On 12 January 2026, the International Court of Justice (ICJ) will commence the oral proceedings in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar). Over the course of three weeks, the ICJ will hear arguments concerning The Gambia’s claim (which was lodged with the Court in 2019) that Myanmar’s treatment of the Rohingya ethnic minority within its territory has breached Myanmar’s obligations under the 1948 Genocide Convention.

This is a landmark case. It will be the ICJ’s first opportunity to decide the merits of a dispute brought by a non-injured state in response to claims based on mass violations of human rights (on the rise of such “public interest” litigation at the ICJ, see Ramsden (2022), Rose (2023) and Urs (2025)). Past ICJ cases based on the Genocide Convention (namely, Bosnia v Serbia and Croatia v Serbia) involved directly injured states. The Gambia v. Myanmar can also be distinguished from the Court’s milestone 2012 judgment in Belgium v Senegal, which confirmed the standing of non-injured states to bring claims based on obligations erga omnes partes, but not did concern State responsibility for mass atrocities. This will also be the first case to be decided on the merits in the era of “mass intervention”, as 11 states have intervened as non-parties pursuant to Article 63 of the ICJ Statute (on this trend, see McGarry (2020) and McIntyre, Wigard, and Pomson (2023)). How the Court decides key issues in The Gambia v. Myanmar will have major implications for other Genocide Convention cases pending before the ICJ, including South Africa v Israel and Ukraine v Russia.

This post outline key issues to keep in mind as the hearing unfolds, including how the parties argue the question of genocidal intent, questions of fact-finding and evidence, and the nature and scope of the requested relief. The ICJ’s typical practice is to make the written pleadings (which remain confidential) available on its website upon the opening of the public hearing. These materials will also shed significant light on several of the considerations outlined here.

Background

The Rohingya, an ethnic Muslim minority in Rakhine State in the west of Myanmar, have endured a long history of state-backed discrimination and oppression (see Zarni & Cowley (2014)). In 2016 and 2017, violence against the Rohingya escalated dramatically in the form of so-called “clearance operations” carried out by the Tatmadaw, Myanmar’s armed forces. Those operations were ostensibly a response to coordinated attacks by the Arakan Rohingya Salvation Army (“ARSA”), an insurgent group. In a September 2019 report, the Independent International Fact-Finding Mechanism on Myanmar (the “IIFFMM”), an ad hoc body established by the UN Human Rights Council in March 2017, estimated conservatively that the clearance operations had caused as many as 10,000 deaths (para. 1007). The military operations were also marked by rampant sexual violence and the widespread destruction of homes and property. They also caused around 700,000 members of the Rohingya group in Myanmar to flee to Bangladesh, with most of the remaining Rohingya population within Myanmar internally displaced.

The Gambia instituted ICJ proceedings against Myanmar on 11 November 2019 and simultaneously requested the indication of provisional measures. Following a memorable hearing in December 2019 (during which Nobel Peace Prize laureate Aung San Suu Kyi appeared on behalf of Myanmar), the ICJ indicated provisional measures against Myanmar on 23 January 2020, finding that the Rohingya in Myanmar remained “extremely vulnerable” (para. 72) and that there was a real and serious risk of irreparable prejudice to the rights under the Genocide Convention invoked by The Gambia (para. 75). The Court’s order directed Myanmar to prevent the commission of genocidal acts, to preserve evidence, and to provide periodic reports to the Court on the implementation of those measures (for further comment: Becker (2020)). Myanmar subsequently exercised its right to raise preliminary objections to jurisdiction and admissibility, which the Court rejected in a July 2022 judgment.

How will The Gambia seek to establish genocidal intent?

In its case law, the ICJ has set out that genocide, as a charge of “exceptional gravity”, must be proven “by evidence that is fully conclusive” (Bosnia v Serbia, para. 209). The most difficult aspect of establishing genocide turns on the question of genocidal intent. It is not enough to establish the actus reus of genocide (for example, killing members of the group or causing serious bodily and mental harm). It is also necessary to establish the dolus specialis—that is, that such acts were committed with intent to destroy, in whole or in part, the group, as such (Genocide Convention, Art II).

It is nearly always the case that allegations of genocidal intent depend on indirect or circumstantial evidence. In its Application, The Gambia explained that it would seek to show that Myanmar’s  “systematic denial of legal rights” to the Rohingya and the state’s participation in “hate campaigns” designed to dehumanise the Rohingya as a group are indicative of genocidal intent (Application, para. 31) and provide the context to the “clearance operations” in 2016 and 2017. Those operations include targeted attacks against civilians, including children (paras. 58, 79-83), and efforts to ‘systematically burn and destroy entire Rohingya villages’ (paras. 54, 84) or to destroy only Rohingya homes in mixed ethnicity villages (para. 90).

