The merits hearings in Application of the Genocide Convention (The Gambia v Myanmar) concluded on 29 January 2026, and the Court has entered deliberations, with the judgment date to be announced later.

Commentary on this case understandably gravitates to proof, genocidal intent, and whether the ICJ will repeat the caution of its earlier genocide judgments. Those issues matter, but they can obscure a harder question: what does the Court think a genocide judgment is for? The answer is not found in abstract debates about enforceability. It is embedded in remedies. If the Court finds breach yet confines relief to declaratory satisfaction and generic exhortations, it will reproduce an old pathology of international adjudication: monumental findings, thin repair.

The parties’ final submissions make this plain. The Gambia litigated remedies as a central part of what “justice” would require. Myanmar litigated remedies as something the Court should refuse to entertain. This is not a technical side dispute. It is a contest over the institutional ambition of the ICJ in the face of mass atrocity.

The remedial ask is unusually ambitious and Myanmar is contesting it head on

The Gambia’s final submissions are not framed as a request for symbolic closure. They combine findings of responsibility with a package of forward-looking orders. The Gambia asks the Court to order Myanmar to suppress and prevent direct and public incitement to commit genocide, enact specific genocide criminal legislation, and submit suspects to trial before an independent tribunal, including “before an international penal tribunal” (CR 2026/20, pp. 57-58).

The remedy claim then moves from cessation and punishment to a victim-centred reparation programme. The Gambia requests reparation “for the victims” framed around restitution-style measures that map directly onto the Rohingya’s continuing situation: safe and dignified return; restoration or replacement in kind of property and communal sites; family reunification; rehabilitation for physical and mental injury; search for the disappeared and reburial of bodies; protection against discrimination and persecution; the right to identify as Rohingya; freedom of movement; and non-discrimination in access to livelihoods (CR 2026/20, p. 58). It also requests compensation for harm not capable of full reparation by restitution (CR 2026/20, p. 58).

The most politically charged element is framed as a guarantee of non-repetition: “full and equal citizenship” for all Rohingya present in Myanmar or displaced by the relevant events (CR 2026/20, p. 59). The Gambia further pleads remedies for an alleged failure to implement the Court’s 23 January 2020 provisional measures order, including restitution and compensation for injury resulting from violations of paragraph 86(1)-(3) of that order, with a subsequent phase to be triggered if the parties fail to agree on quantum (CR 2026/20, p. 59).

Myanmar’s closing position treats that entire programme as legally baseless. Its final submissions request that all of The Gambia’s claims, including those relating to alleged non-implementation of provisional measures and those relating to remedies, be rejected as lacking any basis in law or fact (CR 2026/23, p. 31, para. 6). Remedies are therefore not an afterthought. They are an explicit site of contestation about what an ICJ genocide judgment can and should do.

Full reparation is the rule, but the Court has a long record of under-delivering

The orthodox baseline in the law of international responsibility is exacting. Reparation should, “as far as possible”, wipe out the consequences of the wrongful act. The ICJ reaffirmed the Chorzów Factory formula in Bosnia and Herzegovina v Serbia and Montenegro (2007) (para. 460). The ILC’s Articles on State Responsibility begin remedial consequences with cessation and guarantees of non-repetition (ARSIWA, Art. 30) and state the core rule of “full reparation” for injury caused (ARSIWA, Art. 31(1)). On paper, this architecture is well suited to genocide litigation: if the wrong is exceptional, the imperative of repair should be correspondingly serious.

The Court’s actual remedial posture in genocide litigation has been more guarded. In Bosnia, having found Serbia in breach of the duty to prevent, the Court refused compensation because there was no “sufficiently direct and certain causal nexus” between the failure to prevent and the injury claimed (para. 462). It then treated a declaratory finding as “appropriate satisfaction” (para. 463). It also declined to order additional guarantees of non-repetition beyond its findings, citing Serbia’s assurances and the judgment itself (para. 466).

This is not merely a technical causation move. It reflects an institutional preference for remedies that minimise judicial supervision and maximise diplomatic exit routes. That preference may protect the Court from the accusation that it is attempting to run post-conflict reconstruction. It also risks turning the ICJ into a tribunal of condemnation without repair.

Gattini’s critique of Bosnia reads today as an uncomfortably precise warning. He argues that the Court’s retreat to declaratory satisfaction gave the judgment a “flavour of half-heartedness” and that, given the exceptional gravity of the wrong, the Court could have shown more creativity and sensitivity with respect to non-material damage and restorative forms of reparation (pp. 711-712). That argument is not about generosity. It is about credibility. If international law insists that genocide triggers responsibility, but the Court’s remedial response is structurally modest, the system starts to look like it is designed to validate norms while refusing the practical consequences of those norms.

Genocide remedies are necessarily “structural”, and that is exactly why they provoke resistance

 The Gambia’s remedies claim is sometimes dismissed as overreach. A better reading is that genocide produces forms of harm that cannot be repaired through declarations alone. Genocide is typically accompanied by displacement, dispossession, family separation, trauma, and the institutionalisation of exclusion. Restitution, in the Chorzów sense, cannot be limited to reversing isolated incidents. It must grapple with durable legal and social structures.

