The International Court of Justice opened its public hearings this week in Gambia v. Myanmar. The Gambia maintained its consistent position that Myanmar committed genocide when its armed forces committed acts of violence against members of the Rohingya group—including large-scale killing and widespread rape—with the intent to destroy the Rohingya group, in whole or in part, as such. In contrast, it appears that Myanmar’s position has fundamentally changed. In an earlier proceeding, Myanmar argued that the evidence presented by the Gambia allowed for a reasonable inference that the alleged acts were intended to deport rather than destroy the Rohingya group. But it seems that Myanmar now plans to argue that its actions were carried out in the name of counterterrorism, with the intent to defeat or suppress an armed group. Myanmar’s apparent change in position may prove decisive. To explain why, this article first explores the role of party presentation in the Court’s genocide cases.

Party Presentation

At the ICJ, contentious cases are brought by one State (the applicant) against another (the respondent). The parties present evidence and offer competing explanations of the evidence presented. The Court evaluates the evidence presented to it and considers the explanations offered to it, applying the relevant standard of proof. Each party is master of its own case. Each party is responsible for presenting the evidence and arguments that it wishes the Court to consider. And each party responds to the evidence and arguments presented by the opposing party. The parties present, and the Court decides. This is the principle of party presentation.

Party presentation respects the autonomy of each State to speak in its own voice, whether to allege a violation of its rights or to offer its own account of its conduct, in its own words. Party presentation also facilitates reliable truth-seeking, by clearly defining the issues in dispute so they may be tested through an adversarial process, with each party afforded an opportunity to challenge the evidence or arguments presented by the other. Consider the alternative. Imagine the Court issues a judgment in which it gives decisive weight to evidence not presented by either party, or to an explanation of the evidence not offered by either party. The losing party would be denied the opportunity to contest the reliability of the evidence or the plausibility of the explanation, including the opportunity to gather and present further evidence that might have persuaded the Court. Even the prevailing party may consider their victory a partial defeat, as it may be based on an account of its actions that it rejects. Wisely, the Court typically adheres to the principle of party presentation. (For an arguable exception involving Court-appointed experts, see here.)

In a genocide case, the applicant presents evidence and offers one explanation of the evidence: that the respondent’s officials (or other individuals under the respondent’s effective control) committed genocidal acts with genocidal intent. The respondent may or may not present evidence but, in any case, will offer a competing explanation of the evidence before the Court: that the acts were not committed by its officials (or others it effectively controlled), that the acts were not committed at all, or that the acts were committed with a different intent. The Court evaluates the competing explanations under its established standard of proof. If the Court is fully convinced by the applicant’s explanation of the evidence, then the Court should find that the respondent committed genocide. In contrast, if the Court finds that the respondent’s explanation of the evidence is reasonable, then the Court will not find the applicant’s explanation fully convincing.

Put another way, the Court will not find that a State acted with genocidal intent if another reasonable inference may be drawn from all the evidence before it. But that State must present an alternative inference to the Court and explain why it is reasonable in light of all the evidence. If the State fails to present the Court with a reasonable alternative inference, then it should not expect the Court to find one on its own.

In Bosnia v. Serbia, the Court noted that Serbia’s position “changed in a major way” during the oral proceedings, and “based itself” on the trial and appellate judgments of the International Criminal Tribunal for the former Yugoslavia (ICTY). These ICTY judgments found that the relevant acts of violence were committed with genocidal intent in Srebrenica, but were committed with the intent to displace rather than destroy the Bosnian Muslim group in other regions. The Court agreed. The Court was fully convinced that the Srebrenica massacre was committed with genocidal intent, but found that in other regions “an essential motive of much of the Bosnian Serb leadership—to create a larger Serb State, by a war of conquest if necessary—did not necessarily require the destruction of the Bosnian Muslims and other communities, but their expulsion.” These objectives “were capable of being achieved by the displacement of the population and by territory being acquired, actions which the Respondent accepted (in the latter case at least) as being unlawful.” The Court appeared to accept Serbia’s explanation of the evidence, and found that Serbia had not committed genocide or failed to prevent genocide except in Srebrenica.

In Croatia v. Serbia, the Court emphasized that “Serbia does not contest the systematic and widespread nature of certain attacks. However, it claims that these were intended to force the Croats to leave the regions concerned. In this regard, it cites [cases] in which the ICTY found that the purpose of the attacks on the Croat population was to force it to leave.” In other words, Serbia’s explanation of the evidence was that the attacks were intended to displace the Croat group but not to destroy it. More broadly, Serbia maintained that the evidence “shows a multitude of patterns giving rise to inferences of combat and/or forcible transfer and/or punishment” rather than genocide. The Court found Serbia’s explanation reasonable, drawing heavily on several judgments of the ICTY, and accordingly found that “Croatia has not established that the only reasonable inference that can be drawn from the pattern of conduct it relied upon was the intent to destroy, in whole or in part, the Croat group.”

With respect to Serbia’s counter-claims against Croatia, the Court observed that Croatia “maintains that the purpose of all the acts and statements of the Croatian authorities cited by Serbia was strictly confined to regaining possession of areas under Serb control.” The Court found that it “cannot see in the pattern of conduct on the part of the Croatian authorities … a series of acts which could only reasonably be understood as reflecting the intention, on the part of those authorities, physically to destroy, in whole or in part, the group of Serbs living in Croatia.” The Court could be understood as finding that Serbia failed to show that Croatia’s explanation of the evidence was unreasonable, or simply that Serbia’s own explanation of the evidence was unreasonable or unconvincing on its own terms.

