A Non-Partisan Look at the ICJ Case Against Myanmar

In November 2019, Gambia filed a lawsuit at the International Court of Justice (ICJ) against Myanmar, alleging that the Tatmadaw’s actions against the Rohingya Muslim minority in 2016–2017 violated the 1948 Genocide Convention. The case accuses the Myanmar state of conducting a campaign of mass killings, rape, burning of villages, and forcible displacement of Rohingya people with intent to destroy the group “in whole or in part”, which acts are defined under international law as genocide. The ICJ accepted the case and, in January 2020, ordered provisional measures requiring Myanmar to protect the Rohingya from further genocidal acts and preserve evidence.

This is a state-to-state dispute, not a criminal trial against individual commanders. The court will determine whether Myanmar, as a state party to the Genocide Convention, bears responsibility for violating its legal obligations. Oral hearings on the merits of the case were held from 12 to 29 January 2026, after which the ICJ formally closed the oral phase and moved into deliberations. The Court is yet to issue its final judgment, and a date for the decision has not been announced.

Core Points of the Case and Counter Arguments

In its application to the ICJ, The Gambia’s case against Myanmar centers on repeated and systematic violations of the 1948 Genocide Convention by Myanmar’s state authorities against the Rohingya population. The Gambia argues that Myanmar’s security forces engaged in widespread atrocities during the October 2016 and August 2017 “clearance operations,” including mass executions of men, women, and children, the systematic burning of Rohingya villages, rape and other sexual violence on a large scale, and the imposition of living conditions calculated to destroy the group in whole or in part.

These acts, the application contends, occurred in the context of decades of discriminatory policies that deprived the Rohingya of citizenship, restricted their movement, and subjected them to pervasive hate campaigns, all of which demonstrate an underlying intent to destroy the Rohingya as a group, which is the defining mental element required for genocide under international law. The Gambia has also pointed to continuing acts after 2017, including the destruction of villages and denial of access to food, and has emphasized that even the Rohingya still in Myanmar remain under threat of further genocidal acts.

The Gambia seeks a formal ICJ declaration that Myanmar has breached multiple articles of the Genocide Convention, including obligations to prevent and punish genocide, and requests that the court order Myanmar to cease ongoing genocidal acts, hold perpetrators accountable before a competent tribunal, provide reparations to victims, and guarantee that such violations will not recur.

Myanmar has offered several counterarguments in defense. During the merit hearings, Myanmar’s representatives reiterated earlier positions that the allegations are “flawed and unfounded in fact and law,” dismissing key reports including the United Nations fact-finding mission as biased and unreliable. Representatives have also challenged parts of The Gambia’s evidence as partial or partisan and argued that many Rohingya individuals hold citizenship or National Verification Cards, countering claims of total statelessness.

Earlier procedural disputes, including objections by Myanmar over the ICJ’s jurisdiction and The Gambia’s standing to bring the case, were fully rejected by the Court in 2022, allowing the proceedings on the merits to continue. In rejecting these preliminary objections, the ICJ affirmed that a dispute existed at the time the case was filed and that The Gambia, as a state party to the Genocide Convention, has the right to invoke Myanmar’s responsibility for alleged breaches of the treaty.

Myanmar’s Denial at the ICJ

Beyond the formal legal arguments advanced by Myanmar at the ICJ, several structural and political factors help explain the state’s sustained confidence in denying genocide allegations. During the January 2026 hearings at the ICJ, Myanmar’s military-appointed representative Ko Ko Hlaing, Union Minister in the President’s Office and Agent of Myanmar before the court, argued that The Gambia had failed to prove the specific intent required for genocide, maintaining that the 2017 military operations in northern Rakhine State were legitimate counter-terrorism actions carried out in response to attacks by the Arakan Rohingya Salvation Army (ARSA). This position was supported by members of Myanmar’s legal team, including international lawyer Alina Miron, who contended that the evidence presented did not meet the legal threshold under the Genocide Convention.

