Is the Genocide Convention Stuck in 1948? Doctrinal Constraints and Barriers to Accountability in *The Gambia v. Myanmar

Myanmar’s military, the Tatmadaw, has waged a violent displacement campaign against the Rohingya people, a minority Muslim population residing in the northern Rakhine state, since 2016 [1]. Driven into statelessness and domestic displacement camps, thousands of Rohingya have neither a state to call home nor a consistent international body to rely on [1].
In 2019, The Gambia brought a case against Myanmar to the International Court of Justice (ICJ) on behalf of 57 other states, invoking Article IX of the Genocide Convention as the basis of jurisdiction [2]. However, the ICJ only commenced oral proceedings on January 12th, 2026. The case is expected to shape future genocide litigation, including South Africa v. Israel, as it is the first Genocide Convention case to be heard in more than a decade [3].
I argue that two doctrinal features of the 1948 Genocide Convention have constrained timely state and international responsibility and remedial action in The Gambia v. Myanmar: the stringent requirement of specific genocidal intent, dolus specialis, under Article II and the limited enforcement architecture under Articles I and IX. Article II’s requirement of proof that perpetrators acted with the intent to destroy a protected group “as such” presents an evidentiary threshold that delays judicial recognition and intervention of genocide for years, despite large-scale patterns of displacement and killing, as seen in Myanmar’s Rohingya communities. Concurrently, Article IX’s exclusive reliance on interstate adjudication before the ICJ makes action contingent on interstate-recognition of intervention and initiating a lengthy litigation process rather than allowing for immediate institutional intervention. Taken together, these provisions create structural and jurisdictional barriers that slow the attribution of legal accountability, reconciliation, and remedial action, despite extensive evidence of systematic destruction of groups like the Rohingya’s conditions of existence.
The 1948 UN Genocide Convention defines genocide as “crimes committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group” under Article II [4]. Article I imposes duties among the ICJ’s constituents to prevent and punish genocide, while Article III lists punishable acts [4]. Under this doctrine, the ICJ must determine whether the Tatmadaw acted with the intent to destroy the Rohingya as a people.
The Genocide Convention’s declaration that atrocities must be committed with dolus specialis to destroy a group imposes a uniquely demanding evidentiary requirement that has set a precedent of delayed formal findings of genocide, thus constraining timely state responsibility. For example, the proceedings of Bosnia and Herzegovina v. Serbia (2007) center on the 1995 Srebrenica massacre, where 7,000 Muslim men and boys were murdered by the Bosnian Serb Army of Republika Srpska [5]. Amidst Court proceedings, the ICJ clarified that to infer intent from a pattern of conduct, it is necessary that this be “the only reasonable inference” that could reasonably be drawn from the acts. Such formulation significantly constrains the circumstances whereby genocidal intent can acquire judicial recognition because the existence of alternative plausible motives—e.g., territorial control, forced displacement, a response to an attack, or political domination—precludes a genocide finding. Such conclusions apply even when large-scale destruction and acts of genocide are committed against a protected group. Applying this to the Srebrenica massacre, the ICJ indeed established genocidal intent with respect to Srebrenica alone, but did not extend this ruling to broader conduct of mass-violence and destruction across Bosnia.
Moreover, the ICJ maintained that Serbia was not liable for committing genocide directly, but for breaching its obligation to prevent genocide under Article I. The limits of such a conclusion arise when genocidal intent cannot be attributed, and a state’s preventative capacity is inconclusive. Under such conditions, the Convention limits genocide-based state responsibility. The doctrinal consequence of this interpretive framework is extremely narrow legal attribution. If genocidal intent is presumably the sole reasonable explanation for state conduct, even systematic destruction of a group’s conditions of existence may fall short of the Convention’s threshold for responsibility. The consequence of this doctrinal design is that it inherently does not serve as a preventative measure triggered by patterns of mass atrocity alone, but a judicial confirmation of a mental element only demonstrable after extensive evidentiary development.
Myanmar’s principal jurisdictional defense argues that civilian harm committed against the Rohingya constitutes inadvertent damage in its counterterrorism response to Arakan Rohingya Salvation Army (ARSA) attacks [6]. Similar to the interpretive constraint articulated in Bosnia v. Serbia (2007), the framing of the Tatmadaw’s 2017 clearance operations as legitimate counterterrorism introduces an alternative explanatory framework that precludes the Court from deducing dolus specialis unless that defense can be definitively excluded, despite substantial evidence demonstrating systemic acts of exclusion and violence, like institutionalized mass displacement policies, extrajudicial killings, sexual violence, and the burning of hundreds of villages [7]. Since 1962, the military has pursued a “twin-track policy” of repression and deliberate impoverishment to drive the Rohingya into statelessness [8]. The 1982 Citizenship Law, for instance, effectively stripped the Rohingya of citizenship and denied them full legal recognition and rights, resulting in 2.5 million Rohingya constituting one of the world’s largest stateless populations and one million living as refugees in Bangladeshi camps [8]. However, as long as the ICJ concludes that the Tatmadaw’s operations could be understood as unlawful counterterrorism, the genocide threshold under Article II remains doctrinally unfulfilled and has the potential to preclude the proceedings from reaching an informed decision due to the lack of a singular reasonable inference of genocidal intent.