The Gambia’s closing remarks make that logic explicit by linking the legitimacy of the Court’s intervention to pairing truth with “appropriate remedies, including measures for reparations”, framing this as necessary to break a cycle of atrocities and impunity (CR 2026/20, p. 57, para. 5). This is an argument about the Court’s function. A genocide judgment that stops at condemnation risks normalising the idea that the Court’s main contribution is symbolic. In a case where the alleged wrong is continuing in its effects, symbolism is not neutral. It can become a substitute for repair.

There is also a more technical reason why remedies are structurally central here. The Gambia is not the territorially affected State. It is litigating under the Genocide Convention on a community-interest theory and seeks remedies “for the victims” (CR 2026/20, p. 58). This makes remedy design inseparable from questions of representation, beneficiary identification, and distribution. It also gives Myanmar an easy rhetorical line: that the ICJ is being invited to convert an inter-State case into a quasi-human-rights remedial programme. That line is convenient. It is also evasive, because the Genocide Convention’s preventive and punitive logic is hard to reconcile with purely symbolic relief.

The Gambia’s package exposes fault-lines the Court will struggle to manage

One fault-line is remedial competence in relation to punishment. The Genocide Convention obliges States to enact legislation and punish genocide, but The Gambia’s requested order goes further in form, asking Myanmar to submit suspects to trial “including before an international penal tribunal” (CR 2026/20, p. 58). The Court can plausibly order compliance with the obligation to punish. It cannot realistically order the creation or use of an international penal tribunal. A cautious Court may use this over-specification as a reason to retreat to the safest remedy: a declaration plus a generic obligation to comply with the Convention.

A second fault-line is the guarantee of non-repetition through citizenship. Read narrowly, citizenship looks like a domestic political question beyond the Court’s remit. Read more honestly, citizenship is a legal mechanism of exclusion and vulnerability. The requested remedy is intelligible as a guarantee of non-repetition because it targets the conditions that make recurrence plausible (CR 2026/20, p. 59). The difficulty is institutional, not conceptual. The Court has historically been reluctant to order domestic legal reform in detailed terms, particularly where it would require ongoing assessment of compliance. Yet the alternative is to pretend that non-repetition can be delivered through abstract admonitions.

A third fault-line is the attempt to anchor remedial consequences in provisional measures. The 23 January 2020 order required Myanmar to take measures to prevent genocidal acts and ensure that military and related actors do not commit them, to preserve evidence, and to report to the Court (Order of 23 Jan 2020, para. 86(1)-(4)). The Gambia now asks the Court to treat alleged non-compliance with those measures as a separate basis for restitution and compensation (CR 2026/20, p. 59). That request forces the Court to confront a question it usually sidesteps: if provisional measures are binding (LaGrand (2001)) but weakly enforced, do they become legally meaningful only when the Court is willing to attach remedial consequences to their breach?

Remedies matter precisely because enforcement is weak

It is easy to say that remedies are controversial because international law lacks coercive enforcement. The more important point is that weak enforcement makes remedy choices more consequential. Remedies are the bridge between a judicial finding and the mobilisation of other compliance levers, including diplomatic pressure, sanctions, domestic litigation, and criminal accountability processes. A declaration alone sets a standard, but it leaves most of the work to politics. A judgment that specifies concrete conduct obligations and ties them to continuing duties under the Convention provides a clearer legal benchmark for sustained pressure, and narrows the respondent’s room to launder non-compliance as partial implementation.

The provisional measures order already shows how the Court can build a modest compliance channel into its remedies. The reporting obligation in paragraph 86(4) does not compel compliance, but it creates an iterative mechanism that supports scrutiny over time (Order of 23 Jan 2020, para. 86(4)). A merits judgment that carries this logic forward could, at minimum, treat non-repetition as a continuing obligation with identifiable benchmarks, rather than as a rhetorical flourish.

What to watch for in the forthcoming judgment

The central risk in The Gambia v Myanmar is not only that the Court might avoid a finding of genocide, as anticipated by Marko Milanović a long time back. The deeper risk is that, even if it finds a breach, it will default to declaratory satisfaction and generic calls for compliance, repeating the pattern that has made genocide litigation feel simultaneously monumental and materially thin. The parties have litigated remedies in a way that forces the issue. Myanmar’s final submissions explicitly ask the Court to reject the remedial programme as baseless (CR 2026/23, p. 31, para. 6). The Gambia explicitly asks the Court to order reparations and to reserve a subsequent phase for compensation if needed (CR 2026/20, p. 59).

A credible remedial judgment would not need to reproduce The Gambia’s submissions in full detail. It would, however, need to justify any retreat from them. It would need to explain why restitution-type measures aimed at return, property, and rehabilitation are, or are not, legally available when an applicant litigates in the community interest; why guarantees of non-repetition can be treated as generic rather than structural; and why provisional measures should, or should not, carry remedial consequences when allegedly violated. Absent that reasoning, the judgment risks repeating the Bosnia pattern: the Court reaffirms “full reparation” in principle, but operationalises it as a declaration, leaving the most urgent questions of repair to the same political dynamics that allowed the alleged wrong to occur.