Myanmar genocide hearings begin as international law confronts its enforcement crisis

The International Court of Justice commenced three weeks of public hearings on Monday, marking the first time in over a decade the UN's top court will adjudicate genocide charges in full. The Gambia's case against Myanmar—alleging the systematic destruction of the Rohingya minority—has moved beyond procedural battles to the substantive question: Did a state commit genocide?

This shift matters beyond Myanmar. The evidentiary standards the Court establishes will directly shape South Africa's genocide case against Israel over Gaza, potentially redefining how international law identifies and addresses mass atrocity in the 21st century. Yet even as judges deliberate in The Hague, the military junta that seized power in 2021 continues the very violations the Court ordered stopped six years ago.

The legal architecture of accountability

The Gambia's standing to bring this case represents a fundamental challenge to traditional notions of sovereignty. A West African nation with no territorial stake in Myanmar's internal affairs is prosecuting genocide on behalf of the "common interest"—invoking the erga omnes partes principle that all parties to the Genocide Convention have a legal interest in preventing the crime. This evolved interpretation of standing emerged only in the last two decades, transforming the 1948 Convention from a largely symbolic instrument into one with teeth, at least in theory.

The central legal battleground is dolus specialis—the specific intent to destroy a protected group "in whole or in part." The Gambia alleges that Myanmar's 2016-2017 "clearance operations" involving mass killings, systematic sexual violence, village burning, and the forced displacement of approximately 730,000 Rohingya were not counterinsurgency gone wrong, but a deliberate campaign of erasure. Proving that requires demonstrating that the "only reasonable inference" from the pattern of violence is genocidal intent.

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The enforcement void

The proceedings carry symbolic weight—for the first time, Rohingya victims will testify before an international court, though in closed sessions for their protection. Yet the gap between legal authority and material power has never been starker. The Court issued binding provisional measures in 2020 ordering Myanmar to prevent genocide and preserve evidence. Human rights organizations document that the junta has systematically violated both directives, intensifying what observers describe as apartheid conditions while destroying documentation of atrocities.

A final judgment, expected months or years from now, would be legally authoritative but practically unenforceable without Security Council action—where China and Russia hold vetoes. This mirrors the dilemma in the Gaza case, where ICJ orders have met with selective compliance at best. The Court can declare law but cannot compel adherence, revealing a structural flaw in the international legal architecture.

Redefining genocide or confirming its limits

The hearings will unfold against Myanmar's ongoing civil war, where the same military apparatus accused of genocide now battles ethnic armed organizations and pro-democracy forces. The junta's violence has only intensified since seizing power, suggesting that whatever legal judgment emerges will arrive too late to prevent further atrocities. What it may accomplish is establishing a definitive legal record—one that future transitional justice mechanisms, should Myanmar's political landscape shift, could build upon.

The substantive question before the Court is whether Myanmar committed genocide. The structural question is whether international law can address mass violence by states that reject its jurisdiction. The Gambia's case tests both propositions simultaneously, with implications that extend from Rakhine State to Gaza and beyond. The answer may determine whether the Genocide Convention functions as a meaningful constraint on state violence or remains primarily a memorial to past failures.