International Court of Justice (ICJ) Provisional Measures in The Gambia v Myanmar Case: A commentary

1.    Introduction

Earlier this year, the International Court of Justice (ICJ) indicated provisional measures in the case brought by The Gambia against Myanmar (The Gambia v Myanmar No. 2020/14) requesting five provisional measures to preserve and protect the lives of Rohingya Muslims in Myanmar under the Genocide Convention.[1] The request has raised a number of critical questions around the importance of provisional measures in the work of the ICJ and how they are framed touches on the core responsibility of states to protect human rights. This commentary is an attempt to highlight the reasoning for the granting of provisional measures in the protection of human rights. While the ICJ is not a human rights court properly so called, its evolving jurisprudence has taken into account the need to protect human rights in the adjudication of international law.

Before the Court grants provisional measures, certain conditions must be fulfilled. The Court must have competent jurisdiction to take on the matter. Secondly, the party initiating the request must have prima facie locus standi without which it will have been unable to bring the case forward as it would not have any interest, whatsoever to seek preservation for the rights which it does if there were no connection to it through a treaty (the Genocide Convention). Third, a link between the measures being sought and the rights being violated must be established. Lastly, there must also be a real risk that irreparable damage is likely to take place at any time before the Court gives its final decision.[2]

The Court, after realizing that all the conditions set forth had been fulfilled, made the indications of the provisional measures sought by the Gambia against Myanmar in 2019. The nature of the provisional measures are such that as long as the Court has not made any specific indication that they are not binding, the parties and all involved shall see the measures as binding on the States parties to the proceedings. This decision was made in the LaGrand case[3] where the question as to the binding nature of the provisional measures arose before the Court and a decision was made that the purpose of the indications would be missed if they were not binding. The Court’s decision in the LaGrand case made it possible for states to be forced to implement the provisional measures since failure to do so would give the applicant state the right to request for a sanction giving the Court ways to ensure compliance of said measures.[4]

Numerous scholars are of the opinion that the ICJ has not yet established a concrete framework[5] of the remedies that are available however, the Court does have jurisdiction to determine the character or extent of the reparations or measures to be taken for the breach of an international obligation.[6] Provisional measures as a protection of a guarantee for preventive character serves as one of the most fundamental instruments used by adjudicatory bodies to protect existing rights. These measures are susceptible to improvements into more permanent remedies rendering them basically temporary.[7] Provisional measures are made to safeguard the main object that relates to a case and prevent its change in any way.

The Court’s power to grant interim reliefs i.e. provisional measures to requesting parties is derived from Article 41 of the ICJ Statute. The said Article reads:

1.    The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.

2.    Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.[8]

As demonstrated in the cases of Interhandel (Switzerland v. United States of America) and the Legality of Use of Force (Yugoslavia v. Spain), there is no specific level of urgency that surrounds the request of reliefs by the parties and acceptance by the Court.[9] In the former, the Court stated that there was no urgency to the request of Switzerland as the USA had given assurances not to conduct a sale of the object of the matter[10] while in the latter, the Court refused to indicate measures but relayed its deep concern for the tragedies that were happening.[11] It is important to note that any procedure that relates to provisional measures is entirely based on the discretion of the Court. The Court is guided by the authority that is the Statute but it has discretion to determine the requests made and to make them in accordance with their finding and deliberation based on the circumstances they may consider as necessary to be the foundation of the interim reliefs.

2.    The Rights Whose Protection is Sought and the Link Between Such Rights and the Measures Requested

 As already mentioned above, the rights whose protection is sought must be linked with the measures that are requested. As articulated in Article III of the Genocide Convention, the following acts shall be punishable: 

a)    Genocide; 

b)    Conspiracy to commit genocide; 

c)    Direct and public incitement to commit genocide; 

d)    Attempt to commit genocide; 

e)    Complicity in genocide.[12]

The provisions above seek to protect the rights of members of a national, ethnical, racial or religious group. Rights which The Gambia claimed in its request for provisional measures and the Court found that the people of Rohingya were in fact, a group that fell under the provisions of the Genocide Convention.

The Court found that the link between the provisional measures sought and the rights claimed has been established as it recalled that certain genocidal intentions/acts were deducible from the conduct against the people of Rohingya in Myanmar as can be found in the reports of the Fact-Finding Mission.[13] At the hearings of the matter, Myanmar stated that international humanitarian law may have been violated during something that was referred to as “clearance operations” that took place in Rakhine State in 2017. The Court further refers to resolution 73/264 adopted on 22 December 2018 by the General Assembly of the United Nations, in which the latter condemned the widespread and systematic crimes committed by Myanmar forces against the Rohingya in Rakhine State.[14]

3.    Risk of Irreparable and Imminent Damage

On the issue of irreparable damage and urgency, the Court noted from the Fact-Finding Mission that horrific acts such as mass killings, widespread rape and other forms of sexual violence, as well as beatings, destruction of villages and homes, denial of access to food, shelter and other essentials of life are all inflicted upon the Rohingya group in Myanmar affecting their rights as provided by the Genocide Convention. In consideration of all these, the Court finds that there was a real, imminent and irreparable damage to the rights as claimed by The Gambia.[15]

4.    Conclusion

As one of the objects recognized for provisional measures, the Court’s interest is protecting public interest and maintaining peace and order through maintenance of the rights provided in the relevant conventions. The Court concluded that all the conditions required by its Statute to have the request for provisional measures granted had been met and proceeded to granting the requests made by The Gambia against Myanmar. Even though, this decision may not have any bearing on the merits of Gambia’s claim, it indicates the potential of ICJ in reminding states their primary responsibility in international human rights law.

About the author

Ms. Jeng is a final-year Law student at the University of The Gambia. She is ambitious about writing and editing. Although this is her first legal article, she maintains a blog that can be found at: https://yaawajeng.wixsite.com/perfectbruises1 where she occasionally posts her various write-ups based on a wide range of topics that she finds interesting. She hopes to pursue a career in Criminal Psychology.