Aung San Suu Kyi, State Counsellor and Minister of Foreign Affairs of Myanmar (formerly known as Burma), will lead the delegation of her state in a case initiated by the Gambia, a tiny Western African nation, under the 1948 Genocide Convention before the International Court of Justice (ICJ).

Suu Kyi’s presence will add to the global attention to this case. She received her Nobel Prize for her courageous resistance, at great personal cost, against the military regime which she is now defending. The legacy of her father Aung San, a national hero, rests in part on the perception that if he had not been assassinated, his ability to unify Myanmar would have prevented it from being torn apart by ethnic strife following its independence from the British Empire in 1948.

This contribution aims to address the main legal questions about this case ahead of the hearings on the Gambia’s request for provisional measures.

Why did the Gambia initiate this case?
The Gambia does not seem to be the most obvious candidate to initiate this case. However, there are a few good reasons. The Gambia is a predominately Muslim country and a member of the Organisation of Islamic Cooperation (OIC), a multilateral organisation which represents most of the Islamic world. While other, more prominent members may have political reasons not to launch an inter-state case against Myanmar, these considerations matter less to the Gambia. Indonesia and Malaysia, for example, are members of the Association of Southeast Asian Nations (ASEAN), together with Myanmar. Myanmar is also enjoying considerable support from China and states may not want to jeopardise their relationships with the emerging geopolitical power.

From a legal point of view, inter-state cases can only take place between states which have a legal interest in the proceedings. It is however established case-law of the ICJ that the obligations in the Genocide Convention are of an erga omnes nature, which means that they are of legal interest to the international community as a whole, and all other states individually. This means that in theory, each of the 152 states party to the Convention could institute a case against any of the other states accused of committing genocide. The only exception is when those states have made a reservation to Article IX of the Convention, which provides for the ICJ’s jurisdiction, although such reservations are controversial. Neither the Gambia nor Myanmar has made one.

Why a case about the Rohingya, and not any of the many other ethnic groups suffering from persecution and repression at the hands of other states?
Apart from political considerations, there are good legal reasons not to initiate a genocide case lightly. Genocide as a crime is notoriously difficult to prove. In the two previous cases in which the ICJ was asked to examine allegations of genocide, Bosnia and Herzegovina v. Serbia and Croatia v. Serbia, almost all allegations of genocide were found unproven except for the genocide in Srebrenica on 11 July 1995. This is because genocide not only consists of genocidal acts, but these acts must be committed with genocidal intent. This means there needs to be evidence that the acts were committed with the specific intent to destroy the targeted group in whole or in part. In addition, this evidence must be, in the words of the ICJ, ‘fully conclusive’ - a mere preponderance of evidence is insufficient.

In Bosnia v. Serbia, for example, the Court did find that many of the ‘ethnic cleansing’ operations which took place in Bosnia and Herzegovina in late 1992 consisted of potentially genocidal acts, as numerous atrocities had been committed by Bosnian Serb forces. However, it did not conclude that it could be proven that these acts had been committed with genocidal intent, as no clear evidence had been presented to the Court that there was a plan to destroy these groups as such. Because the Court only had jurisdiction to rule on genocide and not on any other human rights violations, the operative part of the final judgment seemed much more exculpatory than the judgment really was.

In its application in the present case, the Gambia relies on three UN reports which conclude that there is strong evidence that a genocide against the Rohingya has been taking place, including many pieces of evidence of genocidal intent. The ICJ, as the principal judicial body of the UN, tends to afford a lot of weight to such reports but still makes its own determination. In many other cases of alleged genocide, much less evidence is available.

What can we expect from the hearings?
The hearings this week are on the Gambia’s request for provisional measures, which aims to stop alleged genocidal acts which are still taking place. The Court will therefore only make preliminary determinations on its jurisdiction and on the existence of genocidal acts – it will most likely focus less on intent. One indication is how it conducted Bosnia and Herzegovina’s requests for provisional measures in 1993. At that stage of the proceedings, it found Bosnia’s allegations sufficiently credible to order the then Federal Republic of Yugoslavia to do everything within its power to prevent acts of genocide and to order any of its surrogates such as militia or paramilitary forces to refrain from genocidal acts. The support Bosnia and Herzegovina enjoyed from UN organs played a large role in establishing its credibility. In the present case, it is likely that the Court will afford a lot of weight to the Gambia’s allegations as they are supported by multiple UN fact-finding reports and it is therefore likely to accede to its request for provisional measures.

What will happen next?
After these proceedings, Myanmar may raise preliminary objections against the jurisdiction of the court and the admissibility of the case. These procedural hurdles need to be overcome before the Court can proceed to an examination on the merits. The ICJ will be aware that it is operating in a political minefield, just like it did in the Bosnian and Croatian Genocide cases. It is particularly interesting, if the jurisdictional hurdle is taken, whether it will take an active role in the collection of evidence, as unlike in the Bosnian and Croatian genocide cases, it will not be able to rely on the findings of an international criminal tribunal such as the International Criminal Tribunal for the former Yugoslavia (ICTY). This may change now that an International Criminal Court (ICC) Trial Chamber has authorised its Prosecutor to proceed with an investigation into the Rohingya situation, but at this point it is unclear which of these proceedings will move forward faster and whether findings of the one court may influence the other.

We should not expect too much initiative from the ICJ. It sees its own role primarily as passive, relying on the evidence brought before it by the parties, which means that the Gambia will need to make a strong case and Myanmar will focus on dismantling it. In Bosnia v. Serbia, the Court even proved reluctant to order Serbia to produce crucial evidence in the form of the minutes of Serbia’s Supreme Defence Council, to which the ICTY had access, but Bosnia and Herzegovina did not. This evidence could conceivably have changed the Court’s findings on both the questions of state responsibility and genocidal intent.

Will Aung San Suu Kyi lose her Nobel Prize?
The Nobel Peace Prize has long been the most controversial of the Nobel Prizes. Its laureates can hardly be qualified as a group of people with clean hands, either before or after winning the Prize. If Myanmar would be found responsible for genocide, it would look particularly strange that its defence was headed by someone who had been praised by the Nobel Committee in particular “for her non-violent struggle for democracy and human rights”. No laureate has had their Nobel Prize revoked, although Aung San Suu Kyi has lost some of her other awards. The Nobel Committee itself has stated that Nobel Prizes are awarded for past achievements and the rules do not allow for prizes to be withdrawn.