The Gambia v. Myanmar: A Battle for International Justice and the Fate of the Rohingya, Driven by a Small Nation
19/01/2026
The atmosphere in the courtroom of the International Court of Justice in The Hague was tense. On January 16, 2026, Myanmar's representative, Ko Ko Hlaing, stood before the black-robed judges and firmly reiterated a core argument: Myanmar has no obligation to sit idly by while terrorists run rampant in northern Rakhine State. Behind this statement lies the harsh reality of over 700,000 Rohingya refugees struggling to survive in overcrowded camps in Bangladesh, as well as a seven-year legal battle waged by the small West African nation of The Gambia.
This lawsuit, hailed as the most closely watched genocide case of the 21st century, is redefining the boundaries of international judicial intervention. While the Myanmar military junta defends the violent crackdown in 2017 as counterterrorism operations, The Gambia's legal team is striving to prove that the burned villages, mass rapes, and systematic expulsions constitute crimes as defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
Courtroom Offense and Defense: Legal Definitions and Real-World Atrocities
Myanmar's "Counter-Terrorism" Narrative and Legal Strategies
Myanmar's defense strategy is clear and cold. Khin Maung Hla emphasized in court that the 2017 military operations were a necessary response to attacks by the Arakan Rohingya Salvation Army, constituting a legitimate clearance operation—a military term specifically referring to counter-insurgency or counter-terrorism actions. He accused The Gambia of failing to meet the burden of proof, stating that its allegations were based on unverified claims and a vague factual picture, rather than rigorous evidence.
This defense is built upon a meticulously constructed narrative: the Myanmar government has long characterized the Rohingya as Bengalis from Bangladesh, despite many families having lived in Myanmar for generations. Since the passage of the 1982 Citizenship Law, the vast majority of Rohingya have been stripped of their citizenship, becoming one of the world's largest stateless populations. This systemic marginalization provided the ideological foundation for the subsequent violence.
Myanmar's legal team attempted to confine the discussion to narrow, specific actions, avoiding broader national policies and historical context. Hlaing warned: "A determination of genocide would leave an indelible stain on our country and its people." This statement reveals Myanmar's true concern—not just legal liability, but also national reputation and historical positioning.
The chain of evidence in The Gambia and the argument for "intent to commit genocide."
The Gambia's accusations construct a grander historical narrative. In his opening statement, Attorney General Dawda Jallow depicted a decades-long picture of persecution: the Rohingya people endured decades of horrific persecution and years of dehumanizing propaganda, which ultimately peaked in 2016 and 2017, evolving into brutal, genocidal 'clearance operations.'
The legal team from The Gambia, including international law expert Philippe Sands, presented a crucial legal argument: genocidal intent is the only reasonable inference that can be drawn from Myanmar's pattern of conduct. They cited findings from the Fact-Finding Mission established by the United Nations Human Rights Council, which documented widespread atrocities by Myanmar's security forces in detail and recommended prosecuting senior military leaders for genocide.
Evidence shows that violence is not only directed at militants but also systematically targets civilians—women, children, the elderly—their villages burned, their lives taken. Sands questioned in court: How can these actions be explained as counter-terrorism? When the scope of killing is so broad and the characteristics of the victims so clear, the only reasonable explanation is the intent to eliminate a specific group.
The Responsibility of a Small Nation: Why The Gambia Stands at the Forefront of International Justice
From Victim to Advocate
The role of The Gambia, a small West African country, in this case is thought-provoking. With a population of just over 2 million and a limited economic scale, it is geographically thousands of miles away from Myanmar and has no direct historical ties. However, it was this country that took the lead in filing a lawsuit against Myanmar at the International Court of Justice in 2019, accusing it of violating the Genocide Convention.
Minister Jallow explained the motivation behind this action: a sense of responsibility, stemming from The Gambia's own experience under military rule. Behind this statement lies the effort of Global South countries to seek greater voice within the international judicial system. The Gambia's action received support from the 57-member Organization of Islamic Cooperation, demonstrating the Muslim world's collective concern over the plight of the Rohingya people.
