A new report on navigating the forthcoming ICJ judgment in The Gambia v. Myanmar

Mizzima

The forthcoming International Court of Justice (ICJ) judgment in the Gambia v. Myanmar case could be one of the most significant international legal decisions on genocide in recent history, according to the Special Advisory Council for Myanmar (SAC-M) in a press release 25 September.

It is a landmark opportunity to advance the Rohingya people’s fight for justice.

Legal Action Worldwide (LAW) and SAC-M’s new joint position paper entitled – “Navigating the Forthcoming ICJ Judgment in The Gambia v. Myanmar: A Roadmap for Member States”- explores a range of plausible judicial outcomes and their respective legal, diplomatic and operational implications for Myanmar’s military junta and for states around the world.

The ICJ has never found a state directly responsible for genocide – such a finding against Myanmar would carry unprecedented consequences for the junta.

The paper therefore calls on Myanmar’s pro-democracy revolutionary movement, states, international organisations, civil society, donors, and foremost Rohingya communities to prepare now – not after the judgment is delivered – for every plausible outcome.

With a judgment imminent, now is the moment for states to move from solidarity to preparation, and from preparation to action.

The following is an outline of the report.

The forthcoming judgment of the International Court of Justice (ICJ) in The Gambia v. Myanmar represents a potentially decisive moment for the Rohingya and for international efforts to hold Myanmar accountable for the atrocities committed against the Rohingya population. The case was brought by The Gambia in 2019 under the 1948 Genocide Convention. The ICJ imposed provisional measures in January 2020 and rejected Myanmar’s preliminary objections in 2022. Following merits hearings in January 2026, the Court is now deliberating. The report argues that governments should prepare for several possible outcomes rather than simply wait for the judgment.

At the heart of the case is whether genocidal acts were committed against the Rohingya with the specific intent to destroy the group, in whole or in part, and whether those acts can legally be attributed to the State of Myanmar. The Gambia has sought not only a declaration that Myanmar committed genocide but also measures involving prevention, punishment, restitution, compensation and guarantees against repetition. These include safe and dignified return of Rohingya refugees, restoration of property and communal sites, family reunification, rehabilitation, protection against discrimination, freedom of movement, livelihoods and full and equal citizenship.

The report identifies five broad scenarios. The strongest is full attribution, in which the Court finds Myanmar directly responsible for genocide. This would provide the clearest legal foundation for reparations, return, property restoration and potentially structural reforms concerning citizenship. However, the report warns that the Court has historically been cautious about prescribing detailed domestic reforms or large compensation awards. Compensation could therefore be left for a later phase.

A second possibility is partial attribution. The Court could find that Myanmar failed to prevent or punish genocide, failed to legislate adequately, or was responsible for forms of incitement, complicity, conspiracy or attempt without finding that the state itself committed genocide. This would resemble aspects of the 2007 Bosnia v. Serbia judgment. It would nevertheless be legally important and could trigger consequences for a serious breach, although the scope for reparations would probably be narrower. Citizenship and return could remain relevant as guarantees of non-repetition.

A third outcome would be a finding that Myanmar breached the ICJ’s 2020 provisional measures, even if the Court does not conclude that genocide was established to the required legal standard. This would still be significant because it would reinforce the binding character of ICJ orders and provide a potential basis for further action under Article 94 of the UN Charter. Restitution or compensation might be possible, although the Court could adopt a restrained approach.

A fourth possibility is a mixed or divided judgment, with the Court reaching different conclusions on genocidal intent, attribution and Myanmar’s various obligations. Such an outcome could produce ambiguity and limit the scope of formal remedies. However, strong separate or dissenting opinions could become important reference points for governments, UN bodies and national courts. The report argues that advocacy should therefore pay attention not only to the operative paragraphs but also to the reasoning and separate opinions.

The fifth and most disappointing possibility is dismissal on the merits because the Court is not fully convinced that genocide or related breaches have been proven to the required standard. The report stresses that such an outcome must not be interpreted as vindication of Myanmar. It would not erase the underlying crimes or remove existing grounds for sanctions, arms restrictions, universal-jurisdiction proceedings, support for the International Criminal Court (ICC), cooperation with the Independent Investigative Mechanism for Myanmar (IIMM), civil claims or continued political pressure.

The consequences of a positive judgment could extend well beyond Myanmar. A serious finding would strengthen the legal basis for third states to avoid recognising unlawful situations, refrain from providing assistance that helps maintain them, and cooperate to bring violations to an end. This could affect arms transfers, jet-fuel supplies, surveillance technology, financial links and economic relationships with military-controlled entities.

The judgment could also strengthen universal-jurisdiction cases against individual Myanmar officials. An ICJ finding would not automatically establish an individual’s criminal guilt, but could become highly persuasive evidence concerning the broader crime base and encourage national prosecutors to pursue investigations and arrest warrants. The longer-term effect could therefore be to make international travel increasingly difficult for officials and commanders implicated in atrocities.

For ASEAN, the report envisages greater pressure against premature Rohingya repatriation, expanded regional protection and safe pathways, tighter scrutiny of diplomatic and economic engagement with the junta, and stronger incentives for compliance. Supportive states could pursue new UN resolutions, sanctions, a victims’ trust fund, a Register of Damages and renewed efforts for an ICC referral or other accountability mechanism.

The most important conclusion is that the ICJ judgment will not itself deliver justice. Its impact will depend on what governments, ASEAN, Bangladesh, the UN, civil society and the Rohingya community do afterwards. Even a strong judgment could fail to produce meaningful change if states do not enforce its implications. Conversely, a disappointing judgment need not end accountability efforts. The report therefore recommends preparing for every scenario, ensuring that the international response is immediate and coordinated rather than allowing the judgment to become simply another statement of concern.

In practical terms, the most plausible outcome described by the report is a cautious or partially positive judgment rather than the most expansive possible ruling. The paper specifically says that declarations combined with general punishment-related obligations are the likely path, reflecting the ICJ’s traditionally restrained approach to remedies.

The important point is that even a partial victory could have substantial consequences: greater diplomatic isolation for Myanmar, stronger pressure on ASEAN, increased scrutiny of military-linked finance and trade, stronger evidence for universal-jurisdiction cases, and renewed pressure for Rohingya protection and eventual voluntary, safe and dignified return. A negative judgment, meanwhile, would be damaging politically but would not end the wider accountability process.

Legal Action Worldwide (LAW) and SAC-M call for preparation now – rather than waiting to respond after the verdict.