Author: Labdhi Jain

Application of the Convention on the Prevention and Punishment of the Crime of Genocide
International Court of Justice (ICJ), The Hague
Public hearings on the merits began: 12 January 2026
Presiding: ICJ President Joan E. Donoghue with full bench of 15 judges (Statute of the ICJ) hearing oral arguments.

Facts

On 11 November 2019, the Republic of The Gambia lodged a case against the Republic of Myanmar at the International Court of Justice (ICJ) affirming that Myanmar breached the Genocide Convention of 1948 when it treated its Rohingya Muslim Minority.

The complaint relates to the “clearance operations” conducted by the Tatmadaw in Rakhine State between November 2016 and August 2017, which included purportedly significant levels of killing, rape, arson, and forced dispossession of a minimum of 700,000 Rohingya people, with most having fled to Bangladesh. Moreover, as contended by the Gambia, these would satisfy the requirements of Genocide under Articles II and VI of the Genocide Convention.

The Gambia filed this case because of the obligations under the Genocide Convention that states are erga omnes (to the community of states) regarding their responsibilities to prevent and punish genocide. 

The Court ruled on the preliminary objections in early January 2026 and began the merits phase of the case, marking the first opportunity the International Court had to be presented with a Genocide case in over a decade.

Issues

Central issues of this case are:

1. Did Myanmar actually commit the acts that constitute genocide under the Genocide Convention, both in fact and in its intent?
2. If Myanmar did commit the acts and is guilty of mistreating the refugees, what are the remedies under the Convention and what actions must be taken by ICJ for better enforcement?
3. Will Myanmar be legally responsible for violating the obligations of the Convention to prevent genocide and also to be punished for similar acts?

Each side’s presentation addresses:

The threshold for proving a genocide is high especially for such a big protected group, the evidence required for it also has a bar set high.

 The other side addresses if the actions of military towards the Rakhine meet the standard or obligations of the Convention or instead were lawful counterterrorism operations. 

Arguments 

The Gambia (Applicant)

The Gambia’s case, argued by a team of international, is built around the following:

• Evidence exists that widespread killing, rape, arson, and forced displacement have been perpetrated against Rohingya civilians, which would meet the description of crimes against humanity as stated in Article II of the Genocide Convention.
• The evidence shows that there exists intent to commit genocide by the deliberate targeting of the Rohingya. Intent is demonstrated through the systematic use of violence against a distinct ethnic group and statements or actions made by representatives of the State indicating their intention to “destroy” the Rohingya ethnic group.
• Continued abuse by the state and their lack of accountability for such abuse provide a continuing risk of future acts of genocide; thus, courts must grant victims complete compensation for their suffering.
• Declarations of support for intervention by numerous nations (Canada, United Kingdom, European Union countries, Maldives, et cetera) demonstrate that there exists a significant level of interest among the international community in enforcing the Genocide Convention.

The Gambia contends that evidence must be viewed cumulatively, patterns of conduct rather than isolated acts to establish genocidal intent. 

Myanmar (Respondent)

Myanmar’s defense, presented in hearings in mid-January 2026, is framed around:

• Denial for genocide, stating that events in Rakhine was an adequate response to terroristic insurgencies.

• Lack of specific intent: asserting there was insufficient evidence presented to establish ‘intent to destroy’ as required by Article II of the Genocide Convention.

• Challenges to the amount of evidence, claiming that some reports are considered biased or not substantiated.

• Crediting voluntary repatriation of the refugees: stating that obstacles to the return of Rohingya refugees should be attributed to logistical problems, rather than a policy of genocide.

Myanmar’s legal team maintains that the Convention’s protections should not be interpreted to impose criminal liability without clear proof of intent—a particularly significant point given the high bar in genocide law. 

Judgment

As of January 2026, the ICJ has not yet delivered a final judgment on the merits of the genocide allegations. The hearings on the substantive issues began on 12 January 2026 and are projected to continue over several weeks, with the final ruling expected later in 2026. 

Previous ICJ actions in the case include provisional measures ordered in 2020 to protect Rohingya populations from further harm, binding obligations to prevent genocidal acts and preserve evidence. 

Legal Reasoning

Genocide is one of the most serious international crimes. To establish a “genocide,” the ICJ holds that there must be evidence of intent by a sovereign to destroy a specific ‘protected group.’ Evidence that a state has committed massacres or systematically persecuted a group, by itself, is not sufficient; it must also be shown that it was the state’s intent to destroy the Rohingya as a group. Interpretations of genocide in Bosnia v. Serbia (2007), as well as in other genocide jurisprudence, define intent by inferring intent from a pattern of conduct and through orders from high-level officials within the state.

State vs. Individual

The ICJ hears cases of the State’s responsibility as defined in the Genocide Convention, as opposed to whether an individual is guilty of a crime. Thus, should the ICJ find Myanmar liable under the Genocide Convention, this is a different finding than the ICC’s authority to try individuals for war crimes or crimes against humanity.

Erga Omnes

Under the Genocide Convention, all Member States of the Convention have an erga omnes obligation, or collective obligation, to preserve the object and purpose of the Convention. Thus, under those obligations, The Gambia has the ability to file a claim to hold accountable states that fail to comply with the obligations set forth in the Genocide Convention.

Evidence

There is an abundance of documentation from the UN [fact-finding] and the testimony of eyewitnesses to support The Gambia’s position. However, the defense of Myanmar has brought to the forefront the ongoing dispute in the international community over what constitutes a ‘genocide’ and how to classify or interpret a military conflict.

Personal Commentary

For a multitude of reasons, the issue of genocide committed against the Rohingya is a pivotal moment in the evolution of International Law and as such illustrates the following key points:

• Reaffirmation of Global Norms: The genocide of the Rohingya reasserts the efficacy of the Genocide Convention. The international court, through its ruling, will determine if it will hold states responsible for the atrocities committed against vulnerable groups/individuals who have experienced prolonged impunity.

• Imposing Precedence: While it is impossible to predict the ICJ’s final decision, either in favour of The Gambia or Myanmar, it will create precedence on how the world’s highest court interprets genocide and the intent and actions of state actors. The ruling could provide guidance in the resolution of similar pending cases, such as that of South Africa v. Israel (pending at the ICJ).

• The Political and Human Rights: The political ramifications of this case are considerable and will influence the future diplomatic relations between Myanmar and The Gambia as well as the provision of humanitarian assistance, assistance for the repatriation of refugees, and the future of the Rohingya Refugees. A ruling against Myanmar could force increased international action against Myanmar while a ruling against The Gambia could weaken the enforcement of genocide and humanitarian law. 

The above illustrates that international law and jurisprudence is a central means through which International Legal Institutions and not just political institutions address and seek to obtain justice for the victims of mass atrocities. This is particularly important since many states’ domestic judicial systems are unable to provide adequate justice for the gross violations of human rights.