Several factors help explain why Myanmar appears confident in maintaining its denial of genocide allegations before the ICJ. A key factor is the legal complexity and high evidentiary threshold required under international law. To establish a violation of the 1948 Genocide Convention, a claimant must prove not only the engagement of prohibited physical acts, such as killing or causing serious bodily or mental harm, but also the existence of specific intent to destroy, in whole or in part, a protected group. This mental element is particularly difficult to show in inter-state proceedings, where direct evidence of intent is rare and must be inferred from patterns of conduct. Historically, the ICJ has been reluctant to find genocide, partly because the requirement of specific intent is applied very strictly and requires strong proof.

A second factor shaping this confidence is the broader geopolitical context. Although it does not legally affect the ICJ’s independent judicial assessment, it influences international responses to the case. China has consistently provided diplomatic support to Myanmar in international forums and has resisted stronger disciplinary measures. Russia has taken similar positions in several instances by opposing or abstaining from resolutions that would impose stronger international pressure on Myanmar. Together with China, Russia has emphasized state sovereignty and non-interference during discussions in the United Nations Security Council and has resisted measures that could lead to sanctions or international enforcement. These positions in both Security Council deliberations and General Assembly votes reflect broader geopolitical alignments and divisions among major powers, which can limit collective international action and reduce the likelihood of sustained and coordinated political pressure on Myanmar.

The third factor is the weak enforcement of international court decisions. International courts, including the ICJ, do not have their own enforcement powers and depend largely on state cooperation to carry out their rulings. In the Rohingya case, the ICJ ordered Myanmar in 2020 to take provisional measures, including preventing further harm to the Rohingya and preserving evidence related to the allegations of genocide. However, human rights organizations have raised concerns about whether these measures have been effectively implemented on the ground.

This gap between legal orders and actual enforcement can create the impression that a state may ignore or delay compliance without facing immediate consequences. In Myanmar’s case, this perception is reinforced by long-standing state policies toward the Rohingya. Myanmar authorities have consistently referred to the Rohingya as “Bengali,” a term used by the state to imply that they are illegal immigrants from Bangladesh rather than an ethnic group native to Myanmar. This official position denies the Rohingya recognition as a distinct ethnic group and has been used to justify their exclusion from citizenship and basic rights. Such denial of identity, combined with weak enforcement of international rulings, may further encourage Myanmar’s continued rejection of responsibility for violations against the Rohingya.

Domestic opposition to the ICJ proceedings has also been visible within Myanmar, particularly among ultranationalist and pro-military groups in major cities. During the second round of ICJ hearings, a pro-military support rally was held on 27 January in front of Yangon City Hall by the Patriotic Association of Myanmar (Ma Ba Tha), expressing solidarity with Myanmar’s delegation and condemning The Gambia’s genocide allegations. Hundreds of Ma Ba Tha members from multiple Yangon townships attended the rally, where ultranationalist and extremist figures such as Buddhist monk Ashin Thuseikta publicly denied that genocide had occurred, and Win Ko Ko Latt, a legal advisor known for his role in anti-Rohingya nationalist activism, was also present.

Protesters chanted slogans rejecting what they described as genocide accusations made “without solid evidence,” echoing the military government’s official position. The rally coincided with the appearance of a delegation led by Ko Ko Hlaing, and shows how ultranationalist mobilization in cities like Yangon, and similarly controlled political spaces such as Naypyidaw, reinforces the Tatmadaw’s rejection of international legal scrutiny.

Realities Supporting the Claim of Genocide

Human rights organizations, and legal analysts have highlighted that the violence against the Rohingya in 2017 followed systematic and coordinated patterns that go beyond ordinary military operations. A United Nations Independent International Fact-Finding Mission on Myanmar found that the attacks were widespread and deliberately targeted civilians, including women, children, and the elderly, and involved mass killings, sexual violence, and destruction of entire villages. The Mission concluded that these acts were not random or isolated but part of a broader policy that seriously violated international law and warranted investigation of senior military leaders for genocide and crimes against humanity.

Survivors who fled to Bangladesh have provided shocking first‑hand accounts of the military campaign that vividly illustrate the brutality and indiscriminate nature of the violence. In interviews documented by Human Rights Watch, refugees described fleeing as soldiers opened fire on villages with heavy weapons, including mortars and helicopters, and razed homes to the ground. One survivor, Yasin Ali (25), recalled hearing explosions and watching houses collapse before he took shelter in the hills and witnessed a helicopter circle his village before fires spread, forcing his family to flee. Many civilians in his community were killed or disappeared during these attacks, including children and elderly relatives.