The ICJ has said that an inference of genocidal intent based on a pattern of conduct must be “the only inference that could reasonably be drawn from the acts in question” (Croatia v Serbia, para. 148). Despite admirable recent attempts to demystify the “only reasonable inference” standard (see Milanovic (2025) and Haque (2026))—a concept that is not specific to genocide (see, e.g., Corfu Channel (Merits) at 18)—the application of the “only reasonable inference” requirement by the ICJ remains a source of uncertainty. At an earlier phase of this case, Myanmar appeared to argue that the existence of any reasonable alternative explanation for its alleged conduct necessarily precludes a finding of genocidal intent (see CR 2019/19. p. 28, para. 22). Commentators have pushed back against this restrictive understanding of the “only reasonable inference” test (see, e.g., Essawy (2024) and Barigye, Hendrickse and Todeschini (2025)).

While we cannot yet know precisely how The Gambia will approach the question of genocidal intent, this was the focal point of several declarations of intervention in the case. For example, the Joint Declaration of Canada, Denmark, France, Germany, the Netherlands, and the United Kingdom asserts that “it is crucial for the Court to adopt a balanced approach that recognizes the special gravity of the crime of genocide, without rendering the threshold for inferring genocidal intent so difficult to meet so as to make findings of genocide near-impossible” (para 51). The joint declaration also identifies a broad range of factors that those states deem relevant to identifying genocidal intent, including a prevalence of sexual and gender-based violence, acts taken against children, and forced displacement (see paras 63-74). Ireland’s declaration also addresses the “only reasonable inference test” to assert that genocidal intent may co-exist alongside other state objectives, such as seeking to defeat the enemy in an armed conflict, and that this does not preclude a finding of genocidal intent (see paras 33-38). Similarly, Belgium’s declaration seeks “to show that the existence of an armed conflict, and the military considerations often invoked in that context, do not constitute an obstacle to the recognition of genocidal intent” (para. 22). Indeed, a policy of genocide may be the means to some other end. As the intervening states will not be participating in the oral hearing (a decision taken by the Court pursuant to a recent amendment to its Rules), it bears watching to what extent the parties will engage with the positions set out by the non-party intervening states.

In terms of other materials before the Court, the IIFFMM’s final report includes a detailed section on genocide (see paras. 1388-1441). Following an analysis that tracks the ICJ’s “only reasonable inference” test, the IIFFMM concluded that “the factors allowing the inference of genocidal intent are present” (para. 1441).  In sum, a key issue of the hearing—indeed, the central issue—will be to see how The Gambia seeks to persuade the ICJ that the situation in Myanmar differs from the cases from the former Yugoslavia in which the Court found that genocidal intent could not be established from the facts. Will The Gambia urge the Court to revisit its approach to the law, or will it instead seek to explain to the Court how the existing test is met in this case based on the totality of the evidence?

How will the Court establish the facts?

In its previous Genocide Convention cases, the ICJ had the benefit of the extensive record compiled by the International Criminal Tribunal for the former Yugoslavia.  It will not have that luxury here, where proceedings at the International Criminal Court remain at an early stage, with an application for an arrest warrant for Acting President Min Aung Hlaing still pending.

Fact-Finding Reports

Instead, The Gambia’s case will rely heavily on UN fact-finding reports, including by the IIFFMM. As I have set out elsewhere, the Court has frequently shown considerable willingness to credit the findings in such materials, even while it has suggested a greater comfort with evidence obtained through an adversarial, court-like process (see Becker (2019) and Becker (2025)).

For this reason, it will be important to see how both parties address the extent to which the ICJ should give weight to third-party fact-finding reports, including the IIFFMM materials. Myanmar can be expected to attack the accuracy, credibility, completeness, and impartiality of these reports, perhaps focusing especially on the fact that the IIFFMM did not have access to the territory in question. Notably, the ICJ recently identified this as a potential reason for caution in Ukraine’s case against Russia relating to ethnic discrimination in Crimea (see the Judgment of 31 January 2024 at para. 215). At the same time, Myanmar may ask the ICJ to credit the findings of its own inquiry body, which concluded that war crimes, but not genocide, took place. How The Gambia seeks to rebut any such efforts by Myanmar to undermine the factual findings of the IIFFMM or other third-party observers merits close attention.

Witness and Expert Testimony

However, fact-finding reports will not be the only sources of evidence before the Court. Notably, the ICJ’s press release indicates that the hearing will include four closed sessions dedicated to the examination of fact witnesses. While this does not specify that such witnesses have been called by The Gambia rather than Myanmar, the most likely scenario may be that The Gambia intends for the Court to hear directly from members of the Rohingya community who can testify to their experience or the broader conditions faced by the Rohingya minority in Rakhine state. While fact witnesses are a rare occurrence at the ICJ, hearings in the previous Genocide Convention cases at the ICJ also involved fact witnesses.

