The Burden of Proof in the Gambia v. Myanmar Case: A Legal and Political Analysis of the Rohingya Genocide Allegations
Abstract
The landmark case The Gambia v. Myanmar before the International Court of Justice (ICJ) represents a critical test for the enforcement of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Centered on the 2017 “clearance operations” against the Rohingya Muslim minority, the case hinges on the legal principle of the burden of proof. This paper analyzes Myanmar’s defense strategy as articulated during the January 2026 hearings, focusing on its core contention that Gambia has failed to substantiate the accusation of genocide. By deconstructing Myanmar’s dual-pronged approach—reframing the violence as a legitimate counter-terrorism campaign and systematically discrediting evidentiary sources like the UN Fact-Finding Mission—this paper examines the profound difficulty of proving genocidal intent (dolus specialis) under international law. Furthermore, it contextualizes Myanmar’s legal arguments within the intricate political landscape following the 2021 military coup and explores the case’s wider implications for ICJ jurisprudence, particularly its potential influence on concurrent and future genocide allegations, such as that brought by South Africa against Israel. The paper concludes that while Myanmar’s legal strategy is designed to exploit the high evidentiary threshold for genocide, the very existence of the proceedings has irrevocably established a forum for international accountability and brought sustained focus to the Rohingya crisis.
- Introduction
On January 16, 2026, at the Peace Palace in The Hague, the International Court of Justice (ICJ) heard a definitive statement from Myanmar’s representative, Ko Ko Hlaing: “Gambia has failed to meet its burden of proof. This case will be decided on proven fact not unsubstantiated allegations” (Reuters, 2026). This declaration encapsulates the central pillar of Myanmar’s legal defense in the historic genocide case brought against it by The Gambia on behalf of the Organisation of Islamic Cooperation (OIC). The origins of the case lie in the violent military campaign of August-October 2017, which drove over 730,000 Rohingya from Myanmar’s Rakhine State into Bangladesh. These events, accompanied by widespread accounts of mass killings, sexual violence, and the systematic destruction of villages, prompted a UN Fact-Finding Mission to conclude that Myanmar’s armed forces had perpetrated “genocidal acts” with the requisite intent (UN Human Rights Council, 2018).
This paper provides a detailed academic analysis of Myanmar’s defense at the ICJ, arguing that its strategy is a calculated attempt to dismantle the legal construct of genocide by attacking the evidentiary foundation for dolus specialis—the specific intent to destroy a protected group, in whole or in part. The paper will first delineate the legal framework of the Genocide Convention, focusing on the dual elements of the prohibited act and specific intent. It will then deconstruct Myanmar’s primary defense arguments: its counter-terrorism narrative, its challenge to the veracity of international evidence, and its assertion of the absence of genocidal intent. Subsequently, it will contrast this with Gambia’s evidentiary position before situating the legal battle within its broader political context, including the 2021 military coup and the case’s potential to set a precedent for international justice. Finally, the conclusion will reflect on the significance of the case, regardless of its final outcome, for the global enforcement of human rights norms.
- The Legal Framework: Defining Genocide under International Law
The 1948 Convention on the Prevention and Punishment of the Crime of Genocide, to which both Myanmar and Gambia are parties, codifies genocide as an international crime. Article II defines it as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group (UN, 1948).
This definition establishes a two-part legal test that a plaintiff—in this case, Gambia—must satisfy. The first element, the actus reus, refers to the commission of one of the five enumerated acts. In the current case, Gambia has presented extensive evidence, including witness testimony and satellite imagery, to demonstrate that killings, rape, and arson occurred on a mass scale. Myanmar’s defense does not wholly deny the occurrence of these acts but reframes them. The contested and most legally onerous element is the mens rea, or the mental element, of the crime. This is the “specific intent” or dolus specialis. Proving that state actors possessed the conscious and deliberate objective to physically destroy the Rohingya group, as such, is a formidable evidentiary challenge. It requires moving beyond proof of atrocities to demonstrate a “planned, coordinated, and systematic policy.” It is this high bar that Myanmar’s legal team is strategically aiming to defend against.
- Myanmar’s Legal Defense: Deconstructing the Argument of Failed Proof
Myanmar’s defense, as presented in the 2026 hearings, is a multi-faceted strategy designed to create reasonable doubt regarding the existence of dolus specialis. Its core assertion is that Gambia relies on “unsubstantiated allegations” rather than “proven fact.”
3.1 The Counter-Terrorism Narrative The primary defense offered by Ko Ko Hlaing was that the 2017 operations were a “legitimate counter-terrorism campaign” in response to attacks by the Arakan Rohingya Salvation Army (ARSA) (Reuters, 2026). This narrative serves a specific legal purpose: it provides an alternative explanation for the actus reus. By successfully characterizing its actions as a proportionate and necessary response to armed attacks, Myanmar seeks to argue that the intent behind the violence was security-oriented, not genocidal. The targeting of civilians, in this framing, becomes an unfortunate but legally distinct collateral issue of warfare, rather than the central objective of the campaign.
3.2 Discrediting Evidence and International Mechanisms A secondary but crucial component of Myanmar’s strategy is the discrediting of the sources of information that form the basis of Gambia’s case. Ko Ko Hlaing explicitly stated that the UN Fact-Finding Mission was “not objective or reliable” (Reuters, 2026). This attack on the mission’s methodology and findings serves to undermine the foundational evidence that international bodies have relied upon to reach the conclusion of genocidal intent. By questioning the integrity of the UN’s most comprehensive investigation, Myanmar aims to create a “he said, she said” scenario, thereby weakening the cumulative weight of the evidence and making it more difficult for the ICJ judges to rely on it as “proven fact.”