Another Rohingya woman, Momena (32), described how on August 25, she saw soldiers enter her village. She hid with her children when the soldiers arrived, but when she returned to the village, she found 40 to 50 people dead, including children and the elderly and said, “All had knife wounds or bullet wounds, some had both. My father was among the dead; his neck had been cut open. I was unable to do last rites for my father – I just fled.” After that she fled to Bangladesh on August 26, 2017.

Additional eyewitnesses have reported soldiers stripping women naked, threatening them with sexual violence if they did not provide information about alleged militant activity, and carrying out rapes in forested areas and outposts before allowing some to escape. In other cases, family members witnessed mass killings, with entire families shot or stabbed after refusing soldiers entry to their homes. Witnesses also described the routine use of arson – soldiers pouring petrol and setting fire to roofs and homes to drive out civilian populations. Testimonies from survivors of the Min Gyi (Tula Toli) massacre on 30 August 2017 describe Rohingya being forced to lie beside a river before being shot, with many women raped and children killed. One woman recalled how soldiers beat and murdered her two‑year‑old son with a wooden stick and sexually assaulted multiple women before looting their belongings.

Soldiers’ Confessions and Testimonies

CNBC has captured direct statements from members of the Myanmar armed forces, providing inside acknowledgment of genocidal conduct-

• Private Myo Win Tun, formerly of Light Infantry Battalion No. 565, stated that during operations in Buthidaung in September 2017, his unit received orders from Colonel Than Htike of the 15th Military Operations Command to “shoot all that you see and all that you hear.” Under these orders, his unit killed at least 30 civilians and buried them in a mass grave, “The Muslim men were shot on their foreheads and kicked into the grave.” He also admitted to personally committing sexual violence prior to executions and described other soldiers doing the same, “We also raped Muslim women prior to shooting them. There were the Corporals, Sergeants, and Officers who raped Muslim women. I also raped one time.”

• Private Zaw Naing Tun, formerly of Light Infantry Battalion No. 353, said his battalion was ordered “to kill all, irrespective of children and adults,” and that over several days his unit destroyed approximately 20 Rohingya villages, including Doe Tan, Ngan Chaung, Kyet Yoe Pyin, Zin Paing Nyar, and U Shey Kya, killing around 80 civilians. He also describes witnessing fellow soldiers and officers rape Rohingya women, noting that he did not participate because he had been assigned to guard the area. “I was sentry outside while they were raping. I had to do the sentry because I am a private,” he says, adding, “I can’t remember all of their names and ranks because there were a lot of them.”

These battalions were part of the 33rd Light Infantry Division (33rd LID), under the command of Brigadier General Aung Aung. Given the Tatmadaw’s command structure, it can be confirmed that the attacks were coordinated at multiple levels, with direct orders targeting Rohingya civilians, consistent with a systematic plan rather than isolated battlefield responses.

Myanmar’s government has argued that its military operations were legitimate counter-terrorism measures, pointing to the “threatening” attacks they like to highlight- a small-scale assault on security personnel in October 2016, followed by a larger attack on 25 August 2017, targeting police posts and an army base. These are the incidents that Myanmar consistently invokes to justify the sweeping and systematic military campaign against the Rohingya. Although these attacks occurred, investigations show that the military’s response far exceeded what would be proportionate to these incidents. The widespread violence of 2017 extended across multiple townships, often targeting villages where no ARSA presence had been confirmed, indicating that the operations were directed more broadly at the Rohingya population than at isolated militant activity.

The Gambia, in presenting its case to the ICJ, emphasized that these patterns of violence were reinforced by long-standing discriminatory policies that denied the Rohingya basic rights, such as freedom of movement, access to marriage, and citizenship. When such state policies are combined with systematic attacks on a population, they strongly indicate the specific intent required for genocide under international law.

Why Gambia?

