order for party B to be able to react to a claim made by party A, it will be necessary
for party A’s claim to be formulated and communicated to party B with a sufficient
degree of definition so as to enable a considered response to be given by party B. The
Court has thus affirmed that:
a statement can give rise to a dispute only if it refers to the
subject-matter of a claim with sufficient clarity to enable the
State against which [that] claim is made to identify that there is,
or may be, a dispute with regard to that subject-matter.396
529. A statement by a prospective applicant State expressed in terms so general or vague
that the prospective respondent State cannot meaningfully accept or reject its
correctness in law would thus not be a legal claim for present purposes.
395 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,
p. 255, p. 270, para. 35; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, pp. 566-567, para. 35; Obligations concerning Negotiations relating
to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 849, para. 38.
396 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,
p. 255, p. 274, para. 46; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 570, para. 46; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 853, para. 49, citing 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. 70, p. 85, para. 30.
165
530. It is therefore not sufficient for the applicant State merely to have identified the general
subject matter to which the claim relates. In order for the prospective respondent State
to be able to adequately react, it will be necessary for the applicant State to have
identified to the respondent State the subject matter of the claim itself. To express the
matter more precisely, the prospective respondent State must be made aware of the
applicant State’s claim against it.397
531. In order for such a respondent State to be aware of a legal claim of the applicant State,
and to have an opportunity to react to such claim, it will be necessary for the
prospective respondent State to be made aware of the facts said to amount to a breach
of international law, as well as of the provisions of international law said to have been
thereby breached.
532. The Court has said that:
While it is not necessary that a State must expressly refer to a
specific treaty in its exchanges with the other State to enable it
later to invoke that instrument before the Court (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1984, pp. 428-429, para. 83), the
exchanges must refer to the subject-matter of the treaty with
sufficient clarity to enable the State against which a claim is
made to identify that there is, or may be, a dispute with regard to
that subject-matter. An express specification would remove any
doubt about one State’s understanding of the subject-matter in
issue and put the other on notice.398
533. However, this means simply that a specific treaty provision need not be invoked
expressly, if, in all of the circumstances considered as a whole, the respondent State
could not have been unaware that a breach of such specific treaty provision was being
alleged.
397 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,
p. 255, declaration of Judge Donoghue, p. 448, para. 8 (stating that “the Court asks whether the Applicant’s
statements referred to the subject-matter of its claim against the Respondent — i.e., ‘the issue brought
before the Court’ in the Application — with sufficient clarity that the Respondent ‘was aware, or could not
have been unaware’, of the Applicant’s claim against it”, and citing paragraphs 38 and 48 of the Judgment
in that case, indicating her view that this is the effect of the Judgment).
398 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. 70, p. 85,
para. 30.
166
534. This requirement that the applicant State’s claim must be brought to the awareness of
the respondent State with a sufficient degree of definition to enable a considered
reaction to be given is reflected in the statement made in 1960 in the Rights of Passage
case that it is necessary for the parties “to adopt clearly-defined legal positions as
against each other”.399 It is also reflected in the definition of a “dispute” that was given
in the Interpretation of Peace Treaties case in 1950, as “a situation in which the two
sides hold clearly opposite views concerning the question of the performance or nonperformance
of certain treaty obligations”.400
535. Thus, in the Chagos Marine Protected Area arbitration,401 the arbitral Tribunal
constituted under Annex VII of the United Nations Convention on the Law of the Sea
(“UNCLOS”) said that:
Article 283 [UNCLOS] requires that a dispute have arisen with
sufficient clarity that the Parties were aware of the issues in
respect of which they disagreed.402
536. While the Tribunal said this with specific reference to Article 283 of that Convention,
there is no reason why the definition of a dispute for purposes of that provision should
differ from the definition of that term for purposes of the Statute of the Court or for
purposes of Article IX of the Genocide Convention. Article 283 UNCLOS provides
that:
When a dispute arises between States Parties concerning the
interpretation or application of this Convention, the parties to the
dispute shall proceed expeditiously to an exchange of views
regarding its settlement by negotiation or other peaceful
means.403
399 Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960, I.C.J. Reports 1960, p. 6, p. 34
(emphasis added).
400 Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 65, p. 74.
401 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Permanent Court of Arbitration
Case No. 2011-03, Award, 18 March 2015, POM, Annex 16.
402 Ibid., para. 382.
403 United Nations Convention on the Law of the Sea, 10 December 1982, UNTS, vol. 1833, p. 396,
Article 283, POM, Annex 8.
167
537. The meaning of the word “dispute” in that provision would be no different if the
provision stated instead that the dispute may be referred directly to this Court without
any prior exchange of views.
538. A second reason why the applicant’s claim must be articulated with a minimum degree
of particularity is this. The rule that a dispute must exist before the application is filed
with the Court means that only the particular dispute(s) that existed before the filing
can be included in the application. Where there is a legal dispute between two States,
each of those States can only be entitled to submit that dispute to the Court. The mere
fact that there is a legal dispute between two States does not mean that an application
to the Court can contain different or additional claims that were not in dispute between
the parties prior to the filing of the application. Thus, the particular claim that is made
in the application must be the same claim that was “positively opposed” by the
applicant State in the pre-existing dispute with the respondent State.
539. This means that where an application contains multiple claims, it is necessary to
determine separately in relation to each individual claim whether a dispute existed with
sufficient specificity in relation to that particular claim at the time of the filing of the
application.
540. This also means that, even prior to the filing of the application instituting proceedings,
a dispute must be defined with sufficient clarity to enable the respondent State and the
Court to determine whether the claim made in the application is indeed the matter that
was already in dispute, or whether the application includes new or additional claims
going beyond the pre-existing dispute.
541. This is apparent from the Obligation to Prosecute or Extradite case. In that case, the
Court found that prior to the filing of the application instituting proceedings, there was
a dispute between the parties as to whether Senegal’s failure to prosecute or extradite
Mr. Habré was a breach of the Convention Against Torture, but that there was no
dispute between the parties as to whether this failure was a breach of a customary
international law obligation to prosecute for war crimes and crimes against humanity.
The Court said:
While it is the case that the Belgian international arrest warrant
transmitted to Senegal with a request for extradition on
22 September […] referred to violations of international
168
humanitarian law, torture, genocide, crimes against humanity,
war crimes, murder and other crimes, neither document stated or
implied that Senegal had an obligation under international law to
exercise its jurisdiction over those crimes if it did not extradite
Mr. Habré. In terms of the Court’s jurisdiction, what matters is
whether, on the date when the Application was filed, a dispute
existed between the Parties regarding the obligation for Senegal,
under customary international law, to take measures in respect of
the above-mentioned crimes attributed to Mr. Habré. In the light
of the diplomatic exchanges between the Parties reviewed above
[…], the Court considers that such a dispute did not exist on that
date. The only obligations referred to in the diplomatic
correspondence between the Parties are those under the
Convention against Torture. […] Under those circumstances,
there was no reason for Senegal to address at all in its relations
with Belgium the issue of the prosecution of alleged crimes of
Mr. Habré under customary international law. The facts which
constituted those alleged crimes may have been closely
connected to the alleged acts of torture. However, the issue
whether there exists an obligation for a State to prosecute crimes
under customary international law that were allegedly committed
by a foreign national abroad is clearly distinct from any question
of compliance with that State’s obligations under the Convention
against Torture and raises quite different legal problems.404
542. That conclusion would have applied vice versa if in that case Belgium in its diplomatic
correspondence had claimed that Senegal’s failure to prosecute or extradite Mr. Habré
was a breach of a customary international law obligation, but had made no mention of
the Convention Against Torture. In that situation, there would have been no dispute
between the parties in relation to that Convention.
543. Similarly, in the Electricity Company of Sofia and Bulgaria case,405 the Permanent
Court of International Justice rejected the respondent State’s preliminary objections in
respect of two of the three claims in its application, but found that the third of the
claims was inadmissible on the ground that this claim did not form the subject of a
dispute between the two Governments prior to the filing of the application.
404 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012, p. 422, pp. 444-445, para. 54.
405 Electricity Company of Sofia and Bulgaria (Preliminary Objection), Judgment, 1939, PCIJ., Series A/B,
No. 77, pp. 83-84.
169
544. Again, in Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea,406 Nicaragua requested the Court to determine two principal claims,
one alleging violations by Colombia of Nicaragua’s maritime zones, and the other
alleging a breach by Colombia of its obligation under Article 2, paragraph 4, of the
United Nations Charter not to use or threaten to use force.407 The Court said that it
“will examine these two claims separately in order to determine, with respect to each
of them, whether there existed a dispute […] at the date of filing of the Application”.408
The Court found that at the time Nicaragua filed its application, there existed a dispute
concerning the former of these claims,409 but that this dispute did not concern the
matter raised in the second claim.410 Accordingly, the preliminary objection based on
the absence of a dispute at the time of filing of the application was rejected in relation
to the first claim and upheld in relation to the second claim.411
545. Similarly, in the Eurotunnel Arbitration,412 in which the tribunal relied on the case law
of this Court in respect of the requirement of the existence of a dispute, two claims
(referred to respectively as the “Sangatte claim” and the “SeaFrance claim”) were
advanced by the claimants. The Tribunal said in relation to these claims, as made
against one of the respondents, as follows:
It must first be observed that, although the Claimants put forward
the Sangatte claim and the SeaFrance claim as part of a single
dispute, in truth the two are entirely distinct. They involve
different acts or omissions of the Respondents, as well as
different provisions of the Concession Agreement and (to the
extent they may be applicable) also different rules of
international law. Questions of jurisdiction and admissibility
have to be separately considered with regard to each of them.413
406 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 3.
407 Ibid., pp. 27-28, 31, paras. 53, 67.
408 Ibid., p. 31, para. 67.
409 Ibid., p. 33, para. 74.
410 Ibid., p. 34, para. 79.
411 Ibid., pp. 33-34, paras. 78-79.
412 Channel Tunnel Group Limited and France-Manche S.A. v. United Kingdom and France, Permanent Court
of Arbitration Case No. 2003-06, Partial Award, 30 January 2007, para. 2, POM, Annex 15.
413 Ibid., paras. 136, 143.
170
546. This is an example of where the question of the pre-existence of a dispute was
considered separately in relation to each claim, notwithstanding that both claims were
based on the same agreement, and involved acts of the same respondents.
547. A third reason why the applicant’s claim must be articulated with a minimum degree
of particularity is this. The question of whether a dispute exists, and if so what that
dispute consist of, may arise for determination in contexts other than the rule that a
dispute must exist at the time of filing the application. The test for determining the
existence and content of a dispute should not differ unnecessarily in each of these
different contexts.
548. Thus, in the award on jurisdiction and admissibility in the South China Sea
arbitration,414 the arbitral Tribunal, after referring to case law of the Court on the
definition of a dispute,415 went on to say that:
Where a dispute exists between parties to the proceedings, it is
further necessary that it be identified and characterised. The
nature of the dispute may have significant jurisdictional
implications, including whether the dispute can fairly be said to
concern the interpretation or application of the Convention or
whether subject-matter based exclusions from jurisdiction are
applicable. Here again, an objective approach is called for, and
the Tribunal is required to “isolate the real issue in the case and
to identify the object of the claim.”416 […]
The existence of a dispute in international law generally requires
that there be “positive opposition” between the parties, in that the
claims of one party are affirmatively opposed and rejected by the
other. In the ordinary course of events, such positive opposition
will normally be apparent from the diplomatic correspondence of
the Parties, as views are exchanged and claims are made and
rejected.417
549. In particular, the Court’s case law indicates that where an applicant State makes a
claim during the course of the proceedings, the question may arise as to whether or not
that claim falls within the scope of the dispute that was submitted to the Court in the
414 The South China Sea Arbitration (Philippines v. China), Permanent Court of Arbitration Case No. 2013-
19, Award on Jurisdiction and Admissibility, 29 October 2015, POM, Annex 17.
415 Ibid., paras. 148-149.
416 Ibid., para. 150.
417 Ibid., para. 159 (footnote omitted).
171
application. This is a consequence of Article 40, paragraph 1, of the Statute, which
requires that the application instituting proceedings must indicate the “subject of the
dispute”. In the Phosphate Lands in Nauru case, the Court said:
Article 40, paragraph 1, of the Statute of the Court provides that
the “subject of the dispute” must be indicated in the Application;
and Article 38, paragraph 2, of the Rules of Court requires “the
precise nature of the claim” to be specified in the Application.
These provisions are so essential from the point of view of legal
security and the good administration of justice that they were
already, in substance, part of the […] the Statute [and Rules] of
the Permanent Court of International Justice […] On several
occasions the Permanent Court had to indicate the precise
significance of these texts. Thus, in its Order of 4 February 1933
in the case concerning the Prince von Pless Administration
(Preliminary Objection), it stated that:
“under Article 40 of the Statute, it is the Application which
sets out the subject of the dispute, and the Case, though it
may elucidate the terms of the Application, must not go
beyond the limits of the claim as set out therein ...”
(P.C.I.J., Series A/B, No. 52, p. 14).
In the case concerning the Société commerciale de Belgique, the
Permanent Court stated:
“It is to be observed that the liberty accorded to the parties
to amend their submissions up to the end of the oral
proceedings must be construed reasonably and without
infringing the terms of Article 40 of the Statute and
Article 32, paragraph 2, of the Rules which provide that
the Application must indicate the subject of the dispute. ...
it is clear that the Court cannot, in principle, allow a
dispute brought before it by application to be transformed
by amendments in the submissions into another dispute
which is different in character. A practice of this kind
would be calculated to prejudice the interests of third
States to which, under Article 40, paragraph 2, of the
Statute, all applications must be communicated in order
that they may be in a position to avail themselves of the
right of intervention provided for in Articles 62 and 63 of
the Statute." (P.C.I.J., Series A/B, No. 78, p. 173; cf.
Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, I.C.J. Reports 1984, p. 427,
para. 80.)418
418 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports
1992, p. 240, pp. 266-267, para. 69. See also Ahmadou Sadio Diallo (Republic of Guinea v. Democratic
Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010 (II), p. 639, pp. 656-657, paras. 38-41;
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, I.C.J. Reports 2007, p. 659, pp. 695-696, paras. 108-110.
172
550. In that case, the Court found that one of the claims of Nauru was inadmissible, on the
ground that it constituted “both in form and in substance, a new claim”, such that “the
subject of the dispute originally submitted to the Court would be transformed if it
entertained that claim”.419
551. It follows from this that the application instituting proceedings must indicate the
“dispute” with sufficient precision to enable the respondent State and the Court to
determine whether submissions subsequently made by the applicant State in the course
of the proceedings are still within the scope of the dispute as originally submitted to
the Court in the application, or whether such submissions constitute a new or additional
claim. As the Court said, this is “essential from the point of view of legal security and
the good administration of justice”. Any other conclusion would incentivise applicant
States to formulate claims in the application instituting proceedings in deliberately
vague and imprecise terms, to leave themselves room to expand the scope of their case
during the course of the proceedings.
552. This relationship between the claims made in the application and the claims made in
subsequent submissions of the parties is essentially the same as the relationship
between the claims made in the application and the claims already made in the preexisting
dispute between the parties, as described in paragraphs 538 to 546 above, and
particularly in paragraph 540. Accordingly, there is a relationship between all three:
the claims made at the end of the proceedings must correspond to the claims made in
the application, which in turn must correspond to the claims that were in dispute before
the application was filed. At all three stages, the claims must be identifiably the same.
For it to be possible for the Court and the parties to determine whether this requirement
is satisfied, the claims must be identifiable with sufficient particularity at all three
stages. This too is essential to legal security and the good administration of justice.
419 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports
1992, p. 240, pp. 266-267, para. 70.
173
5. The requirement that the “view” be a legal claim
553. Since the dispute submitted to the Court must be a legal dispute, the “view” of the
applicant State that is positively opposed by the respondent State must in fact be a
legal claim. If State A makes a political statement, or merely expresses an opinion,
that is positively opposed by State B, there will not be a legal dispute between the two.
At most, there may be a political disagreement or a difference of opinion.
554. As Judge Owada said in the Nuclear Arms and Disarmament cases:
when it comes to the question of whether this court of law is able
to exercise jurisdiction in relation to the claim advanced by the
Applicant, something more than a mere divergence of positions
between the Applicant and the Respondent is required as a matter
of law. More specifically, it has to be demonstrated that this
factual divergence of positions between the Parties has
crystallized into a concrete legal dispute capable of adjudication
by this Court at the time of the filing of the Application.
[…] The task of the Court in the present case is therefore to
ascertain, not the existence vel non of a divergence of opinions
between the Parties, but whether this divergence had developed
into a concrete legal dispute by the time the Application was
filed.
[…] A legal dispute for this purpose must be clearly
distinguished from a mere divergence or difference in the views
or positions that could exist in fact between the respective parties
on the subject-matter at issue. In international relations between
States, as is so often the case between individuals, States
frequently adopt different or divergent positions on a given issue.
Such differences or divergences, even when they are well
established, do not ipso facto represent a legal dispute of which
a court of law can be seised for adjudication.420
555. A statement by State A might well be a political statement, or an expression of opinion,
rather than a legal claim, even if, as will subsequently be shown, it refers to an alleged
breach of international law by State B. Whether or not such a “view” expressed by
State A is a legal claim, rejection of which will crystalize into a legal dispute, will
depend on the circumstances of the case.
