Thread by @PillaiPriy

OK. Here we go. #ICJ Provisional Measures Order #TheGambia v #Myanmar #Rohingya #Genocideconvention Judge Sebutinde - not on the bench.
- Background of application - omitting procedural history etc.

Reference to #Rohingya group that self-identifies as Rohingya; prima facie jurisdiction need not be definitive as to merits of the case - art 36(1) ICJ Statute & Art 9 Genocide Convention - this needs to be satisfied first

Parties to GC - no reservation to art 9 by Myanmar but to art 6 & 8; no reservations of Gambia; “dispute” exists where hold “clearly opposite views” re performance/non-performance of obligations;one party maintains dispute, other denies it. Therefore compromissory clause comes in

Date of dispute - when application submitted; claim of OIC proxy - proceedings in Gambia’s name instituted - ICJ view - even if support from other states or IO - does not preclude dispute.

“Dispute” existence - docs exchanged and exchanges in multilateral settings - objective determination by Court - substance, not of form or procedure; #FFM - affirmed previous conclusion re state responsibility re genocide

26 sept 2019 - UN General Assembly debate - Gambia statement ready to take case to ICJ; Myanmar - stars FFM biased report - therefore divergence of views re Rakhine Rohingya - also note verbale 11 October taken into account

Note verbale - refers to #FFM report and denial of responsibility- lack of response also indicates dispute; applicability of #Genocide convention - listed acts enumerated - Court notes denial of violations and no genocidal intent

Court does not have to make assessment of genocidal intent, only at merits stage; at this stage for PM order, whether acts are capable of falling within GC? Yes “at least some are capable” of being under GC

Art 8 GC argument by #Myanmar that prevents seizing of the court - broad term in art 8 and could include the court but other terms suggest different interpretation; only general terms for party to call on organs to take action

Does Not refer to court - which is covered in art 9 which Myanmar has not entered a reservation: only art 9 relevant to seizing of court. Therefore this doesn’t deprive Gambia from seizing Court of dispute.

Therefor has prima facie jurisdiction- therefore cannot remove case from list for lack of jurisdiction.

Reservations to GC case (advisory opinion) - common jnterest of states - shared values and common interests to prevent acts of genocide - implies obligations are owed by any state party to all state parties

Belgium v Senegal - convention against torture - obligations erga omnes partes - so any state party and not only specially affected state may invoke responsibility re failure to comply with obligations. Therefore Gambia has prima facie standing

Rights for which protections are sought in PM - court must preserve rights of either party - therefore rights must be plausible - not definitive determination, only the rights claimed and for which protection is sought, and link to the PM requested

Art 1 GC - prevent & punish; art 2 - definition of crime; art 3 - other acts prohibited. Art 1 supplemented by other articles, and prosecution of persons; duty to punish - deterrent effect and so oblg to prevent

Art 3 - correlation bw rights of members of protection and other states; Rohingya - “protected group” within meaning of art 2 - Myanmar ref to clearance ops - can’t rule out disproportionate force and did not distinguish b/w civilians under #IHL

22 Dec 2018 UN GA resolution -condemnation of violations in Rakhine state incl extermination, discrimination, may amount to persecution and apartheid; also deplored security and humanitarian situation and exodus of 700,000 Rohingya

Accountability for those responsible refered by UNFA res; 12 sept 2018 FFM report - reasonable grounds of serious crimes including genocide - “inference of genocidal intent present”- also in 2019 report

#FFM - Extreme levels of violence in 2016 & 2017 - “systemic oppression and persecution of Rohingya”; exceptional gravity not a factor - all facts and circumstances- Rights are “plausible”

Now link bw rights claimed and PM requested - first three PM are aimed to preserve rights it asserts under GC ie right to be protected from genocide, and including preservation of evidence; 4th and 5th - does not arise; 6th - does not apply

Irreparable prejudice or disregard of rights may be irreparable - only exerciserd if urgent and real risk of prejudice before court issues its final decision; court to determine whether this exists? Not to determine breach of GC - but PM for protection of rights

Cannot make determinations of facts at this stage; GA res 11 Dec 1946 - genocide is a denial ofnright of existence - Genocide convention reservation advisory opinion- humanitarian treaty - fundamental values to be protected

Right of Rohingya to be protected - prejudice capablemof causing irreparable harm; FFM reports - subjected to acts capable of affecting existence as a protected group; 27 Dec 2019 - 744,000 fled - and 600,000 remain as of sept 2019

#Rohingya in Myanmar remain “extremely vulnerable” - FFM reports ref to 1982 #citizenship law and made #disenfranchised and eventually #stateless; serious risk of genocide. #Myanmar at hearings - #repatriation initiative and ethnic #reconciliation - but these steps insufficient

No concrete measures presented by Myanmar that protection of Rohingya as a protected group; #UNGA - situation not improved in Rakhine state for #refugees & #IDPs to return

UNGa resolution - Continued violation of #IHl and #IHRL including #EJK, #rape and #SGBV, enforced disappearances, seizure of Rohingya land

Even if internal armed conflict, obligations under GC remain for Myanmar; prevention and punishment - independent of context and doesn’t preclude court assessment of prejudice and risk

Therefor court finds real risk and prejudice, therefore PM requirements are met;

Court can indicate other PM also under art 75 (2) - measures indenticated need not be identical: 1. Myanmar must take all measures to prevent all acts under GC - (listing of acts) 2. Ensure military and irregular armed units and any org subject to control do not commit Acts of G

3. Effective measures to prevent destruction or evidence 4. re Gambia request for 4 month report back - court can ask for information in any month - and Myanmar must submit report to court on all measures within 4 months and then every 6 months till final decision

Will be shared with Gambia which will have opportunity to reply; 5. Non aggravation of dispute - court can also ask for additional PM to prevent aggravation whenever circumstances require - but here no need for specific PM re non aggravation

Binding effect of PM order - binding legal obligation - no way does this prejudge merits of case or admissibility of case;

ORDER: 1. Unanimously - all measures to prevent commission of all acts under art 2 of GC; 2. Unanimously - Myanmar shall ensure military, irregular units etc do not commit acts in 1 or conspiracy etc. 3. Unanimously- Myanmar to take effective measures for preservation of evident

4. Unanimously, Myanmar to report after 4 months and then every 6 months.

Final order now being read in French by registrar ICJ. Separate Opinion of Judge Xue, Cancado Trinidade, and Kreß. END.