Gambia, a predominantly Muslim West African country, filed the case at the ICJ—also known as the World Court—in 2019, accusing Myanmar of committing genocide against the Rohingya, a mainly Muslim minority in the remote western Rakhine state. Under the rules of the ICJ, the application argues, member states can bring actions against other member states over disputes alleging breaches of international law—in this case the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
The 1948 UN Genocide Convention, which The Gambia accuses Myanmar of breaching in its treatment of the Rohingya, was adopted following the mass murder of Jews by Nazi Germany during the Second World War. It defines genocide as crimes committed “with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”
In response, the ICJ issued an order on 23 January 2020 directing Myanmar to “take all measures within its power” to prevent the commission of acts defined in the Genocide Convention, including ensuring that its military and any irregular armed units refrain from committing these acts. The Court also ordered Myanmar to “take effective measures to prevent the destruction and ensure the preservation of evidence” related to the ICJ proceedings and to submit regular reports concerning the measures it has taken to comply with the order.
On 15 November 2023, Canada, Denmark, France, Germany, the Netherlands, and the United Kingdom filed a joint declaration of intervention, given their “common interest in the accomplishment of the high purposes” of the Genocide Convention. The Maldives also filed a declaration to intervene, citing its deep concern “over the continued… human rights violations and barbarous assaults against the Rohingya Muslims” and recognising the need for “international cooperation in the quest to prevent and punish genocide.”
International law experts say it’s typical for such cases to take several years to reach the hearings stage. “There are all kinds of stalling tactics that are used, and we’ve seen the military do that in this case—challenging jurisdiction, asking for extensions of time, and so forth. And the court is reasonably tolerant of those kinds of manoeuvres,” said Chris Sidoti, an international human rights lawyer and consultant.
Myanmar asked for and received multiple extensions from the court. It also challenged both the court’s jurisdiction over the alleged crimes and The Gambia’s right to bring the case against Myanmar. A final ruling is expected towards the end of 2026, the Reuters news agency reported.
The Rohingya Crisis in Context
The Gambia vs. Myanmar marks the first time a purportedly non-injured state—in this instance a state that did not assert an injury or interest beyond being a party to the Genocide Convention—has been brought to the ICJ. The circumstances that led to this case are complex and grounded in both the events in Myanmar itself and the wider geopolitics of international human rights law.
The persecution of Rohingya groups—and wider violence within Rakhine State—has multiple roots, but historians have identified the incorporation of Arakan, the ancient kingdom whose territory loosely correlates with Rakhine State, into British colonial India in 1926 as a key moment in inter-communal tension. Extractive colonial enterprises brought migrants into Rakhine State, particularly from Bengal, who provided a range of jobs, from labourers through to civil servants and moneylenders; the latter began to play an authoritative role in the provision of finance to locals.
These migrations have been used since independence in 1948 by the Myanmar state to argue that the Rohingya are a non-indigenous population and consequently reject the concept of a distinct identity and instead label them as ‘Bengali’ or, in more offensive terms, ‘kala’. But evidence suggests that a Rohingya identity precedes these colonial encounters: the writings of physician and polymath Francis Buchanan, who travelled extensively in India and South Asia in the late eighteenth and early nineteenth centuries, point to the existence of a defined Rohingya community in Arakan prior to the arrival of the British East India Company.
One of the challenges, outlined in the analysis of Ronan Lee, is that the British colonial record-keeping, made in English rather than Burmese, Rakhine, or Rohingya, failed to use the prominent indigenous label of ‘Rohingya’, translating instead into “Arakanese Muslim”, “Musalman”, or “Mohammadan”. This assertion of non-indigenous status has cast a long historic shadow, notably enshrined within Myanmar’s 1982 Citizenship Law, which failed to grant citizenship to Rohingya groups, citing their imagined non-indigenous status, while also preventing a possible pathway for future generations through processes of naturalisation.
This denial of citizenship rights is the backdrop to episodes of violence between the Tatmadaw (Myanmar military), Burmese communities, and the Rohingya, including by the Arakan Rohingya Salvation Army (ARSA), an armed insurgency movement formed in 2012. ARSA attacks on Myanmar government guard posts in 2016 and 2017 were the precursor to a dramatic increase in violence in Rakhine State by the Tatmadaw and other armed groups within Rakhine State, leading to over 700 000 Rohingya refugees fleeing their homes.