420 For instance, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 2016, p. 833, p. 849, separate opinion of Judge Owada, pp. 877, 879, paras. 1-2, 6.
174
556. Relevant circumstances in determining whether conduct of the applicant State amounts
to the making of a legal claim against the respondent State will include, for instance,
the forum in which, or means by which, the “view” is expressed, and the terms in
which it is expressed.
557. For instance, a UN General Assembly resolution, on the subject of “The situation in
State X”, might contain a paragraph stating that the General Assembly is “deeply
concerned by the violations of human rights law by the Government of State X”. This
could hardly be characterised as the assertion, as against State X, of a legal claim by
each of the individual UN Member States who voted in favour of the resolution. It
would be a political statement. If State X failed to respond to that General Assembly
resolution, or issued a response disagreeing with the assertion that there have been
violations of human rights law, this could hardly mean that there now existed a legal
dispute between State X and every one of the UN Member States that voted in favour
of the resolution.
558. An example of this would be UN General Assembly resolution 74/246 on the
“Situation of human rights of Rohingya Muslims and other minorities in Myanmar”,
of 27 December 2019.421 Paragraph 1 of that resolution refers to “continuing reports
of serious human rights violations and abuses as well as violations of international
humanitarian law”. Paragraph 2 then states that the General Assembly:
Strongly condemns all violations and abuses of human rights in
Myanmar, and calls upon Myanmar, in particular its security and
armed forces, to end immediately all violence and all violations
of international law in Myanmar, to ensure the protection of the
human rights of all persons in Myanmar, including of Rohingya
Muslims and persons belonging to other minorities, and to take
all measures necessary to provide justice to victims, to ensure full
accountability and to end impunity for all violations and abuses
of human rights law and violations of international humanitarian
law, starting with a full, transparent and independent
investigation into reports of all these violations.
559. It must be obvious that this resolution, coupled with a failure by Myanmar to respond,
would be incapable of itself of crystallising a legal dispute between the 134 UN
421 UNGA, resolution 74/246, Situation of human rights of Rohingya Muslims and other minorities in
Myanmar, UN doc. A/RES/74/246, 27 December 2019, POM, Annex 86.
175
Member States who voted in favour of that resolution422 on the one hand, and Myanmar
on the other, relating to alleged non-compliance with international law norms of
human rights and international humanitarian law. If it could, this would lead to the
conclusion that there is also a legal dispute between all UN Member States (other than
North Korea) on the one hand, North Korea on the other, as a result of the adoption
without a vote on 18 December 2019 of UN General Assembly resolution 74/166 on
the “Situation of human rights in the Democratic People’s Republic of Korea”.423 It
would similarly lead to the conclusion that there is a legal dispute between Syria on
the one hand, and on the other, the 106 UN Member States who voted in favour of UN
General Assembly resolution 74/169 on the “Situation of human rights in the Syrian
Arab Republic”.424 That cannot be correct. General Assembly resolutions such as
these are political statements, not legal claims.
560. Such political statements can also be made by organs of a State. To give an example,
on 20 September 2018, the House of Commons of Canada adopted a motion which
stated no more than the following:
By unanimous consent, it was resolved, — That the House: (a)
endorse the findings of the UN Fact Finding Mission on
Myanmar that crimes against humanity have been committed by
the Myanmar military against the Rohingya and other ethnic
minorities and that these horrific acts were sanctioned at the
highest levels of the Myanmar military chain of command; (b)
recognize that these crimes against the Rohingya constitute a
genocide; (c) welcome the recent decision of the International
Criminal Court that it has jurisdiction over the forced deportation
of members of the Rohingya people from Myanmar to
Bangladesh; (d) call on the UN Security Council to refer the
situation in Myanmar to the International Criminal Court; and (e)
422 The voting record is at POM, Annex 87.
423 UNGA, resolution 74/166, Situation of human rights in the Democratic People’s Republic of Korea, UN
doc. A/RES/74/166, 18 December 2019, POM, Annex 82. The voting record is at POM, Annex 83.
Paragraph 1 of this resolution “Condemns the long-standing and ongoing systematic, widespread and gross
violations of human rights in and by the Democratic People’s Republic of Korea, including those that may
amount to crimes against humanity according to the commission of inquiry on human rights in the
Democratic People’s Republic of Korea”.
424 UNGA, resolution 74/169, Situation of human rights in the Syrian Arab Republic, UN doc. A/RES/74/169,
18 December 2019, POM, Annex 84. The voting record is at POM, Annex 85. Paragraph 1 of this
resolution “Strongly condemns the systematic, widespread and gross violations and abuses of international
human rights law and violations of international humanitarian law committed in the Syrian Arab Republic
and the indiscriminate and disproportionate attacks in civilian areas and against civilian infrastructure, in
particular attacks on medical facilities and schools, which continue to claim civilian lives, and demands
that all parties comply with their obligations under international humanitarian law”.
176
call for the senior officials in the Myanmar military chain of
command to be investigated and prosecuted for the crime of
genocide.425
561. Then, on 11 November 2019, the Canadian Minister for Foreign Affairs issued a
statement which said that:
Canada welcomes the Gambia’s submission to the International
Court of Justice of an application to institute proceedings against
the Government of Myanmar for alleged violations of the
Genocide Convention. […]
Consistent with the final report of the UN Fact-Finding Mission,
which found reasonable grounds to conclude a strong inference
of genocidal intent, Canada recognized the crimes against the
Rohingya as constituting a genocide through a unanimous
motion in the House of Commons in September 2018. The
motion reiterated our call for the UN Security Council to refer
the situation in Myanmar to the International Criminal Court.
Canada will work with other like-minded countries to end
impunity for those accused of committing the gravest crimes
under international law. Together with our partners, we will
explore options to support the Gambia in these efforts, with
assistance from Canada’s Special Envoy to Myanmar, the
Honourable Bob Rae.426
562. It must be obvious that this parliamentary resolution and this statement of the Minister
of Foreign Affairs, if considered in isolation,427 could not possibly be characterised as
the making of legal claims by Canada against Myanmar. They are political statements.
Failure of Myanmar to respond to them would not mean that there is a legal dispute
between Canada and Myanmar. This follows from both the circumstances and the
contents of these statements. Neither is addressed directly by the Government of
Canada to Myanmar. Both are extremely brief. Neither gives details of any relevant
facts, each simply referring to the reports of the FFM (Independent International Fact-
Finding Mission on Myanmar). Both contain mere references to “genocide”, without
giving any indication of which facts are said to breach which provisions of the
425 Canada, House of Commons, Forty-second Parliament, First Session, Journals, No. 322, 20 September
2018, p. 3988, POM, Annex 115.
426 Canada, Global Affairs Canada, Statement of the Minister for Foreign Affairs, “Canada welcomes the
Gambia’s action to address accountability in Myanmar”, 11 November 2019, POM, Annex 116.
427 These are given as an example to demonstrate the argument. It is acknowledged that officials of the
Government of Canada have made other statements, and that the Court is not called upon to determine
whether there is any legal dispute between Canada and Myanmar.
177
Genocide Convention or which principles of customary international law relating to
genocide. Both lack the requisite degree of particularity referred to in paragraphs 524
to 552 above that would be required of a legal claim.
563. It is noted that Canada’s own subsequent conduct is consistent with this conclusion.
Less than a month after the statement of the Canadian Minister of Foreign Affairs
referred to above, on 9 December 2019, Global Affairs Canada (the Canadian ministry
responsible for foreign affairs) issued a statement, which contains no reference to
Canada recognizing that genocide has been committed, but which merely states that
“this is a matter that is rightfully brought to the ICJ, so that it can provide judgment on
whether acts of genocide have been committed” and that “Canada […] consider it their
obligation to support the Gambia before the ICJ, as it should concern all of
humanity”.428 The suggestion in this statement is that Canada is not taking the position
that genocide has been committed, but merely supports the matter being put before the
Court so that the Court can decide whether genocide has been committed, quod non.
564. It is furthermore noted that Canada has subsequently indicated in a letter to the
Registrar of the Court dated 11 November 2020 (sent jointly on behalf of Canada and
the Netherlands), that Canada may wish to intervene in these proceedings. Canada has
indicated that any intervention would be under Article 63 of the Statute (as a
Contracting Party to the Genocide Convention that is not concerned in the case),429
rather than under Article 62 (as a State with an interest of a legal nature which may be
affected by the decision in the case).430 This again very much suggests that Canada
does not purport to have made a legal claim of its own that it is asserting against
Myanmar.
428 Canada and the Netherlands, “Joint statement of Canada and the Kingdom of the Netherlands regarding the
Gambia’s action to address accountability in Myanmar”, 9 December 2019, POM, Annex 118.
429 Article 62, paragraph 1, of the Statute provides: “Should a state consider that it has an interest of a legal
nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted
to intervene”.
430 Article 63, paragraph 1, of the Statute provides: “Whenever the construction of a convention to which states
other than those concerned in the case are parties is in question, the Registrar shall notify all such states
forthwith”. Article 63, paragraph 2, provides: “Every state so notified has the right to intervene in the
proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon
it”.
178
565. The existence of a legal dispute between States is a serious matter. Article 2,
paragraph 3, of the Charter of the United Nations imposes a positive obligation on
Member States to “settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered”. If any
political statement of a State were to be characterised as a legal claim, merely because
it contains a bare reference to non-compliance with international law, such that
disagreement with, or lack of response to, such a statement would crystallise into a
legal dispute, then the number of legal disputes in the world would be multiplied
exponentially. This would be all the more so if such statements could be so
characterised, even when made by a State which itself has no involvement in the facts
of the situation in which the breach of international law is said to have occurred.
6. Proof of the existence of a “dispute”
566. It is now the settled case law of the Court that “Whether a dispute exists is a matter for
objective determination by the Court which must turn on an examination of the
facts”,431 and that “[t]he Court’s determination of the existence of a dispute is a matter
of substance, and not a question of form or procedure”.432
431 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,
p. 255, p. 270, para. 36; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 567, para. 36; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 849, para. 39; Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2016 (I), p. 26, para. 50.
432 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,
p. 255, p. 271, para. 38; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 566, para. 35; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 849, para. 38; Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2016 (I), p. 26, para. 50; 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. 70, p. 84, para. 30.
179
567. This means that there are no particular formalities that must necessarily be followed
by one State in order to raise a claim against another State, or in order to oppose
positively a claim made by another State.
568. In particular, it is now settled case law that diplomatic exchanges are not necessary in
order to establish the existence of a dispute: a formal protest is not a necessary
condition for the existence of a dispute, nor for instance is there any requirement for a
formal notice of intention to file a case before the Court.433 In the absence of
diplomatic exchanges, it may be possible to establish the existence of a dispute by
reference to the conduct of the parties, or indeed, by reference to inferences drawn
from the conduct of the parties.434 In the determination of the existence of a dispute,
as in other matters, the position or the attitude of a party can be established by
inference, whatever the professed view of that party.435
569. As a matter of principle, if the question is one of substance not form, the converse must
also apply. The mere fact that diplomatic exchanges have occurred does not of itself
necessarily mean that there is a dispute between the parties. Similarly, the mere fact
that one party has signalled an intention to bring a case before this Court does not of
itself mean that a legal dispute has already crystallised. In all cases, the existence of a
dispute will depend on the factual circumstances as a whole.
433 In addition to citations in the previous footnote, see Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 297, 322,
paras. 39, 109.
434 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,
p. 255, p. 271, para. 37; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 567, para. 36; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 850, para. 40; Land and Maritime
Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 275,
p. 315, para. 89.
435 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,
p. 255, p. 271, para. 37; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 567, para. 37; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 850, para. 40; Land and Maritime
Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 275,
p. 315, para. 89.
180
570. Thus, although prior diplomatic correspondence is not a legal requirement, the fact
that there has been no diplomatic correspondence may nonetheless be a factor
weighing in favour of the conclusion that there has not been a dispute at the relevant
time. For, although formal diplomatic exchanges are not a legal prerequisite, in
practice a positive finding of the existence of a dispute usually will be based on
evidence of direct diplomatic exchanges between the executive governments of the
two parties,436 and the Court will look in particular at statements or documents
exchanged between the parties.437 In Convention on Racial Discrimination, for
instance, the Court specifically limited its consideration to official documents and
statements,438 and said that it paid special attention to “the author of the statement or
document, their intended or actual addressee, and their content”.439 The Court
observed that “in general, in international law and practice, it is the Executive of the
State that represents the State in its international relations and speaks for it at the
international level”, and that accordingly, “primary attention will be given to
436 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, p. 70, p. 84,
para. 30 (“While the existence of a dispute and the undertaking of negotiations are distinct as a matter of
principle, the negotiations may help demonstrate the existence of the dispute and delineate its subjectmatter”),
p. 87, para. 37 (“a dispute is more likely to be evidenced by a direct clash of positions stated by
the two Parties about their respective rights and obligations in respect of the elimination of racial
discrimination, in an exchange between them”).
437 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,
p. 255, pp. 270-271, para. 36; Obligations concerning Negotiations relating to Cessation of the Nuclear
Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 567, para. 36; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 850, para. 39.
438 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, p. 70, p. 86,
para. 33.
439 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, p. 70, p. 100,
para 63; 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, p. 255, pp. 270-271, para. 36; Obligations concerning Negotiations relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2016, p. 552, p. 567, para. 36; Obligations concerning Negotiations
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United
Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, pp. 849-850, para. 39.
181
statements made or endorsed by the Executives of the two Parties”.440 It therefore
declined in that case to attach legal significance to various resolutions and statements
emanating from the Georgian Parliament or Parliamentary Officers which were neither
endorsed nor acted upon by the Executive.441
571. In cases where there is formal diplomatic correspondence between the parties, then the
content of that correspondence will be particularly significant. If State A has not in
the formal diplomatic correspondence made it clear that it is asserting a legal claim
against State B, this should normally support an inference that it is not doing so. It is
evident that if State A sends diplomatic correspondence to State B in relation to a
matter, there is no reason why State A cannot make clear in it that it is asserting a legal
claim, if that is what it is seeking to do. Certainly, if the diplomatic correspondence
from State A does not make this clear, it would be difficult to conclude that State B
“could not have been unaware” from this correspondence of State A’s legal claim, and
would be difficult to conclude that a response by State B to that correspondence is
“called for”.
572. In the consideration of the content of documents relied upon to establish the existence
of a dispute, documents that do not allege the breach of international law that is the
subject matter of the application to the Court must almost inevitably fail to establish
the existence of a dispute concerning such an alleged breach. Thus, in the Obligations
concerning Negotiations cases, the Court found that documents relied on by the
Marshall Islands did not support the existence of a dispute, “since none articulates an
alleged breach by the [respondent State] of the obligation enshrined in Article VI of
the NPT or the corresponding customary international law obligation invoked by the
Marshall Islands”.442
440 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, p. 70, p. 87,
para. 37.
441 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, p. 70, pp. 95-96,
100, 103-105, paras. 54, 55, 63, 73, 74, 76.
442 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports
2016, p. 833, pp. 854, paras. 51-52.
182
573. The Court’s case law indicates that in determining whether or not a dispute exists, the
Court can take account of statements made by a party in multilateral settings.443
However, this does not mean that it necessarily will. The Court has warned that:
considerable care is required before inferring from votes cast on
resolutions before political organs such as the General Assembly
conclusions as to the existence or not of a legal dispute on some
issue covered by a resolution. The wording of a resolution, and
votes or patterns of voting on resolutions of the same subjectmatter,
may constitute relevant evidence of the existence of a
legal dispute in some circumstances, particularly where
statements were made by way of explanation of vote. However,
some resolutions contain a large number of different
propositions; a State’s vote on such resolutions cannot by itself
be taken as indicative of the position of that State on each and
every proposition within that resolution, let alone of the existence
of a legal dispute between that State and another State regarding
one of those propositions.444
574. Similarly, in the Convention on Racial Discrimination case, the Court did not consider
that reports to human rights monitoring committees were significant in determining
the existence of a dispute, having regard to the actual reports referred to in that case,
but also more importantly because “the process under which States report on a regular
basis to the monitoring committees operates between the reporting State and the
committee in question”.445
575. Case law of the Court also affirms that “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
443 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,
p. 255, pp. 270-271, 276, paras. 36, 52-53; Obligations concerning Negotiations relating to Cessation of
the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2016, p. 552, pp. 567, 572, paras. 36, 52-53; Obligations
concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament
(Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833,
pp. 850, 855, para. 39, 55-56.
444 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,
p. 255, p. 276, para. 53; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 572, para. 53; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 855, para. 56 (emphasis added).
445 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, p. 70, p. 102,
para. 69.
183
called for”.446 However, this does not derogate from the principle that for a dispute to
exist, there must be mutual awareness by both parties of the positively opposed view
of the other party in relation to a legal claim. Silence by one party will therefore be
capable of establishing the existence of a dispute only where all of the individual
circumstances of the particular case justify the drawing of an inference of positive
opposition from that silence.447
576. For the reasons given above, for such an inference to be justified, a number of
circumstances would need to exist. First, it must be the case that the respondent State
is aware, or could not be unaware, of the “view” expressed by the applicant State.