In addition, the Court’s schedule reveals that one public session (on Thursday, 22 January) will be dedicated to the examination of an expert. While we do not yet know the expert’s identity, the nature of their testimony, or which party is calling the expert, the ICJ might benefit from expertise on a number of issues. These include the significant role of Facebook in Myanmar and its use by state authorities, since part of the case will undoubtedly focus on the alleged use of Facebook accounts to foment ethnic hatred against the Rohingya (see Irving (2018) and Schissler (2024)). Other possibilities include expert opinion addressed to debates about the historical presence of the Rohingya ethnic group in Rakhine State or to geospatial intelligence (for example, if The Gambia is relying upon satellite images to demonstrate the impact of Tatmadaw operations). It might also be useful for the ICJ to have the opportunity to hear directly from a member of the IIFFMM to ensure that questions about its work can be properly addressed and not left to guesswork (see Becker (2025) at 637-38). If anything, it is surprising that only one expert is apparently scheduled to appear.

It will also be important to pay attention to any questions that judges may pose to the parties during the proceedings, especially to the extent these aim to correct any gaps in the record.

What relief will The Gambia ultimately request?

In its Application, The Gambia indicated that it would ask the Court to find Myanmar in breach of various obligations under the Genocide Convention, including by its failure to prevent and punish genocide, and to require Myanmar to ensure that perpetrators face trial and punishment and to make reparations in the interest of the Rohingya victims.  According to the Application, such relief should encompass measures to allow the “safe and dignified return of forcibly displaced Rohingya and respect for their full citizenship and human rights” (para. 112).  In effect, this would require Myanmar to reform its domestic law to extend full citizenship rights to the Rohingya and to ensure that other human rights protections are in place. It is not yet clear whether The Gambia will also ask the Court to direct Myanmar to pay damages or to perform other acts of restitution, such as the return of confiscated land. As this is the first ICJ case in which a non-injured state is likely to seek such wide-ranging relief, it remains to be seen whether party argument will concern any potential limits on the nature or scope of the relief that the Court may grant (on this, see Kourtis (2019)).

Finally, it bears keeping in mind that the situation in Myanmar has changed dramatically since The Gambia instituted these proceedings in November 2019. In January 2021, a military coup ousted the elected government led by Aung San Suu Kyi, who now finds herself imprisoned once again. Since the coup, the country has descended into economic chaos and civil war, with people’s defence forces and armed ethnic groups engaged in a struggle against the ruling military junta, which has lost control over substantial parts of Myanmar’s territory.  The broader crisis has arguably served to marginalize the specific plight of the Rohingya, which is not the only ethnic minority group in Myanmar seeking stronger protections.

How might these developments affect the ICJ case? When Myanmar sought to dissuade the Court from indicating provisional measures in 2019, one of its arguments was that Myanmar was engaged in efforts to promote ethnic reconciliation and to hold members of the military accountable for certain offences (see Order of 23 January 2020, para. 73). It remains to be seen whether Myanmar can continue to make any such representations as it seeks to rebut The Gambia’s allegations of genocidal intent.

It will also be interesting to see whether The Gambia introduces new claims that Myanmar has not complied with the provisional measures indicated in January 2020, which remain in place.  While Myanmar has been operating under a periodic reporting requirement since that time, its reports to the Court have remained confidential, and The Gambia has not returned to the ICJ to seek new or revised provisional measures (the Court only recently amended its rules so that reports in future cases will be made publicly available). But civil society groups, such as Human Rights Watch and the Burmese Rohingya Organisation UK, have taken the view that Myanmar has not fully complied with the provisional measures.

Conclusion

The long-awaited oral hearing in The Gambia v Myanmar—seven years after the case began—is a milestone in The Gambia’s efforts to obtain justice for the Rohingya. It also means that a judgment on the merits can be expected before the end of 2026. Even if The Gambia prevails, however, the besieged military government may lack the capacity to provide any concrete relief, even if it were inclined to do so (which may also be unlikely). Redress for the Rohingya may yet be forestalled until Myanmar’s broader crisis finds  some resolution, including by return to democratic rule.

But The Gambia v Myanmar also has broader significance. It provides the ICJ with a key and timely opportunity to clarify the law of genocide, especially in situations of armed conflict or counter-insurgency. As noted above, the Court’s decision will have major implications not only for the Rohingya, but also with respect to questions of state responsibility for genocide in other conflicts. There is no question that South Africa and Israel will be watching closely.