The institutional process established by the UN Charter also constrains the power of the Genocide Convention and that of the ICJ itself. The ICJ lacks independent enforcement authority, despite its power to adjudicate disputes under Article IX. In other words, the ICJ lacks an independent mechanism to enforce its decisions [11]. Its inability to practice enforcement independently makes provisional measures contingent on Security Council action under Chapter VII of the UN Charter. Article 27(3) of the Charter grants each permanent member veto authority over substantive resolutions, structurally encouraging coercive intervention when multiple, often competing, strategic interests converge across geopolitical lines. The Responsibility to Protect (R2P) model does not alter this framework. It articulates normative statements and soft obligations aimed at preventing atrocities. Still, it remains legally dependent on the Security Council’s authorization for tangible action to take place, thereby subject to the same structural veto constraints in Article 27 of the Charter. Further, its reliance on traditional paradigms derived from historical genocides like the Holocaust may not adequately account for the intricacies of contemporary genocides, which typically implicate ethnic, tribal, and religious conflicts that are politically motivated [12]. For instance, the Convention’s drafting history, shaped by the Holocaust paradigm, prioritized formal intent and state government accountability, engraining a mid-twentieth-century model of mass destruction within contemporary adjudicative structures.
In the context of the Rohingya population, China’s exercise of its veto power to oppose or momentarily suppressive punitive solutions illustrates the operation of this institutionalized jurisdictional constraint. Even where evidence of mass atrocities aggregates and judicial proceedings are occurring, the Convention provides little to no automatic enforcement trigger independent of Security Council approval. The byproduct is a gross structural gap between legal recognition and coercive implementation, rooted in institutional architecture rather than evidentiary support.
Many argue that the Genocide Convention’s legal framework is sufficient in its own right because of its narrow scope and intuitive appeal. The intuitive appeal is rooted in its historical context, particularly its relation to the atrocities committed during WWII. Currently, the Genocide Convention is the only treaty that governs the legal obligations of all members of the United Nations, as stipulated in Article I [9]. The degree to which it has been institutionalized and its long-term use beckon not only collective action, but it is the only codified document that holds bad agents accountable for the specific crime of genocide [10]. The initial drafters also worried that if the definition for genocide were too broad, the act could become diluted with crimes that did not suit the definition. If knowledge alone sufficed, then brutal counterinsurgency campaigns, ethnic cleansing, and war crimes would fall under the genocide umbrella [11].
Nevertheless, this very narrow scope, while preventing definitional dilution, ultimately contributes to the structural deficiencies outlined earlier, particularly in The Gambia v. Myanmar. Modern patterns of state violence and genocidal acts increasingly occur through bureaucratic institutions and coordinated, administrative policies, rendering the Convention’s emphasis on providing individualized specific intent obsolete. For instance, it is not atypical for bureaucracies to be responsible for genocide in modernity, and not every participant harbors ideological hatred [4]. Destruction can also occur through policies that actors understand will annihilate a group, even if annihilation is not their personal goal. Modern genocides often look less like a speech declaring extermination and more like forced displacement policies, starvation campaigns, and systematic destruction of conditions of life, i.e., many of the conditions the Tatmadaw has subjected the Rohingya people to [4]. Under such conditions, however, concluding that the intention to destroy a protected group, in part or in whole, given the available evidence, is an unreasonable evidentiary burden. In this way, the very features that make the Convention rigorous in theory simultaneously limit its effectiveness as a mechanism for contemporary prevention and accountability, substantiating the thesis that the Convention’s doctrinal and institutional constraints undermine its adequacy for present-day genocidal contexts.
The proceedings in The Gambia v. Myanmar expose a dual structural constraint: recognition contingent on stringent evidentiary requirements. At the same time, enforcement depends on securing institutional concurrence under Charter provisions that permit unilateral vetoes. Given the changing dynamics of foreign powers and internal bureaucracies today, as well as the changing nature of genocide in modernity, the Genocide Convention has become ill-suited to operate as a preventative mechanism in modern contexts. Taken together, these features severely undermine the ICJ’s adjudicative and coercive capacity under the Convention to attribute state responsibility. This inadequacy, if prolonged, will continue to contribute to the lack of preventative measures and protection extended to the Rohingya people and other protected groups.

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