Secondly, it must be the case that the respondent State is aware, or could not be
unaware, that this “view” is asserting a legal claim. Thirdly, the legal claim needs to
be articulated in a sufficiently defined way to enable the respondent State to give a
considered response. If these requirements are not satisfied, a response from the
respondent State will not be called for.
577. Even if a response is called for, positive opposition could only be inferred from a
failure to respond if a reasonable period for the giving of a response has passed. What
is a reasonable time to respond will also depend on the facts and circumstances of the
particular case. A very specific allegation in relation to simple facts will require a
shorter response time than a vague or general allegation in relation to very wideranging
or complex facts. A claim that is so general, or so vague and ill-defined, that
the respondent State cannot sensibly respond to it will not call for a response at all.
446 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I. C. J.
Reports 1998, p. 275, p. 315, para. 89; 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, p. 70, p. 85, para. 30; 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, p. 255, p. 271, para. 37; Obligations concerning Negotiations
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v.
Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016, p. 552, p. 567, para. 37;
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports
2016, p. 833, pp. 850, para. 40.
447 Cf. Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 3, dissenting opinion of Judge ad
hoc Caron, para. 12.
184
C. The facts relied on by The Gambia do not establish the existence of a dispute
1. General
578. The facts relied on by The Gambia as establishing the existence of a dispute between
The Gambia and Myanmar on 11 November 2019 are set out in paragraphs 21 and 22
of The Gambia’s Application instituting proceedings and paragraphs 2.7 to 2.28 of its
Memorial. The only facts relied on by The Gambia are the following:
(a) the adoption of the Dhaka Declaration by the forty-fifth session of the Council
of Foreign Ministers of the OIC held in Dhaka, Bangladesh, on 5 and 6 May
2018 (not referred to in The Gambia’s Application, but relied upon in its
Memorial);448
(b) the issuing of a statement by the Myanmar Ministry of Foreign Affairs
concerning the Dhaka Declaration on 9 May 2018 (not referred to in The
Gambia’s Application, but relied upon in its Memorial);449
(c) the submission of its first report by the FFM to the Human Rights Council on
12 September 2018; 450
(d) the making of a statement by the President of The Gambia in the UN General
Assembly on 25 September 2018 (not referred to in The Gambia’s Application,
but relied upon in its Memorial);451
(e) the adoption of Res. No. 4/46-MM on “The Situation of the Muslim Community
in Myanmar” by the forty-sixth session of the Council of Foreign Ministers of
the OIC held in Abu Dhabi, United Arab Emirates, on 1 and 2 March 2019;452
448 MG, para. 2.12. The text of the Dhaka Declaration is at MG, vol. VII, Annex 203.
449 MG, para. 2.12. The text of the press statement is at MG, vol. VI, Annex 158.
450 Application instituting proceedings, para. 21, first dash point; MG, para. 2.11. That report (A/HRC/39/64)
is at MG, vol. II, Annex 39.
451 MG, para. 2.12, footnote 94. The text of that statement (UN doc. A/73/PV.7, p. 6) is at MG, vol. III,
Annex 41.
452 AG, para. 21, second dash point; MG, para. 2.13. The text of the resolution is at MG, vol. VII, Annex 204.
185
(f) the adoption at the same session of the OIC Council of Foreign Ministers of Res.
No. 61/46-POL on “The Work of the OIC Ad hoc Ministerial Committee on
Accountability for Human Rights Violations Against the Rohingyas” (not
referred to in either its Application or its Memorial, but relied upon by The
Gambia in the hearing on 10 December 2019);453
(g) the lack of any response by Government of Myanmar to Res. No. 4/46-MM (not
referred to in The Gambia’s Application, but relied upon in its Memorial);454
(h) the adoption of the Final Communiqué of the fourteenth OIC Islamic Summit
Conference held in Makkah, Saudi Arabia, on 31 May 2019;455
(i) the submission of its second report by the FFM to the Human Rights Council on
8 August 2019; 456
(j) the submission of its detailed findings by the FFM to the Human Rights Council
on 16 September 2019 (referred to in The Gambia’s Application, but not relied
upon in its Memorial); 457
(k) the making of a statement by the Vice-President of The Gambia in the UN
General Assembly on 26 September 2019;458
(l) the making of a statement by the Union Minister for the Office of the State
Counsellor of Myanmar in the UN General Assembly on 28 September 2019;459
453 CR 2019/18, pp. 47-48, para. 20 (Suleman). The text of the resolution is at POM, Annex 94.
454 MG, para. 2.13.
455 AG, para. 21, third dash point; MG, para. 2.14. The text of the Final Communiqué of the 14th Islamic
Summit Conference is at MG, vol. VII, Annex 205.
456 AG, para. 21, fourth dash point; MG, para. 2.15. That report (A/HRC/42/50) is at MG, vol. III, Annex 47.
457 AG, para. 21, fifth dash point, referring to Human Rights Council, Detailed findings of the Independent
International Fact-Finding Mission on Myanmar, UN doc. A/HRC/42/CRP.5, 16 September 2019, at MG,
vol. III, Annex 49.
458 AG, para. 21, sixth dash point; MG, para. 2.16. The text of that statement (A/74/PV.8, p. 31) is at MG,
vol. III, Annex 51.
459 AG, para. 21, seventh dash point; MG, para. 2.16. The text of that statement (A/74/PV.12, p. 24) is at MG,
vol. III, Annex 52.
186
(m) the sending of a note verbale by The Gambia to Myanmar on 11 October 2019;460
and
(n) the lack of any response by the Government of Myanmar to that note verbale
prior to the filing by The Gambia of its Application instituting proceedings
exactly one month later, on 11 November 2019. 461
579. Each of these facts is considered in further detail below. Contrary to The Gambia’s
assertions that “The Gambia has consistently made clear to Myanmar that Myanmar
had violated its obligations under the [Genocide] Convention owed to The Gambia and
other States parties” and that Myanmar has opposed such contentions,462 an
examination of the facts does not in fact establish that Myanmar, prior to the filing of
Application instituting proceedings on 11 November 2019, was aware, or could not
have been unaware, of the legal claims made by The Gambia in its Application
instituting proceedings, let alone that Myanmar positively opposed those claims.
580. Of the 14 facts relied on by The Gambia, four consist of the adoption of OIC
resolutions and an OIC communiqué, one consists of a statement made by the Ministry
of Foreign Affairs of Myanmar about an OIC resolution, and one consists of
Myanmar’s lack of response to an OIC resolution.
581. None of the OIC resolutions or the OIC communiqué are documents issued by the
Government, or indeed, any other organ or authority of The Gambia. Furthermore, the
OIC resolutions and the OIC communiqué were not addressed to Myanmar. They
cannot of themselves be taken as expressions of views by The Gambia specifically.463
They are in any event expressed in terms of political statements, and indeed, they are
political statements and not assertions of legal claims against any State, let alone legal
claims specifically against Myanmar on behalf of individual OIC Member States.464
460 AG, para. 21, eighth dash point; MG, para. 2.17. That note verbale, is at POM, Annex 121.
461 AG, para. 22; MG, para. 2.17.
462 MG, para. 2.16.
463 See paragraphs 566 to 577 above.
464 See paragraphs 553 to 565 above.
187
They are furthermore not expressed with sufficient particularity that they could satisfy
the requirements for legal claims.465
582. Aside from this, as will be demonstrated below, none of the OIC resolutions or the
OIC communiqué contends, as such, that Myanmar bears State responsibility under
international law for acts of genocide, much less, that Myanmar has committed
violations of the Genocide Convention. There would of course have been nothing to
prevent the relevant OIC organs from so stating expressly, if that was their view. Their
failure to so state if anything suggests that this was not their view.
583. It therefore cannot be said that, on the basis of these OIC resolutions or the OIC
communiqué, Myanmar “could not have been unaware”, prior to the filing of The
Gambia’s application on 11 November 2019, that The Gambia was making the legal
claims contained in that application.466
584. Furthermore, if it was The Gambia’s own individual position that Myanmar was in
breach of its obligations under the Genocide Convention, there is absolutely nothing
that would have prevented The Gambia itself from stating this directly to Myanmar on
a bilateral basis at any time, and in particular, at any time after 10 February 2019, when
the OIC Ad Hoc Committee had adopted the recommendation to bring a case against
Myanmar before the Court.
585. It would have been natural to expect The Gambia, if its own individual view was that
breaches of the Genocide Convention had been committed, to communicate this view
to Myanmar directly on a bilateral basis.
586. The fact that The Gambia never communicated with Myanmar directly in relation to
this matter for a period of 8 months after 10 February 2019, until it sent to Myanmar
the diplomatic note of 11 October 2019, is most telling. One obvious inference can be
drawn from this lack of direct communication, as well as from The Gambia’s
substantial reliance on OIC resolutions as evidence of the existence of a dispute. The
inference is that The Gambia has not been acting independently in relation to matters
leading up to the institution of these proceedings, and has not been expressing its own
465 See paragraphs 524 to 552 above.
466 See paragraphs 518 to 523 above.
188
independent positions, but rather, has been playing its role as OIC Member State and
as chair of the OIC Ad Hoc Committee in carrying out OIC instructions and mandates,
and in expressing positions of the OIC. This is relevant to Myanmar’s first preliminary
objection, but is also relevant to the issue of whether there existed a dispute between
The Gambia and Myanmar at the time of filing the Application instituting proceedings.
2. The May 2018 Dhaka Declaration
587. The Dhaka Declaration,467 adopted by the forty-fifth session of the Council of Foreign
Ministers of the OIC, is some 40 paragraphs long. It deals with a wide range of
different subject matters. Only four of its paragraphs (paragraphs 14 to 17) deal with
“the Rohingya Muslim Community in Myanmar”.
588. Nowhere in the Dhaka Declaration is there any mention at all of the word “genocide”,
let alone any reference to the Genocide Convention, and even less any reference to an
alleged violation of that Convention. There is certainly no such mention in the four
specific paragraphs dealing with Myanmar.
589. The Gambia places reliance on paragraph 14 of that document.468 This paragraph
states as follows:
We express deep concern over the recent systematic brutal acts
perpetrated by security forces against the Rohingya Muslim
Community in Myanmar that has reached the level of ethnic
cleansing, which constitute a serious and blatant violation of
international law […]
590. The only violation of international law mentioned in this one paragraph specifically
relied on by The Gambia is “ethnic cleansing”. Paragraph 15 also contains the words
“massive human rights violations of the Rohingya Muslims”. This specific reference
to “ethnic cleansing” in the paragraph relied on by The Gambia, coupled with the
absence of any reference to genocide or the Genocide Convention, makes it impossible
to contend that this document was alleging violations of the Genocide Convention by
467 MG, vol. VII, Annex 203.
468 MG, para. 2.11.
189
Myanmar. Furthermore, it is apparent that the Dhaka Declaration is a political
declaration.
591. There is therefore no basis at all for suggesting that the Dhaka Declaration is evidence
of a dispute concerning “the interpretation, application or fulfilment of the [Genocide]
Convention” within the meaning of Article IX of that Convention.
592. Indeed, the Dhaka Declaration is not even referred to in The Gambia’s Application
instituting proceedings.469 It was referred to by counsel for The Gambia in the oral
hearing before the Court on 10 December 2019,470 and is referred to in The Gambia’s
Memorial as claimed evidence of the existence of a dispute,471 but without any clear
explanation of its supposed relevance.
593. The Gambia appears to be suggesting that the Dhaka Declaration is significant because
of a reference in its paragraph 16 to “the state backed violence in Myanmar”, and
because of its paragraph 17, which states:
We welcome the resolution adopted on the situation of the
Rohingya community of Myanmar and in this regard, agree to
address the accountability issue for the violations of human rights
against the Rohingyas in Myanmar through formation of an ad
hoc ministerial committee, to be chaired by Gambia.
594. According to counsel for The Gambia at the 10 December 2019 hearing:
Myanmar was thus on notice as early as May of 2018 of the
newly formed OIC ad hoc Committee on Accountability for
Crimes against the Rohingya, chaired by The Gambia, and its
allegations of State-sponsored violence against the Rohingya. 472
595. The argument is, with respect, impossible to understand. The fact that the OIC may
have established an “ad hoc Committee on Accountability for Crimes against the
Rohingya”, with The Gambia as its chair, does not of itself mean that the OIC, or the
OIC Ad Hoc Committee, or any of the individual Member States of the OIC or of the
OIC Ad Hoc Committee, considered that Myanmar was in breach of the Genocide
469 See AG, para. 21.
470 CR 2019/18, p. 47, para. 17 (Suleman).
471 MG, para. 2.12.
472 See CR 2019/18, p. 47, para. 18 (Suleman).
190
Convention. Even now, Myanmar is aware of no evidence at all that the OIC or the
OIC Ad Hoc Committee was at the time of adoption of the Dhaka Declaration
contemplating making any allegation that Myanmar was in breach of the Genocide
Convention. As elaborated above in relation to Myanmar’s first preliminary objection,
the proposal to bring a case before the Court appears to have been adopted by the OIC
Ad Hoc Committee only in February 2019, and by the OIC Council of Foreign
Ministers only in March 2019.473 Furthermore, even in February and March 2019, it
is not clear that the proposal at that time was to bring a claim specifically under the
Genocide Convention.474
596. The Dhaka Declaration did not even contain any suggestion that the “accountability
issue” that the OIC Ad Hoc Committee was to address would include raising any issue
of State responsibility on the part of Myanmar, as opposed to issues of criminal
responsibility of individuals.
597. Furthermore, and in any event, a declaration such as the Dhaka Declaration, adopted
by an organ of an international organization with over 50 Member States, is not
necessarily the position of all or of any particular Member States. The Dhaka
Declaration contained a large number of different propositions, and it cannot be
assumed that all OIC Member States took the same position on all of these
propositions. Indeed, it cannot even be assumed that all OIC Member States took the
same position on all of the propositions contained in the four paragraphs of the
document dealing with Myanmar.
598. This follows from what the Court said in the Obligations concerning Negotiations
cases (see paragraph 573 above). In the present case, this is also underscored by the
fact that on 6 May 2018, after the Dhaka Declaration was issued, the Ministry of
Foreign Affairs of Pakistan issued a press release which stated:
Just before the conclusion of the Conference, the host country
circulated the text of the Dhaka Declaration. It only reflected the
views of the host country, and therefore, issued under its own
responsibility, signifying that the text was neither discussed nor
negotiated by participating States. The Declaration is without
prejudice to the well established positions of OIC member states
473 See in particular paragraphs 81 to 84 above.
474 See in particular paragraphs 648-650, 655, 667 to 670, 676 to 679, 686 to 709 below.
191
and the organization, as enshrined in the CFM and Summit
documents.475
599. There is no publicly available record as far as Myanmar is aware of the debates and
negotiations leading to the adoption of the Dhaka Declaration that would indicate the
precise position taken by The Gambia in relation to the four paragraphs within it
dealing with Myanmar. The Gambia has not pointed, for instance, to any statements
made by The Gambia by way of explanation of its position in relation to these
paragraphs. The mere fact that The Gambia was appointed as chair of the OIC Ad Hoc
Committee does not of itself indicate that The Gambia took any specific position on
any of the propositions in the paragraphs of the Declaration dealing with Myanmar.
600. The Dhaka Declaration is therefore not evidence of any dispute between The Gambia
and Myanmar.
3. The 9 May 2018 statement by the Myanmar Ministry of Foreign
Affairs
601. The statement issued by the Myanmar Ministry of Foreign Affairs on 9 May 2018476
is again not referred to in The Gambia’s Application instituting proceedings. It was
referred to by counsel for The Gambia at the hearing before the Court on 10 December
2019, but without any explanation of its supposed relevance, other than to state that it
was issued by Myanmar “in response” to the Dhaka Declaration.477
602. The Memorial of The Gambia argues that in this statement of its Ministry of Foreign
Affairs, Myanmar expresses “a clearly opposite view [to that expressed in the Dhaka
Declaration] concerning the characterization of its acts and performance of its
international obligations”.478 The suggestion appears to be that because this statement
opposed the positions in the Dhaka Declaration, it thereby crystallised a dispute
475 Pakistan, Ministry of Foreign Affairs, Press Release, “Highlights of the 45th OIC Council of Foreign
Ministers meeting held in Dhaka 5-6 May 2018”, 6 May 2018, POM, Annex 128.
476 MG, vol. VI, Annex 158.
477 See CR 2019/18, p. 47, para. 18 (Suleman).
478 MG, para. 2.12.
192
between The Gambia and Myanmar in relation to the matters stated in the Dhaka
Declaration.
603. In fact, as indicated above, the Dhaka Declaration made no reference to genocide or
the Genocide Convention. Therefore, no position on the Genocide Convention was
expressed in the Dhaka Declaration that could have been positively opposed in this
statement by the Ministry of Foreign Affairs of Myanmar.
