How can Bangladesh bolster the Gambian lawsuit against Myanmar?
Gambia, a West African republic, has taken the bold step to bring Myanmar to court over the Rohingya crisis.
In his deposition to the International Court of Justice, the Gambian attorney General Abubacarr M Tambadou appealed to the court by saying: “All that The Gambia asks is that you tell Myanmar to stop these senseless killings, to stop these acts of barbarity that continue to shock our collective conscience, to stop this genocide of its own people.”
Gambia has asked for provisional measures to direct Myanmar to bring an immediate respite in the conflict. A final judgment on the breach of the 1948 Genocide Convention may come at a later time.
Gambia is acting with the support of the Organization of Islamic Cooperation (OIC) and its 57 member states, including Bangladesh. At the OIC Council of foreign ministers in Dhaka in 2018, Gambia was given the mandate to address the Rohingya crisis in accordance with international law.
The Gambian attorney general, who was a prosecutor in the international criminal tribunal for Rwanda, visited the Rohingya refugee camps in Cox’s Bazar along with other OIC delegates. After the visit, the OIC set up an ad hoc ministerial committee to address accountability issues for Rohingya human rights violations. The committee has been chaired by Gambia.
Gambia has rightfully and lawfully initiated the lawsuit in the International Court of Justice. It has emphasized the principles of jus cogens and egra omnes which refer to customary international law and the duties and obligations of all countries towards each other.
What that means is that genocide is such a universally high crime that each state has a responsibility to hold the perpetrators accountable.
The backup from the OIC, an intergovernmental organization, reflects the support of 57 nations. In addition, Canada and the Netherlands have been the latest nations to express support for Gambia.
From a Bangladeshi perspective, it is in the national interest to have the support of the international community in holding Myanmar accountable for its actions and, ultimately, securing the right of return and self-determination of Rohingya refugees within the territorial integrity and sovereignty of Myanmar.
Bolstering the Gambian case
Article 9 of the Genocide Convention concerns recourse to the International Court of Justice. As it stands, when Bangladesh acceded to the convention in 1998, it expressed a declaration of reservation stating “Article IX: For the submission of any dispute in terms of this article to the jurisdiction of the International Court of Justice, the consent of all parties to the dispute will be required in each case.” This means Bangladesh cannot file a case against Myanmar for genocide if Myanmar does not agree to it.
This declaration should either be withdrawn or modified. Countries which have withdrawn past reservations over Article 9 include Albania, Bulgaria, Finland, Hungary, Norway, Mongolia, Poland, Romania, Rwanda, and Spain. These countries cited their realization that such reservations are incompatible with the purpose of the convention in establishing accountability.
Compulsory jurisdiction of the ICJ
The Statute of the International Court of Justice calls for countries to declare their recognition of the court’s compulsory jurisdiction under Article 36. These declarations should be filed with the Secretary-General of the United Nations.
The world court is the apex court in the UN system for international dispute resolution. The court can be the venue for Bangladesh to seek arbitration for interpreting bilateral or international treaties. Making a declaration accepting compulsory jurisdiction under Article 36 will bolster Bangladesh’s commitment to international justice and the world court.
Exploring intervention in the ICJ
Article 62 of the statute of the world court allows a country to request permission to intervene in an ongoing case if that state has an interest of a legal nature in the decision of that case. Article 63 allows a country to make a declaration of intervention when the interpretation of a multilateral convention is at stake and all states in the case are parties to that convention.
Bangladesh can consider a declaration of intervention to uphold the Genocide Convention. It can also request an intervention on the basis of securing the right of return as part of a prospective judgment in the case between Gambia and Myanmar.
The repatriation agreement between Bangladesh and Myanmar should be enforced in accordance with the principles of international law, including universal human rights, civil and political rights, and economic, social, and cultural rights.
The world court must be utilized for Bangladesh’s interests. A country which upholds international law and believes in the rules-based order must use mechanisms for the peaceful settlement of disputes.
Umran Chowdhury works in the legal field.