Bangladesh & The Gambia v Myanmar

The Gambia initiated a contentious proceeding in the International Court of Justice (ICJ) on 11 November 2019 bringing allegations of violations of the Genocide Convention 1948 against Myanmar. The Court has already held that it has jurisdiction to try the case under Article IX of the Genocide Convention (Judgment on Preliminary Objections, 22 July 2022, para 89). Undoubtedly, Bangladesh has an interest in the outcome of The Gambia v Myanmar case. Nonetheless, it is unfortunate that Bangladesh has not yet attempted to effectively engage with this proceeding. As Bangladesh is not a disputing party, the only way for Bangladesh to get involved is by way of intervention either under Articles 62 or 63 of the Statute of the Court.

Article 63 is basically an interpretative intervention tool providing an opportunity to third states to protect their common collective interests within the bilateral framework of dispute resolution. This was one of the least used provisions of the Court's Statute until Ukraine v Russia (2022) where 33 states being parties to the Genocide Convention submitted their declarations of intervention. In the latest order dated 5 June 2023, the Court decided on the admissibility of these declarations finding all of them to be admissible so far as they concern the interpretation of Article IX and other provisions of the Genocide Convention except for the declaration by the US. The declaration by the US was held to be inadmissible due to its reservation to Article IX (paras 93-99). The massive intervention in Ukraine v Russia is encouraging for The Gambia v Myanmar case due to the involvement of the same Genocide Convention in the latter. However, following the Court's order, Bangladesh will not be able to intervene under Article 63 because of its reservation to Article IX of the Genocide Convention which resembles the US reservation.

The Gambia v Myanmar case having initiated in November 2019 witnessed no intervention requests whereas the Ukraine v Russia case with the initiation date of February 2022 has already witnessed 33 interventions. Despite repeated assurances by Canada and the Netherlands to submit their joint declaration of intervention in The Gambia v Myanmar case, their commitments remain unfulfilled to date. This in a way represents the diplomatic failure on part of The Gambia, Bangladesh, and other interested states to collaborate. As the case has entered the merits phase, it is high time that Bangladesh utilised its diplomatic relations with other countries. 

The purpose of intervention under Article 62 is protective, covering only an "interest of a legal nature." The principal challenge for Bangladesh will be to demonstrate the interest of a legal nature capable of being affected by the Court's decision. Moreover, the Court's jurisprudence on Article 62 indicates an extremely restrictive approach. However, the following observations might be beneficial from the perspective of Bangladesh. Firstly, in The Gambia v Myanmar , the Court already acknowledged the large influx of members of the Rohingya group faced by Bangladesh (Judgment on Preliminary Objections, 22 July 2022, para 113). Secondly, The Gambia, amongst others, sought relief directing Myanmar to perform the obligations of reparation by allowing safe and dignified return of the forcibly displaced Rohingyas. The granting or not granting of this request by the Court will carry significant consequences for Bangladesh as directly affected by the huge influx. Thirdly, the growing trend of compensation culture developed by the Court in recent years will certainly add new dimension to this case if Myanmar persistently breaches the provisional measures earlier issued by the Court. Finally, with provisional measures against Myanmar already in place, the Court's judgment in rejecting Myanmar's preliminary objections might give a hint as to what might be coming. The parallel progression of the Ukraine v Russia case with similar theme also distinctly points towards an outcome favourable to The Gambia.

Although, it is already late to apply under Article 62 of the Statute considering the time frame of Article 81 of the Rules, Bangladesh may be able to satisfy the "exceptional circumstances" requirement. The Court is likely to accept this as Bangladesh lacks substantive experience with international proceedings (of such stature and nature). If Bangladesh does not get involved in the proceeding, even a judgment favourable to The Gambia may not practically benefit Bangladesh. There is no reason as to why Bangladesh should not at least attempt to apply under Article 62 when its stakes are extremely high. Bangladesh cannot expect The Gambia or any other country to plead its case before the Court.       

The writer is an Advocate, Supreme Court of Bangladesh.