604. Furthermore, and in any event, the statement issued by the Ministry of Foreign Affairs
of Myanmar on 9 May 2018 does not express a “clearly opposite view” to everything
stated in the four paragraphs of the Dhaka Declaration dealing with Myanmar. Rather,
this statement says expressly that no violation of human rights would be condoned by
Myanmar, and that allegations supported by evidence would be investigated and action
taken in accordance with the law. It states that Myanmar wished to expedite the
process of repatriation from Bangladesh to Myanmar of displaced persons from
Rakhine State, calls upon Bangladesh to take all necessary steps to help the process,
and further states that Myanmar stood ready to facilitate the voluntary, safe and
dignified return of displaced persons from Rakhine.
605. The statement makes only two specific criticisms of the Dhaka Declaration.
606. First, it states that the Dhaka Declaration lacked balance and fairness because it failed
to denounce the brutal attacks of the terrorist group, the Arakan Rohingya Salvation
Army, which had triggered the unfolding humanitarian situation.
607. Secondly, it states that it was irresponsible to describe the events in Rakhine State as
“ethnic cleansing” or “State backed violence” when more than half of the Muslim
community, which represented a majority in Maungdaw region, had remained in their
villages.
608. There is therefore no basis for suggesting that this statement is evidence of a dispute
concerning “the interpretation, application or fulfilment of the [Genocide]
Convention” within the meaning of Article IX of that Convention.
609. Furthermore, because the Dhaka Declaration is not evidence of any dispute between
The Gambia and Myanmar, this statement by the Ministry of Foreign Affairs of
Myanmar is similarly not evidence thereof.
193
4. The 2018 FFM report
610. The FFM (Independent International Fact-finding Mission on Myanmar) was
established by Human Rights Council resolution 34/22 of 24 March 2017.479 The FFM
consisted of three individuals (Marzuki Darusman (Indonesia) as chair, and Radhika
Coomaraswamy (Sri Lanka) and Christopher Sidoti (Australia) as members).
611. On 12 September 2018, the FFM submitted its report to the Human Rights Council
(the “2018 FFM report”).480
612. The only paragraphs of the 2018 FFM report to mention genocide are paragraphs 84-
87 and 104.
613. Paragraph 83 states that:
On the basis of the body of information collected, the mission has
reasonable grounds to conclude that serious crimes under
international law have been committed that warrant criminal
investigation and prosecution.
614. Paragraphs 85-87 state that:
The crimes in Rakhine State, and the manner in which they were
perpetrated, are similar in nature, gravity and scope to those that
have allowed genocidal intent to be established in other contexts.
[…]
In the light of the above considerations on the inference of
genocidal intent, the mission concludes that there is sufficient
information to warrant the investigation and prosecution of
senior officials in the Tatmadaw chain of command, so that a
competent court can determine their liability for genocide in
relation to the situation in Rakhine State.
615. Paragraph 104 states that:
The international community, through the United Nations,
should use all diplomatic, humanitarian and other peaceful means
to assist Myanmar in meeting its responsibility to protect its
people from genocide, crimes against humanity and war crimes.
479 See CR 2019/18, p. 47, para. 18 (Suleman).
480 MG, vol. II, Annex 39.
194
It should take collective action in accordance with the Charter of
the United Nations, as necessary.
616. Once again, this report is not a document issued by the Government, or indeed by any
organ or authority, of The Gambia. Nor is it addressed to Myanmar. This report is
addressed to the Human Rights Council, and expresses the personal views of its three
individual members, and not the views of the Human Rights Council or of any State.
This document is therefore not evidence of any position taken at the time by The
Gambia, much less evidence of any awareness by Myanmar at the time of any position
taken by The Gambia. In fact, the report does not contain a single reference to The
Gambia.
617. Furthermore, the report does not state that genocide has been committed, let alone state
that violations of the Genocide Convention have been committed. Rather, it expresses
the view that there is sufficient evidence to justify investigation into the question of
whether or not genocide has been committed. Although it speaks of there being
“sufficient information to warrant […] investigation and prosecution”, a document
issued by a human rights body cannot reasonably be interpreted as suggesting that the
outcome of an investigation should be considered a foregone conclusion even before
the investigation has been launched. The words “investigation and prosecution” must
be understood as meaning “investigation, with a view to eventual prosecution should
the results of the investigation justify this”.
618. Paragraphs 85 to 87 of the report deal with potential criminal prosecutions of
individuals, and not with any question of State responsibility of Myanmar under
international law, let alone State responsibility for violations of the Genocide
Convention. Paragraph 104 of the report calls on the international community “to
assist Myanmar in meeting its responsibility to protect its people from genocide”. That
wording thereby assumes that Myanmar will meet that responsibility, at least if it has
the necessary support from the international community to do so. There is no wording
in this document that states that Myanmar has failed to meet that responsibility in the
past.
619. Moreover, the report states that “the mission concludes that there is sufficient
information to warrant the investigation and prosecution” (emphasis added). It thereby
makes clear that this is the view of the individual members of the FFM. The report
195
does not suggest that no one else would be entitled to take a different view. It nowhere
suggests that it would be a breach of Myanmar’s obligations under the Genocide
Convention for Myanmar to take a different view. Indeed, it makes no reference at all
to the Genocide Convention, nor any reference to obligations under that Convention
to prosecute or punish. There is no suggestion in the report that Myanmar itself bears
State responsibility for acts of genocide.
620. There is therefore no basis for suggesting that the 2018 FFM report is evidence of a
dispute concerning “the interpretation, application or fulfilment of the [Genocide]
Convention” within the meaning of Article IX of that Convention, let alone evidence
of such a dispute between The Gambia and Myanmar.
5. The 25 September 2018 statement of the President of The Gambia
621. The President of The Gambia, in his statement made on 25 September 2018 in the UN
General Assembly,481 said:
Similarly, we recognize the support provided by the Government
and the people of Bangladesh to address the plight of the
Rohingya Muslims. As the upcoming Chair of the next summit
of the Organization of Islamic Cooperation, the Gambia has
undertaken, through a resolution, to champion an accountability
mechanism that would ensure that perpetrators of the terrible
crimes against the Rohingya Muslims are brought to book.
622. Again, this statement makes no mention of the Genocide Convention, or even of
genocide at all. It makes no allegation of any kind that Myanmar is in breach of its
obligations under international law. It refers to the “accountability mechanism” of the
OIC that was already referred to previously in the Dhaka Declaration, namely the OIC
Ad Hoc Committee. The wording of the statement, in stating that the “accountability
mechanism” would “ensure that perpetrators of the terrible crimes against the
Rohingya Muslims are brought to book”, if anything implies that the OIC Ad Hoc
Committee was intended to be concerned with criminal accountability of individual
perpetrators of crimes, rather than with any issues of State responsibility under
international law.
481 MG, vol. III, Annex 41.
196
623. As is elaborated above in relation to Myanmar’s first preliminary objection, Myanmar
is aware of no evidence of any specific suggestion of proceedings being brought
against Myanmar before this Court, either under the Genocide Convention or at all,
prior to the inaugural meeting of the OIC Ad Hoc Committee in February 2019 (see
paragraphs 69 to 84 above). This statement of the President of The Gambia, which
was made some four months earlier, contains nothing to suggest that any
contemplation was being given at that time, either by the OIC or by The Gambia, to
making a claim that Myanmar was in breach of its obligations arising under the
Genocide Convention. Even if this was in contemplation at the time, there is nothing
contained in this statement that would have made Myanmar aware at the time that this
was the case.
624. There is therefore no basis for suggesting that this statement is evidence of a dispute
concerning “the interpretation, application or fulfilment of the [Genocide]
Convention” within the meaning of Article IX of that Convention.
6. OIC Res. No. 4/46-MM of March 2019
625. This resolution,482 which is some 11 pages long, contains five particular references to
genocide.
626. First, the ninth preambular paragraph states:
Noting also the opening Statement of the Chairperson of the
United Nations Independent International Fact-Finding Mission
on Myanmar, at the UN Security Council on 24 October 2018, in
which he stated that “War crimes and crimes against humanity
have been committed in Kachin, Shan and Rakhine States. The
Mission also found sufficient information to warrant the
investigation and prosecution of senior officials in the Tatmadaw
on charges of genocide. This means that we consider that
genocidal intent, meaning the intent to destroy the Rohingya in
whole or in part, can be reasonably inferred […]
627. This paragraph is not the expression of an opinion by the Council of Foreign Ministers
of the OIC, much less the expression of any opinion of any OIC Member State, but is
merely a reference in a preambular paragraph to a statement made by the chair of the
482 MG, vol. VII, Annex 204.
197
FFM to the UN Security Council. The significance of the findings in the 2018 FFM
report has already been dealt with above. Furthermore, this paragraph refers only to
the investigation and prosecution of individuals for individual criminal responsibility,
and not to any potential question of State responsibility.
628. Secondly, the twenty-first preambular paragraph states:
Welcoming the September 2017 letter addressed by President
Haydar Abbadi of Iraq to the heads of Muslim countries and the
OIC Secretary General, regarding the Rohingya crisis, along with
the violations of human rights and genocide against the
Rohingya, which letter calls for holding an urgent meeting of the
Council of the OIC Foreign Ministers to form an international
alliance to counter and stop these violations […]
629. The Gambia does not annex to its Memorial a copy of this letter from the President of
Iraq, and in any event, there is no evidence that Myanmar was ever aware of its
contents prior to the filing of the Application instituting proceedings. Nor does this
preambular paragraph of this resolution give details of the contents of the letter. It
cannot be known, and Myanmar certainly could not have been aware prior to the filing
of the Application instituting proceedings, whether that letter from the President of
Iraq specifically alleged that Myanmar was in breach of its obligations under the
Genocide Convention. This cannot be inferred from a general reference in a
preambular paragraph to a letter “regarding the Rohingya crisis, along with the
violations of human rights and genocide against the Rohingya”. Myanmar could not
have known from this resolution prior to the filing of The Gambia’s application, even
if Myanmar was aware of this OIC resolution, exactly what the President of Iraq had
said in that letter in relation to “genocide against the Rohingya”.
630. Furthermore, this preambular paragraph does not state that the OIC Council of Foreign
Ministers agrees with everything stated in that letter of the President of Iraq, nor that
The Gambia or any other individual OIC Member State so agrees. It merely states that
the OIC Council of Foreign Ministers “welcomes” that letter.
631. Thirdly, paragraph 6 of this resolution then refers to:
deviant policies and brutal practices of “ethnic cleansing”
pursued systematically, at genocidal scale, in Myanmar in
violation of human rights and total disregard of all international
and civilized norms and laws.
198
632. This paragraph does not state that genocide has been committed, and it makes no
reference to the Genocide Convention. It does refer specifically to “ethnic cleansing”.
The fact that it refers specifically to ethnic cleansing but not to genocide if anything
implies that it is not suggesting that genocide has been committed. The resolution
could of course have specifically alleged genocide, or breaches of the Genocide
Convention, if that is what the OIC Foreign Ministers had wanted to say.
633. It may well be that the words “ethnic cleansing […] at genocidal scale” reflect some
kind of diplomatic compromise between certain OIC Member States who wanted to
allege genocide and those who opposed this. Myanmar does not know if this is the
case, and this is merely speculation. If that were the case, this would confirm that
those adopting the resolution deliberately decided in this resolution not to allege
genocide itself. In any event, the wording refers to the “genocidal scale” of acts of
ethnic cleansing, and not to acts which themselves have a genocidal character.
634. Fourthly, paragraph 11 (a) of the resolution then calls upon the Government of
Myanmar:
To honor its obligations under International Law and Human
Rights covenants, and to take all measures to immediately halt
all vestiges and manifestations of the practice of ethnic cleansing,
genocide, violence of all types, vigilantism, acts of dispersion
and discriminatory practices against Rohingya Muslims.
635. Fifthly, paragraph 12 of the resolution then calls upon OIC Member States to:
take concrete steps to bring the perpetrators of atrocities, crimes
against humanity and genocide and those responsible for
destroying a community, its distinct history and culture to the all
the International Legal and Juridical institutions and
mechanisms. In this context, seeks necessary support from
relevant OIC organizations and institutions, under the overall
coordination of the Secretary General, and requests cooperation
of OIC Ambassadors in New York, Geneva and Brussels.
636. Paragraphs 34 and 35 of the resolution, which do not refer to genocide, then state that
the OIC Council of Foreign Ministers:
34. Calls upon Members of the OIC Ad hoc Ministerial
Committee on Accountability for Human Rights Violations
Against the Rohingya to carry out the tasks of ensuring
accountability and justice for gross violations of international
human rights and humanitarian laws and principles; Assisting in
information gathering and evidence collection for accountability
199
purposes; Mobilizing and coordinating international political
support for accountability for the Human Rights Violations
against the Rohingya in Myanmar.
35. Welcomes the decision by the UN Human Rights Council, in
its resolution 39/2, to establish an ongoing independent
mechanism to collect, consolidate, preserve and analyze
evidence of the most serious international crimes and violations
of international law committed in Myanmar since 2011 and calls
for preparing files and taking all necessary legal steps to facilitate
and expedite fair and independent criminal proceedings, in
accordance with international law standards, in national, regional
or international courts or tribunals that have, or may in the future
have, jurisdiction over these crimes, in accordance with
international law.
637. Paragraphs 12 and 35 of the resolution thus refer expressly to the bringing of
individuals to account for crimes, and contain no claim that Myanmar bears State
responsibility under international law. Read in the context of paragraphs 12 and 35,
paragraphs 11 (a) and 34, as well as the preambular paragraph of the resolution
referring to the FFM, cannot be read as necessarily stating anything beyond what was
stated in the FFM report, as described in paragraphs 610 to 620 above.
638. There is no basis for suggesting, as The Gambia does, that as a result of this resolution,
Myanmar “knew that it was identified as a perpetrator of genocide by The Gambia and
other OIC Member States”.483 For this reason alone, there is therefore no basis for
suggesting that a response to this resolution by Myanmar was called for.
7. OIC Res. No. 61/46-POL of March 2019
639. As described above in relation to Myanmar’s first preliminary objection,484 this
resolution485 contained only brief operative paragraphs in which the OIC Council of
Foreign Ministers decided to “Endorse the Ad Hoc Committee’s plan of action to
engage in international legal measures to fulfil the Ad Hoc Committee’s mandate”,
483 MG, para. 2.13.
484 See in particular paragraphs 79 to 87 above.
485 The text of the resolution is at POM, Annex 94. This resolution is not referred to in the Application
instituting proceedings or in the Memorial of The Gambia, but was relied on by The Gambia at the oral
hearing on 10 December 2019 as evidence of the existence of a dispute: CR 2019/18, pp. 47-48, para. 20
(Suleman).
200
and called upon OIC Member States “to contribute voluntarily to the budget of the
plan of action and to assist the General Secretariat to allocate other resources needed
to implement the plan of action”.
640. This resolution did not indicate the contents of the OIC Ad Hoc Committee’s plan of
action. It gave no indication of whether the plan of action involved proceedings against
individuals or inter-State proceedings, for instance. The resolution itself did not
indicate that proceedings against Myanmar in the International Court of Justice were
envisaged, nor that any such proceedings would be based on the Genocide Convention.
641. The only reference to genocide found in this resolution is in a preambular paragraph
which states (without however mentioning the Genocide Convention) that “ensuring
accountability and justice is the most crucial step towards preventing genocide and
other mass atrocity crimes”.
642. At the hearing on 10 December 2019, counsel for The Gambia argued that this
resolution “emphasized that accountability was necessary for ‘preventing genocide’
and endorsed the recommendation of the ad hoc Committee chaired by The Gambia to
hold Myanmar accountable under the Genocide Convention”.486 However, in fact, the
resolution itself does not disclose what the recommendation of the OIC Ad Hoc
Committee was, nor that that recommendation involved accusing Myanmar of
breaches of the Genocide Convention.
643. The relevant preambular paragraph of this resolution in any event refers only to
“preventing genocide” and does not refer to “punishing” genocide. Given that the
Genocide Convention deals expressly with both prevention and punishment of
genocide, the natural reading of the words used would be that they make no suggestion
that genocide had happened to date. This paragraph of the resolution speaks of
establishing accountability for past crimes, but does not state that the past crimes
necessarily include genocide. The natural reading of the wording would therefore be
that it states that accountability for past crimes (which do not include genocide) is a
crucial step towards preventing the possibility of genocide occurring in the future.
486 CR 2019/18, p. 48, para. 20 (Suleman).
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644. In short, this resolution refers only to the criminal accountability of individuals, and
contains no allegation that Myanmar is in breach of international law, let alone the
Genocide Convention specifically. It contains a reference in a preambular paragraph
to the prevention of genocide. It contains no statement that genocide has in fact already
allegedly been committed.