From a legal perspective, The Gambia's lawsuit is based on Article 9 of the Genocide Convention: disputes between contracting parties may be submitted to the International Court of Justice. Although Myanmar had questioned The Gambia's standing to sue, arguing that it had no direct connection to the dispute, the court rejected this argument in 2022, affirming that any contracting party has the right to bring a case against another contracting party regarding compliance with the convention. This ruling reinforces the universal jurisdictional nature of the convention, meaning that concerns about genocide transcend bilateral relations and become a shared responsibility of the international community.
Strategic Choices in the International Judicial Landscape
The choice of The Gambia reflects new dynamics in international judicial politics. Traditionally, major human rights cases of this kind were often driven by Western powers or United Nations institutions. However, in recent years, small and medium-sized countries, particularly those from the Global South, have begun to more actively utilize international legal mechanisms to advance diplomatic agendas that align with their own values and interests.
Analysis shows that The Gambia's move has multiple considerations: enhancing its international image, consolidating its leadership position in the Islamic world, and strengthening its commitment to the rule of law and human rights in domestic politics. At the same time, this is also a relatively low-cost, high-impact diplomatic approach—exerting pressure through legal channels to avoid direct political or military confrontation.
Multiple Judicial Pathways: The Complex Landscape of International Accountability
Complementarity and Differences Between the International Court of Justice and the International Criminal Court.
The Hague is currently advancing two parallel judicial proceedings against Myanmar. In addition to the state-to-state litigation at the International Court of Justice (ICJ), the International Criminal Court (ICC) also issued a request for an arrest warrant against Myanmar's military leader, Senior General Min Aung Hlaing, by the end of 2024, charging him with crimes against humanity.
These two courts differ in nature: the ICJ handles disputes between states, and its rulings have political and legal influence but lack direct enforcement mechanisms; the ICC, on the other hand, prosecutes individual criminal responsibility and can theoretically lead to arrests and trials, but requires cooperation from member states. This dual-track approach reflects the international community's comprehensive efforts to hold Myanmar accountable for the crisis, while also exposing the fragmented nature of the international judicial system.
The intervention of the ICC is based on a significant legal innovation: although Myanmar is not a party to the Rome Statute, Bangladesh is. Since some of the criminal acts (such as deportation) occurred on the territory of Bangladesh or affected its nationals, the ICC asserts jurisdiction over these matters. This principle of territorial connection expands the court's potential jurisdictional scope, providing a new pathway for holding nationals of non-party states accountable for crimes.
Universal Jurisdiction and the "Argentine Path"
The third judicial pathway unfolds in Buenos Aires. Under the principle of universal jurisdiction, Argentine courts are hearing another case concerning atrocities against the Rohingya in Myanmar. This principle permits national courts to prosecute serious international crimes, regardless of where the crimes were committed or the nationality of the perpetrators.
The case in Argentina was initiated by local human rights organizations, drawing on previous successful experiences in prosecuting crimes from the Spanish Civil War. Although such cases face significant political and practical obstacles, they symbolize the idea that crimes like genocide are offenses against all humanity, and courts in any country have the right to intervene.
Multiple judicial pathways create an overlapping effect of accountability, so even if individual cases progress slowly or encounter obstacles, overall pressure continues to build. This comprehensive legal strategy makes it difficult for the Myanmar military junta to completely evade scrutiny and also provides victims with more potential channels to seek justice.
Broader Resonance: How Cases Shape International Norms
The precedential value of similar cases
The international legal community is closely monitoring this case, as it may set a significant precedent for other similar charges. The most direct impact could be seen in South Africa's case against Israel at the International Court of Justice regarding its actions in Gaza. Both cases involve the application of the Genocide Convention and accuse states of harboring genocidal intent in military operations.
