Thread by @mabecker17

The news that #Gambia has started proceedings against #Myanmar at the #ICJ for alleged violations of the #GenocideConvention with respect to the #Rohingya is a very important development. It could also set a major precedent in terms of inter-state human rights enforcement. 1/9

This is not the first #ICJ case brought by a non-injured state seeking to enforce obligations erga omnes, but it's the first relating to genocide. As I have written about (bit.ly/2Q8zVQY), the #Rohingya situation strongly suggested the potential for just such a case. 2/9

However, no one should assume that bringing this case is risk-free or a ‘slam dunk’. #Myanmar might refuse to appear, depriving #Gambia and its supporters of the opportunity to force Myanmar to defend its conduct in the formal judicial setting of the Great Hall of Justice. 3/9

More crucially, even on a set of facts that is horrific by any measure (see the UN fact-finding report at bit.ly/2pbu5n0), proving genocide under the #GenocideConvention is extremely difficult, and the Court’s case law has probably made it more so. 4/9

For example, the #ICJ accepts that genocidal intent can be inferred from a pattern of conduct, but only if this is the ONLY inference that can reasonably be drawn from such conduct. This gives respondents room to sew doubts about intent (eg by invoking counter-terrorism). 5/9

The Court’s case law on the relationship between ethnic cleansing and genocide is also problematic, since evidence of the former could, on the Court's logic, sometimes be construed (perversely) as evidence disproving the latter. 6/9

This is also the first genocide case at the #ICJ where the Court cannot rely on prior or parallel prosecutions at an int'l criminal tribunal. It's very unlikely the ICJ will give as much weight to UN fact-finding reports as it has to ICTY judgments, but this will be tested. 7/9

None of this is meant to suggest that Gambia's case cannot succeed. To the contrary, there is a very strong and compelling case to be made that Myanmar has breached its #GenocideConvention obligations, notwithstanding the legal pitfalls. 8/9

But even if Gambia ultimately prevails on the merits, the effectiveness of such a judgment for the #Rohingya will come down to the political pressure that it generates, both on Myanmar and those third states and companies that have turned a blind eye to its conduct. *end* 9/9