645. At the oral hearing on 10 December 2019, counsel for The Gambia contended that in
reaction to this resolution, Myanmar “denied responsibility [for genocide] and
criticized the resolution as an interference with its sovereignty”.487 The reference
given to this claimed reaction of Myanmar is to a statement made by a spokesman of
Myanmar’s ruling National League for Democracy Government, as reported in a
5 March 2019 report of Radio Free Asia.488 According to this article, the spokesman
said that “officials need to know which rights for the Rohingya the OIC is talking
about”. There is nothing in the article to suggest that the spokesman said anything
about genocide.489
646. The article says (picking up the language of the press release of the Bangladesh
Ministry of Foreign Affairs referred to in paragraph 83 above) that an OIC committee
had in February 2019 “recommended taking legal steps to establish legal rights for the
Rohingya on the principles of international law based on the U.N.’s Genocide
Convention and other human rights and humanitarian law principles”, but does not
itself disclose that the proposal was to bring a case against Myanmar before this Court,
as opposed to seeking individual criminal prosecutions. Indeed, a subsequent
paragraph of the article states that the 2018 FFM report “called for the prosecution of
top military commanders on genocide charges at the International Criminal Court or
by another criminal tribunal”.
487 CR 2019/18, p. 48, para. 20 (Suleman).
488 Ibid., referring to Radio Free Asia, “World Islamic Group Votes to Take Myanmar Rohingya Abuses to
International Court of Justice”, 5 March 2019, MG, vol. IX, Annex 304.
489 The article itself earlier refers to a news release of the Government of Bangladesh that in turn refers to the
Genocide Convention, which may be the document referred to in paragraph 83 above. However, nothing
in the article indicates that the spokesman of the Government of Myanmar made any reference to that news
release of the Government of Bangladesh. The spokesman of the Government of Myanmar is reported to
be reacting to the “OIC measure” (that is, OIC Res. No. 61/46-POL), which does not refer to genocide or
the Genocide Convention, apart from the reference in a preambular paragraph described in paragraphs 641
to 643 above.
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647. As indicated in paragraphs 81 to 83 above, press releases issued by the Ministry of
Foreign Affairs of Bangladesh gave some details of the OIC Ad Hoc Committee’s plan
of action that was endorsed in this resolution. However, these press releases of the
Bangladesh Ministry of Foreign Affairs were obviously not official OIC documents,
and cannot be treated as an official or authoritative statement of the content or effect
of OIC resolutions. Furthermore, neither the OIC resolution nor the press releases are
addressed to Myanmar. In any event, the press releases do not allege on behalf of
Bangladesh, much less on behalf of the OIC or The Gambia, that Myanmar is in breach
of the Genocide Convention.
648. The press releases of the Bangladesh Ministry of Foreign Affairs indicate that the
practical effect of this OIC resolution was a decision to bring proceedings before this
Court.490 However, these press releases are unclear about what the legal basis of the
proceedings before this Court would be. The press release of 1 March 2019 says
nothing at all about what the legal basis of the proceedings would be. The press release
of 4 March 2019 is equivocal. It says that the recommendation of the OIC Ad Hoc
Committee adopted at its inaugural meeting on 10 February 2019 involved taking
“legal steps for establishing legal rights on the principles of international law –
specifically the Genocide Convention and other Human Rights and Humanitarian Law
principles”. It then says that the effect of the OIC resolution itself was to set a
precedent for the OIC “in pursuing the legal path to justice to address crimes committed
against humanity and for establishing the legal rights of the Rohingya population to
their rightful homeland in the Rakhine state of Myanmar” (emphasis added).
649. This wording suggests that at the time a decision had not yet been taken specifically
to bring a case before this Court based on the Genocide Convention. Rather, the
wording suggests that at the time consideration was still being given by the OIC to
various different legal claims that might be potentially brought. There is no indication
that at that stage, any conclusions had yet been reached about the viability of any of
those potential legal claims that were under consideration. Ultimately, the Application
instituting these proceedings did not rely on the “other Human Rights and
Humanitarian Law principles” or “crimes against humanity” referred to in the press
490 See paragraphs 81 to 83 above.
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release of the Bangladesh Ministry of Foreign Affairs. The wording of that press
release would, at the time it was issued, have equally left open the possibility that any
application instituting proceedings before the Court might ultimately not rely on the
Genocide Convention.
650. Thus, the impression given is that at the time of adoption of OIC Res. No. 61/46-POL,
the OIC had decided to bring proceedings before the Court, and was in the process of
examining a variety of different legal claims that might potentially form the basis of
any such proceedings, but had not yet made any firm decision as to what the legal
claim would be. As Myanmar argued at the hearing on 11 December 2019:
The impression is that the OIC wanted to bring “a” case before
the Court, but was not particularly concerned with the legal basis
of the claim, that Article IX of the Genocide Convention was
simply identified at some point by someone as a vehicle for
invoking the Court’s jurisdiction, and that the OIC would have
been equally prepared to use any other treaty it could identify for
that purpose.491
651. For these reasons, it cannot be said that OIC Res. No. 61/46-POL, even if read in
conjunction with the 4 March 2019 press release of the Bangladesh Ministry of
Foreign Affairs, constituted the making of a legal claim by The Gambia, as against
Myanmar, of an alleged breach of the Genocide Convention.
8. Lack of response to OIC Res. No. 4/46-MM
652. For the reasons given above, Myanmar would not have been aware from this resolution
that a legal claim was being made against it by The Gambia that Myanmar was in
breach of the Genocide Convention. Accordingly, a failure by Myanmar to respond
to this resolution cannot be interpreted as an implicit positive opposition by Myanmar
to any such legal claim of The Gambia.
491 CR 2019/19, p. 51, para. 46 (Staker).
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9. Adoption of the Final Communiqué of the fourteenth Islamic
Summit Conference in May 2019
653. This document, adopted on 31 May 2019,492 is some 18 pages long, and deals with a
variety of topics. Five of its paragraphs (paragraphs 45-48 and 88) deal with the
subject of the Muslim community in northern Rakhine State.
654. This document contains no reference to genocide or the Genocide Convention. For
that reason alone, this document cannot have any legal significance as evidence of a
dispute concerning “the interpretation, application or fulfilment of the [Genocide]
Convention” within the meaning of Article IX of that Convention.
655. In fact, the contrary is the case. If the fourteenth Islamic Summit Conference
genuinely considered that Myanmar was in violation of the Genocide Convention, it
seems inconceivable that a document such as this would omit all mention of the fact,
given that paragraphs 45 and 47 of the document refer to “acts of violence and all
brutal practices targeting this minority” and “the human rights violations in Myanmar”,
given that OIC Res. No. 4/46-MM had spoken of ethnic cleansing “on a genocidal
scale”, and given that the members of the fourteenth Islamic Summit Conference were
from the same OIC Member States as the members of the OIC Council of Foreign
Ministers. If this document is evidence of anything, it is evidence supporting the
conclusion that the fourteenth Islamic Summit Conference was not alleging any
breaches by Myanmar of the Genocide Convention, or at the very least was not making
such allegations any more. Indeed, a consideration of OIC Res. No. 4/46-MM in the
light of the absence of any mention at all of genocide in the subsequent Final
Communiqué of the fourteenth Islamic Summit Conference strengthens the conclusion
that OIC Res. No. 4/46-MM was also not alleging any breach of the Genocide
Convention.
656. Myanmar understands that The Gambia relies on this document for the statement in its
paragraph 47 that:
The Conference affirmed its support for the ad hoc ministerial
committee on human rights violations against the Rohingyas in
Myanmar, using all international legal instruments to hold
accountable the perpetrators of crimes against the Rohingya. In
492 MG, vol. VII, Annex 205.
205
this connection, the Conference urged upon the ad hoc
Ministerial Committee led by the Gambia to take immediate
measures to launch the case at the International Court of Justice
on behalf of the OIC.
657. The Gambia contends that “[t]his statement put Myanmar on notice about the
possibility of future legal action aimed at invoking its responsibility under
international law”.493
658. However, the first sentence of this quote, which refers to “using all international legal
instruments to hold accountable the perpetrators of crimes against the Rohingya”, is
clearly speaking of action contemplated to be taken against individual alleged
perpetrators of crimes, rather than action to be taken in State to State proceedings
alleging State responsibility.
659. The second sentence of this quote, which speaks of the launch of a case before this
Court on behalf of the OIC, does not itself state what the nature of the contemplated
proceedings would be (for instance, whether the envisaged case would be within the
Court’s contentious or advisory jurisdiction). Furthermore, this sentence does not state
by whom the proceedings would be brought, other than to state that they would be
brought “on behalf of the OIC” through measures to be taken by “the ad hoc Ministerial
Committee led by the Gambia”.
660. More importantly, the mere fact that a State is aware that proceedings before this Court
are contemplated does not mean that that State is already aware of a legal claim being
made against it, and does not mean that a legal dispute already exists between the
applicant State and the respondent State.494 This sentence in the Final Communiqué
does not indicate what the basis of any such proceedings before the Court would be.
In particular, nothing in this document suggests in any way that proposed proceedings
would be brought under the Genocide Convention. Indeed, the fact that this OIC Final
Communiqué contains no reference at all to genocide or the Genocide Convention
suggests if anything that this was not the envisaged basis of the proposed proceedings.
493 MG, para. 2.14.
494 See paragraphs 568 and 569 above.
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661. There is therefore nothing in this document that would have made Myanmar aware
that any State, and even less The Gambia specifically, was proposing to raise a claim,
or was actually doing so, against Myanmar concerning “the interpretation, application
or fulfilment of the [Genocide] Convention” within the meaning of Article IX of that
Convention.
10. The 2019 FFM report
662. On 8 August 2019, the FFM submitted a second report to the Human Rights Council
(the “2019 FFM report”),495 containing its findings since the 12 September 2018 FFM
report.
663. It is acknowledged that paragraph 18 of this report does state that the FFM has
concluded “that Myanmar incurs State responsibility under the prohibition against
genocide”.496
664. However, like the 2018 FFM report, this report expresses the conclusion of the three
individual members of the FFM only. It does not purport to be speaking on behalf of
The Gambia, or the OIC, or of any other State, international organization or entity.
665. It is further acknowledged that paragraph 107 of this report states that:
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.
Elected officials in Canada and the Netherlands have also called
on their Governments to pursue such a case. A case before the
International Court of Justice would not displace individual
criminal accountability through the International Criminal Court
or an ad hoc tribunal; rather, it is directed towards the obligations
and accountability of Myanmar as a State party to the Convention
495 MG, vol. III, Annex 47.
496 Paragraph 19 of this report states that this view of the FFM is based on the “reasonable grounds to conclude”
standard of proof described in paragraph 6 of the earlier 2018 FFM report. The “reasonable grounds to
conclude” standard of proof is not necessarily the standard of proof that would be applied by this Court,
such that even the FFM was not necessarily expressing the view that there was sufficient evidence at that
stage to establish genocide in accordance with the standards of evidence applied in international inter-State
dispute settlement proceedings.
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on the Prevention and Punishment of the Crime of Genocide.
Both avenues can and should be pursued in parallel.
666. The Memorial of The Gambia cites this passage, but gives no explanation of what its
significance is said to be.497
667. This paragraph of the report indicates that, to the knowledge of the FFM, Bangladesh,
The Gambia and the OIC were making “efforts” to “encourage and pursue” a case
against Myanmar before this Court under the Genocide Convention. This very general
language does not indicate that the FFM had any information that Bangladesh, The
Gambia and/or the OIC had themselves actually reached any firm decision that any
case brought before this Court would rely specifically on the Genocide Convention,
rather than on “other Human Rights and Humanitarian Law principles” or “crimes […]
against humanity” as referred to in the 4 March 2019 press release of the Bangladesh
Ministry of Foreign Affairs. In any event, no further details are given of any such
information. The 2019 FFM report contains only second-hand information of a very
general nature from the FFM about what Bangladesh, The Gambia and/or the OIC
might have been contemplating at the time.
668. The obvious question that arises is why Bangladesh, The Gambia and the OIC, if they
had formed a firm intention to bring proceedings based specifically on the Genocide
Convention, would inform the FFM of this but not inform Myanmar? The question
also arises why the FFM, if it had been informed by Bangladesh, The Gambia and the
OIC that they had already reached a firm decision to bring a case before the Court
under the Genocide Convention, would not state this clearly in the report.
669. In any event, even if it were to be assumed that Myanmar knew from this paragraph in
the FFM report that The Gambia had formed a definite intention to bring a case against
Myanmar before the Court under the Genocide Convention, this still would not mean
that Myanmar was aware at that stage of a legal claim being made against it by The
Gambia, and does not mean that a legal dispute already existed between The Gambia
and Myanmar.498
497 MG, para. 2.15.
498 See paragraphs 568 and 569 above.
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670. The information contained in the FFM report about the possible proceedings before
this Court is too general to satisfy the requirement for being a legal claim.499
Furthermore, this information was being conveyed by a third party, the FFM, in a
document that was not addressed to Myanmar. Given the context of how this
information was conveyed, and the content of the information conveyed, the 2019
FFM report cannot be characterised as the assertion of a legal claim by The Gambia
against Myanmar.500
11. The 16 September 2019 FFM Detailed Findings
671. On 16 September 2019, the FFM submitted to the Human Rights Council a report
setting out its detailed findings (the “2019 FFM Detailed Findings”).501
672. The Gambia’s Memorial does not rely on this document as evidence of the existence
of a dispute. However, it is referred to for this purpose in The Gambia’s application,502
which cites paragraphs 40, 41, 140, 213 and 220 of this document.
673. Paragraph 40 of the 2019 FFM Detailed Findings is in similar terms to paragraph 107
of the 2019 FFM report, which has already been dealt with in paragraph 665 above.
674. Paragraph 41 does not mention genocide, but speaks of a demand for measures
additional to holding individuals criminally accountable, and then simply states that
“The rules of State responsibility help address this demand”.
675. Paragraphs 140, 213 and 220, like paragraph 41, express conclusions of the individual
members of the FFM, not of The Gambia. This document once again therefore does
not purport to be speaking on behalf of The Gambia, or the OIC, or of any other State,
international organization or entity.
499 See paragraphs 524 to 552 above.
500 The same observations apply to the 10 July 2019 statement of the Special Rapporteur on the situation of
human rights in Myanmar, referred to in paragraph 97 above.
501 MG, vol. II, Annex 49.
502 AG, para. 21.
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12. The 26 September 2019 statement of the Vice-President of The
Gambia
676. On 26 September 2019, the Vice-President of The Gambia made a statement in the UN
General Assembly.503 The verbatim record of the speech is some four and a half pages
long. One paragraph of the speech dealt with the Muslims in northern Rakhine State,
as follows:
The Gambia is ready to lead concerted efforts to take the
Rohingya issue to the International Court of Justice on behalf of
the Organization of Islamic Cooperation, and we call on all
stakeholders to support that process. As a global community with
a conscience, we cannot continue to ignore the plight of the
Rohingya. It is for that reason that my delegation takes this
opportunity to call on the United Nations, like-minded nations
and concerned stakeholders to synchronize our efforts in the
search for a just, speedy and lasting solution to the Rohingya
crisis.
677. There was no mention anywhere in this speech of genocide or the Genocide
Convention. To the extent that the 2019 FFM report indicated that the proposed
proceedings before the Court might be brought under the Genocide Convention, the
complete absence of any mention of genocide or the Genocide Convention in this
speech if anything suggests that no firm decision had yet been taken in relation to this
question.
678. There is also no indication in this speech of the contemplated timing of any application
to the Court, and it is not even clear from the wording that a firm decision had even
been taken at this stage that proceedings would be brought. The speech speaks merely
of “concerted efforts” (indicating that The Gambia was not working on this initiative
alone), indicates that these efforts were being taken “on behalf of the OIC”, and says
that The Gambia is “ready” to “lead” these efforts.
679. It is therefore not the case, contrary to what The Gambia claims, that this speech
“removed any possible doubt about Myanmar’s awareness of an impending case
against it before the Court to hold it accountable under international law for its
503 MG, para. 2.16. The text of that statement (A/74/PV.8, p. 31) is at MG, vol. III, Annex 51.
210
genocidal acts against the Rohingya group”.504 Given the complete absence of any
reference to genocide or the Genocide Convention in this speech, and given that the
speech was made in a political forum and was not addressed directly to Myanmar, it
can hardly be said that this single paragraph in this statement amounted to the making
of a legal claim by The Gambia that Myanmar was in breach of the Genocide
Convention. In any event, the information in this paragraph was also otherwise too
general and lacking in particularity to satisfy the requirement for being a legal claim.505
13. The 29 September 2019 statement of the Union Minister for the
Office of the State Counsellor of Myanmar
680. In this statement,506 the Union Minister for the Office of the State Counsellor of
Myanmar, speaking on behalf of Myanmar, neither makes any reference to genocide,
nor to the Genocide Convention, nor to The Gambia.
681. The Gambia relies on the following passage in this statement as evidence of the
existence of a dispute:
We have objected to the formation of the independent
international fact-finding mission on Myanmar since its
inception, because of our serious concern about the mission’s
composition and mandate, as well as its capacity for fairness and
impartiality. Chair Marzuki Darusman’s reports, without
exception, have been biased and flawed, based not on facts but
on narratives. Events have therefore proved that our concerns are
justified. The latest reports are even worse. We cannot help but
conclude that they were prompted more by hostility towards the
democratically elected Government and the peace-loving people
of Myanmar than by a genuine desire to resolve the challenges of
Rakhine. We therefore also reject the establishment of the new
Independent Investigative Mechanism for Myanmar, which was
set up to bring Myanmar before such tribunals as the
International Criminal Court, to which we strongly object.