3.3 The Absence of a Coherent Plan for Destruction Implicit in Myanmar’s defense is the argument that Gambia has failed to produce a “smoking gun”—a clear, unambiguous document or order from the high command of the Tatmadaw (Myanmar military) ordering the destruction of the Rohingya. Without such direct evidence, Myanmar’s lawyers contend that claims of genocide are based on inference and speculation. They will likely point to the continued existence of a Rohingya population within Rakhine State as evidence against a totalizing genocidal plan. This argument focuses on the literal interpretation of “in whole or in part,” suggesting the actions were geographically and temporally limited to areas where ARSA operated, rather than being a nationwide policy against the entire ethnic group.
- Gambia’s Position and the Evidence for Genocidal Intent
In contrast, Gambia’s legal team has constructed its case around the concept of a “pattern of conduct” that, when viewed holistically, can only be explained by genocidal intent. As reported, Gambian lawyers argued it would be unreasonable to conclude that the widespread and systematic attacks on thousands of Rohingya civilians, including women and children, were solely a counter-terrorism measure (Reuters, 2026).
Gambia’s evidence is designed to establish dolus specialis through inference and circumstantial evidence, which are well-established methods in international criminal law. This includes:
Systematic Nature: The scale and coordination of the operations across multiple townships in Rakhine State, suggesting a centralized plan rather than spontaneous reactions by rogue units.
Targeting: The specific targeting of civilians and the destruction of entire villages, which are inconsistent with a purely military objective.
Discriminatory Rhetoric: Evidence of decades of state-sponsored dehumanization and hate speech against the Rohingya, which helps establish the requisite state of mind and the perception of the Rohingya as an existential “other.”
The infliction of “conditions of life”: The systematic destruction of homes, food sources, and livelihoods, coupled with blocking aid, is presented as evidence of acts intended to bring about the physical destruction of the group.
Gambia’s case, backed politically and financially by the 57-nation OIC, posits that when these elements are aggregated, they form a coherent and compelling picture of genocidal intent that meets the burden of proof.
- Political Context and Broader Implications
The legal arguments do not exist in a vacuum. The hearings are profoundly shaped by political realities and have far-reaching implications.
5.1 The Post-Coup Landscape The 2026 hearings occur nearly five years after the Myanmar military (the Tatmadaw) seized power in a February 2021 coup, ousting the elected government of Aung San Suu Kyi. The delegation representing Myanmar at the ICJ therefore represents the junta, not the government that first initiated the country’s defense. This fundamentally alters the political dynamics. The junta’s delegation lacks the international legitimacy of the previous administration, which may impact how its arguments are received by the Court and the international community. Its domestic priorities are survival and consolidating power, and framing the 2017 operations as a successful counter-terrorist campaign serves its internal narrative of the military as the sole protector of national sovereignty.
5.2 Setting a Precedent: The Ripple Effect on ICJ Jurisprudence The outcome of this case is being closely monitored globally, not least for its potential impact on the case filed by South Africa against Israel concerning its military operations in Gaza. Both cases involve a state accused of genocide vehemently denying the charge and arguing that its military actions are a legitimate response to attacks from a non-state actor (Hamas/ARSA). As noted in the source article, Israel’s lawyers have similarly dismissed South Africa’s case as an “abuse of the genocide convention” (Reuters, 2026). The ICJ’s reasoning in Gambia v. Myanmar on the burden of proof for dolus specialis in asymmetric conflicts will likely be cited in Israel’s defense and could set a significant legal precedent for how such cases are adjudicated in the future.
5.3 The Role of the Global South and the “Responsibility to Protect” The case is a powerful example of a small nation from the Global South, The Gambia, acting on the principle of universal jurisdiction to hold another state accountable for mass atrocities. Supported by the OIC, this action challenges the notion that international justice is only pursued by powerful Western states. It demonstrates a growing willingness among developing nations to use international legal mechanisms to enforce norms, particularly when they align with collective regional or religious interests, thereby strengthening the often-contested concept of the “Responsibility to Protect” (R2P).
- Conclusion
Myanmar’s declaration that Gambia “has not proven its accusation of genocide” is more than a simple courtroom plea; it is the core of a sophisticated legal defense designed to exploit the stringent requirements of international law. By reframing its 2017 actions as a counter-terrorism imperative and systematically undermining the credibility of the evidentiary base for genocidal intent, Myanmar aims to create a sufficient legal moat around its leadership. The success of this strategy depends on whether the ICJ is persuaded by direct evidence of intent or accepts the cumulative and inferential case built by Gambia from the pattern of conduct.
Regardless of the final judgment, which will take years to be rendered, the proceedings have already achieved a momentous outcome. The case has formally internationalized the plight of the Rohingya, subjected Myanmar’s actions to intense judicial scrutiny, and forced a global conversation on the definition and proof of genocide in the 21st century. The ICJ’s eventual ruling will not only determine a measure of accountability for the Rohingya but will also chart a course for the future of international justice in an era of state-sponsored violence and fierce political contestation.
References
Reuters. (2026, January 16). Myanmar tells World Court Gambia has not proven Rohingya genocide case.
UN Human Rights Council. (2018). Report of the Independent International Fact-Finding Mission on Myanmar. A/HRC/39/64.
United Nations. (1948). Convention on the Prevention and Punishment of the Crime of Genocide.
Schabas, W. A. (2009). Genocide in International Law: The Crime of Crimes. Cambridge University Press.
International Court of Justice. (2019). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). Available from the ICJ website.