By Prof. Gregory Rose (Senior Fellow, thinc.)
In the coming months, the UN International Court of Justice (ICJ) will deliver its judgement in the case The Gambia v. Myanmarconcerning the 1948 Genocide Convention currently before it, launched in 2019.[1] The written and oral phases have closed, and the Court is currently preparing its decision.
This is a show case sponsored by the Organisation of Islamic Cooperation (OIC), which has played an instrumental role in enabling The Gambia to pursue its case against Myanmar. The OIC supported (and possibly even assisted) South Africa’s case against Israel.
Interestingly, several European states intervened in The Gambia v. Myanmar case in support of The Gambia. They are urging the Court to modify its approach to the interpretation and application of the Genocide Convention. They to do so in five respects:
- “Holistic” approach to the determination of criminal intent under the Genocide Convention.
- Lowering of threshold for proof of genocide.
- Switch of burden of proof to disprove genocide.
- Preferential reliance on UN Reports as evidence.
- Application of Genocide Convention to IHL in armed conflict.
We understand that this joint “European” intervention was spearheaded by the Dutch Ministry of Foreign Affairs legal office. The intervening states are Canada, Denmark, France, Germany, the Netherlands and the United Kingdom. The joint intervention was lodged with the Court on 15 November 2023.[2] This intervention was subsequently supported, possibly in view of the Gaza war, by Belgium[3], Ireland[4] and Slovenia[5], and also by the Democratic Republic of Congo.[6]
It is extremely important to be aware that the approach that the Court takes in the Myanmar case will potentially have significant impact on subsequent cases under the Genocide Convention. Most immediately, this concerns the case of South Africa v. Israel, which is currently in the merits phase. Twenty-two states have intervened in the latter case, and of these Spain, Ireland, Belgium, Netherlands and Iceland are effectively presenting the same arguments as those submitted in the joint “European” intervention in Myanmar.
There are a number of remarkable connections between the Myanmar and Israel cases, which indicate that the former case is being used by the OIC and a number of intervening states to influence the Court to take a novel approach to the Genocide Convention, in such a way as to make it more likely that it will make a finding that Israel has breached its obligations under the Genocide Convention:
- The joint “European” intervention in Myanmar was filed on 15 November 2023, which is shortly after the attack on Israel on 7 October 2023, and several weeks prior to South Africa’s launch of its case against Israel in late December 2023;
- Several members of the legal team of Myanmar are also counsel for South Africa[7];
The Gambia appointed Ms. Navanathem (Navi) Pillay in 2019 as ad hoc judge in the Myanmar case; Ms. Pillay was also (until recently) Chair of the UN Human Rights Council’s Independent International Commission of Inquiry on the Occupied Palestinian Territory including East Jerusalem, and Israel, and a strong proponent of the view that Israel is guilty of committing genocide. The reports which have been published by that Commission under her Chairmanship bear some striking similarities to the approach advocated by the European states in Myanmar.
The Organisation of Islamic Cooperation (OIC) has played an instrumental role in enabling The Gambia to pursue its case against Myanmar, and supported (and possibly even assisted) South Africa’s case against Israel.
The proposed reinterpretation of the Genocide Convention raises concerning issues for Western-oriented states. A more lenient and expansive interpretation of the Genocide Convention will potentially endanger future peacekeeping operations and participation by States in legitimate urban warfare or counter-terrorism operations by increasing their vulnerability to genocide charges brought by the opponent’s supporting States. Operations against combatants embedded within civilian infrastructure, the use of civilian shields, civilians directly participating in hostilities, civil-military dual use objects and especially combatant strategies employing massively amassed civilian shields will all raise charges of genocide.
The Court’s jurisdiction under the Genocide Convention is increasingly being weaponised as a lawfare tool for geopolitical leverage. After decades of neglect, four genocide cases have been lodged in the past four years (with more likely future cases in the pipeline) in the context of armed conflicts.[8] Increasingly, third states are intervening in such proceedings[9], advocating approaches to factual and legal matters that advance certain geopolitical, ideological or military agendas.
[1] ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar: 11 states intervening); https://www.icj-cij.org/case/178.
[2] Id; https://www.icj-cij.org/case/178/intervention.
[3] https://www.icj-cij.org/sites/default/files/case-related/178/178-20241212-int-01-00-en.pdf
[4] https://www.icj-cij.org/sites/default/files/case-related/178/178-20241220-int-01-00-en.pdf
[5] https://www.icj-cij.org/sites/default/files/case-related/178/178-20241122-int-01-00-enc.pdf
[6] Ibid.
[7] Notable are Prof. Philippe Sands and Prof. John Dugard – both of whom also played leading roles as members of the Palestinian delegation in the Advisory Opinion proceedings initiated by the Palestinians in the UN concerning the legal consequences of Israeli policies and practices in Occupied Palestinian Territory: https://www.icj-cij.org/case/186
[8] 2022 Ukraine v Russia; 2023 South Africa v Israel; 2023 Nicaragua v Germany; 2025 Sudan v United Arab Emirates.
[9] Eleven states intervened in the Myanmar case, and so far a massive 22 states have intervened in the Israel case, with the possibility of more interventions.