The basic point is that, in each case and context, the Court considered whether the applicant’s explanation of the evidence was fully convincing, or whether the respondent’s explanation of the evidence was reasonable. The Court did not develop its own explanations of the evidence, untested by a rigorous adversarial process.

Myanmar’s Changing Position

Returning to the current proceedings, it appears that Myanmar’s legal strategy has fundamentally changed. In 2019, in response to the Gambia’s request for provisional measures, Myanmar’s counsel argued that there was “a reasonable alternative explanation for the intent behind the alleged acts,” namely the intent to deport the Rohingya group from Myanmar. Myanmar relied extensively on proceedings at the International Criminal Court (ICC), where the Prosecutor sought to open an investigation into whether Myanmar’s officials were individually responsible for the crime against humanity of deportation. According to Myanmar, the ICC proceedings showed that genocidal intent was not the only reasonable inference that may be drawn from the acts alleged. While counsel for Myanmar noted for the record that they “intend no admission or acknowledgment,” their legal strategy was to establish that it was reasonable to infer from the acts alleged an intent to deport rather than destroy the Rohingya. Notably, in 2024, the ICC Prosecutor applied for an arrest warrant for Senior General and acting President Min Aung Hlaing for the crimes against humanity of deportation and persecution of the Rohingya. Although ordinary people may find “crimes against humanity, not genocide” a damning admission rather than a clever defense, it largely worked for Serbia and might have worked for Myanmar as well.

But Myanmar’s legal strategy appears to have changed. It seems that Myanmar no longer plans to argue that its intent was to deport rather than destroy (or that it is reasonable to infer as much). Instead, it seems that Myanmar plans to argue that its armed forces were engaged in counterterrorism operations and their acts were intended to suppress or defeat the Arakan Rohingya Salvation Army (ARSA), an armed Rohingya group operating in northern Myanmar. As the Gambia’s counsel, citing Myanmar’s written submissions, told the Court:

Myanmar’s pattern of conduct, in contrast to that of Serbia, does not permit the Court to reasonably infer that its intent was to forcibly displace, or ethnically cleanse, the Rohingya Muslim group. Myanmar itself does not claim that this was its intent, or that such an intent can be reasonably inferred from its conduct. In fact, Myanmar has consistently denied this. …

Myanmar argues that the “clearance operations” were intended neither to forcibly displace, ethnically cleanse or destroy the Rohingyas as a group. Its only defence of this conduct is to claim that its actions were intended to combat terrorism, specifically to counter the activities of the Arakan Rohingya Salvation Army, referred to by the acronym ARSA throughout the pleadings. The “clearance operations” were exercises in counter-terrorism against ARSA, says Myanmar, not efforts to destroy the Rohingya as a group.

Myanmar’s written submissions are not yet publicly available, but it is unlikely that the Gambia is mischaracterizing them. It seems that the Gambia has relied on Myanmar’s representations and now plans to call its sole expert witness to testify that Myanmar’s acts cannot be reasonably explained as a form of counterterrorism. The Gambia has also focused its oral arguments on refuting Myanmar’s “counter-terrorism narrative” (see here, here, and here). The parties will join issue, and the Court will decide whether the Gambia’s explanation of the evidence (genocide) is fully convincing, or whether Myanmar’s explanation of the evidence (counterterrorism) is reasonable.

It is not hard to see why Myanmar might change its line of defense. Any evidence it might present or argument it might offer at the ICJ to avoid a finding of genocide could be used against its leaders at the ICC on charges of crimes against humanity. Indeed, any evidence or admission of an intent to deport would carry weight at the ICJ precisely because it would be a statement against interest (or at least the interest of its leaders). At the same time, Myanmar’s new line of defense seems less likely to succeed. On its face, the idea that Myanmar’s acts with respect to the Rohingya were exclusively intended to suppress the ARSA appears not only unreasonable but preposterous. While there is no point prejudging Myanmar’s presentation a few days before it will be made, the scale and brutality of the violence directed at civilian members of the Rohingya group, including women and children, makes it difficult to see how the Court could possibly find it reasonable to infer from all the evidence taken together that Myanmar’s acts were exclusively intended to suppress an armed group.

Myanmar may try to revive its original strategy by arguing that the Gambia’s explanation of the evidence is less than fully convincing even if Myanmar’s alternative counterterrorism explanation is unreasonable. The idea here would be that an applicant must persuade the Court both that the respondent’s explanation of the evidence is unreasonable, and also that the evidence strongly supports each element of its claims. An applicant should not automatically win, by default, simply because the respondent’s defense is implausible. Whatever the merits of this idea, based on the first days of the proceedings, it seems unlikely that the Gambia’s case contains some fatal flaw, gap, or oversight that would lead the Court to reject its claims in the absence of a reasonable alternative explanation of the evidence put forward by Myanmar.

Whether a State committed genocide against a particular group is an objective matter of fact and law. But proving genocide at the ICJ is largely a matter of the evidence and arguments presented by the parties. Although the Court interprets the law for itself, it necessarily relies on the parties to bring forward evidence and contest its significance. The ultimate question for the Court is whether the Gambia’s explanation of all the evidence is fully convincing, or whether Myanmar’s explanation of all the evidence is reasonable. If Myanmar does not explain, in detail, how an intent to deport rather than destroy the Rohingya can be reasonably inferred from all the evidence before the Court, then the Court is highly unlikely to do Myanmar’s work for it. Nor should it. It is not the Court’s job to develop possible explanations of the evidence put forward by neither party, then evaluate their reasonableness in light of all the evidence before it without the benefit of adversarial testing. The parties present. The Court decides.

FEATURED IMAGE: Members of the Delegation of The Gambia

Monday 12 January 2026
Photograph: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ. All rights reserved.