ICJ Rules Gambia Genocide Case Against Myanmar Can Proceed

July 22, 2022

The International Court of Justice (ICJ) today ruled, by a vote of 15-1, that it had jurisdiction to decide whether Myanmar is responsible for committing genocide against its Rohingya Muslim minority.

In rejecting the objections raised by Myanmar, the Court agreed to hear the merits of the case brought by The Gambia, on its own behalf and with the support of the 57-member Organization of Islamic Cooperation, under the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide.

The Gambia was represented by attorneys from Foley Hoag LLP. The ICJ ruled overwhelmingly in favor of The Gambia and rejected all four of Myanmar’s preliminary objections to the Court’s jurisdiction. The Court unanimously rejected three of those preliminary objections, and rejected the other one in a 15-1 vote. “This ruling confirms that all states party to the Genocide Convention can call any other state party to account before the Court for violations of the Convention, even when the victims are not their own nationals,” said Foley Hoag partner Paul Reichler, who heads the legal team.

“Today’s ruling by the ICJ means that the Court will consider The Gambia’s proof of its allegations that Myanmar is responsible for acts of genocide against the Rohingya, which we believe demonstrate conclusively that Myanmar is guilty of these heinous crimes,” said Arsalan Suleman, Foley Hoag co-counsel on the case.

The Gambia filed the case on November 11, 2019, following publication of extensive UN reports documenting Myanmar's violations against the Rohingya and concluding that they amounted to genocide. The ICJ unanimously granted The Gambia's request for provisional measures, on January 23, 2020, ordering Myanmar not to commit acts of genocide, to take affirmative steps to prevent genocide, to preserve evidence of genocide, and to report to the Court on its implementation of those measures.

Myanmar formally objected to the Court's jurisdiction on January 20, 2021, ten days before its government was overthrown by a military coup d'etat. Since then, the military government has represented the State in the proceedings before the Court, appointing new counsel, and presented Myanmar's jurisdictional objections during oral hearings in February 2022.

Following the July 22, 2022 ruling, Myanmar will have until April 24, 2023 to file a Counter Memorial on the merits of the case, in response to The Gambia's Memorial, filed on October 23, 2020. Under the Court's standard procedures, there will most likely be a second round of written pleadings, followed by oral hearings, before the Court ultimately decides on the merits of The Gambia's claims.

Foley Hoag attorneys Paul Reichler, Arsalan Suleman, Andrew Loewenstein, Tafadzwa Pasipanodya, Yuri Parkhomenko, Professor Pierre d’Argent, Rebecca Gerome, Alejandra Torres Camprubi, Diem Ho, and Yasmin Al Ameen were part of the legal team representing The Gambia, along with Professor Philippe Sands, QC, and Jessica Jones of Matrix Chambers, London.