[Kawser Ahmed is an Advocate of the Supreme Court of Bangladesh. He is currently serving as a Consultant to the Ministry of Foreign Affairs of Bangladesh on human rights and international law.]

Introduction

A few months back, the Government of Maldives declared that it would join The Gambia before the ICJ in challenging Myanmar’s treatment of the Rohingya population during an army crackdown in 2017 under the Genocide Convention [here]. More recently, the Netherlands and Canada in a joint statement have also expressed their intention to intervene in The Gambia v. Myanmar [here]. Hence, it is quite certain that the aforesaid case will witness several incidental proceedings in addition to The Gambia’s provisional measures application which was disposed of on 23 January 2020. However, it will not be also surprising if there occur a few more incidental proceedings other than interventions and provisional measures over the course of time. The reason is the procedural laws of the ICJ will allow the parties to the case to pursue incidental proceedings like preliminary objections or discontinuance, and it deserves mention that the results of these proceedings may definitively determine the fate of the case. In view of the above, it will be interesting to know which incidental proceedings may follow next in The Gambia v. Myanmar and what will be the consequences thereof. Accordingly, this post will briefly discuss incidental proceedings as are likely to come up in this case in the future.

Preliminary Objections

It appears from the Application Instituting Proceedings that the mainstay of The Gambia’s theory of dispute is based on an unreciprocated note verbale dated 11 October 2019 whereby The Gambia urged Myanmar to comply with its obligation under the Genocide Convention. The Gambia thereafter instituted the current proceedings on 11 November 2019 without any further communication in this regard. Against this backdrop, Myanmar may decide to go for filing preliminary objections, inter alia, on the grounds that The Gambia’s application is inadmissible for non-existence or lack of crystallisation of dispute. If Myanmar so decides, it will have to file preliminary objections no later than three months after delivery of The Gambia’s Memorial (Articles 79-79ter of the Rules of Court). The ICJ has extended the time for filing of The Gambia’s Memorial to 23 October 2020 [here], and therefore Myanmar will have time to file preliminary objections until 23 January of 2021 or any earlier date depending on the submission of the Memorial if no further extension is granted. According to the Rules of Court, the proceedings on the merits of the case will be suspended as soon as Myanmar will file the preliminary objections.

 In Certain Iranian Assets (Islamic Republic of Iran v. United States of America) case, the ICJ fixed 01 February 2017 and 01 September 2017 as the respective time-limits for the filing of Iran’s Memorial and the Counter-Memorial of the US. Later, the US on 01 May 2017 filed preliminary objections to the jurisdiction of the Court and the admissibility of the Application–which is exactly the last day of three months time since the submission of Iran’s Memorial [here and here]. It should be mentioned that the ICJ delivers its decision on preliminary objections in the form of a judgment meaning that such decision becomes res judicata.

Intervention

Any interested third states including Maldives, Canada and the Netherlands may seek to intervene in The Gambia v. Myanmar under either article 62 or article 63 of the Statute of the ICJ (the Statute) as the case may be. If any such state considers that it has ‘an interest of a legal nature’ in the aforesaid case, it may apply to the Court for permission to intervene under article 62 of the Statute before the closure of written proceedings. The Case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) is the first ICJ case, in which a state, i.e. Nicaragua was granted permission to intervene under article 62 of the Statute (Judgment of 13 September 1990). On the other hand, any state party to the Genocide Convention may file a declaration under article 63 of the Statute seeking to intervene no later than the date fixed for opening of the oral proceedings on the grounds that construction of the said Convention is a matter in issue (Articles 81-86 of the Rules of Court). The S.S. Wimbledon [1923 PCIJ Series A 01] is the first case in the combined history of the PCIJ and the ICJ in which a state was granted permission to intervene on the grounds of construction of a convention (Judgment of 28 June 1923).

It should be mentioned that any states intervening under either article 62 or article 63 of the Statue do not ordinarily become parties to proceedings, nor are they invested with any rights or obligations attached to the parties. Such states are called non-party interveners. Any third state intervening under article 62 of the Statute can become a ‘party’ only when it has the necessary consent to that effect from the parties to the case. A non-party intervener, under article 62 of the Statute, will not be bound by the judgment of The Gambia v. Myanmar, nor will the judgment become res judicata for it. By contrast, for any state intervening under article 63 of the Statute, the judgment of the case will be binding on it to the extent it will relate to the intervention.