The evidentiary standards, legal interpretations, and procedural rules established in the Myanmar case are highly likely to be cited in subsequent cases. In particular, the argument regarding the intent to commit genocide—how to infer the deliberate intent to eliminate a specific group from a series of actions—will become a key reference point for future similar litigations.
This is also the first genocide case heard by the International Court of Justice in over a decade, offering judges the opportunity to refine the jurisprudence regarding the definition and evidentiary standards of genocide. The wording of the 1948 Convention is relatively broad, and its specific application requires judicial interpretation. The ruling in the Myanmar case may clarify the interpretation of key concepts such as intent and partial destruction, influencing the practice of international human rights law for decades to come.
The Interaction Between International Justice and Geopolitics
This case also highlights the complex interaction between international justice and geopolitics. China and Russia, as permanent members of the United Nations Security Council, have consistently held reservations regarding strong actions against Myanmar, often downplaying or vetoing related resolutions. This great-power politics has influenced accountability efforts at the United Nations level, compelling advocates to turn to relatively independent judicial bodies such as the International Court of Justice.
Meanwhile, the trial coincided with a dramatic political upheaval in Myanmar. Following the 2021 military coup, the democratically elected government led by Aung San Suu Kyi was overthrown. The Nobel Peace Prize laureate, who had personally traveled to The Hague to defend Myanmar, is now imprisoned. The change in regime did not alter the military's core stance; instead, it made international dialogue even more difficult.
The humanitarian cost of the refugee crisis continues to rise sharply. Approximately 1.2 million Rohingya people are crowded into temporary camps in Cox's Bazar, Bangladesh, living in cramped and unsanitary conditions. Armed groups recruit children, and girls as young as 12 are forced into prostitution. In 2024, the sudden and drastic cuts to foreign aid by the Trump administration led to the closure of thousands of camp schools and the starvation of children. These harsh realities form the brutal backdrop for the court's debate.
The Long Road to Justice and the Unfinished Struggle
The hearings at the International Court of Justice concluded on January 29, but the final ruling is not expected until the end of 2026. Regardless of the outcome, the process itself has already had an impact: placing the suffering of the Rohingya people at the center of international attention, establishing a detailed factual record, and testing the effectiveness of international judicial mechanisms in holding major powers accountable.
Myanmar has committed to the repatriation of individuals from Rakhine State currently residing in refugee camps in Bangladesh, but actual progress has been minimal. External factors such as the COVID-19 pandemic have been used as excuses for delays, but the core obstacles remain the lack of political will and security guarantees. Without citizenship, rights protection, or accountability commitments, any repatriation could potentially plunge the Rohingya back into a cycle of persecution.
The Gambia v. Myanmar case may ultimately not yield a clear and unequivocal genocide verdict. The International Court of Justice sets an extremely high standard of proof, requiring conclusive evidence of a specific intent to destroy, in whole or in part, a particular group. However, even if this highest threshold is not met, the Court may still find that Myanmar has violated other obligations under the Genocide Convention, such as preventing persecution and punishing perpetrators.
The true significance of this lawsuit may extend beyond the legal verdict itself. It demonstrates how a small nation can utilize international law to challenge the unlawful actions of a major power; it documents the details of historical atrocities, preventing them from being denied or forgotten; and it provides a platform for victims to have their voices heard, even if justice is delayed.
In the courtroom in The Hague, Netherlands, legal debates are conducted with calm professionalism. Yet in the refugee camps of Bangladesh, the wait for the Rohingya continues. Their fate depends not only on the judges’ rulings but also on whether the international community is willing to translate legal principles into lasting political commitments. When Gambian lawyers cite the preamble of the Genocide Convention—to ensure such atrocities never happen again—they remind us that this lawsuit is not just about the past, but about the kind of future we want to build.
Reference materials
https://www.bbc.com/news/articles/c1wz8vyq54xo
https://www.aftonbladet.se/nyheter/a/Bxlnp7/militarjunta-nekar-till-folkmord