A damning report issued by the UN the following year said top military figures in Myanmar must be investigated for genocide in Rakhine State and crimes against humanity in other areas. Myanmar authorities rejected that report, saying its military offensive was a legitimate counter-terrorism campaign in response to attacks by Muslim militants. Today, more than a million Rohingya refugees now live across the border in Bangladesh’s Cox’s Bazar region alone—some of the largest and most densely populated camps in the world, according to the UN’s refugee agency.
Why The Gambia? Understanding Its Standing and Motivation
The Gambia may have been inspired to take up the case due to its own long history of repression under former dictator Yahya Jammeh, who ruled the country with an iron fist for 22 years until 2017, Imran Darboe, a barrister formerly with the Gambian justice ministry, told Al Jazeera. The report says Jammeh was forced out of office in 2017 by a regional military mission when he failed to leave office after losing the presidential elections.
In 2018, the new government began investigating Jammeh-era atrocities perpetrated by his “killer squad” security forces, including widespread abductions and killings. Gambians were collectively reckoning with the painful testimonies of scores of victims as the Rohingya crisis unfolded, prompting the government to take action, despite a lack of precedent at the ICJ at the time. “At that point, we were also going through our truth-and-reconciliation commission and realising the value of protecting human rights,” Darboe said.
“Most people [in The Gambia] were shocked by what was being revealed, so there was the thinking that if the concept of human rights is universal, we cannot just focus on our own issues. We feel what the Rohingya people were feeling … we were all on the same page about that.” The Gambia’s active role in the OIC also likely played a large role, Darboe added. While bringing an ICJ case would be expensive for the small nation, the OIC’s backing likely alleviates financial pressures, he said.
In September 2019, the United Nations-backed Independent International Fact-Finding Mission on Myanmar concluded that “Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalising and punishing genocide.” The fact-finding mission highlighted “the enormity and nature of the sexual violence perpetrated against women and girls” during Myanmar’s military campaign as one of seven indicators of the state’s intent to destroy the Rohingya people.
Gambia’s application identifies two elements of Myanmar’s persecution of the Rohingya as “particularly indicative of genocidal intent”: its systematic denial of legal rights to Rohingya, notably restrictions on their ability to marry and bear children and severe restrictions on freedom of movement, including detention camps, and its support for, and participation in, pervasive hate campaigns aimed at demonising and dehumanising the group.
As for the genocidal acts, the application points to incidents from the October 2016 and August 2017 “clearance operations”, including mass executions of Rohingya men, women, and children; the systematic burning of Rohingya villages “with the intent to destroy the group in whole or in part”; the targeting of children; and the commission of rape and sexual violence on a massive scale.
As for ongoing acts of genocide, the application highlights continuing attacks on the Rohingya, notably the destruction of more than 30 villages between November 2018 and May 2019 and the denial to the Rohingya of access to food. It also notes the Fact-Finding Mission’s recent warning that the 600,000 Rohingya still in Myanmar live under the threat of further genocidal acts by Myanmar.
Besides issuing the directives, the government of Myanmar has not taken any meaningful and practical steps to dismantle existing discriminatory structures, including the process of repealing or amending laws and policies that target the Rohingya, bringing the military under civilian control, and ending military impunity for international crimes, including sexual violence.
Experts argue that to comply with the provisional measures, civilian authorities should declare such reforms a government priority and begin the process of amending the 1982 Citizenship Law, take steps to ease movement restrictions for the Rohingya, and grant the Rohingya equal access to healthcare, education, employment and legal representation, among the rights enjoyed by other communities in Myanmar.
The Myanmar Arguments at the ICJ
Nevertheless, during the three-week hearings, the junta has argued its “clearance operations” were merely counterterrorism activities, despite the 700,000 refugees it created. In December 2019, Nobel Peace laureate Aung San Suu Kyi, Myanmar’s de facto civilian leader at the time, personally defended the country at the ICJ, calling the allegations “incomplete and incorrect”.
Although human rights advocates criticised her for appearing to defend the very military that had persecuted her for most of her life. The military nonetheless seized power from her democratically elected government in 2021, once again placing her under arrest, where she remains. The ICJ rejected Myanmar’s objections to the case the following year.
Myanmar’s first objection was that The Gambia was not the real, interested party seeking to establish its own legal rights; rather, it was a mere purveyor of the Organisation of Islamic Cooperation (OIC), which, as an international organisation, lacked standing to invoke the ICJ’s contentious jurisdiction. To support this contention, Myanmar referred to the recommendation of the OIC’s Ad Hoc Ministerial Committee on Accountability for Human Rights Violations Against the Rohingyas, which had been approved by the OIC’s Council of Ministers to bring legal proceedings, as well as The Gambia’s press release, which indicated that it was not filing the case in its own right. The Gambia did not deny the OIC’s support but argued that such support did not render it any less a genuine party.
