Bangladesh must intervene in the genocide proceedings against Rohingya at the International Court of Justice

Wed December 11, 2024 8:00 AM
Last updated: Wednesday, December 11, 2024 8:00 AM

Wed December 11, 2024 8:00 AM Last update: Wed December 11, 2024 8:00 AM

Bangladeshi men help Rohingya refugees disembark from a boat on the Bangladeshi coastline of the Naf River after crossing the border from Myanmar in Teknaf on September 30, 2017. File photo: AFP

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Bangladeshi men help Rohingya refugees disembark from a boat on the Bangladeshi coastline of the Naf River after crossing the border from Myanmar in Teknaf on September 30, 2017. File photo: AFP

On Monday, on the occasion of the International Day of Remembrance and Dignity of the Victims of Genocide and of the Prevention of this Crime, Chief Advisor Prof. Muhammad Yunus strongly condemned the persecution of the Rohingya and reaffirmed Bangladesh’s commitment to justice and responsibility for victims. . This came a day after Dr Khalilur Rahman, the High Representative for the Rohingya Issue, urged 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 (Gambia vs Myanmar) at the International Court of Justice (ICJ) has reignited global attention to this issue.

Despite hosting more than a million Rohingya refugees for more than seven years, Bangladesh has remained conspicuously silent on the possibility of intervening in the International Court of Justice proceedings. This raises critical questions about his commitment to international justice and the future resolution of the Rohingya crisis. Gambia’s decision to initiate proceedings against Myanmar over the latter’s violation of several obligations under the Genocide Convention added impetus to the history of the International Court of Justice. In particular, despite being a non-affected state 11,570 kilometers from Myanmar, The Gambia successfully initiated the proceedings based on its community interest in preventing and punishing genocide.

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Although the ICJ’s proceedings are limited to the disputed states, the interests of third states are protected by Article 59 of the ICJ Statute. The Statute of the International Court of Justice facilitates the intervention procedure, allowing any third state to participate in such a procedure to safeguard its legal interests or advance its political interests. Under the Statute of the International Court of Justice, there are two categories of interventions available: (1) Article 62, which protects “an interest of a legal nature”; and (2) Article 63, which implies the “construction of a treaty.”

In the aftermath of the Gambia proceedings, some states have expressed interest in intervening in the case. Ultimately, seven states – namely Canada, Denmark, France, Germany, the Netherlands, the UK and the Maldives – submitted a joint declaration of intervention, and the Maldives submitted a single 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 statements. Interestingly, both the joint declaration of the seven states and the declaration of the Maldives relate to Article 63, that is, the construction and interpretation of the Genocide Convention.

While Bangladesh has supported Gambia both financially and politically, despite being a state affected by the genocidal atrocities in Myanmar, it has failed to mention 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 the country, Bangladesh’s hesitation to intervene in the Rohingya genocide case in the past five years, which has immediate consequences, really surprising.

The International Court of Justice’s Order on Admissibility of Intervention once again raised the question of whether Bangladesh will file a declaration of intervention. This is a crucial issue for the Rohingya genocide case as Bangladesh is home to the majority of displaced Rohingya, many of whom are also genocide survivors. In fact, the International Court of Justice recognized Bangladesh as the directly affected state in its preliminary ruling on the objections (paragraph 113). One of the solutions requested by Gambia is ‘the safe and dignified return of the forcibly displaced Rohingya’. The merits judgment of the International Court of Justice will have direct consequences for Bangladesh.

It should be noted that Bangladesh has no right to initiate direct proceedings against Myanmar due to its reservation to Article IX of the Genocide Convention. Article IX grants the jurisdictional basis for any dispute over genocide to the International Court of Justice. However, Bangladesh has continued to provide diplomatic and financial support to Gambia regarding the genocide case against the Rohingya. Admittedly, it is very surprising and equally disappointing that Bangladesh has not yet filed its intervention in the Rohingya genocide case. Considering the relevance of the final decision in this case, it is high time that the country reconsiders filing its intervention.

Since Bangladesh’s concerns over the Rohingya genocide case are more related to legal significance than to the construction 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 International Court of Justice. If the court is satisfied that an intervening state meets certain requirements, it may authorize 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 purpose of such intervention; and (iii) a basis of jurisdiction. Court case law has further clarified these requirements. It is now relevant to investigate whether Bangladesh meets these requirements.

Firstly, there must be an interest of a legal nature, and not a right or a legal interest. Article 81(2)(a) also speculates on a legal interest that may be “affected” by a decision. So there is a very low evidentiary threshold. It is clear that the solution sought by Gambia regarding the repatriation of the Rohingya is closely linked to Bangladesh’s ongoing efforts to repatriate the Rohingya to Myanmar. Bangladesh could also highlight the potential legal duties owed to the Rohingya genocide survivors currently seeking refuge in Bangladesh following the final judgment. It is therefore safe to assume that Bangladesh can successfully argue that it has an interest of a legal nature that could be affected by the final outcome of the proceedings in the dispute.

Second, Bangladesh should emphasize the precise purpose of its intervention. In previous cases, intervening states sought to understand the nature and description of the legal rights and interests that could be affected by the final awards. In the present proceedings, Bangladesh may claim that it wishes to inform the court of its legal rights and interests regarding the repatriation of the Rohingya who sought refuge in its territory.

Third, the International Court of Justice has provided clarification in its case law (Honduras/El Salvador and Cameroon vs. Nigeria) that such a jurisdictional link is not required in the event 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 juncture, it must be examined whether Bangladesh can still avail itself of the opportunity to intervene in this case, especially after the order of 3 July 2024. According to Article 82(2) of the Rules of Court, an application for leave to intervene must be filed on or before the deadline for filing the final written statement. In the present case, the deadline for filing the final written plea, i.e. Myanmar’s rejoinder, is December 30, 2024. Accordingly, Bangladesh is still within the window to intervene. But time passes.

It is important to emphasize that Bangladesh’s decision to intervene in the genocide case against the Rohingya will not jeopardize repatriation efforts. On the contrary, this intervention could positively influence the upcoming repatriation process. Therefore, Bangladesh should proceed with its request for intervention to clarify its legal rights and interests in the proceedings, thereby assisting the International Court of Justice in making a more informed deliberation.

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

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

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