International Law in Asia Today is a new blog series launched by AsianSIL Voices to highlight historical events that mark Asia’s engagement with international law. Each post revisits a specific date to make international legal history in Asia more visible and accessible to a wider audience.
ICJ Judgement dated 23rd January 2020: Rohingya Muslims in Myanmar
This Day in History
On 23 January 2020, the International Court of Justice (“ICJ”, the “Court”) ordered provisional measures against Myanmar to protect and prevent genocide of the Rohingya Muslim group in Myanmar’s Rakhine state (the “Order”). The 2020 Order followed an application (the “Application”) to the Court by the Republic of The Gambia (“The Gambia”) on 11 November 2019. The Application alleged that the conduct of the Myanmar military towards the Rohingya violates the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”). The Independent International Fact-Finding Mission on Myanmar, established by the United Nations Human Rights Council, “welcomed the efforts of The Gambia … to pursue a case against Myanmar before the Court“.
Myanmar refuted the claims, stressing that The Gambia lacked evidence of Myanmar’s specific genocidal intent – the crucial requirement under the Genocide Convention. The Court accepted The Gambia’s argument that for provisional measures to be implemented, there only needs to be a “plausible inference” of specific genocidal intent. Accordingly, the Court granted the Order under Article 41 of the ICJ Statute, directing Myanmar to “take all measures within its power” to prevent the killing or harm of Rohingya Muslims. The decision also required that Myanmar ensure the preservation of all evidence related to the allegations and submit a status report every six months until the Court renders its final decision.
Facts and Developments on the Crisis
The Rohingya Crisis formally began in August 2017, when, after a military crackdown, waves of violence began in predominantly Buddhist Myanmar against a Muslim ethnic minority group named the Rohingya. The military crackdown began after a “deadly assault” by Rohingya insurgents on various police posts in the Rakhine state.
Although the crisis, as it is known today, “began” in 2017, the Rohingya have been subject to violence and persecution for decades. Further, the 1982 Citizenship Law in Myanmar did not recognise the Rohingya as citizens, making them the largest stateless population in the world. By the end of 2023, more than 2.6 million people had been displaced internally within Myanmar, and an additional 1.3 million refugees and asylum seekers were being hosted in other countries. Bangladesh alone is home to nearly 1 million Rohingya refugees.
Developments post-2020
A little over a year following the 2020 Order, the Myanmar military overthrew the democratically elected government in Myanmar, and a civil war has plagued the country since 1 February 2021. The military junta has the support of Russia and China in fighting a variety of ethnic insurgent and resistance groups in the area. The military junta has continued to represent Myanmar internationally, including in the ICJ proceedings, which the ICJ accepted despite pushback from various international stakeholders.
In the face of incidental civil unrest and the provisional measures, the Rohingya crisis is still escalating, and there has been little, if any, compliance with the Court’s 2020 Order. In recent years, the Myanmar junta has intensified its violent response to resistance groups through airstrikes, bombings and widespread killings. The Rohingya continue to face serious threats within Myanmar, and refugees continue to seek asylum in neighbouring countries.
In October 2025, Tom Andrews, the UN special rapporteur on the situation of human rights in Myanmar, presented a report to the UN General Assembly’s Third Committee, stating that the problem has become exponentially worse since the coup in 2021. Andrews referred to World Food Program data showing that 57% of families in the central Rakhine state cannot meet their basic food needs, a dramatic increase from 33% in December 2024.
Procedural Developments at the ICJ
In 2021, Myanmar’s representatives raised preliminary objections to the Court’s jurisdiction and the admissibility of the Application. The Gambia sought to establish the Court’s jurisdiction under Article IX of the Genocide Convention, in conjunction with Article 36, paragraph 1, of the ICJ Statute. On 22 July 2022, the Court ruled that it has jurisdiction to deal with the case under the Genocide Convention and that The Gambia’s Application was admissible.
There have been two further orders granted by the ICJ in 2024 and 2025, allowing for intervenors to join the proceedings. Maldives, Canada, and Denmark are examples of countries that have applied to intervene in the proceedings.
Throughout the adjudication process, the ICJ and the United Nations Security Council have faced criticism regarding the ineffectiveness of the 2020 Order. This is especially since both institutions have an interconnected role in ensuring that Myanmar complies with the provisional measures. For instance, in accordance with Article 41(2) of the ICJ Statute, “notices of provisional measures ordered by the ICJ, pending the final decision, are to be given to the Security Council“. The ICJ has faced backlash for its inherent limitations in enforcing orders, which raises questions about the Court’s legitimacy. Further, the ICJ has received backlash for allowing the military junta to represent Myanmar in proceedings, following the 2021 coup. Additionally, the United Nations Security Council has been criticised for not doing more to prevent further atrocities and for its silence on the crisis as a whole. Despite calling for the immediate end to violence in Myanmar in 2022, there has been no formal follow-up or action alongside the United Nations Security Council’s declaration.