Referring to its judgement in Nicaragua v. Honduras, the Court stressed that its judgement is of a legal character; as such, the motivation of the party to sue is immaterial. In that case, the Court held that there may be political aspects in any dispute brought before it. The underlying political motivation of the state party invoking the ICJ’s jurisdiction is not a relevant consideration for the Court and cannot be a ground to mount a jurisdictional challenge. The ICJ also held in the current case that the political or economic support of an organisation cannot deprive a state of its legal right to file a case before it.
Finally, Myanmar sought to argue that even if The Gambia had a right to invoke its right to legal responsibility, it did not possess the right to bring a claim before the Court, as it was not itself an injured state party. If any state could have the right to bring proceedings, it would have been Bangladesh as the host state of many Rohingyas who are victims of the alleged genocide.
In response, the Court pointed out that in the Genocide Convention Case, it had observed that the Convention is not about any individual advantage or disadvantage of a state, but rather for the achievement of common purposes. It concluded that the breach of erga omnes obligations, such as those contained in the Genocide Convention, even without establishing any special interest in the matter, is plausible.
Additionally, the Court noted that Bangladesh had been affected by the influx of a huge number of the Rohingya but held that its reservation to Article IX of the Genocide Convention could not in any way affect the locus standi of The Gambia to file the case in its own right as a party to the Convention. In making this observation, the ICJ referred to its advisory opinion in Reservations to the Genocide Convention, in which it noted that the Convention had been adopted with a pure humanitarian and civilising objective.
Why this Case Matters Beyond Myanmar
While speaking in The Hague before the hearings, Rohingya victims said they wanted the long-awaited case to deliver justice. Yousuf Ali, a 52-year-old Rohingya refugee who says he was tortured by the Myanmar military. He said, “We are hoping for a positive result that will tell the world that Myanmar committed genocide, and we are the victims of that, and we deserve justice.”
Legal experts say The Gambia’s case against Myanmar could also set a precedent for other cases before the ICJ, including one filed by South Africa against Israel in 2023 over its military operations in Gaza. Like the Gambia, South Africa bore no direct impact on the crimes it is alleging.
“Israel is also before the International Court of Justice in relation to the genocide convention, and some of the legal interpretation issues that the court will decide in this case may have implications for the next case,” said Sidoti, referring to the Gaza case, which is likely to be heard in the next few years. The ICJ’s decision may also affect whether Min Aung Hlaing, the Myanmar military’s top general and leader of the 2021 coup, faces possible arrest.
According to Dr Azeem Ibrahim, the director of special initiatives at the Newlines Institute for Strategy and Policy in Washington, this matters well beyond Myanmar. Around the world, regimes accused of atrocity crimes are learning from one another. Legal tactics are shared, adapted and refined. From invoking sovereignty to contest jurisdiction to flooding courts with technical objections and exploiting diplomatic paralysis, the playbook is increasingly familiar. If the International Court of Justice allows a junta accused of genocide to use it as a shield, it sends a signal that the legal process itself can be weaponised against accountability.
Similarly, Dr Azeem stated that the Rohingya case also raises broader questions about enforcement. Even a favourable judgement for Gambia will not, on its own, bring justice to survivors. He also argues that there is also a regional dimension. The Association of Southeast Asian Nations has struggled to respond meaningfully to Myanmar’s crisis, constrained by norms of noninterference. Yet instability in Myanmar now spills across borders, fuelling refugee flows, transnational crime and insecurity.
Sidoti explained that the UN Security Council is ultimately responsible for enforcing the orders of the ICJ, as it is the UN’s top court. But with China and Russia both shielding Myanmar from Security Council resolutions that would comprehensively sanction Myanmar, he sees little chance of it enforcing any ICJ orders against the regime. “So, the Security Council should act; it has a legal obligation to act. But I don’t expect it to. What I do expect is that other states acting individually and collectively will take stronger action against the Myanmar military in response to an adverse finding by the ICJ,” he said.
The Gambia’s quest for justice for the Rohingya shows an ever-changing architecture of international relations where law, norms, and institutions increasingly challenge raw power. The case redefines genocide prevention as a communal legal obligation rather than a voluntary political choice. As international justice grows, this hearing stands as a precedent for how small states can shape global rules by converting moral responsibility into juridical action.