504 MG, para. 2.16.
505 See paragraphs 524 to 552 above.
506 The text of that statement (A/74/PV.12, p. 24) is at MG, vol. III, Annex 52.
211
682. At the oral hearing on 10 December 2019, counsel for The Gambia claimed that in this
statement, Myanmar “rejected wholesale the Fact-Finding Mission’s report”.507 That
is not the effect of the quoted words. The wording of this passage of the Union
Minister’s statement expresses general concerns about the fairness and impartiality of
the FFM. It does not express any position on compliance by Myanmar with any
specific norms of public international law. It does however express “a genuine desire
to resolve the challenges of Rakhine”, thereby acknowledging that such challenges
exist.
683. According to The Gambia,508 this statement of the Union Minister, together with the
prior statement of the Vice President of The Gambia, confirmed that The Gambia
continued to characterize Myanmar’s conduct as “genocide based”, while Myanmar
“persisted in rejecting the [FFM] reports as flawed and unfounded”.
684. For the reasons given above, it cannot be said that Myanmar, as a result of the
statement by the Vice President of The Gambia, “could not have been unaware” that
The Gambia was making a legal claim against Myanmar of a violation of the Genocide
Convention. That being the case, the 28 September 2019 statement on behalf of
Myanmar cannot be understood to be expressing positive opposition to any such legal
claim.
685. Put simply, this statement on behalf of Myanmar containing no reference to genocide,
responding to a statement on behalf of The Gambia also containing no reference to
genocide, can hardly be considered as establishing positive opposition of the two
parties on a legal issue related to genocide, let alone violations of the Genocide
Convention.
507 CR 2019/18, p. 48, para. 21 (Suleman).
508 MG, para. 2.16.
212
14. The 11 October 2019 note verbale
686. On 11 October 2019, the Permanent Mission of The Gambia to the United Nations sent
a note verbale to the Permanent Mission of Myanmar to the United Nations.509
687. The contents of this very brief document, only some five paragraphs long, are as
follows.
688. The first paragraph simply makes reference to “all the reports of the [FFM]”, including
the 2019 FFM report, and to “related resolutions of the [OIC]”, including OIC
resolution No. 4/46-MM.
689. The second paragraph states that The Gambia is “deeply troubled” by the findings of
the FFM “and in particular its findings regarding the ongoing genocide against the
Rohingya people […] in violation of Myanmar’s obligations under the […] Genocide
Convention”. It goes on to state that The Gambia considers those findings “well
supported by the evidence and highly credible”, and that The Gambia is “disturbed by
Myanmar’s absolute denial of those findings and its refusal to acknowledge and
remedy its responsibility for the ongoing genocide […] as required under the Genocide
Convention and customary international law”.
690. The third paragraph states that The Gambia “fully endorses OIC Resolution No. 4/46-
MM”, which calls upon Myanmar “To honor its obligations under International Law
and Human Rights covenants, and to take all measures to immediately halt all vestiges
and manifestations of the practice of genocide against Rohingya Muslims”.
691. The fourth paragraph states that The Gambia “emphatically rejects Myanmar’s denial
of its responsibility for the ongoing genocide against Myanmar’s Rohingya population,
and its refusal to fulfil its obligations under the Genocide Convention and customary
international law”.
692. The fifth paragraph states that The Gambia “understands” Myanmar “to be in ongoing
breach of those obligations under the Convention and under customary international
law”, and insists that Myanmar “take all necessary actions to comply with these
509 POM, Annex 121.
213
obligations, including but not limited to its obligation to make reparations to the
victims and to provide guarantees and assurances of non-repetition”.
693. Prior to the filing of the Application instituting proceedings, this very brief note
verbale was the only direct communication from The Gambia to Myanmar in relation
to this matter.
694. This note verbale needs to be considered in the light of the circumstances of the case
as a whole.
695. A particularly significant circumstance is the fact that The Gambia is not a State
involved in, or a State specially affected by, the factual situation to which this
document relates.
696. The circumstances of the present case are thus very different to a case where both
parties to a case before the Court are directly involved in the events in question
throughout the entire course of events. In the Bosnian Genocide case and the Croatia
Genocide case, the respondent State did not dispute the existence of a dispute at the
time of filing the application,510 and in the Nuclear Arms and Disarmament cases, the
Court said of the Bosnian Genocide case that “in the particular context of that case,
which involved an ongoing armed conflict, the prior conduct of the parties was
sufficient to establish the existence of a dispute”.511 In the Convention on Racial
Discrimination case, when determining whether or not there existed a dispute between
the parties, the Court considered that the documents relied upon by the applicant State
had to be considered against the following background:
[The Court] observes that disputes undoubtedly did arise between
June 1992 and August 2008 in relation to events in Abkhazia and
South Ossetia. Those disputes involved a range of matters
including the status of Abkhazia and South Ossetia, outbreaks of
armed conflict and alleged breaches of international
humanitarian law and of human rights, including the rights of
510 Compare paragraphs 507 and 508 above.
511 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,
p. 255, p. 275, para. 50; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016, p. 552, p. 571, para. 50; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 855, para. 54.
214
minorities. It is within that complex situation that the dispute
which Georgia alleges to exist and which the Russian Federation
denies is to be identified.512
697. In a context such as that described by the Court in that case, one party, when
considering statements made by the other in relation to a matter, would be expected to
understand the contents of the statements in the light of both parties’ mutual
involvement in the background factual situation. In the present case, there is no such
mutual involvement.
698. Secondly, the wording of this note verbale is very much the kind of wording used in a
political statement, of which examples have been given in paragraphs 557 to 562
above. The note verbale is very brief. It mentions no relevant facts, but instead simply
cites OIC resolutions (which are political statements and do not assert legal claims
against Myanmar under the Genocide Convention) and the FFM reports (which
express the individual opinions of the three FFM members and also do not assert any
legal claims against Myanmar). It then indicates that The Gambia is “deeply troubled”
by what it has read in those reports.
699. The note verbale then contains vague and general references to “the ongoing
genocide”, to Myanmar’s “responsibility for the ongoing genocide”, and to Myanmar’s
“refusal to fulfil its obligations under the Genocide Convention and customary
international law”. However, it contains no indications of which facts are said by The
Gambia to breach which provisions of the Genocide Convention or which norms of
customary international law. The note verbale also for instance refers to Myanmar’s
alleged “absolute denial” of the findings of the FFM, without specifying how
Myanmar is said to have expressed that “absolute denial”.
700. The final paragraph of the note verbale then states that The Gambia “understands”
Myanmar to be in breach of its obligations under the Genocide Convention and under
customary international law. It does not positively assert this to be the case.
512 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, p. 70, p. 85,
para. 32.
215
701. In short, the note verbale reads as a political statement, rather than as the assertion of
a legal claim.
702. Thirdly, the note verbale does not set out The Gambia’s “views” with a sufficient
degree of particularity to satisfy the requirements of a legal claim.513 It does not
specify, for instance, whether Myanmar’s failure to comply with its obligations under
the Genocide Convention is said to consist of a failure to prevent genocide, or of a
failure to punish genocide, or whether Myanmar is alleged to be responsible directly
for the commission of the genocide itself, or whether all of these are alleged. Nor does
the note verbale specify which of the particular subparagraphs (a) to (e) of Article II
of the Convention are said to have been violated, and which of the particular acts
specified in subparagraphs (a) to (e) of Article III of the Convention are said to have
been committed. Nor does it distinguish between claimed breaches of the Genocide
Convention and claimed breaches of customary international law, which is important
given that Article IX of the Genocide Convention confers no jurisdiction in respect of
the latter.
703. It is noted that if The Gambia had specifically alleged in the note verbale only that
Myanmar was responsible for a failure to prevent and punish, then even if all other
requirements for the existence of a dispute were otherwise established, it would not
have been open to The Gambia to include in the subsequent application to the Court a
claim of direct responsibility of Myanmar for the commission of genocide, as this
would have been a claim going beyond the pre-existing dispute (see paragraphs 538 to
546 above). For the reasons given above, it would be contrary to principles of legal
security and the good administration of justice to recognise such a vague and
unparticularised note verbale as constituting a legal claim. The note verbale does not
contain even the barebones information given in paragraph 111 of The Gambia’s
Application instituting proceedings.
704. Fourthly, if The Gambia had been intending in this note verbale to assert a legal claim
against Myanmar, there is no reason why it could not have made this clear. This was
The Gambia’s very first direct communication to Myanmar in relation to the matter.
It would not be natural to read such a brief and unparticularised opening
513 See paragraphs 524 to 552 above.
216
communication, coming from a State not specially affected by the factual situation in
question, as intending already to advance a specific legal claim. It cannot be said that
Myanmar, on the basis of the language of this note, “could not have been unaware” as
a result of this note that The Gambia was making a legal claim against it.
705. Fifthly, there is no practical reason why The Gambia could not have given particulars
of its claim in this note verbale if it had wanted to. The evidence is that The Gambia
had instructed its lawyers for these proceedings before the Court at least by 4 October
2019,514 a week before the note verbale was sent, and The Gambia provided
significantly more details of its claim in its Application instituting proceedings, which
was filed only a month after the note verbale was sent. Given that the decision to bring
a case before this Court had been taken over seven months earlier, The Gambia must
have been capable on 11 October 2019 of giving vastly more information about any
legal claim it was proposing to advance against Myanmar than is provided in the note
verbale.
706. Sixthly, The Gambia’s only involvement in the matter to which the note verbale related
was at the diplomatic level, consisting of its role as chair of the OIC Ad Hoc
Committee. However, the note verbale, while mentioning resolutions of the OIC,
makes no mention of the fact that The Gambia is chair of the OIC Ad Hoc Committee,
or indeed any mention of the OIC Ad Hoc Committee at all. Nor is there any mention
of the fact that The Gambia had been tasked by the OIC to bring proceedings before
this Court on behalf of the OIC. Nor indeed is there any mention of the fact that The
Gambia intended to bring a case against Myanmar before this Court, let alone of the
fact that it had already instructed lawyers for that purpose.
707. As noted above, it is not a legal requirement for the bringing of a case before the Court
that prior notice of the intention to do so has been given to the other party. However,
in circumstances where The Gambia had formed a firm intention to bring proceedings
before the Court over three months earlier,515 and the Vice-President of The Gambia
had announced in the UN General Assembly some weeks earlier that The Gambia was
514 See paragraph 105 above.
515 According to the website of the State House of The Gambia, the Cabinet of The Gambia approved the OIC
proposal for The Gambia to bring these proceedings on 4 July 2019: see paragraph 95 above.
217
“ready” to bring a case before the Court on behalf of the OIC, the absence of any
mention at all in this note verbale of an intention to bring a case before the Court
supports the inference that the wording of this brief opening communication from The
Gambia to Myanmar was not yet at that stage advancing a specific legal claim.
708. In the circumstances as a whole, it cannot be concluded that The Gambia was in its
note verbale of 11 October 2019 advancing a legal claim against Myanmar. It
certainly cannot be concluded that it was so clear that The Gambia was advancing a
legal claim that Myanmar “could not have been unaware” that this was the case.
Furthermore, it cannot be concluded that any legal claim said to have been made in
that note verbale was sufficiently clearly expressed that Myanmar “could not have
been unaware” what that claim was.
709. In the circumstances, any failure by Myanmar to respond to that note verbale at all
could not crystallise a legal dispute. The note verbale did not “call for” a response by
Myanmar.
15. The lack of response by Myanmar to the 11 October 2019 note
verbale
710. The Gambia contends that Myanmar’s lack of response to its note verbale “further
demonstrates the existence of a dispute between the Parties”.516 This choice of words
is significant, as it suggests that even The Gambia does not contend that the lack of
any response to the note verbale itself crystallised the dispute.
711. For the reasons above, the note verbale did not call for a response. Nor did it advance
a legal claim. This is therefore not a case where an inference of positive opposition to
a legal claim could be drawn from Myanmar’s failure to respond to the note verbale.
712. However, even if it were accepted for the sake of argument that the note verbale did
make a legal claim, and that it did call for a response, there still would have been no
dispute between The Gambia and Myanmar on 11 November 2019 unless the note
516 MG, para. 2.17.
218
verbale called for a response by that date, that is to say, within the space of a month
from the date of the note verbale.
713. This was not a case of an allegation being made of a specific breach of international
law as a result of precise alleged facts. The note verbale merely contained a general
reference to “all of the” FFM reports and “related” OIC resolutions, and
unparticularised references to Myanmar’s “refusal to fulfill its obligations under the
Genocide Convention”.
714. Upon receipt of the note verbale, Myanmar could hardly have been expected simply
to accept or reject out of hand everything stated in the note verbale without giving any
consideration to the substance of its contents. Myanmar was entitled to an appropriate
period of time to give a considered reaction. Given the reference in the note verbale
to “all of the” FFM reports, a considered response would have required a consideration
by Myanmar of all of the details of the FFM reports. Yet, at the time of receipt of the
note verbale on 11 October 2019, the 2019 Detailed Findings of the FFM, which were
some 189 pages long (in single spaced Times New Roman 10 point text), had at that
stage only been issued less than a month earlier, on 16 September 2019.
715. Nothing in the note verbale indicates that The Gambia considered there to be any
particular urgency about the matter. The Gambia’s Application instituting proceedings
states that “This is an urgent situation”517 and “a matter of extreme urgency”.518
However, nothing in the note verbale itself gives any indication of The Gambia’s view
that this is the case. It does not state that the matter is urgent, or indicate any expected
time frame for a response.
716. Furthermore, allegations of the most serious crimes need to be considered and
determined in the course of the criminal justice process. These are not matters on which
political representatives of countries can be required to take firm positions in short
spaces of time.
717. In the circumstances, even if a response from Myanmar was “called for”, it was not
called for by 11 November 2019. Thus, it cannot be inferred from the failure of
517 AG, para. 131.
518 AG, paras. 113, 132.
219
Myanmar to have responded by that date that Myanmar was by that date expressing
positive opposition to the note verbale. For this reason also, it cannot be concluded
that a dispute between the parties had crystallised by that date.
718. Considered in the light of the circumstances as a whole, the note verbale can be seen
to have been sent by The Gambia as a formality, to provide a justification for claiming
subsequently that a dispute existed between it and Myanmar on the date of its
application to the Court. It was a minimalist document, sent only a month before these
proceedings were brought, notwithstanding that the intention to bring these
proceedings had already been formed months earlier. It does not set out clearly that it
is making a legal claim, much less state what that claim is, notwithstanding that The
Gambia must have been in a position at the time to provide considerable particulars of
the proposed claim.
719. Rather, the note verbale was an attempt to create the form or procedure of a dispute.
However, there was no dispute in substance. The Gambia had not in substance
advanced a legal claim against Myanmar, and even if it had, no inference of positive
opposition can be drawn from Myanmar’s failure to respond to the note verbale by
11 November 2019.
D. The dispute submitted to the Court was not The Gambia’s dispute
720. The arguments above in relation to this fourth preliminary objection would apply even
if The Gambia were bringing these proceedings in its own right, rather than on behalf
of the OIC as contended by Myanmar in relation to its first preliminary objection
above.
721. However, if The Gambia is in fact bringing these proceedings on behalf of the OIC,
further considerations arise when determining whether a relevant dispute existed
between The Gambia and Myanmar at the time of filing of The Gambia’s application.
722. While the prohibition of genocide under customary international law may be an
obligation erga omnes, the prohibition of genocide under the Genocide Convention
and other obligations under the Genocide Convention are not. The latter are
obligations erga omnes partes, owed only to other parties to the Genocide Convention.
220
723. Where a case is brought before the Court in reliance on the compromissory clause in
Article IX of the Genocide Convention, the Court can only have jurisdiction with
respect to rights and obligations under that Convention. It has no jurisdiction to deal
with claimed violations of customary international law principles relating to
genocide.519
724. If The Gambia is in fact bringing these proceedings on behalf of the OIC, then any
dispute, even if it does exist (quod non), would in substance be a dispute between the
OIC and Myanmar, rather than a dispute between The Gambia and Myanmar.
725. As the OIC as an international organization cannot be, and is not, a party to the
Genocide Convention, any disagreement between the OIC and Myanmar, if a dispute
at all, would necessarily be, if anything, a dispute as to customary international law
principles of genocide. Myanmar has no obligations to the OIC under the Genocide
Convention, and therefore the dispute would not be one concerning “the interpretation,
application or fulfilment of the […] [Genocide] Convention” to which the
compromissory clause in Article IX of the Genocide Convention exclusively applies.
726. In consequence there would be no dispute between The Gambia and Myanmar over
which the Court could have jurisdiction.
727. Furthermore, because The Gambia’s application alleges violations of the Genocide
Convention, while the dispute between the OIC and Myanmar would concern, if
anything, alleged violations of customary international law, the claims made in the The
Gambia’s application would not be the claims that were in dispute prior to the filing
of the application.
