Oral proceedings on the merits in The Gambia v Myanmar occurred from January 12-29, 2026, at the International Court of Justice (ICJ). These proceedings marked a critical juncture in a case that could redefine the application of international law concerning genocide. A merits judgment in this case that attributes the commission of genocide to a State would signify a genuine jurisprudential rupture in international law, setting a powerful precedent for future accountability efforts. The Court’s Order of July 3, 2024, showed that Article II of the Genocide Convention defines genocide through specific acts combined with a special intent element, presenting this definition as a matter of construction. This initial order laid the groundwork for the subsequent legal arguments regarding the interpretation of genocidal intent.
Further clarifying its position, the Court's Order of July 25, 2025, explicitly stated that the definition of specific intent found in Article II is directly relevant to the construction of the Convention. This emphasis noted the central role of intent in the Court's deliberations. The Court has consistently reiterated that interventions from third parties are limited strictly to matters of legal construction; observations concerning facts or the application of law are not to be considered. This stricture ensures that third-party submissions contribute to the legal framework without influencing the factual assessment of the case. The documented record surrounding the case is widely described as saturated with violence, destruction, displacement, and discriminatory structures, painting a stark picture of the alleged atrocities.
The Evidentiary Battleground
The UN Independent International Fact-Finding Mission on Myanmar (FFM) is central to the evidentiary dispute in The Gambia v Myanmar. Its reports have been a cornerstone of The Gambia's arguments, providing extensive documentation of events on the ground. The International Court of Justice's (ICJ) evidentiary architecture, which includes the "fully conclusive" standard and the "only reasonable inference" approach to circumstantial proof of dolus specialis, is designed to make genocide findings institutionally rare. This rigorous framework reflects the gravity of a genocide finding and the high burden of proof required. At the provisional-measures stage, the ICJ relied on FFM reporting, treating it as highly probative of ongoing serious violations, which provided initial support for The Gambia's claims.
Myanmar, however, argued that provenance alone confers no probative value on UN or non-governmental organization (NGO) reports, asserting they are usable only insofar as they are probative and corroborated. This stance aimed to cast doubt on the reliability of key evidence presented by The Gambia. The Gambia, in response, accused Myanmar of attempting to "disqualify" the FFM and Independent Investigative Mechanism for Myanmar (IIMM) record by invoking incompleteness caused by its own refusal to cooperate with these bodies. This argument suggested that Myanmar was deliberately hindering investigative efforts and then using that lack of cooperation to undermine the evidence.
Intervening States argued that UN reports can be especially credible because they emanate from a "disinterested witness," lending them an inherent impartiality. Myanmar countered that because the FFM applied a lower standard of proof, "no reliance can be placed" on its findings when the ICJ must decide under a "fully conclusive" standard. This disagreement noted a fundamental tension between the methodologies of fact-finding missions and the stringent evidentiary requirements of the ICJ. During the January 2026 proceedings, interveners emphasized the special probative value of UN fact-finding for drawing inferences about dolus specialis. They contended that the systematic nature of UN investigations could reveal patterns indicative of intent. Both parties accepted that allegations of genocide trigger a heightened standard, commonly expressed as requiring the Court to be "fully convinced." This shared understanding showed the exceptional nature of genocide claims. The method for proving dolus specialis, or specific intent, was described by the parties as requiring the "only reasonable inference" to be drawn from the evidence presented. This particular method became a key point of contention throughout the proceedings.
Proving Genocidal Intent
The disagreement centered on whether the "fully convinced" standard is functionally equivalent to "beyond reasonable doubt," and whether it mandates the "only reasonable inference" (ORI) method for proving dolus specialis. This was a key legal debate, as the choice of standard would significantly impact the outcome. The Gambia argued that "fully convinced" is the International Court of Justice’s international standard, asserting that "beyond reasonable doubt" is a common-law criminal formula the Court has never adopted. This position sought to maintain a distinct international legal standard. Conversely, Myanmar contended that "fully convinced" is comparable to "beyond reasonable doubt," stating that The Gambia "tries to avoid" the criminal formula "like the plague" because it knows it cannot meet it. Myanmar’s argument aimed to raise the bar for proof, making a finding of genocide more difficult. Judge Cleveland’s declaration noted the parties’ long-standing disagreement over the evidentiary threshold for specific intent, including the applicable standard of proof, showing the centrality of this issue to the entire case.