At the time of publication, the ICJ is holding public hearings on the merits of the case, which will conclude on 29 January 2026. This will be the first genocide case that the ICJ has heard on its merits, in more than a decade. Press releases relating to the case, are available on the ICJ’s website.
Enforcement
The crucial question that remains after the ICJ’s 2020 Order relates to its enforcement. Responsibility for enforcing this Order falls on the United Nations Security Council. Under Article 94(2) of the UN Charter, if a party – such as Myanmar – “fails to perform the obligations incumbent upon it under a judgment rendered by [the ICJ] “, the other party – The Gambia – “may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment”.
Myanmar’s initial reaction to the Order was predictably defensive – it asserted that it was already complying with the ICJ’s requirements. Presently, the United Nations Security Council has yet to take such action, because it has been deadlocked by China and Russia, who “oppose action on Myanmar and have threatened to veto any resolution“.
Although the ICJ ruling on provisional measures is legally binding on Myanmar, cases before the Court often require several years to reach a resolution. If Myanmar fails to comply with the Court’s orders during this period, the Rohingya population may continue to experience domestic atrocities. The limited jurisdictional reach of the ICJ remains the most significant constraint on its influence. The Court’s authority is restricted because its jurisdiction over inter-State disputes depends on the consent of the States involved. States frequently hesitate to accept the Court’s jurisdiction, as demonstrated by Myanmar’s objection to the ICJ’s jurisdiction in this case. Additionally, the ICJ’s authority is undermined by the absence of a universally accepted system of international law. Only a minority of United Nations member states recognise the Court’s compulsory jurisdiction, and among the five permanent members of the United Nations Security Council (P5), only the United Kingdom continues to do so. Adverse rulings by the Court may prompt States to withdraw their consent to its jurisdiction. This response diminishes the effectiveness of the ICJ in resolving future disputes and highlights the Members’ unwillingness to accept unfavourable decisions.
In addition to the ICJ, the United Nations Security Council has also failed to act. In the context of the Rohingya crisis, the Security Council theoretically has the authority to submit resolutions directing Myanmar to reverse discriminatory laws, remove unnecessary restrictions on humanitarian aid access to Rakhine State, and eliminate policies that limit the Rohingya population’s access to livelihood, education, movement, and health care. Despite having this capacity, the Council has not taken substantive action against Myanmar, primarily due to the willingness of Russia and China, both permanent P5 members, to exercise their veto power in support of the Myanmar government and military. Although consensus is not required for Council decisions, the voting process remains challenging. A resolution requires a super-majority of nine out of fifteen members, and any P5 member can exercise a veto. This veto power significantly constrains the Council’s authority and has consistently posed a major obstacle to the Security Council’s ability to carry out its mandate. Each P5 member responds differently to issues of global significance, and the adoption of a resolution depends on whether it aligns with their national interests. The necessity for P5 consensus restricts the Council’s practical authority over both minor and major international issues. This lack of consensus also limits the Council’s capacity to fulfil its responsibility of maintaining international peace and security, resulting in a failure to address critical global problems. Consequently, the requirement for consensus among permanent members severely restricts the Council’s ability to protect undocumented populations, such as the Rohingya, who are subject to state-led atrocities.
Conclusion
The unresolved Rohingya crisis presents opportunities for both domestic and international legal mechanisms to address the issue. While the complexity of the situation poses significant challenges, it does not render resolution impossible and should not deter the international community from intervening. However, the persistence of such internal conflicts indicates that international law alone cannot fully address the underlying causes of the crisis. The ICJ ruling in The Gambia v Myanmar, which directs Myanmar to implement provisional measures to protect the oppressed ethnic minority, has proven insufficient to resolve the Rohingya crisis. In this context, the necessity of state consent and the veto power held by the five permanent members of the United Nations Security Council significantly constrain the jurisdiction and effectiveness of even the most authoritative international judicial bodies. These limitations not only restrict the ICJ’s influence but also affect its ability to adjudicate future cases. Although the ICJ has the jurisdiction to define and prescribe penalties for Myanmar’s actions of universal concern, persistent obstacles prevent international law from consistently ensuring the protection of all individuals it aims to safeguard, particularly stateless populations such as the Rohingya in Myanmar, who are marginalised by dominant cultural and linguistic groups.
About the authors
Mazwin Sumaiya, Marasigan Noleen Joy Bonita, and Shah Shaili Apurva are LLB students at the National University of Singapore. Mclaughlin Lowell Jack Gardom is an exchange student at the National University of Singapore.
Image Credit: Unsplash
