Two Myanmar navy warships and a hospital ship were due to carry the first 1,500 of 5,000 Rohingya from Malaysia on 29 September, the opening leg of what Kuala Lumpur calls a voluntary repatriation programme. The International Court of Justice has deliberated in The Gambia v. Myanmar since merits hearings closed on 29 January; observers expect no judgment before year's end.

The Gambia filed the case under the Genocide Convention, asking the court to order, as reparation, the "safe and dignified return" of displaced Rohingya. Around 1.2 million Rohingya now live in Cox's Bazar, Bangladesh, with roughly 150,000 arrivals since mid-2024.

What should the court say about return?

In a commentary published 9 October, Kazi Ayman Awsaf, an undergraduate teaching assistant at East West University in Bangladesh, argues the court's language on return will shape outcomes for Rohingya more than anything it says about genocidal intent. He identifies three prescriptions for the operative paragraph.

Whose right — and whose obligation?

Myanmar asks the court to limit any non-injured applicant to declaratory relief. Article 48(2)(b) of the International Law Commission's Articles on State Responsibility, however, allows any State invoking a collective obligation to claim reparation "in the interest of the injured State or of the beneficiaries of the obligation breached."

In 2022 the court held that all Convention parties share a "common interest to ensure the prevention, suppression and punishment of genocide." When a State is accused of destroying part of its own population, Awsaf writes, the injured have no State to claim for them.

Return, he concludes, must be framed as a right the Rohingya may exercise, not an obligation that others can invoke against them. Nay San Lwin of the Free Rohingya Coalition put the point plainly as camps marked the ninth anniversary of the 2017 exodus: Rohingya demand the right to "return to our homeland with full rights, peace, safety, dignity and justice."

Who will read the ruling?

A judgment binds only the parties. Bangladesh, host to Cox's Bazar, is not among them; its 1998 accession carried a reservation requiring "the consent of all parties to any dispute." The court held in 2022 that this did not affect The Gambia's standing, but a 5 June 2023 order in Ukraine v. Russia confirmed that a reserving State cannot intervene on the Convention's construction.

Bangladesh's Nationalist Party, which won February's election, calls repatriation "a matter of utmost priority" and cites the 1992 returns under Khaleda Zia as a success. Awsaf flags what followed: returns rose in the early 1990s only after Bangladesh "allowed camp conditions to decline and restricted food rations"; UNHCR withdrew support "when it became clear that coercion was continuing."

Some 230,000 people went back between 1993 and 1997 — to the statelessness the 1982 Citizenship Law had formalised, and to conditions that preceded the violence of 2012 and the expulsions of 2016 and 2017.

Malaysia's Prime Minister has framed repatriation as a bilateral matter: "Myanmar must accept them back." Human Rights Watch has warned that "conditions for safe, dignified, and voluntary return to Myanmar do not currently exist."

Awsaf argues the court should state, in the operative clause or reasoning tied closely to it, that return must be voluntary, informed, safe, dignified and sustainable, and that nothing in the judgment implies those conditions exist today.

How should the court address Myanmar's loss of territory?

Since the Arakan Army captured Maungdaw in December 2024, the entire frontier with Bangladesh has run through territory it administers. Human Rights Watch has documented an Arakan Army massacre of Rohingya villagers in Buthidaung in May 2024 and reports that survivors remain effectively detained.

The respondent State is led by Min Aung Hlaing, president since April, for whom the ICC Prosecutor has sought an arrest warrant for the deportation and persecution of the Rohingya.

Loss of control does not extinguish responsibility. Restitution is owed unless "materially impossible." What changes is the obligation's content. Restoring homes in Arakan Army-held townships may be materially impossible for now, and compensation must cover the gap.

The court awarded a global sum of US$325 million for mass harm in DRC v. Uganda. That money went to the DRC's own nationals; The Gambia has no such link to the Rohingya. Any award must go to a mechanism designed with Rohingya participation and reachable from Cox's Bazar.

Legal restitution needs no territorial control. The court can require, following its practice in Avena and LaGrand, that Myanmar guarantee non-discriminatory access to nationality and identity documents and respect the right to identify as Rohingya. Citizenship is legislated in Naypyidaw, not in Maungdaw.

Should the court defer the modalities?

Awsaf recommends the court reserve the modalities of restitution and compensation for a later phase, as it did in Armed Activities in 2005. Myanmar had filed twelve reports under paragraph 86(4) of the 2020 provisional measures order by November 2025; a reserved phase would keep both the case and the monitoring alive.

In Cox's Bazar, Awsaf writes, the judgment will face a simple test: does it give the Rohingya a right to go home on their own terms, or give others a reason to send them?

Awsaf declares no connection with the parties, intervening States or counsel in the case.