No Injury Required
On 11 November 2019 The Gambia — 11,300 square kilometres, fewer than three million people, less than three years out of a dictatorship — filed a genocide case against Myanmar at the International Court of Justice. No Gambian had been harmed, and that was precisely the argument: under the Genocide Convention, nobody has to have been.
The application was filed at the Peace Palace in The Hague on 11 November 2019 by a state that had never been to the International Court of Justice before. The Gambia covers about 11,300 square kilometres, most of it a strip of land on either side of one river, and holds fewer than three million people. Its case was against Myanmar, some eleven thousand kilometres away, over what the Myanmar military had done to the Rohingya of Rakhine State in 2016 and 2017. There is no Gambian community in Rakhine. There is no trade between the two countries worth the name, no shared border, no diaspora, and no treaty between them apart from the one the case was about.
That absence was the legal question, and it was answered in The Gambia's favour. On 22 July 2022 the Court rejected all four of Myanmar's preliminary objections and held that The Gambia was entitled to bring the case — not as a victim, not as anyone's agent, but simply as a party to the Convention on the Prevention and Punishment of the Crime of Genocide. The Convention's court clause had been litigated before, but only ever by states that were themselves inside the conflict. This was the first time a state with no connection to the events was told it could sue.
The clause
Article IX of the Convention sends disputes between contracting parties about its interpretation, application or fulfilment to the International Court of Justice at the request of any party to the dispute. The word carrying the weight is "any". In 1951, asked about reservations to the same treaty, the Court had already said that its parties have no interests of their own in it — that they enter into it for a common interest, and that a state gains no individual advantage by accepting it. In 2012, in a case Belgium brought against Senegal over the prosecution of the former Chadian president Hissène Habré, the Court applied that reasoning to the Torture Convention and found Belgium could sue without having been injured. Myanmar argued that The Gambia was not specially affected, that the real applicant was the Organisation of Islamic Cooperation, and that only an injured state could complain. The Court held that the obligations in the Genocide Convention are owed to every other party — erga omnes partes is the phrase — and that any of them may therefore come and ask for them to be enforced.
Why Banjul
The man who assembled it was Abubacarr Marie Tambadou, appointed Attorney General and Minister of Justice in February 2017, weeks after Yahya Jammeh finally flew out. Tambadou had spent his working life on the other side of this subject: trial attorney in the prosecutor's office of the International Criminal Tribunal for Rwanda from 2003 to 2008, appeals counsel until 2012, then special assistant to the prosecutor of the residual Mechanism in Arusha until the job in Banjul came up. In May 2018 he went to the refugee camps at Cox's Bazar with a delegation from the Organisation of Islamic Cooperation, and said afterwards that what people described to him there was what he had spent fifteen years reading in case files. The OIC had an ad hoc ministerial committee on the Rohingya and no way of using it, because the Court hears cases between states and not from organisations. The Gambia chaired that committee. It also had a justice minister who knew exactly which clause to reach for.
The Gambia was not speaking for the Rohingya, and it was not fronting for anybody. That is the whole content of the ruling: it did not need to be doing either, because the promise not to commit genocide had been made to The Gambia as well.
What the Court has done so far
Provisional measures were argued over three days in December 2019, with Aung San Suu Kyi appearing in person to lead Myanmar's defence — a Nobel peace laureate at the bar of the Court, arguing that what her army had done did not meet the definition. On 23 January 2020 the Court unanimously ordered Myanmar to prevent genocidal acts against the Rohingya, to prevent its own forces from committing them, to preserve evidence, and to report back at intervals. A year later that army removed the government that had argued the case, leaving a junta instructing counsel to defend a case brought against the state it had just seized. The preliminary objections were heard in February 2022 and dismissed in July. The written phase ground on through counter-memorial, reply and rejoinder into December 2024. Eleven states filed declarations of intervention — seven in 2023, held admissible in July 2024, and Slovenia, the Democratic Republic of the Congo, Belgium and Ireland the following winter, held admissible in July 2025. The merits were argued in The Hague between 12 and 29 January 2026. At the time of writing the judgment has not come.
Who is paying
A case at this Court runs for years and is argued by counsel who charge accordingly. The Gambia's justice ministry could not fund one out of its own budget and does not: the OIC undertook to meet the costs, and the litigation is conducted by an American firm, Foley Hoag, instructed on The Gambia's behalf. Myanmar made the obvious use of that, arguing that the true applicant was the organisation and that a treaty right should not be exercisable by proxy. The judges disagreed on a narrow and durable ground — the applicant is whoever files, and neither the Convention nor the Statute of the Court says anything about who settles the invoice. It is worth being plain about this rather than romantic. The OIC wanted the case brought and could not bring it; The Gambia could, and did, and the money came from the states that wanted it done. That is how a small country exercises leverage in international law, and it is not a scandal. It is the only mechanism on offer.
The argument at home
The case has never been universally popular in The Gambia, and the domestic objection is not the one Myanmar made. It is about sequencing. The country came out of twenty-two years of Jammeh with a long list of its own: enforced disappearances, a presidential death squad, a witch-hunting campaign in 2009, a compulsory herbal "cure" for HIV administered on the president's instructions. A Truth, Reconciliation and Reparations Commission took public testimony from 2019 to 2021 and handed its report to President Adama Barrow in November 2021, recommending prosecutions. Jammeh has lived in Equatorial Guinea since the night he left in January 2017 and has not been tried. The hybrid tribunal agreed with ECOWAS to deal with those crimes has still not begun hearing them. Spending seven years and other people's millions on Rakhine State while that queue stands still is a fair thing for a Gambian to raise, and Gambians raise it.
The answer given in Banjul is that the two are one argument, and the case has outlasted the people who might have made it a vanity. Tambadou left in July 2020 to become Registrar of the UN residual Mechanism in Arusha, and the file did not go with him: it survived his successors, a presidential election in December 2021 and the ordinary attrition that kills most inherited projects. Whatever the Court eventually finds about Rakhine State, the ruling of 22 July 2022 is already fixed, and it was won by the applicant. More than 150 states are party to the Genocide Convention and any of them may now bring a case about a genocide anywhere, against anyone, whether or not it has been touched by it — Canada and the Netherlands used the same reasoning against Syria under the Torture Convention in 2023. The door exists because a country of fewer than three million people, with no interest in the matter beyond having signed the same piece of paper, was prepared to spend the better part of a decade proving that no interest was required.