Abubacarr Tambadou’s Case Against Myanmar: A Watershed Moment for International Law

Aung San Suu Kyi at the International Court of Justice 1 scaled

In the eyes of scholars and policymakers who subscribe to the tenets of political realism, unconditional solidarity with any group beyond one’s borders, particularly groups whom the international system has failed, is rarely anticipated and difficult to explain. Yet last November, the West African nation of The Gambia brought a case against Myanmar at the International Court of Justice (ICJ) on the grounds that the Myanmar military had committed genocide against Rohingya Muslims in the Rakhine State. Since 2015, the Myanmar military has razed Rohingya villages there, colluded with Buddhist paramilitary groups to forcibly remove Rohingya people, massacred thousands and subjected many more to rape and torture. The deliberate campaign of violence, committed with “genocidal intent” according to a 2017 UN report, forced nearly a million people to flee to Bangladesh, where most reside in dense, dangerous camps along the border. Myanmar representatives, including leader and Nobel laureate Aung San Suu Kyi, continue to deny even the concept of the Rohingya as a group, preferring to label the minority as “foreign Muslims from the Rakhine State” or “Bengalis.”

The Gambia’s ongoing case against Myanmar, as well as the ICJ’s preliminary ruling on January 23 that Myanmar must “take provisional measures” to stop genocide, represents a watershed moment for the World Court. The ICJ has invoked the 1948 Genocide Convention only twice before. Previous cases concerned atrocities committed during the Balkan Wars, and only one of them — Bosnia v. Serbia in 2007 successfully determined that a country had violated the Convention. The plaintiffs in Bosnia v. Serbia, and the following case Croatia v. Serbia, were countries who could easily claim that their own citizens were personally affected by the crimes under scrutiny. The Gambia’s case, on the other hand, places little emphasis on damage to its own citizens, instead focusing on violence perpetrated against the Rohingya minority. The Gambia v. Myanmar is the first case in ICJ history to consider an accusation of genocide committed outside Europe; the first formal application of the Genocide Convention to involve state parties from the Global South; and the first case in which neither the plaintiff nor its citizens have an obvious connection to the crimes of the accused.

The case is a legal drama to rival any other for its high stakes and sheer perversity. Just seven months before the case unfolded, leaders welcomed Aung San Suu Kyi to the European Union in a rare multi-nation visit, where she released a joint statement with Hungarian Prime Minister Viktor Orban regarding their mutual “issue of co-existence with continuously growing Muslim populations.” She has returned to Europe to defend her country, in person, against charges of the world’s worst crime. At the ICJ headquarters in the Hague, Aung Sang Suu Kyi and The Gambia share the same small, wooden desk facing the spectators, who listen as the Gambian legal team reads aloud testimonies of Rohingyas’ mass graves and torched homes.

The man responsible for the Gambia’s lawsuit against Myanmar is Abubacarr Tambadou, the Gambian Minister of Justice, respected human rights lawyer and former prosecutor at the International Criminal Tribunal for Rwanda. Tambadou’s choice to pursue this case is one of striking moral courage. Neither Tambadou nor The Gambian legal team have anything public to gain from the case, except soft power on the international stage, and a semblance of moral high ground.

The lawsuit might even hurt the Gambia. Other nations declined to pursue litigation against Myanmar for good reason. The Gambia’s bold legal measures certainly do not escape the attention of China, India, and Russia, whose tacit support for the Myanmar government likely deterred other states from more politically risky action. China in particular has vetoed consecutive UNSC resolutions that condemn Myanmar in the past, as Beijing seeks to foster closer ties with the country. Given the high costs for the Gambia, and the country’s lack of affected interest, what brought the Minister of Justice to this point?

In Tambadou’s words, a reckoning with victims of mass violence in the refugee camps of Cox’s Bazar, Bangladesh shocked him into action. Tambadou had read reports of the suffering of Rohingya refugees in Cox’s Bazar, and when he traveled to Bangladesh for the annual conference of the Organization of Islamic Cooperation, he did not leave without witnessing the plight of the stateless for himself. “I have met with hundreds, if not thousands of victims of genocide,” Tambadou said in an interview with TRT World, “and as I sat there, and listened to the stories of organised and systematic mass killings, it brought back memories of the 1994 Rwandan genocide…I have seen it all before and I could tell the striking similarities between the modes of operation and the nature of the crimes that were being committed against the Rohingya. I knew from that experience alone that this was genocide.”

 As a lifelong scholar of human rights law, Tambadou is aware that pursuing a case of genocide at the ICJ has little chance of success. Focusing on charges of war crimes, or even ethnic cleansing, is more promising for a favorable verdict, with more easily attainable evidence of intent. To charge a state with genocide, however, requires evidence that “acts listed must be done with intent to destroy the group as such in whole or in part” — a goal that perpetrators will do everything in their power to conceal. 

But Tambadou knew what he had witnessed, and could not, in good conscience, minimize it. So the Gambia has pursued a verdict of genocide. The Rohingya, unlike Bosnia or Croatia, have no state of their own, and little prospect of forming one in the immediate future. Their claims could only reach the highest court of international law if someone was willing to speak on their behalf.

In addition to his moral leadership, Tambadou is a brilliant legal strategist. Immediately following the Gambia’s ICJ petition, he attained legal allies at the Organisation for Islamic Cooperation, which hosted the Dhaka conference that Tambadou attended when he visited the refugee camps on the border Tambadou also knew the United States, the UN, and the ICC were already investigating the incidents beyond the Bangladesh border, investigations that the United Nations Security Council watched very closely. By adding another lens of scrutiny to the investigations, The Gambia’s action could make the case even more difficult for the UNSC to ignore.

Indeed, the Myanmar injunction at the ICJ demonstrates the power of international law to work both horizontally and vertically. The Gambia is urging Myanmar to comply with the Genocide Convention through a legal process that applies to nation-states only: a “horizontal” appeal between one government and another. More subtly, Tambadou is triggering a process of “vertical” enforcement of the Genocide Convention at the ICJ. International law works vertically when transnational actors — NGOs, IGOs, private citizens, governments — interact to develop rules and norms that trickle down to the level of domestic law. This is exactly what Tambadou has done: sued Myanmar with the help of the OIC, human rights watchdog groups, and a top-notch U.S. law firm to advocate his case, in full knowledge that his action would affect the reactions of the Security Council, third-party investigative bodies, and Myanmar itself. Already the outcome of the case has unsettled Myanmar domestic politics, as the ICJ has compelled the country to protect the Rohingya and preserve evidence of their persecution. Finally, Tambadou has set a stunning precedent for the ICJ as both a means of enforcing international law, and a source. The ICJ’s interpretation of the Genocide Convention will dictate how genocidal intent is determined in future cases, how states might be responsible for enforcing the Convention in a legal setting, and whether cases with clearly identified perpetrators should be referred by the UNSC to the International Criminal Court.

International relations scholarship places great emphasis on the language of structures outside an average person’s control: “black-boxed states,” “defensive realism,” “the security dilemma,” terms that relegate individuals to pieces in a game with preordained norms and rules. Whether or not the scholars are right, it’s indisputable that resisting the pursuit of self-interest is a risky decision for any individual or state. The sacrifice of political capital or other resources required to aid a persecuted group beyond one’s borders, without anything in return, is often too great. It is even rarer to see that spark of solidarity expressed in an institution as inherently conservative as the world court. As Tambadou says, his decision to pursue the case was “mainly about me, not about Aung San Suu Kyi, not even about the Gambia.” Sometimes, for the sake of solidarity, one individual’s decision is all it takes.