Although Bangladesh is the country most directly affected by the Rohingya crisis, it did not bring the ICJ case against Myanmar due to a combination of legal, political, and diplomatic constraints. Legally, Bangladesh made a reservation to Article IX of the Genocide Convention when it agreed to the treaty. Article IX allows states to bring disputes about the Convention to the ICJ, but Bangladesh’s reservation limited the situations under which it could independently file a case. Diplomatically, Bangladesh has maintained sensitive negotiations with Myanmar regarding repatriation of Rohingya refugees and border security, and filing a formal legal case could have complicated these arrangements. Economically and politically, Bangladesh also relies on regional cooperation with Myanmar and engagement with major powers like China, which supports Myanmar. Pursuing the case directly could therefore have exposed Bangladesh to retaliation or diplomatic pressure, making it strategically difficult.

To address the need for legal accountability without these direct risks, The Gambia, a distant state party to the Convention, stepped in to file the case on behalf of all states parties, relying on the erga omnes partes principle. This principle allows any state party to call on the responsibility of another state party for alleged breaches, even if it is not geographically adjacent or directly affected. Myanmar argued that The Gambia lacked standing because it was a “non‑injured state” and that Bangladesh, as the neighboring country hosting most Rohingya refugees, was the specially affected state that should bring the case.

The ICJ rejected this argument in its 2022 judgment on preliminary objections, confirming that The Gambia had standing to proceed. The Court emphasized that Bangladesh’s reservation to Article IX did not prevent The Gambia from acting, and that the object and purpose of the Genocide Convention allow any state party to seek compliance. As a result, The Gambia was able to file its 2019 application alleging Myanmar’s violations of the Genocide Convention and request declarations and remedies from the Court.

International justice has often struggled to prevail when powerful states or leaders are involved. The International Criminal Court (ICC), in particular, has faced growing criticism over its effectiveness due to high-profile arrest warrants that remain unenforced. In recent years, the Court issued warrants for Russian President Vladimir Putin in 2023 and for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant in November 2024, linked to alleged war crimes and crimes against humanity in Ukraine and Gaza. Despite these unprecedented actions, none of the leaders have been surrendered to The Hague, even when traveling abroad, and some powerful states have openly rejected or refused to implement the ICC’s decisions.

For instance, Hungary invited Netanyahu to visit while criticizing the ICC as “absurd” or politically motivated, and the United States issued sanctions against ICC officials in response to the warrants. Past cases, such as former Sudanese President Omar al-Bashir, who traveled freely for years despite his ICC indictment, further show enforcement gaps. Although the ICJ and the ICC serve different functions, the ICJ handles disputes between states while the ICC prosecutes individuals for international crimes, both operate within the broader international legal system, and gaps in enforcement can affect perceptions of accountability.

These patterns of selective or non-enforcement in international institutions contribute to broader concerns about the effectiveness and authority of international law. Such inconsistencies may reinforce perceptions that powerful states or leaders can resist international scrutiny without immediate consequences, potentially influencing state behavior in cases like Myanmar’s Rohingya genocide dispute.

The Rohingya Reaction

After the January 2026 hearings, Rohingya survivors have publicly expressed strong expectations that the ICJ will eventually find that Myanmar committed genocide against their community, highlighting the deep personal impact of the 2017 military crackdown. Survivors have recounted how the 2017 offensive forced at least 730,000 Rohingya to flee to Bangladesh and described years of suffering marked by killings, mass rape, and the destruction of homes, reinforcing their belief that a genocide ruling would acknowledge their lived experience and help break Myanmar’s “cycle of atrocities and impunities.”

Lawyers for The Gambia told the Court that the only reasonable conclusion from Myanmar’s conduct is that it intended to destroy the Rohingya as a group, and survivors have linked this to a broader demand for justice and accountability. A judgment is expected within three to six months after the hearings concluded, and the outcome could have implications beyond the Myanmar case, including for other genocide-related disputes before the Court.

The ICJ case against Myanmar tests the reach of international law in holding states accountable for alleged genocide. Myanmar denies genocide, claiming its military actions were counter-terrorism, yet investigations reveal systematic violence against civilians, including killings, sexual assaults, and village destruction. The case highlights the difficulty of proving genocidal intent, the role of geopolitical support, and the limits of enforcing international rulings. With the January 2026 hearings concluded, the Court’s final judgment will be a defining moment for the Genocide Convention and for the protection of vulnerable populations worldwide.

Verification Note: This report is based on publicly available news sources, official statements, and credible analyses as of February 2026. Information from unreliable, exaggerated, or unverified sources has been excluded to ensure accuracy and objectivity.