## Facts

- The Republic of The Gambia instituted proceedings against the Republic of the Union of Myanmar on November 11, 2019 under the Genocide Convention, alleging genocidal acts against the Rohingya in Rakhine State.
- The Gambia asserted jurisdiction under Article IX of the Genocide Convention and Article 36(1) of the ICJ Statute.
- On January 23, 2020, the Court indicated provisional measures requiring Myanmar to prevent genocidal acts and preserve evidence.
- On January 20, 2021, Myanmar raised four preliminary objections challenging jurisdiction and admissibility, including claims that The Gambia acted as a proxy for the Organisation of Islamic Cooperation (OIC), that no dispute existed, that a reservation to Article VIII affected jurisdiction, and that The Gambia lacked standing.
- On July 22, 2022, the Court issued a judgment on preliminary objections, rejecting all objections by a vote of 15–1.

## Issues

1. Whether The Gambia’s Application was inadmissible because it was allegedly acting as a proxy for the OIC rather than as the real applicant.
2. Whether a dispute existed between the parties, as required by Article IX of the Genocide Convention, at the time the Application was filed.
3. Whether Myanmar’s reservation to Article VIII of the Genocide Convention limited or excluded the Court’s jurisdiction under Article IX.
4. Whether any State party, including The Gambia, has standing to invoke another State party’s responsibility for alleged breaches of the Genocide Convention absent a special national or territorial link to the victims.
5. Whether the Application was barred by abuse of process or other admissibility defects.

## Decision

- The Court held it had jurisdiction under Article IX of the Genocide Convention and that the Application was admissible.
- The Court rejected the “proxy applicant” objection, concluding that external political or financial support does not deprive a State of capacity to bring proceedings in its own name.
- The Court found a dispute existed as of November 2019, applying an objective test and concluding Myanmar was aware, or could not have been unaware, of The Gambia’s allegation that Myanmar breached the Convention.
- The Court held Myanmar’s reservation to Article VIII did not affect Article IX jurisdiction because Article VIII concerns action by UN organs, while Article IX concerns judicial settlement; the reservation did not extend to Article IX.
- The Court ruled that obligations under the Genocide Convention are erga omnes partes and that any State party may invoke another State party’s responsibility for alleged violations, regardless of nationality of victims or special injury.
- The Court rejected the abuse-of-process claim, holding that abuse is exceptional and was not established on the record.

## Legal Principles

- Article IX of the Genocide Convention confers jurisdiction over disputes between States parties relating to the interpretation, application, or fulfilment of the Convention when an objective disagreement between the parties exists at the time of filing.
- A State’s motivations for instituting proceedings, and the fact of political or financial support by other States or organizations, do not negate the legal character of a dispute or the applicant State’s capacity to sue.
- A reservation to Article VIII of the Genocide Convention does not limit the operation of Article IX absent an express reservation to Article IX.
- Obligations under the Genocide Convention are erga omnes partes; each State party has a common interest in compliance and may invoke another State party’s responsibility for alleged breaches without showing a special bilateral injury.
- Abuse of process is an exceptional ground of inadmissibility requiring clear proof; third-party support and coordination are insufficient, without more, to establish abuse.

## Conclusion

The Court confirmed its Article IX jurisdiction and held the case admissible, rejecting Myanmar’s preliminary objections and recognizing that any State party may bring Genocide Convention claims to protect erga omnes partes obligations, even without a direct link to the alleged victims.


Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gam. v. Myan.), 2022 I.C.J. 477 (July 22)