728. Additionally, even assuming that the Court otherwise had jurisdiction to deal with the
case and The Gambia’s application was otherwise admissible, there would be no
dispute between the parties in this case because, in substance, the dispute is between
the OIC and Myanmar.520
519 See footnote 13 above.
520 It is recalled that in Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, I.C.J.
Reports 2005, p. 6, pp. 22-25, paras. 39-46, the Court, referring to earlier case law, affirmed that in
221
729. These considerations are independent of Myanmar’s first preliminary objection. Even
if the Court were to reject the first preliminary objection, and were to find that The
Gambia can bring these proceedings on behalf of the OIC, the Court would nonetheless
still need to satisfy itself that there is a dispute between The Gambia and Myanmar
that falls within Article IX of the Genocide Convention. However, for the reasons
given, that requirement would not be satisfied.
E. Conclusion
730. For all the reasons above, at the time The Gambia filed its Application instituting
proceedings on 11 November 2019, a dispute did not exist between The Gambia and
Myanmar in relation to the claims made by The Gambia in its application.
731. According to the more recent case law of the Court, the requirement of a pre-existing
dispute between the parties is a condicio sine qua non of the Court’s jurisdiction,521
such that if the requirement is not satisfied, the Court lacks jurisdiction to entertain the
claim.522 Myanmar thus submits that, because this requirement is not satisfied in the
present case, the Court lacks jurisdiction.
732. However, an alternative view has been advanced that this requirement of a pre-existing
dispute between the parties is rather a matter concerning the admissibility of the
determining whether a dispute was of a kind that falls within the terms of a particular compromissory clause,
it is required to determine the “source or real cause” of the dispute. See paragraph 53 above.
521 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 3, p. 26, para. 50; 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, p. 255, pp. 269,
273, paras. 33, 42; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 2016, p. 552, pp. 566, 569, paras. 33, 42; Obligations concerning Negotiations relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833, p. 849, 852, paras. 36, 45 (“The Court’s
jurisprudence treats the question of the existence of a dispute as a jurisdictional one”).
522 For instance, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 2016, p. 833, declaration of Judge Abraham, p. 858, para. 3 (“the existence of a dispute between
the parties to a case is not only a condition for the exercise of the Court’s jurisdiction, but, more
fundamentally, a condition for the very existence of that jurisdiction”).
222
application,523 or that it is otherwise “an indispensable precondition for the seisin of
the Court by the Applicant”.524 Myanmar therefore argues in the alternative that,
because this requirement is not satisfied in the present case, the application of The
Gambia is inadmissible, or the Court should otherwise determine as a preliminary
matter that it will not exercise jurisdiction in this case.
SUBMISSION
733. On the basis of each of the four independent preliminary objections set out above,
Myanmar respectfully requests the Court to adjudge and declare that the Court lacks
jurisdiction over The Gambia’s Application of 11 November 2019, and/or that the
Application is inadmissible.
734. Myanmar reserves the right to amend and supplement this submission in accordance
with the provisions of the Statute and the Rules of Court. Myanmar also reserves the
523 Electricity Company of Sofia and Bulgaria (Preliminary Objection), Judgment, 1939, PCIJ., Series A/B,
No. 77, in which the Court upheld as “well-founded” a preliminary objection of the respondent State
(Bulgaria) that one of the contentions of the applicant State (Belgium) was inadmissible because the claim
did not form the subject of a dispute between the two Government prior to the filing of the application; also
South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment of 21 December 1962, I.C.J. Reports 1962, p. 319, Dissenting Opinion of Judge Morelli, p. 565,
para. 2: “From the whole body of provisions in the Statute and the Rules it is therefore clear, beyond any
possibility of doubt, that, in accordance with the Statute and the Rules themselves, the Court cannot exercise
its function in contentious proceedings, by giving a decision on the merits, unless a dispute genuinely exists
between the parties. … This is a question which, strictly speaking, does not relate to the jurisdiction of the
Court: a problem which, indeed, arises prior to any question of jurisdiction, for the very simple reason that
it is only in relation to a genuinely existing dispute that it is possible to raise the question whether such a
dispute is or is not subject to the jurisdiction of the Court. It follows that if the Court finds that no dispute
exists between the parties, it will not be called on to pass upon its jurisdiction itself; it must, in that case,
confine itself to a finding that the claim is inadmissible”.
524 For instance, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 2016, p. 833, separate opinion of Judge Owada, p. 878, para. 4; separate opinion of Judge Tomka,
p. 889, para. 15 (“Thus, it is not the emergence of a dispute which establishes the Court’s jurisdiction or
perfects it. The emergence of a dispute is a necessary condition, in the event that one of the disputing parties
which has accepted the Court’s jurisdiction decides to bring an Application instituting proceedings before
the Court against another State with an Article 36 declaration in force, for the Court to exercise that
jurisdiction”).
right to submit further objections to the jurisdiction of the Court and to the
admissibility of The Gambia' s claims if the case were to proceed to any subsequent
phase.
H.E. Daw Aung San Suu Kyi
Union Minister for Foreign Affairs
of the Republic of the Union of Myanmar
Agent of Myanmar

LIST OF ANNEXES
AND CERTIFICATION
I hereby certify that the annexes filed with these Preliminary Objections are true copies of the
original documents reproduced therein, and that where such a document is accompanied by a
translation into English, that translation is accurate.
½<;,_~Va~
H.E. Daw Aung San Suu Kyi
Union Minister for Foreign Affairs
of the Republic of the Union of Myanmar
Agent of Myanmar

227
Treaties
Annex 1 Convention on the Prevention and Punishment of the Crime of Genocide,
9 December 1948, UNTS, vol. 78, p. 277
Annex 2 Convention for the Protection of Human Rights and Fundamental Freedoms,
4 November 1950, as amended by Protocols No. 11 and No. 14, European
Treaties Series, no. 5 [extract]
Annex 3 International Convention on the Elimination of All Forms of Racial
Discrimination, 7 March 1966, UNTS, vol. 660, p. 195 [extract]
Annex 4 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS, vol. 1155,
p. 331 [extract]
Annex 5 Charter of the Islamic Conference, 4 March 1972, UNTS, vol. 914, p. 103
[extract]
Annex 6 International Convention on the Suppression and Punishment of the Crime of
Apartheid, 30 November 1973, UNTS, vol. 1015, p. 243 [extract]
Annex 7 Convention on the Elimination of All Forms of Discrimination against
Women, 18 December 1979, UNTS, vol. 1249, p. 13 [extract]
Annex 8 United Nations Convention on the Law of the Sea, 10 December 1982, UNTS,
vol. 1833, p. 396 [extract]
Annex 9 Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 10 December 1984, UNTS, vol. 1465, p. 85 [extract]
Annex 10 International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families, 18 December 1990, UNTS, vol.
2220, p. 3 [extract]
Annex 11 International Convention for the Protection of All Persons from Enforced
Disappearance, 20 December 2006, UNTS, vol. 2716, p. 3 [extract]
Annex 12 Charter of the Organization of the Islamic Conference, 14 March 2008, UNTS,
A-13039 [extract]
Annex 13 Charter of the Organisation of Islamic Cooperation
228
Case Law of International Courts and Tribunals
Annex 14 Case concerning the delimitation of the Continental Shelf between the United
Kingdom of Great Britain and Ireland, and the French Republic, Decision of
30 June 1977, UN Reports of International Arbitral Awards, vol. XVIII, p. 40
[extract]
Annex 15 Channel Tunnel Group Limited and France-Manche S.A. v. United Kingdom
and France, Permanent Court of Arbitration Case No. 2003-06, Partial Award,
30 January 2007 [extract]
Annex 16 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom),
Permanent Court of Arbitration Case No. 2011-03, Award, 18 March 2015
[extract]
Annex 17 The South China Sea Arbitration (Philippines v. China), Permanent Court of
Arbitration Case No. 2013-19, Award on Jurisdiction and Admissibility,
29 October 2015 [extract]
Books, Articles and Commentaries
Annex 18 R. Ago, “Obligations Erga Omnes and the International Community”, in
J.H.H. Weiler et al. (eds.), International Crimes of State: A Critical Analysis of
the ILC’s Draft Article 19 on State Responsibility (1989) [extract]
Annex 19 J. Crawford, State Responsibility: The General Part (2013) [extract]
Annex 20 P. van Dijk, Judicial Review of Governmental Action and the Requirement of
an Interest to Sue (1980) [extract]
Annex 21 P.N. Drost, The Crime of State, vol. II, Genocide: United Nations legislation
on international criminal law (1959) [extract]
Annex 22 P. Dupuy and C. Hoss, “Article 34”, in A. Zimmermann et al. (eds.), The
Statute of the International Court of Justice: A Commentary (third edn., 2019)
[extract]
Annex 23 G. Gaja, “The Role of the United Nations in preventing and Suppressing
Genocide”, in P. Gaeta (ed.), The UN Genocide Convention – A Commentary
(2009) [extract]
Annex 24 V. Gowlland-Debbas and M. Forteau, “Article 7, UN Charter”, in A.
Zimmermann et al. (eds.), The Statute of the International Court of Justice: A
Commentary (third edn., 2019) [extract]
229
Annex 25 R. Kolb, “General Principles of Procedural Law”, in A. Zimmermann et al.
(eds.), The Statute of the International Court of Justice: A Commentary (third
edn., 2019) [extract]
Annex 26 P. Reuter, Introduction au Droit du Traités (third revised edn. by P. Cahiers,
1995) [extract]
Annex 27 S. Rosenne, “War Crimes and State Responsibility”, Israel Yearbook on
Human Rights, vol. 24 (1994) [extract]
Annex 28 B. Schiffbauer, “Article VIII”, in C. Tams et al. (eds.), Convention on the
Prevention and Punishment of the Crime of Genocide: A Commentary (2014)
[extract]
Annex 29 M. Shaw, Rosenne’s Law and Practice of the International Court: 1920-2015,
vol. III (2016) [extract]
Annex 30 M. Ventura, “The Prevention of Genocide as a Jus Cogens Norm? A Formula
for Lawful Humanitarian Intervention”, in C. Jalloh and O. Elias (eds.),
Shielding Humanity: Essays in International Law in Honour of Judge Abdul
G. Koroma (2015) [extract]
Dictionaries
Annex 31 “saisir”, Dictionnaire de L’Académie Française
Annex 32 “recurrir”, Real Academia Española, Diccionario de la lengua española
United Nations Documents
Annex 33 UN, ECOSOC, resolution 47 (IV), Crime of genocide, Resolutions adopted by
the Economic and Social Council during its Fourth Session from 28 February
to 29 March 1947, UN doc. E/325, 28 March 1947
Annex 34 UNSG, Draft Convention on the Crime of Genocide, UN doc. E/447, 26 June
1947 [extract]
Annex 35 UN, Draft Convention on Genocide, Communications received by the
Secretary-General, Communication received from the United States of
America, UN doc. A/401/Add.2, 30 September 1947 [extract]
Annex 36 UNGA, resolution 180 (II), Draft convention on genocide, UN doc.
A/RES/180(II), 21 November 1947
230
Annex 37 UN, Comments by Governments on the Draft Convention prepared by the
Secretariat, Communications from non-governmental organizations, UN doc.
E/623, 30 January 1948, in H. Abtahi and P. Webb, The Genocide Convention:
The Travaux Préparatoires, vol. I (2008) [extract]
Annex 38 UN, Ad Hoc Committee on Genocide, Summary Record of the Eighth Meeting
(13 April 1948), UN doc. E/AC.25/SR.8, 17 April 1948 [extract]
Annex 39 UN, Ad Hoc Committee on Genocide, Summary Record of the Ninth Meeting
(14 April 1948), UN doc. E/AC.25/SR.9, 21 April 1948 [extract]
Annex 40 UN, Ad Hoc Committee on Genocide, Draft Articles for the inclusion in the
Convention on Genocide proposed by the delegation of China on 16 April
1948, UN doc. E/AC.25/9
Annex 41 UN, Ad Hoc Committee on Genocide, Summary Record of the Twentieth
Meeting (26 April 1948), UN doc. E/AC.25/SR.20, with corrigendum, UN
doc. E/AC.25/SR.20/Corr.1, 4 May 1948 [extracts]
Annex 42 UN, Ad Hoc Committee on Genocide, Draft Convention on Prevention and
Punishment of the Crime of Genocide, UN doc. E/AC.25/12, 19 May 1948
[extract]
Annex 43 UN, Report of the Ad Hoc Committee on Genocide, 5 April to 10 May 1948,
UN doc. E/794, 24 May 1948 [extract]
Annex 44 UNGA, Sixth Committee, Genocide – Draft Convention and Report of the
Economic and Social Council, Union of Soviet Socialist Republics:
Amendments to the draft convention (E/794), UN doc. A/C.6/215/Rev.1,
9 October 1948
Annex 45 UNGA, Sixth Committee, Genocide: Draft Convention and Report of the
Economic and Social Council, United Kingdom: Further amendments to the
Draft Convention (E/794), UN doc. A/C.6/236, 16 October 1948
Annex 46 UNGA, Sixth Committee, Genocide: Draft Convention and Report of the
Economic and Social Council, United Kingdom: Further amendments to the
Draft Convention (E/794), Corrigendum, UN doc. A/C.6/236/Corr.1,
19 October 1948
Annex 47 UNGA, Sixth Committee, Genocide: Draft Convention and Report of the
Economic and Social Council, Belgium: Amendment to the United Kingdom
Amendments to Articles V and VII (A/C.6/236 & 236 Corr.1), UN doc.
A/C.6/252, 6 November 1948
231
Annex 48 UNGA, Sixth Committee, Genocide – Draft Convention and Report of the
Economic and Social Council, Belgium and United Kingdom: Joint
Amendment to article X of the draft Convention (E/794), UN doc. A/C.6/258,
10 November 1948
Annex 49 UNGA, Sixth Committee, Hundred and First Meeting, Continuation of the
consideration of the draft convention on genocide [E/794]: report to the
Economic and Social Council [A/633] (11 November 1948), UN doc.
A/C.6/SR.101
Annex 50 UNGA, Sixth Committee, Hundred and Second Meeting, Continuation of the
consideration of the draft convention on genocide [E/794] : report to the
Economic and Social Council [A/633] (12 November 1948), UN doc.
A/C.6/SR.102 [extract]
Annex 51 UNGA, Sixth Committee, Hundred and Third Meeting, Continuation of the
consideration of the draft convention on genocide [E/794]: report to the
Economic and Social Council [A/633] (12 November 1948), UN doc.
A/C.6/SR.103 [extract]
Annex 52 UNGA, Sixth Committee, Hundred and Fourth Meeting, Continuation of the
consideration of the draft convention on genocide [E/794]: report to the
Economic and Social Council [A/633] (13 November 1948), UN doc.
A/C.6/SR.104
Annex 53 UNGA, Sixth Committee, Hundred and Fifth Meeting, Continuation of the
consideration of the draft convention on genocide [E/794]: report to the
Economic and Social Council [A/633] (13 November 1948), UN doc.
A/C.6/SR.105 [extract]
Annex 54 UNGA, Sixth Committee, Genocide – Draft Convention and Report of the
Economic and Social Council, Text as adopted by the Sixth Committee for
articles VII to XIII of the draft Convention (E/794), UN doc. A/C.6/269,
15 November 1948
Annex 55 UNGA, Sixth Committee, Genocide: Draft Convention and Report of the
Economic and Social Council (E/794), Draft resolutions proposed by the
Drafting Committee, UN doc. A/C.6/289, 23 November 1948
Annex 56 UNGA, Sixth Committee, Hundred and Thirty-Third Meeting, Continuation of
the consideration of the draft convention on genocide [E/794]: report to the
Economic and Social Council [A/633] (2 December 1948), UN doc.
A/C.6/SR.133 [extract]
232
Annex 57 UNGA, Genocide: Draft Convention and Report of the Economic and Social
Council, Report of the Sixth Committee, UN doc. A/760, 3 December 1948
[extract]
Annex 58 UNSC, resolution 819 (1993), UN doc. S/RES/819 (1993), 16 April 1993
Annex 59 UNSC, resolution 838 (1993), UN doc. S/RES/838 (1993), 10 June 1993
Annex 60 UNGA, resolution 48/88, The situation in Bosnia and Herzegovina, UN doc.
A/RES/48/88, 20 December 1993
Annex 61 UNSC, resolution 1004 (1995), UN doc. S/RES/1004 (1995), 22 July 1995
Annex 62 UNGA, resolution 50/193, Situation of human rights in the Republic of Bosnia
and Herzegovina, the Republic of Croatia and the Federal Republic of
Yugoslavia (Serbia and Montenegro), UN doc. A/RES/50/193, 22 December
1995
Annex 63 UNSG, Summary Statement by the Secretary-General on matters of which the
Security Council is seized and on the stage reached in their consideration, UN
doc. S/1998/44/Add.28, 24 July 1998
Annex 64 ILC, State responsibility, Draft articles provisionally adopted by the Drafting
Committee on second reading, UN doc. A/CN.4/L.600, 21 August 2000
[extract]
Annex 65 ILC, Report of the International Law Commission on the work of its fiftysecond
session (2000), UN doc. A/CN.4/513, 15 February 2001 [extract]
Annex 66 ILC, Fourth report on State responsibility by Mr. James Crawford, Special
Rapporteur, UN doc. A/CN.4/517, 2 April 2001 [extract]
Annex 67 ILC, Yearbook of the International Law Commission, 2001, vol. I [extract]
Annex 68 ILC, Yearbook of the International Law Commission, 2001, vol. II, Part One
[extract]
Annex 69 ILC, Draft articles on responsibility of States for internationally wrongful acts,
with commentaries, 2001 [extract]
Annex 70 UNSG, Summary Statement by the Secretary-General on matters of which the
Security Council is seized and on the stage reached in their consideration, UN
doc. S/2002/30/Add.49, 20 December 2002 [extract]
Annex 71 ILC, Draft articles on the responsibility of international organizations, adopted
by the International Law Commission at its sixty-third session, Yearbook of
the International Law Commission, 2011, vol. II, Part Two [extract]
233
Annex 72 ILC, Guide to Practice on Reservations to Treaties, Yearbook of the
International Law Commission, 2011, vol. II, Part Three, UN doc.
