An Assessment of the Impact of the Gambia Case on the Voluntary

Repatriation of the Rohingya Refugees in Bangladesh

A.B.M. Imdadul Haque Khan

Dean, Faculty of Law
Eastern University.
An Assessment of the Impact of the Gambia Case on the Voluntary Repatriation of the
Rohingya Refugees in Bangladesh

Abstract
Rohingya refugees' continued living in Bangladesh creates, in addition to their hardships,
significant socio-economic burdens for Bangladesh, which may include, inter alia, economic
distress, ethno-cultural tensions, security risks, and the threat of human trafficking. In its
Application Instituting Proceedings, Gambia has requested for safe and dignified return of the
forcibly displaced Rohingyas as well as respect for their full citizenship and human rights.
Now, the question arises whether the International Court of justice (hereinafter ICJ) could
declare the Rohingyas as Myanmar citizens and order their repatriation within the purview of
the Genocide Convention? If the answer is positive, then the next question is how this relief
can contribute to voluntary repatriation as a means of durable solution. This paper aims to
assess the impact of the relief likely to to be granted by ICJ in the Gambia v. Myanmar Case
to resolve the Rohingya crisis permanently.
It will be basically a qualitative research using primary and secondary legal sources. Initially,
this research will attempt to build up a theoretical legal framework exploring international,
regional and domestic legal instruments bearing on refugees and human rights. After that,
the theoretical stance will be tested by critical through a doctrinal research. The study argues
that the declaration of ICJ as requested by Gambia will impose legal obligation on Myanmar
for voluntary repatriation of Rohingyas with dignity and human rights compliance. However,
many scholars surmise that the ICJ is unlikely to uphold such request since it does not have
any nexus with the contents of the Genocide Convention. In the recently concluded Jadhav
Case (India v Pakistan), the remedies requested by India included either annulment of the
decision of the Pakistani military court, or in the alternative restraining Pakistan from giving
effect to the said sentence, and so forth. The ICJ declined to grant this request on the grounds
that its jurisdiction derived from article I of the Optional Protocol, which is limited to
interpretation or application of the Vienna Convention on Consular Relations and does not
extend to India’s claims based on other rules of international law like the ICCPR [paras 125-
126, 135-137 of Judgment dated 17 July 2019 (Merits)]. To recapitulate, the author strongly
believes that the declaration of voluntary repatriation with relevant requirements could be a
powerful weapon to resolve the Rohingya crisis as the Genocide Convention had been
adopted with a pure humanitarian and civilizing objective.