Intervening States can exert interpretive pressure on what types of evidence are deemed capable of establishing intent, influencing the Court's approach to dolus specialis. Myanmar insisted that genocidal intent must be the only reasonable inference from the established pattern of conduct, and that the presence of any alternative reasonable explanation defeats the claim. This placed a high burden on The Gambia to exclude all other possibilities. The Gambia accepted the ORI method but argued that the cumulative pattern of conduct admits no reasonable inference other than destruction of the Rohingya in part. This position emphasized the weight of the collective evidence. The ORI method structurally privileges respondent States in atrocity cases due to the almost constant availability of alternative narratives, making it challenging for applicants to prove genocidal intent conclusively.
Myanmar’s narrative architecture relied heavily on alternatives such as counter-terrorism, loss of control, collateral damage, or mixed motives, presenting these as plausible explanations for the events without admitting genocidal intent. These alternative explanations aimed to diffuse the singular focus on genocide. The Gambia emphasized that the bench heard witnesses directly, seeking to convert empathy into epistemic legitimacy under the "fully convinced" standard. This direct engagement with victims' testimonies aimed to provide a human dimension to the evidence. Myanmar, however, urged skepticism regarding witness testimony, particularly prepared and anonymous testimony, suggesting potential biases or unreliability. Myanmar also argued that the small number of witness statements annexed by The Gambia undermines reliance on earlier FFM and NGO material, implying that the direct evidence was insufficient to support the broader claims. Both parties accepted that allegations of genocide trigger a heightened standard, which they commonly expressed as requiring the Court to be "fully convinced." This shared understanding showed the exceptional nature and gravity of genocide claims. The method for proving dolus specialis, or specific intent, was described by the parties as requiring the "only reasonable inference" to be drawn from the evidence presented, a method that became a critical point of contention throughout the proceedings.
Legal Precedent and Future Implications
The International Court of Justice's (ICJ) only clear finding that genocide occurred under the Genocide Convention remains the Srebrenica massacre, established in Bosnia and Herzegovina v Serbia and Montenegro. This singular precedent notes the extreme rarity of such findings by the Court. In that specific case, the respondent State was held responsible solely for its failure to prevent and punish genocide, not for the direct commission of the act itself. This distinction is key, as The Gambia v Myanmar seeks to establish direct State responsibility for commissioning genocide. The Gambia invoked the Court’s treatment of the UN Secretary-General’s Fall of Srebrenica report during proceedings, stating the ICJ gave it "considerable authority" due to its full sources and institutional independence. This reference aimed to bolster the credibility of UN reports in the current case.
The Gambia also attacked Myanmar’s reliance on military reports as "self-serving," insisting that such evidence required independent corroboration to be considered credible. This challenge aimed to dismiss evidence presented by Myanmar that might justify its actions. The Gambia argued that the targeting of Rohingya children holds singular importance for establishing genocidal intent, asserting there is "no other conceivable explanation" for such conduct at scale. This argument posited that harm to children is an undeniable indicator of genocidal intent. Myanmar’s litigation strategy in the case tacitly concedes the occurrence of mass atrocities, shifting the focus of the legal battle to the interpretation of inference and the standard of proof required for genocidal intent. This strategic move acknowledges the widespread violence but seeks to avoid the legal classification of genocide by disputing the element of specific intent. The outcome of The Gambia v Myanmar will therefore not only determine accountability for alleged atrocities but also significantly shape the future interpretation and application of the Genocide Convention by the International Court of Justice.