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We must act in the ICJ Rohingya genocide proceedings
FILE PHOTO: AFP
On Monday, marking the International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of this Crime, Chief Adviser Prof Muhammad Yunus strongly condemned the persecution of the Rohingya and reaffirmed Bangladesh’s commitment to justice and accountability for the victims. This came a day after Dr Khalilur Rahman, the high representative on the Rohingya issue, urged for global consensus on Rohingya repatriation at an international conference in Doha. Meanwhile, Slovenia’s recent declaration of intervention (filed on November 29, 2024) in the Rohingya genocide case ( The Gambia vs Myanmar ) at the International Court of Justice (ICJ) has reignited global attention on the issue.
Despite hosting over a million Rohingya refugees for more than seven years, Bangladesh has conspicuously remained silent on the possibility of intervening in the ICJ proceedings, raising critical questions about its commitment to international justice and the future resolution of the Rohingya crisis. The Gambia’s decision to institute proceedings against Myanmar regarding the latter’s breach of several obligations under the Genocide Convention brought momentum to ICJ history. In particular, The Gambia, despite being a non-affected state situated 11,570 kilometres away from Myanmar, successfully filed the proceedings based on its community interest in preventing and punishing genocide.
Though ICJ proceedings are limited to the disputant states, the interest of third states are protected by Article 59 of the ICJ statute. The ICJ statute facilitates the procedure of intervention, allowing any third state to participate in such a proceeding to safeguard its legal interest or promote its political interest. Two categories of intervention are available under the ICJ statute: (1) Article 62, which protects “an interest of a legal nature”; and (2) Article 63, which implicates the “construction of a treaty.”
In the aftermath of The Gambia’s institution of proceedings, some states expressed their interest in intervening in the case. Eventually, seven states—namely Canada, Denmark, France, Germany, the Netherlands, UK, and the Maldives—filed a joint declaration of intervention, and the Maldives submitted a sole declaration of intervention on November 15, 2023. On July 3, 2024, the ICJ issued the Order on Admissibility of Intervention, declaring the admissibility of both declarations. Interestingly, both the joint declaration of the seven states and the declaration of the Maldives are related to Article 63, i.e. the construction and interpretation of the Genocide Convention.
Though Bangladesh supported The Gambia both financially and politically, it has omitted, despite being an affected state by Myanmar’s genocidal atrocities, to enlist its name as one of the intervening states. While Bangladesh expressed its intention to intervene in the Gaza genocide case, which has no direct relevance to it, its hesitation to intervene in the Rohingya genocide case in the last five years, which has immediate bearing, is truly surprising.
The ICJ’s Order on Admissibility of Intervention resurfaced the issue of whether Bangladesh will submit any declaration of intervention. This is a vital issue for the Rohingya genocide case, given that Bangladesh hosts the majority of the displaced Rohingya, many of whom are also genocide survivors. In fact, the ICJ acknowledged Bangladesh as the directly affected state in its Preliminary Objections Judgment (Para 113). One of the remedies asked by The Gambia is “the safe and dignified return of forcibly displaced Rohingya.” The merit judgment of the ICJ will have a direct impact on Bangladesh.
It is to be noted that Bangladesh does not have the entitlement to institute direct proceedings against Myanmar due to its reservation to Article IX of the Genocide Convention. Article IX confers the jurisdictional basis over any dispute regarding genocide to the ICJ. However, Bangladesh has continued to offer diplomatic and financial support to The Gambia regarding the Rohingya genocide case. Admittedly, it is very surprising and equally disappointing that Bangladesh has yet to submit its intervention in the Rohingya genocide case. Given the relevance of the eventual decision of this case, it’s high time it reconsidered submitting its intervention.
Since Bangladesh’s concerns over the Rohingya genocide case are more related to the interest of a legal nature than the construction of the Genocide Convention, it is argued that the country should submit an “Article 62 Intervention.” Such an intervention is not a right of the third state; rather, it depends on the discretion of the ICJ. Upon its satisfaction that an intervening state fulfils certain requirements, the court may authorise a state to intervene under Article 62 of the ICJ statute. These requirements are: (i) the existence of an interest of a legal nature; (ii) the precise object of such intervention; and (iii) a basis of jurisdiction. The jurisprudence of the court further clarified these requirements. It is now ​pertinent to explore whether Bangladesh fulfils such requirements.
First, there should be an interest of a legal nature, not a right or a legal interest. Article 81(2)(a) also speculates a legal interest that “may be affected” by a decision. Thus, there exists a very low threshold of evidence. It is apparent that the remedy sought by The Gambia related to the Rohingya repatriation is closely linked to Bangladesh’s continuous endeavours to repatriate the Rohingya to Myanmar. Bangladesh may also underscore its potential legal duties owed to the Rohingya genocide survivors currently taking shelter in Bangladesh after the final judgment. Thus, it is safe to assume that Bangladesh can successfully argue that it has an interest of a legal nature that may be affected by the eventual judgment of the proceedings in the discussion.
Second, Bangladesh should highlight the precise object of its intervention. In earlier cases, intervening states sought to inform the nature and description of the legal rights and interests that may be affected by the eventual judgments. In the present proceedings, Bangladesh may claim that it seeks to inform the court of its legal rights and interests in relation to the repatriation of the Rohingya who took refuge in its territory.
Third, the ICJ has clarified in its case laws ( Honduras/El Salvador and Cameroon vs Nigeria ) that no such jurisdictional link is required in the case of an Article 62 Intervention. As a result, Bangladesh’s reservation to Article IX may not bar it from intervening under Article 62 of the ICJ statute.
At this juncture, it is to be investigated whether Bangladesh may still avail itself of the opportunity to intervene in this case, especially after the order of July 3, 2024. As per Article 82(2) of the Rules of the Court, an application for permission to intervene shall be filed on or before the deadline for filing the last written pleading. In the present case, the deadline for submitting the last written pleading, i.e. Myanmar’s Rejoinder, is December 30, 2024. Accordingly, Bangladesh is still within its time limit to intervene. But time is slipping away.
It is important to emphasise that Bangladesh’s decision to intervene in the Rohingya genocide case will not jeopardise its repatriation efforts. On the contrary, this intervention could positively influence the upcoming repatriation process. Therefore, Bangladesh should proceed with its intervention application to clarify its legal rights and interests in the proceedings, thereby assisting the ICJ in making a more informed deliberation.
Quazi Omar Foysal
is lecturer at American International University-Bangladesh and advocate at the Supreme Court of Bangladesh.
He can be reached at foysal.quazi@gmail.com.