The Effect of the Nature of the Rule Prohibiting Genocide in Issuing Provisional Measures: The Lessons of the Gambia against Myanmar Case

Can a State that has not been Injured by the violation invoke the responsibility of the responsible state? This is a question that was discussed years before the final approval of the Draft of State Responsibility in 2001, and was eventually reflected in the wording of Article 48 of the Draft. Accordingly, the Gambian instituted proceedings against the Myanmar in violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide with a request for provisional measures on 11 November 2019 at the International Court of Justice. On 23 January 2021, the Court issued the provisional measures. This decision contains significant aspects, including the effect of the nature of the asserted rights on having a position in the litigation and the threshold for qualifying for provisional measures. In this paper, in the light of the Court's case-law and doctrine, we examine these two important consequences in the light of the impact of the nature of the rights claimed in the proceedings before the Court in general and the provisional measures in particular.