The ICJ’s Order on Provisional Measures: Why does it matter?

On Thursday, 23 January, the International Court of Justice (ICJ), the principal judicial organ of the United Nations, indicated provisional measures against Myanmar in The Gambia’s case alleging a campaign of genocide against the Rohingya minority. Provisional measures are ‘emergency’ measures that are meant to protect the rights at issue in the case until it can be decided -- a process that will take several years. The Gambia sought these measures on the basis that the remaining Rohingya population in Myanmar -- approximately 600,000 people -- faces an on-going risk of genocide at the hands of Myanmar’s military and security forces.

In a remarkable decision, the 17-judge panel voted unanimously to impose provisional measures, describing the Rohingya population in Myanmar as ‘extremely vulnerable’ and dismantling Myanmar’s jurisdictional objections. In brief, Myanmar must take all measures within its power to prevent the commission of genocidal acts against the Rohingya, including by its military or paramilitary groups. (The Court noted that the Rohingya appear to be a protected group for purposes of the 1948 Genocide Convention.) Myanmar must also take effective measures to prevent the destruction of evidence and submit periodic reports to the ICJ on its efforts to implement the Court’s order.

First, it is important to understand not only what the ICJ decided, but also what it did not decide. This phase of the case was limited to whether the rights of the Rohingya (and, by extension, The Gambia) face a serious risk of irreparable harm. The aim of the measures is to protect the Rohingya from acts that could threaten their existence as a group. But the ICJ has not yet made any determination about whether Myanmar has violated the 1948 Genocide Convention or whether the events since August 2017 meet the strict legal definition of genocide. These are questions for the merits, and it is not a foregone conclusion that the Court will find that Myanmar has engaged in genocide. The Court’s ruling on provisional measures is without prejudice to those questions.

Secondly, it is worth reflecting on the unanimity of the decision. Even the judge that Myanmar appointed to the bench for this case (since there is otherwise no ICJ judge from Myanmar) voted against Myanmar and rejected the argument that The Gambia had failed to make out its case. Judges from China, India, Japan, and Russia also supported the Court’s decision. Among that group, only judge Xue, from China, wrote separately.

In some ways, her vote in favour of the decision was surprising, because she explained in her opinion that she questioned whether a state such as The Gambia, which has suffered no direct injury as a result of Myanmar’s alleged conduct, could even bring such a case, and she expressed serious doubts that the evidence could ever demonstrate genocidal intent. Her decision to support the Court’s order appears to have been driven instead by humanitarian considerations and that whether or not the abuses that the Rohingya have suffered amount to genocide, the ‘gravity and scale of the alleged offences’ merited intervention. It is very unlikely that any eventual judgment on the merits will reflect this same measure of consensus.

Thirdly, despite the ICJ order being a clear ‘win’ for The Gambia and for the Rohingya, The Gambia did not receive exactly what it requested. For example, The Gambia had asked the Court not only to direct Myanmar to comply with its existing obligation to prevent genocide, but to specify conduct that might constitute acts of genocide, ranging from extrajudicial killings and sexual violence to the destruction of villages and livestock. The Court declined to provide this precision, which may increase the likelihood of disputes about whether Myanmar is complying with the measures. The ICJ also declined to order Myanmar to grant access to UN investigators, who have otherwise conducted their work from outside Myanmar’s territory, mainly in the camps in Bangladesh. This decision was not surprising given the intrusiveness of this measure, but the Court, unfortunately, gave no explanation for rejecting this proposal.

Indeed, this case is shaping up to be a battle of fact-finding reports, with The Gambia relying heavily on the work of various UN bodies and Myanmar trumpeting the findings of its own International Commission of Enquiry (ICOE), which finalised its report this week. While a summary of ICOE’s findings has been released, the full report has not.

However, the ICOE summary was keen to attack the credibility of the UN fact-finding reports, while doing nothing to explain the ICOE itself demonstrated the standard of ‘quality control’ that it demands from others. Notably, the ICOE report concedes that war crimes and gross human rights violations by government forces took place, but rejects allegations of genocide. If Myanmar seeks to rely on this report in the ICJ case, however, it will need to be made public so that it can be properly assessed. The ICOE is widely seen as not meeting baseline standards of independence and impartiality, but The Gambia or Rohingya supporters will still need to rebut its assertions.

Finally, will these provisional measures make any difference? It is true that states do not always comply with ICJ provisional measures, which are legally binding, and enforcement can depend on the political will of other states -- a willingness to put pressure on Myanmar to comply. One can hope that the additional scrutiny that these measure place on Myanmar will serve as a constraint of some sort, such that security forces will refrain, at least in some instances, from objectionable conduct that they might otherwise have engaged in.

But concerns about whether the measures will be effective should not overshadow the fact that the Court’s decision has formally recognised the precarious situation that the Rohingya face -- a finding that is significant in itself. One can only imagine how emboldened the Myanmar government might have felt if the ICJ had declined to recognise the gravity of the situation and the genuine risk of further harm.

* Michael A Becker is an adjunct assistant professor of Law, Trinity College Dublin