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Myanmar called it counter-terrorism, Israel makes a similar claim, and the ICJ is about to test the defense
By ljdevon // 2026-10-18
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The powerful have long reached for one phrase to excuse mass killing: counter-terrorism. Now the International Court of Justice is deciding whether that alibi can shield a state from the charge of genocide. In The Gambia v. Myanmar, judges are weighing the 2017 campaign that drove more than 700,000 Rohingya from their homes, and their ruling will echo from Rakhine State to Gaza. If brutality wrapped in the language of security can still be genocide, a legal wall protecting future perpetrators begins to crack. Key points:
  • The ICJ began deliberating on Jan. 29, 2026, after three weeks of hearings.
  • A ruling against Myanmar would be the first time the court finds a state fully responsible for committing genocide.
  • Myanmar says its operations were counter-terrorism, while The Gambia says that is “pure context” and not intent.
  • A 2018 UN fact-finding mission said genocidal intent could be inferred, and named Min Aung Hlaing, now Myanmar’s president, for prosecution.
  • South Africa’s case against Israel turns on the same questions of inferred intent and the weight of UN inquiry reports.

Clearance operations and a mountain of testimony

On Aug. 25, 2017, Myanmar’s military launched what it called “clearance operations” in northern Rakhine State, after the Arakan Rohingya Salvation Army attacked police posts. More than 700,000 Rohingya fled to Bangladesh in the months that followed, and about 1.2 million now languish in the camps of Cox’s Bazar. The Rohingya, a mostly Muslim minority, had already endured decades of statelessness under Myanmar’s 1982 Citizenship Law, which left them off the list of recognized ethnic groups. The state calls them “Bengalis,” casting a people rooted in Rakhine for generations as trespassers. A UN fact-finding mission documented the aftermath and concluded in 2018 that the pattern revealed “an organized plan of destruction, supporting an inference of genocidal intent.” Its 444-page report detailed the slaughter at Min Gyi, where soldiers shot children and tossed some infants onto a fire. The mission named army chief Min Aung Hlaing among six generals who should face investigation and prosecution. He was sworn in as Myanmar’s president on April 10, 2026, following an army-run election that critics and Western governments derided as a sham. The Gambia, a tiny West African nation with no direct link to the violence, filed the case in November 2019 with the backing of the Organisation of Islamic Cooperation. It argued that every state party to the 1948 Genocide Convention has a stake in upholding it, a principle the court accepted in 2022. In January 2020, judges unanimously ordered Myanmar to take all measures within its power to prevent genocidal acts. A year later, the military seized power. Hearings opened in January 2026 and stretched over three weeks. Three Rohingya witnesses testified in closed session. Their lawyer, Antonia Mulvey, a former UN investigator, recalled the courtroom: “It was very silent. You could also hear crying.” She told Middle East Eye that rape carried out before the community reflected “the intent to destroy the very social fabric of the community.” The court began deliberating on Jan. 29 and will announce the date of its public ruling in due course.

A test case with Gaza in its shadow

The Genocide Convention requires “intent to destroy, in whole or in part,” a protected group. In 2015, the court declared that genocidal intent inferred from conduct must be “the only inference that could reasonably be drawn from the acts in question.” Six Western states, including the United Kingdom and Germany, warned that applying this test too rigidly would make genocide “near-impossible” to prove, since governments rarely write down their intentions. Myanmar answered with counter-terrorism. Paul Reichler, a lawyer for The Gambia, told the court that a counter-terrorism operation “is pure context. It is not intent.” Philippe Sands, another lawyer for The Gambia, used Myanmar’s own figures to calculate that 815,459 Rohingya lived in three northern townships before the assault, and about 700,000 of them fled. “Genocide is not a numbers game,” Sands said. Myanmar insisted that an estimated 10,000 to 25,000 deaths did not amount to a substantial part of the group. Mulvey says it argued the military only meant to force the Rohingya out at the very end of its oral hearings. Michael Becker, a professor of international law at Trinity College Dublin, says the outcome will carry “major repercussions” for South Africa’s case against Israel, where, he noted, Israel has similarly claimed that its armed conflict with Hamas precludes a finding of genocide. Gaza’s health ministry puts the death toll above 74,000. In September 2025, a UN commission led by Navi Pillay found Israel responsible for genocide, with Pillay citing “an intent to destroy the Palestinians in Gaza.” Israel’s foreign ministry rejected the report as “distorted and false.” Becker warned that any ICJ reluctance to credit UN inquiry findings would send “a strong signal to South Africa.” The court’s rulings are binding and cannot be appealed, yet it has no police force. Enforcement falls to the UN Security Council, where China and Russia, partners of Myanmar’s military government, hold vetoes. Even so, Becker argues compliance “may become the price of readmission to the international community.” For the Rohingya in Cox’s Bazar, the stakes are not abstract. Survivor Salma, who sat through the hearings, put it plainly: “We won’t go back without justice.” The question now is whether the world’s highest court will let a convenient label outweigh the testimony of the dead and the displaced. Sources include: MiddleEastEye.net TheFinancialExpress.com Wral.com
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