Myanmar at the ICJ: Why Genocide's Legal Threshold Must Remain High
Understanding the case against Myanmar and what it means for international law
The International Court of Justice has begun hearing a case that will test the outer limits of genocide law. The Gambia has brought proceedings against Myanmar over military operations in Rakhine State in 2017, alleging violations of the 1948 Genocide Convention in relation to the Rohingya population. What's at stake isn't whether mass violence happened, but whether it crosses the Convention's famously high legal bar.
The proceedings arrive at a moment when genocide accusations have become increasingly politicised. South Africa's ICJ case against Israel has triggered diplomatic tensions, with the United States boycotting South Africa's November 2025 G20 summit. Legal scholar David Bernstein has warned that attempts to stretch genocide's definition to suit political objectives risk undermining the Convention itself.
The Central Question: Intent
Genocide has a specific meaning in international law. As William Schabas, one of the world's leading experts on the Genocide Convention, has emphasised, the crime requires proof of 'specific intent to destroy' a protected group, in whole or in part. That mental element separates genocide from other serious international crimes.
The ICJ has been consistent on this point. In the Bosnia and Herzegovina v Serbia case, the Court made clear that the intent requirement cannot be watered down. This rigorous approach exists because genocide represents the gravest accusation in international law.
What the Parties Are Arguing
Counsel for The Gambia argue that Myanmar's military carried out coordinated operations involving mass killings, sexual violence, village destruction and forced displacement, all with genocidal intent. The UN Fact-Finding Mission documented extensive evidence of atrocities.
Myanmar denies the charge, maintaining that its actions were responses to insurgent attacks. The country's position was initially presented by Aung San Suu Kyi. Her removal following the 2021 military coup changed Myanmar's political landscape but hasn't altered the legal questions before the Court.
The Risk of Political Comparisons
The Myanmar case doesn't exist in a vacuum. It is being framed as a benchmark for South Africa's case against Israel, and some are using what is happening in Gaza to argue for looser genocide standards. But as Professor Dapo Akande of Oxford University has noted, such comparisons risk obscuring how the Court actually works. ICJ rulings are intensely fact-specific and context-dependent.
The problem has become more acute as genocide accusations increasingly serve diplomatic purposes. South African’s case against Israel has been labelled as politically motivated. The US Secretary of State Marco Rubio has denounced South Africa's government in terms that effectively excluded them from diplomatic engagement. This type of fallout illustrates the dangers when genocide cases are perceived as instruments of foreign policy.
As Bernstein argues, when genocide becomes 'a political weapon' rather than an objective legal standard, it creates perverse incentives. States know that causing civilian casualties whilst fighting non-state actors will invite genocide accusations, regardless of intent. This doesn't protect civilians. It hands armed groups a blueprint for exploiting legal institutions whilst international law loses credibility.
Why Strict Standards Matter
If genocide becomes more elastic, applied readily without clear evidence of specific intent to destroy a group, the term loses its force. As Antonio Cassese argued, rigorous legal standards ensure that findings of genocide carry weight. The danger is transforming genocide from a specific crime into a general descriptor for mass atrocities, diluting its power to galvanise international action.
What This Case Will Test
The Myanmar proceedings will require the ICJ to evaluate how evidence of intent is assessed in situations involving mass displacement and military operations. As Philippe Sands KC has written, the Court's task is to apply established legal principles to specific facts. The outcome is likely to reinforce the stringent legal standards that govern genocide claims.
The Court's Track Record
The ICJ has found genocide in only a handful of cases since the Convention came into force. In Croatia v Serbia, despite extensive evidence of war crimes and ethnic cleansing, the Court found that specific genocidal intent had not been proven. The legal test demands more than evidence of terrible crimes or even of ethnic targeting.
Moving Forward
The Myanmar case will be decided on its own terms, based on the specific evidence about what happened in Rakhine State and what the perpetrators intended. It won't and shouldn't serve as a template for unrelated conflicts.
The proceedings offer an opportunity for the ICJ to reaffirm why rigorous standards exist. In an era where genocide accusations are sometimes made hastily, maintaining the Convention's precision preserves the integrity of international law and ensures that the gravest crime known to humanity retains its proper meaning.