Bangladesh must act in ICJ Rohingya genocide process

On Monday, on the occasion of the International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and the Prevention of this Crime, Senior Advisor Prof. Muhammad Yunus strongly condemned the persecution of the Rohingya and reaffirmed Bangladesh’s commitment to justice and accountability for victims. . This came a day after High Representative for Rohingya Issue Dr Khalilur Rahman called for a global consensus on Rohingya repatriation at an international conference in Doha. Meanwhile, Slovenia’s recent declaration of intervention (submitted on November 29, 2024) in the Rohingya genocide case (Gambia vs Myanmar) at the International Court of Justice (ICJ) has revived global attention on the issue.

Despite hosting more than a million Rohingya refugees for more than seven years, Bangladesh has been conspicuously silent on intervening in ICJ proceedings, raising critical questions about its commitment to international justice and the future resolution of the Rohingya crisis. The Gambia’s decision to initiate proceedings against Myanmar for the latter’s failure to comply with various obligations under the Genocide Convention gave impetus to the ICJ’s history. In particular, Gambia, despite being an unaffected State located 11,570 kilometers from Myanmar, successfully filed the procedure based on its community interest in preventing and punishing genocide.

Although ICJ procedures are limited to litigating states, the interests of third states are protected by article 59 of the ICJ statute. The ICJ statute facilitates the intervention procedure, allowing any third State to participate in said procedure to safeguard its legal interest or promote its political interest. The ICJ statute provides for two categories of intervention: (1) article 62, which protects “an interest of a legal nature”; and (2) Article 63, which involves “treaty construction.”

After The Gambia initiated the process, some States expressed interest in intervening in the case. Finally, seven states (namely Canada, Denmark, France, Germany, Netherlands, United Kingdom and Maldives) submitted a joint declaration of intervention, and Maldives submitted a single declaration of intervention on November 15, 2023. On July 3 2024. , the ICJ issued the Resolution on Admissibility of the Intervention, declaring the admissibility of both statements. Interestingly, both the joint declaration of the seven states and the Maldives declaration are related to Article 63, that is, the construction and interpretation of the Genocide Convention.

Although Bangladesh supported The Gambia both financially and politically, it has omitted, despite being a state affected by Myanmar’s genocidal atrocities, to include its name as one of the intervening states. While Bangladesh has 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 importance, is Truly surprising.

The ICJ Order on Admissibility of Intervention resurfaced the question of whether Bangladesh will file any intervention plea. This is a vital issue for the Rohingya genocide case, given that Bangladesh is home to the majority of displaced Rohingya, many of whom are also survivors of the genocide. In fact, the ICJ recognized Bangladesh as the directly affected State in its Judgment on Preliminary Objections (Para. 113). One of the solutions requested by The Gambia is “the safe and dignified return of forcibly displaced Rohingya.” The merit ruling of the ICJ will have a direct impact on Bangladesh.

It should be noted that Bangladesh does not have the right to initiate direct proceedings against Myanmar due to its reservation to Article IX of the Genocide Convention. Article IX gives the ICJ the jurisdictional basis over any dispute relating to genocide. However, Bangladesh has continued to offer diplomatic and financial support to The Gambia in relation to the Rohingya genocide case. Admittedly, it is very surprising and equally disappointing that Bangladesh has not yet come forward with its intervention in the Rohingya genocide case. Given the relevance of the eventual decision in this case, it is time for you to reconsider filing your intervention.

Since Bangladesh’s concerns over the Rohingya genocide case are more related to interests of a legal nature than the interpretation of the Genocide Convention, it is argued that the country should file an “Article 62 Intervention”. Such intervention is not a right of the third State; rather, it depends on the discretion of the ICJ. Once satisfied that an intervening State meets certain requirements, the court may authorize a State to intervene under article 62 of the ICJ statute. These requirements are: (i) the existence of a legal interest; (ii) the precise purpose of said intervention; and (iii) a basis of jurisdiction. The court’s jurisprudence further clarified these requirements. It is now pertinent to explore whether Bangladesh meets 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 on a legal interest that “may be affected” by a decision. Therefore, there is a very low threshold of evidence. It is clear that the reparation sought by The Gambia in relation to the repatriation of the Rohingya is closely linked to Bangladesh’s continued efforts to repatriate the Rohingya to Myanmar. Bangladesh may also underline the potential legal duties it owes to Rohingya genocide survivors currently taking refuge in Bangladesh after the final ruling. Therefore, 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 ruling of the proceedings under discussion.

Secondly, Bangladesh should highlight the precise object of its intervention. In previous cases, the intervening States sought to inform the nature and description of the legal rights and interests that may be affected by the eventual sentences. In the present proceedings, Bangladesh may claim that it intends to inform the court of its legal rights and interests in relation to the repatriation of the Rohingya who took refuge in its territory.

Thirdly, the ICJ has clarified in its jurisprudence (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 cannot prevent it from intervening under Article 62 of the ICJ statute.

At this time, it should be investigated whether Bangladesh can still avail the opportunity to intervene in this case, especially after the order of July 3, 2024. According to Article 82 (2) of the Rules of Court, an application for permission to intervene must be submitted on or before the deadline to submit the last brief. In the present case, the deadline for filing the latest submission, i.e. Myanmar’s Rejoinder, is December 30, 2024. Consequently, Bangladesh is still within its deadline to intervene. But time escapes us.

It is important to emphasize that Bangladesh’s decision to intervene in the Rohingya genocide case will not jeopardize its repatriation efforts. On the contrary, this intervention could positively influence the next repatriation process. Therefore, Bangladesh should proceed with its request to intervene to clarify its legal rights and interests in the proceedings, thereby helping the ICJ conduct a more informed deliberation.

Quazi Omar Foysal He is a professor at the American International University-Bangladesh and a lawyer before the Supreme Court of Bangladesh. He can be contacted at (email protected).

The opinions expressed in this article are those of the author.

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