The Foreword
Note: an original version of this article appeared in the French language in Libération and is available here.
(The Hague)—On the wall of the Great Hall of Justice at the International Court of Justice hangs a monumental painting by the French artist Albert Besnard. In it, Justice, cloaked in red, listens intently to two advocates — one animated, the other restrained. Beneath her stands Peace, holding a child in one arm and an olive branch in the other. At the base of the canvas, two horsemen turn away from each other, their weapons lowered. The message is unmistakable: law and international order can end war and violence.
More than a century after Besnard painted this scene, that promise feels fragile.
Inside the Peace Palace, the world’s highest court is deliberating on The Gambia v. Myanmar — a case alleging that Myanmar violated the 1948 Genocide Convention in its horrific campaign against the Rohingya people in Rakhine State. The legal question before the court is narrow: whether the State of Myanmar bears responsibility for genocide. But the moral and political stakes are far broader. If international law cannot credibly adjudicate a case as extensively documented as this one, confidence in the entire post-World War II legal order erodes.
The case centers on the Myanmar military’s 2017 campaign in Rakhine State, which razed more than 390 villages and forced more than 700,000 Rohingya into Bangladesh. I investigated the violence as it unfolded, interviewing survivors while smoke still rose from their homes. They described soldiers throwing infants into fires, raping women in front of their families, executing civilians, and systematically burning entire communities. Our investigations showed that these attacks were not chaotic outbursts but organized operations prepared months in advance.
Myanmar argued before the court that any abuses were isolated excesses during legitimate counterterrorism operations against the Arakan Rohingya Salvation Army. The Gambia has demonstrated the opposite: that the violence formed part of a sustained pattern aimed at destroying the Rohingya as a protected group.
At the center of the legal debate lies intent — the defining element of genocide. The Gambia has rightly emphasized that genocide is “not a numbers game.” Intent can be inferred from patterns: the scale of killings; the systematic use of sexual violence designed to fracture families; the razing of villages; and decades-long policies stripping Rohingya of citizenship, movement, and the basic conditions necessary for survival.
Senior General Min Aung Hlaing — now head of the junta that seized power in 2021 — personally delivered speeches dehumanizing the Rohingya. An affidavit from a senior Meta executive submitted to the court describes how Facebook banned his accounts for promoting anti-Rohingya hate. Yet in court, Myanmar’s lawyers, following Myanmar military practice, refused even to use the word “Rohingya” or acknowledge them as Myanmar citizens, instead referring to them as “Bengali Muslims,” while dismissing hate speech as irrelevant to genocidal intent.
Importantly, the International Court of Justice can determine state responsibility. But it cannot send anyone to prison. It cannot prosecute the generals who ordered or oversaw these crimes. And the present case does not address the vast catalogue of atrocities committed across Myanmar since the military coup of February 2021— including airstrikes on civilian villages, torture, extrajudicial killings, and mass arbitrary detention.
There is currently no international criminal accountability mechanism addressing crimes committed in Myanmar since the coup. Impunity has deepened, not diminished.
This is where France has both an opportunity and a responsibility.
France has already demonstrated its commitment to international justice by formally intervening in support of the Gambia’s arguments in the case before the ICJ — a principled and necessary step to defend the integrity of the Genocide Convention. That intervention was the right move. But it should not be the last.
Under Article 14 of the Rome Statute, any state party to the International Criminal Court may refer a situation to the Court. The National Unity Government of Myanmar has already accepted the Court’s jurisdiction. The ICC has partial territorial jurisdiction over the Rohingya deportations to Bangladesh, but no state has yet referred the entire situation in Myanmar to the Court. France could be the first.
An Article 14 referral by France would not duplicate the ICJ proceedings — it would complement them. The ICJ case concerns state responsibility for genocide in 2017. An ICC referral would focus on individual criminal accountability and could encompass crimes against humanity and war crimes committed throughout Myanmar, including the extensive and well-documented crimes committed by the junta since the 2021 coup. Without such a step, those crimes remain outside any active international criminal prosecution.
France has long positioned itself as a defender of multilateralism and international justice. At a moment when international law is increasingly challenged by powerful actors, a French referral would signal that accountability is not selective and that the principles of the Rome Statute apply beyond Europe.
I recently attended the three weeks of hearings in the Rohingya genocide case, as a member of The Gambia’s official delegation. Speaking to the ICJ judges, The Gambia’s counsel Philippe Sands described the credibility of international law as “the elephant in the room.” That observation captures a broader anxiety: whether law can meaningfully constrain mass atrocity in an era of geopolitical fragmentation.
As the judges enter and exit the courtroom beneath Besnard’s painting, Peace still holds the child, and Justice still listens. The image is not sentimental; it is aspirational. But aspiration requires action.
The case at the ICJ tests whether states can be held legally responsible for genocide. France now has the chance to ensure that those who ordered and executed atrocities in Myanmar face personal criminal accountability as well. Referring the situation to the ICC would not solve Myanmar’s crisis overnight. But it would affirm that the architecture of international justice is still capable of responding to mass atrocities — and that Europe will not stand aside while impunity hardens into permanence.
Matthew Smith is the Chief Executive Officer and founder at Fortify Rights. Follow him on X: @matthewfsmith @fortifyrights.