A/CN.4/SER.A/2011/Add.1 (Part 3) [extract]
Annex 73 UNSC, 8333rd meeting (28 August 2018), UN doc. S/PV.8333 [extract]
Annex 74 UNGA, Third Committee, Official Records, Seventy-third session, Summary
record of the 30th meeting (23 October 2018), UN doc. A/C.3/73/SR.30
[extract]
Annex 75 UNSC, 8381st meeting (24 October 2018), UN doc. S/PV.8381 [extract]
Annex 76 UNGA, Official Records, Seventy-third session, 27th plenary meeting
(29 October 2018), UN doc. A/73/PV.27 [extract]
Annex 77 UNGA, Official Records, Seventy-third session, 28th plenary meeting
(29 October 2018), UN doc. A/73/PV.28 [extract]
Annex 78 UNGA, Third Committee, Official Records, Seventy-third session, Summary
record of the 50th meeting (16 November 2018), UN doc. A/C.3/73/SR.50
[extract]
Annex 79 UNSC, 8477th meeting (28 February 2019), UN doc. S/PV.8477 [extract]
Annex 80 UN, Office of the High Commissioner for Human Rights, Oral Update to 41st
Session of the Human Rights Council by the Special Rapporteur on the
situation of human rights in Myanmar [10 July 2019]
Annex 81 ILC, Draft articles on Prevention and Punishment of Crimes Against
Humanity, Yearbook of the International Law Commission, 2019, vol. II, Part
Two [extract]
Annex 82 UNGA, resolution 74/166, Situation of human rights in the Democratic
People’s Republic of Korea, UN doc. A/RES/74/166, 18 December 2019
Annex 83 Voting record on UNGA resolution 74/166
Annex 84 UNGA, resolution 74/169, Situation of human rights in the Syrian Arab
Republic, UN doc. A/RES/74/169, 18 December 2019
Annex 85 Voting record on UNGA resolution 74/169
Annex 86 UNGA, resolution 74/246, Situation of human rights of Rohingya Muslims
and other minorities in Myanmar, UN doc. A/RES/74/246, 27 December 2019
Annex 87 Voting record on UNGA resolution 74/246
234
Annex 88 UN News, “Top UN court orders Myanmar to protect Rohingya from
genocide”, 23 January 2020
Annex 89 ONU Info, “La CIJ ordonne au Myanmar de prendre des mesures d’urgence
pour protéger les Rohingya”, 23 January 2020
Organisation of Islamic Cooperation Documents
Annex 90 OIC, “Member States” (Web Page)
Annex 91 OIC Res. No. 59/45-POL, On The Establishment of an OIC Ad Hoc
Ministerial Committee on Accountability for Human Rights Violations
Against the Rohingyas, May 2018
Annex 92 OIC, Press Release, “OIC Convenes Coordination Meeting for Ministerial
Committee on Accountability for Human Rights Violations against the
Rohingya”, 22 January 2019
Annex 93 OIC Res. No. 60/46-POL, On The Establishment of an OIC Ad hoc Ministerial
Committee on Accountability for Human Rights Violations Against the
Rohingyas, March 2019
Annex 94 OIC Res. No. 61/46-POL, The Work of the OIC Ad hoc Ministerial Committee
on Accountability for Human Rights Violations Against the Rohingya, March
2019
Annex 95 OIC, “Ad Hoc Ministerial Committee on Accountability for Human Rights
Violations Against the Rohingya Meets in Gambia”, OIC Journal, No. 42,
January-April 2019, p. 24
Annex 96 OIC, De Communiqué final de la Quatorzième Session de la Conférence
Islamique au Sommet, 31 May 2019 [extract]
Annex 97 OIC, Report of the Ad Hoc Ministerial Committee on Human Rights
Violations Against the Rohingya, OIC/ACM/AD-HOC
ACCOUNTABILITY/REPORT-2019/FINAL, 25 September 2019
Annex 98 OIC, Press Release, “OIC Welcomes first hearing of Legal Case on
accountability for crimes against Rohingya”, 24 November 2019
Annex 99 OIC, Press Release, “L’OCI se félicite de la première audience de l’affaire
judiciaire sur la responsabilité pour les crimes contre Rohingya”, 24 November
2019
Annex 100 OIC, Press Release, “OIC General Secretariat Welcomes UNGA Resolution
Condemning Abuses against Rohingya”, 29 December 2019
235
Annex 101 OIC, Press Release, “OIC welcomes ICJ decision ordering Myanmar to stop
genocide against Rohingya”, 23 January 2020
Annex 102 OIC, Press Release, “OIC Ad Hoc Ministerial Committee on Accountability
for Human Rights Violations against Rohingya holds consultative meeting in
Riyadh”, 30 September 2020
Annex 103 OIC, Tweet (@OIC_OCI), 30 September 2020
Annex 104 OIC, Press Release, “OIC Secretary General Thanks the ISF for its Support in
Financing the Rohingya Case at the ICJ”, 7 October 2020
Annex 105 OIC, Statement on OIC Facebook account, 19 October 2020
Annex 106 OIC Res. No. 59/47-POL, On the Work of the OIC Ad hoc Ministerial
Committee on Accountability for Human Rights Violations Against the
Rohingyas, November 2020
Annex 107 OIC Res. No. 4/47-MM, On the Situation of the Muslim Community in
Myanmar, November 2020
State Documents
Annex 108 Bangladesh, Ministry of Foreign Affairs, “Statement by H.E. Mr. Md Shahriar
Alam, MP, Hon’ble State Minister for Foreign Affairs of Bangladesh at BIISSorganised
seminar at BICC on the theme- “Upcoming 45th Council of Foreign
Ministers (CFM) of OIC, Dhaka: Revisiting A Shared Journey; 10: 10 AM”,
updated 29 March 2018
Annex 109 Bangladesh, Ministry of Foreign Affairs, Press Release, “Foreign Minister
calls for fighting international terror and repatriation of the Rohingya to their
homeland in Myanmar”, 1 March 2019, updated 3 March 2019
Annex 110 Bangladesh, Ministry of Foreign Affairs, Press Release, “OIC Okays Legal
Action Against Myanmar at the International Court of Justice (ICJ) in Abu
Dhabi”, 4 March 2019
Annex 111 Bangladesh, Ministry of Foreign Affairs, Press Release, “Foreign Minister
highlights the need for solidarity among the member states of OIC”, 30 May
2019
Annex 112 Bangladesh, Embassy, The Hague, Press Release, “Bangladesh supports OIC
backed initiative by The Gambia in the International Court of Justice (ICJ)”,
12 November 2019
236
Annex 113 Bangladesh, Ministry of Foreign Affairs, “Opening Remarks by Hon’ble
Foreign Minister at the Inaugural Session of the 6th International Conference
on Bangladesh Genocide and Justice”, updated 17 November 2019
Annex 114 Bangladesh, Ministry of Foreign Affairs, “Speech of Hon’ble Foreign Minister
on the Inauguration Ceremony of the OIC Youth Capital – Dhaka 2020”,
updated 28 July 2020
Annex 115 Canada, House of Commons, Forty-second Parliament, First Session,
Journals, No. 322, 20 September 2018, p. 3988
Annex 116 Canada, Global Affairs Canada, Statement of the Minister for Foreign Affairs,
“Canada welcomes the Gambia’s action to address accountability in
Myanmar”, 11 November 2019
Annex 117 Canada, Global Affairs Canada, Minister of Foreign Affairs – Transition book,
November 2019 [extract]
Annex 118 Canada and the Netherlands, “Joint statement of Canada and the Kingdom of
the Netherlands regarding the Gambia’s action to address accountability in
Myanmar”, 9 December 2019
Annex 119 The Gambia, Office of the President, Press Release, “OIC tasks The Gambia to
lead ICJ case against Myanmar”, 3 June 2019
Annex 120 The Gambia, Office of the President, Press Release, “Cabinet approves
transformation of GTTI into University of Science, Technology and
Engineering”, 6 July 2019
Annex 121 The Gambia, Note Verbale from the Permanent Mission of The Gambia to the
UN to the Permanent Mission of Myanmar to the UN, 11 October 2019
Annex 122 The Gambia, Oicgambia Secretariat, Press Release, “High-Level Government
Delegation Attends OIC Foreign Ministers Summit”, 26 November 2020
Annex 123 The Gambia, Oicgambia Secretariat, “Oicgambia Secretariat” (Web Page)
Annex 124 The Gambia, Ministry of Justice, Tweet (@Gambia_MOJ), 30 November 2020
Annex 125 Malaysia, Ministry of Foreign Affairs, Press Release, “Order by the
International Court of Justice (ICJ) on The Gambia’s Request for the
Indication of Provisional Measures”, 23 January 2020
Annex 126 Maldives, Ministry of Foreign Affairs, Press Release, “Organization of Islamic
Cooperation welcomes decision of the Government of Maldives to file a
declaration of intervention in the International Court of Justice, in support of
the Rohingya people”, 11 March 2020, updated 25 June 2020
237
Annex 127 Myanmar, Pyithu Hluttaw, Motion for the Union Government to ratify, with
two reservations, the Convention on the Prevention and Punishment of the
Crime of Genocide adopted by the General Assembly of the United Nations in
1948, 2 September 1955 (original and unofficial translation)
Annex 128 Pakistan, Ministry of Foreign Affairs, Press Release, “Highlights of the 45th
OIC Council of Foreign Ministers meeting held in Dhaka 5-6 May 2018”,
6 May 2018
Annex 129 United Kingdom, House of Commons, “Myanmar: January 2020 update”,
Briefing Paper, No. 8443, 7 January 2020 [extract]
Annex 130 United States, Senate, Report of the Acting Secretary of State, an enclosure to
the “Message from the President of the United States”, in The Genocide
Convention: Hearings before a Subcommittee of the Committee on Foreign
Relations, Eighty-first Congress, Second Session, 23-25 January and
9 February 1950 [extract]
Annex 131 United States, Senate, Genocide Convention: Report of the Committee on
Foreign Relations, Ninety-ninth Congress, First Session, 18 July 1985
[extract]
Press Release of Foley Hoag LLP
Annex 132 Foley Hoag LLP, “Foley Hoag Leads The Gambia’s Legal Team in Historic
Case to Stop Myanmar's Genocide Against the Rohingya”, 11 November 2019
Annex 133 Business Wire, “Foley Hoag Leads The Gambia’s Legal Team in Historic
Case to Stop Myanmar's Genocide Against the Rohingya”, 11 November 2019
Annex 134 Business Wire, “Foley Hoag dirige l'équipe juridique de la Gambie dans un
procès historique visant à mettre un terme au génocide des Rohingyas en
Birmanie”, 11 November 2019
Annex 135 Business Wire, “Foley Hoag lidera el equipo legal de Gambia en el caso
histórico para detener el genocidio de Birmania contra los rohinyás”,
11 November 2019
Annex 136 Business Wire, “Foley Hoag leitet das Rechtsteam Gambias in einer
historischen Klage, um Myanmars Völkermord an den Rohingya zu stoppen”,
11 November 2019
Annex 137 Business Wire, “Foley Hoag leidt het juridisch team van Gambia in historische
zaak om de genocide van Myanmar tegen de Rohingya te stoppen”,
11 November 2019
238
Annex 138 Business Wire, “Foley Hoag alla guida del team legale del Gambia nella causa
storica per porre fine al genocidio dei Rohingya in Myanmar”, 11 November
2019
Annex 139 Associated Press, “Foley Hoag Leads The Gambia’s Legal Team in Historic
Case to Stop Myanmar's Genocide Against the Rohingya”, 11 November 2019
Annex 140 Bloomberg, “Foley Hoag Leads The Gambia’s Legal Team in Historic Case to
Stop Myanmar's Genocide Against the Rohingya”, 11 November 2019
Media Reports
Annex 141 United News of Bangladesh (Bangladesh), “PM to open OIC-CFM Saturday;
Rohingya issue on focus”, 2 May 2018
Annex 142 Freedom Newspaper (The Gambia), “OIC Pushes for Increased Pressure on
Myanmar”, 10 February 2019
Annex 143 Kairo News (The Gambia), “OIC Piles Pressure on Myanmar”, 11 February
2019
Annex 144 Panapress (Senegal), “Gambian gov’t approves OIC proposal to lead legal
action against Myanmar at ICJ”, 6 July 2019
Annex 145 New Straits Times (Malaysia), “Dr M slams UN, Myanmar govt over
Rohingya crisis”, 25 September 2019
Annex 146 South China Morning Post (China), “Mahathir blasts Myanmar and United
Nations over Rohingya ‘genocide’”, 25 September 2019
Annex 147 United News of Bangladesh (Bangladesh), “Genocide: Gambia to file case
against Myanmar at ICJ”, 20 October 2019
Annex 148 Aljazeera (Qatar), “Gambia files Rohingya genocide case against Myanmar at
UN court”, 11 November 2019
Annex 149 Anadolu Agency (Turkey), “Gambia files Rohingya genocide case against
Myanmar”, 11 November 2019
Annex 150 Deutsche Welle (Germany), “Gambia files genocide case against Myanmar”,
11 November 2019
Annex 151 New York Times (United States), “Myanmar Genocide Lawsuit Is Filed at
United Nations Court”, 11 November 2019
Annex 152 Jakarta Post (Indonesia), “RI defends approach to Rohingya problem”,
19 November 2019
239
Annex 153 Bangladesh Post (Bangladesh), “Myanmar under global pressure”,
26 November 2019
Annex 154 Liberté (Algeria), “Les états de l’OCI saisissent la Cour internationale de
justice”, 1 December 2019
Annex 155 The Interpreter, “In conversation: Malaysia’s Foreign Minister on great power
rivalry”, 4 December 2019
Annex 156 Bangkok Post (Thailand), “Myanmar in the dock”, 9 December 2019
Annex 157 Courrier international (France), “Aung San Suu Kyi va défendre la Birmanie,
accusée du génocide des Rohingyas”, 9 December 2019
Annex 158 Egypt Today (Egypt), “Nobel ‘peace laureate’ defends genocide against
Rohingya Muslims”, 11 December 2019
Annex 159 Sydney Morning Herald (Australia), “'She won't be spared': Rohingya refugees
reject Aung San Suu Kyi's genocide denial”, 12 December 2019
Annex 160 Dhaka Tribune (Bangladesh), “Why didn’t Bangladesh lodge the case with the
ICJ?”, 13 December 2019
Annex 161 Daily Sun (Bangladesh), “Challenges Ahead For Bangladesh”, 3 January 2020
Annex 162 Vox, “The top UN court ordered Myanmar to protect the Rohingya. An expert
explains what it means”, 24 January 2020
Annex 163 United News of Bangladesh (Bangladesh), “ICJ case against Myanmar: OIC to
convene pledging conference”, 11 February 2020
Annex 164 Arab News (Saudi Arabia), “OIC contact group discusses Rohingya protection
with UN chief”, 1 March 2020
Annex 165 Equal Times, “Gambia’s genocide case against Myanmar shows that smaller
countries can also help balance the scales of international justice”, 27 March
2020
Annex 166 New Straits Times (Malaysia), “NST Leader: Hallmarks of genocide”,
12 September 2020
Annex 167 Bangladesh Sangbad Sangstha (BSS) (Bangladesh), “Bangladesh disburses
USD 500,000 to OIC over Rohingya genocide case”, 28 November 2020
Annex 168 Bangladesh Sangbad Sangstha (BSS) (Bangladesh), “OIC draws US$ 1.2
million for Gambia to run Rohingya genocide case”, 6 December 2020
240
Publications of Other Organizations
Annex 169 Fortify Rights, “Tools of Genocide”: National Verification Cards and the
Denial of Citizenship of Rohingya Muslims in Myanmar, September 2019
[extract]
Annex 170 International Crisis Group, “Myanmar at the International Court of Justice”,
10 December 2019
Annex 171 Human Rights Watch, “What Makes Gambia a Good Champion Of The Cause
of The Rohingyas, Interview with Reed Brody”, 16 December 2019
Annex 172 Human Rights Watch, “Interview: Landmark World Court Order Protects
Rohingya from Genocide”, 27 January 2020
Annex 173 Alison Smith and Francesca Basso (No Peace Without Justice), “Justice for the
Rohingya: What has happened and what comes next”, Coalition for the
International Criminal Court, 13 February 2020
Annex 174 OIC Youth Capital, “‘Dhaka OIC Youth Capital 2020’ Has Officially
Launched”, 28 July 2020