Discontinuance

The Gambia and/or Myanmar, at any time before the final judgment on the merits, either jointly or separately may notify the ICJ that they have agreed to discontinue the proceedings. The Court will then pass an order recording the discontinuance and direct that the case be removed from the list. Alternatively, The Gambia, as the applicant, may unilaterally inform the Court in writing that it will not go on with the proceedings. In the latter case, the ICJ will follow the procedures laid down in article 89 of the Rules of Court (Articles 88-89 of the Rules of Court). In the Case concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Nicaragua informed the ICJ that it had decided to renounce al1 further right of action and was not willing to continue with the proceedings. Since the US also indicated its acquiescence to Nicaragua’s request for discontinuance of the proceedings, the Court removed the case from the list (Order of 26 September 1991).

The Rules of Court permits the contending state parties to discontinue a case as a result of out-of-court settlement. In the Case concerning Aerial Herbicide Spraying (Ecuador v. Colombia), the ICJ removed the case from its list after the Ecuador notified the Court that it had concluded a settlement agreement with Colombia, and that Colombia made no objection to the discontinuance of the case as requested by Ecuador (Order of 13 September 2013). 

The Case concerning the Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America) sets an example of joint decision taken by the contending state parties so as to discontinue an ICJ proceedings. The agents of Iran and the US jointly notified the Court that their governments had agreed to discontinue the case (Order of 22 February 1996). In theQuestions relating to the Seizure and Detention of Certain Documents and Data (TimorLeste v. Australia) case, Timor-Leste decided to discontinue the proceedings in view of the fact that Australia’s action of returning the seized documents had effectively ended the dispute between the two contending states (Order of 11 June 2015).

In this connection, it is worth mentioning that the Case Concerning Trial of Pakistani Prisoners of War (Pakistan v. India), the very first contentious case brought before the ICJ invoking jurisdiction under article IX of the Genocide Convention witnessed discontinuance of the proceedings. The dispute underlying the case was the transfer of 195 Pakistani prisoners of war by India to Bangladesh, where they were supposed to face prosecution for acts of genocide and crimes against humanity. Eventually, Pakistan, referring to the settlement of the aforesaid dispute by and under Delhi Tripartite Agreement, informed the ICJ of its decision to discontinue the proceedings (Order of 15 December 1973). In the present case however, it appears that Myanmar’s continued unwillingness to acknowledge and address the commission of genocide against the Rohingyas will likely hinder any slightest prospect of mitigation of the dispute concerning interpretation and application of the Genocide Convention. In the circumstances, the chance of discontinuance of proceedings seems fairly low.

Others

Besides the aforementioned incidental proceedings, the ICJ, either at the instance of the parties or proprio motu, may again indicate provisional measures, or revoke/modify the earlier provisional measures in connection with the proceedings of The Gambia v. Myanmar (Articles 73-76 of the Rules of Court). For example, in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), several applications were filed for indication of provisional measures by both the applicant and the respondent states. Lastly, the Rules of Court will allow Myanmar to submit counter-claims in its Counter-Memorial. However, the factual background of the case does not seem to warrant such possibility (Article 80).

Although non-appearance has not been listed among the incidental proceedings in the Rules of Court, having regard to how it has been dealt with in the Statute, especially its envisaged consequence, it appears to be rather appropriate to discuss non-appearance along with incidental proceedings. Non-appearance is governed by article 53 of the Statute of the ICJ. If The Gambia or Myanmar at any point of time decides not to take part in the proceedings of the case any further, the other party may then call upon the Court to decide in favour of its claim. In the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the US initially appeared before the ICJ, however, later refrained from taking part in the proceedings after the Court had decided that it had jurisdiction to deal with the case. In accordance with the ICJ’s ruling in the foregoing case, a non-appearing party continues to remain a party to the case (provided that the Court has jurisdiction), and is bound by the judgment as per article 59 of the Statute.

In regard to The Gambia v. Myanmar, the military-preponderant-government of Myanmar has been consistently denying commission of genocide against the Rohingya population in and out of the Court. On the other hand, the UN Fact-Finding Mission has documented details of planned and deliberately executed mass-killings, forced disappearances, mass gang rape and other forms of extreme violence perpetrated against the Rohingyas in Rakhine State since 25 August 2017 [here]. As the proceedings of the case will go on, more information and evidences in this regard will come to light. Hence, it remains to be seen how long the military-preponderant-government of Myanmar can hold out against the truth. One should not be surprised if Myanmar stops appearing in this case at some point in the future.

Conclusion

In the end, it can be safely predicted that The Gambia v. Myanmar will witness at least a few of the incidental proceedings as discussed hereinabove. Incidental proceedings before the ICJ have always been a matter of interest for the scholars, practitioners and students alike. Already, The Gambia’s application for provisional measure was able to arouse a good deal of interest among international legal community. As may be presumed, the incidental proceedings that are likely to follow next in this case will be equally interesting.

NB: This article was published for Opinio Juris  on 16/10/2020. RK has posted here only for the benefit of its large Rohingya readers and those working for the Rohingya.