On November 11, 2019, The Gambia filed an application at the International Court of Justice (ICJ) instituting proceedings against the Republic of the Union of Myanmar for violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide in respect of the Rohingya group. The case was brought pursuant to the Convention’s obligations that are considered erga omnes (owed to the international community as a whole) and erga
omnes partes (owed by all member States to the Convention). In other words, a public interest case.
On January 23, 2020, the ICJ issued an order requiring Myanmar to take measures to prevent the risk or possible recurrence of genocide against the Rohingya minority and to preserve evidence of the 2017 attacks. Myanmar is required to report periodically on the measures it has taken to comply with the Order. The purpose of the provisional measures reporting requirement is to permit the Court to assess the appropriateness and adequacy of measures taken and to consider whether additional measures may be merited. Myanmar’s two reports filed to date have been classified confidential, available only to the Court and The Gambia. Myanmar’s third report is due in the coming days.
The Genocide Convention is of direct interest to the 150 other States parties to the treaty in addition to The Gambia and Myanmar. Each State party has both obligations and rights relating to the situation and the case itself. Nonetheless, the confidential natur of Myanmar’s reporting does not permit these States to assess their own obligations or rights. The confidential reporting also precludes the UN Security Council from ensuring that it is fulfilling its obligations relevant to maintaining and restoring international peace and security with respect to the situation in Myanmar. Most importantly, confidentiality excludes the victims, the Rohingya themselves, from knowledge of the specific process or from being active participants in ensuring Myanmar’s compliance with the Order. For these reasons alone, the ICJ should re-evaluate its approach to confidentiality and make Myanmar’s reports publicly available. Publication would be consistent with the letter and spirit of the Genocide Convention and with the UN Charter and correct the existing practice.
The coup d’état of February 1, 2021 has changed the circumstances of the case, increasing risk for the Rohingya and causing greater confusion as to intentions of the military junta with the real prospect that the junta will be shielded through confidentiality while the States parties and the victims remain in the dark. In the current crisis, it is all the more critical that Myanmar’s reports be made public without delay in order for the international community as a whole, including the Rohingya as victims, to see, assess and draw conclusions on any measure which Myanmar has (or has not) taken.
