The International Court of Justice is reportedly preparing to deliver a judgment in the coming weeks in The Gambia v. Myanmar, the genocide case concerning Myanmar's treatment of the Rohingya people. The ruling will determine whether Myanmar breached its obligations under the United Nations' 1948 Genocide Convention.

The Gambia filed its application at the ICJ in 2019, alleging that Myanmar violated the convention through its campaign of violence against the Rohingya. The case is unusual in that The Gambia has no direct connection to the Rohingya: no atrocities against the minority group occurred on its territory. Under international law, however, any state party may bring a case before the ICJ if it believes a country has violated the Genocide Convention. The court confirmed this principle in a 2022 decision rejecting Myanmar's attempt to block the case on jurisdictional grounds.

The allegations

The Rohingya are an ethnic minority group that has long lived in the Arakan region of western Myanmar, corresponding to present-day Rakhine state. As Muslims in an overwhelmingly Buddhist country, they have faced longstanding discrimination. In 1982, Myanmar passed a law removing the Rohingya from a list of ethnic groups eligible for citizenship. Most Rohingya consequently lost citizenship and, with it, basic rights and freedoms.

The ICJ case focuses on the military campaign that began in 2016. Between 2016 and 2017, Myanmar's armed forces subjected Rohingya civilians in Rakhine state to extreme violence. The record includes evidence of mass killings, torture, enforced disappearances, sexual assaults and the destruction of entire Rohingya villages. More than a million Rohingya have since fled Myanmar, mostly to neighbouring Bangladesh. A 2019 report by the United Nations Independent International Fact-Finding Mission on Myanmar concluded that the violence amounted to the "gravest crimes under international law."

What the court must decide

The judges must assess whether Myanmar committed genocide as defined in Article II of the Genocide Convention: acts taken "with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group." Those acts include killing, physical and mental torture, preventing births, removing children from the group, and imposing conditions under which life cannot be sustained.

Intent is the most difficult element for The Gambia to establish. The ICJ applies the "only reasonable inference" standard, requiring that the only reasonable conclusion from the perpetrators' conduct is that they sought to commit genocide. Myanmar has asserted its operations in Rakhine state were a counter-terrorism mission and has previously attributed the violence to rogue soldiers — arguments that complicate proof of genocidal intent. Myanmar's human rights violations are undeniable, but a finding that the convention was breached requires clearing a much higher bar.

Critically, the court will decide whether Myanmar violated the Genocide Convention, not whether a genocide took place as such. Most experts already agree a genocide occurred, and in 2020 the International Association of Genocide Scholars adopted a resolution recognizing Myanmar's crimes against the Rohingya as genocide.

Consequences of a ruling

If the court finds for The Gambia, it will issue a binding judgment establishing Myanmar's state responsibility for breaching the convention. This would not be a criminal conviction against Myanmar or any individual; prosecutions of individuals fall to the International Criminal Court.

A judgment in The Gambia's favour would likely come with orders requiring Myanmar to cease any activity violating the convention, preserve evidence, investigate and punish those responsible, and pursue reparations for victims.

Compliance is not assured. The ICJ has no independent enforcement mechanism and relies entirely on states' willingness to abide by its orders. If Myanmar refuses, the court has few means to compel accountability.

The ruling still carries weight. Myanmar has seemingly sought to erase the Rohingya — first legally, by stripping their citizenship, then physically, through mass killings, forced displacement and the destruction of villages. A finding of genocide would make the harm inflicted on the Rohingya undeniable. For more than 1.2 million Rohingya still confined to refugee camps in Bangladesh, often in highly precarious conditions, a genocide ruling could strengthen the case for formal recognition by Myanmar and the restitution of their citizenship rights — two developments necessary for any return to their homeland.