Opinion Rohingya genocide case against Myanmar at ICJ can shape standards on evidence and accountability
The Genocide Convention enables any state party to bring a case against another, even if it doesn’t have any direct link to the conflict in question — exactly how Gambia could bring Myanmar to the ICJ
At a time when the world is witnessing an increase in armed conflicts, this case could set an accountability standard where direct orders are rarely documented but patterns of violence are stark and compelling. The long-awaited case alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 (“Genocide Convention”) by the Myanmar military in its treatment of the Rohingya has finally reached the International Court of Justice. On January 12, the ICJ finally began a series of hearings led by Gambia, on the “clearance operations” carried out by Myanmar’s armed forces that resulted in the mass forced displacement of more than 7,00,000 Rohingya people into Bangladesh, where they continue to live in sprawling, overcrowded refugee camps.
Reports suggest that the crimes committed during these clearance operations included mass murder, rape and other forms of sexual violence, and systematic destruction by fire of Rohingya villages, often with inhabitants locked inside burning houses. Independent investigations by various international institutions have already characterised these operations as amounting to “genocidal” acts.
The Genocide Convention was adopted by the United Nations after the horrors of the Holocaust and World War II to make genocide a crime under international law and to prevent and punish it. The Convention most importantly imposes positive obligations on states to prevent genocide, making them accountable even if they are not directly affected by it. It also enables any state party to bring a case against another even if it doesn’t have any direct link to the conflict in question — exactly how Gambia could bring Myanmar to the ICJ.
This case presents a crucial opportunity for the ICJ to clarify its previous jurisprudence, established in Bosnia and Herzegovina v Serbia and Montenegro (2007), on genocidal intent. There has largely been a debate on the inference of such intent and whether the “only reasonable inference” standard test can be employed to infer it. This is because proving specific intent has been challenging, a reason why even the International Criminal Tribunals for Rwanda and Yugoslavia have inferred its existence from circumstantial evidence.
In Bosnia, the ICJ held that large-scale forced displacement, when accompanied by killings, destruction of homes, and systematic targeting of a protected group, could constitute evidence relevant to establishing genocidal intent, even though displacement alone does not amount to genocide. The Court categorically recognised that “genocidal” intent may be inferred from a pattern of conduct where acts such as village destruction, terrorisation of civilians, and expulsion collectively demonstrate an intention to destroy the group’s ability to exist within a given territory. It will be interesting to see if the court will follow Bosnia’s reasoning and recognise that intent can be established through cumulative evidence rather than explicit instructions to kill.
In Croatia v Serbia (2015), the ICJ held that although serious crimes were committed during the Yugoslav wars, Croatia had failed to prove the specific intent required for genocide, reaffirming that genocide has a very high evidentiary threshold. In this backdrop, the larger question will be whether genocidal intent against the Rohingya can be legally inferred, with consequences for how the claims against the Myanmar government are assessed both internationally and domestically. This assumes heightened importance in light of parallel and emerging genocide claims, most notably South Africa’s application against Israel, where similar questions concerning intent, proportionality, and state responsibility under the Genocide Convention are under judicial scrutiny.
At a time when the world is witnessing an increase in armed conflicts, this case could set an accountability standard where direct orders are rarely documented but patterns of violence are stark and compelling. It will also have far-reaching implications for national courts dealing with Rohingya refugees. A finding by the ICJ that Myanmar breached the Genocide Convention would strengthen the legal basis for national courts to recognise the Rohingya as victims of genocide, influencing decisions on asylum, non-refoulement, complementary protection, and reinforcing states’ obligations under international refugee and human rights law to afford them enhanced protection. For the Rohingya, this is a battle to be recognised in a world where they are trapped in a vicious cycle of atrocities and impunity, a world where most believe that nothing has really happened.
The writer is senior resident fellow at Vidhi Centre for Legal Policy
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