<h1 class="pgc-h-arrow-right" > the following is the previous link:</h1>
Gambia indicts Myanmar for genocide before international court of justice (11 November 2019)
First round of oral presentations by the Gambia on the Genocide case in Myanmar (10 December 2019)
<h1 class="pgc-h-arrow-right" > the following is the main text of this article (a total of 33,000 words, it takes 190 minutes to complete the reading, be careful).</h1>
CR2019/19, International Court of Justice at The Hague 2019
The hearings will be held at the Peace Palace on Wednesday, December 11, 2019 at 10 a.m.,
Dean Yusuf presided,
Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia v. Myanmar)
【Original Records of Hearings】
Attendees: Omitted.
Representative of the Government of the Republic of the Gambia: Omitted.
Representative of the Government of the Republic of the Union of Myanmar: Omitted.
Dean: Please take a seat. The trial will now begin. The Court's hearing this morning was the first round of oral presentations from Myanmar on the Gambia's request for interim measures. I now give the floor to her excellency Ms. Aung San Suu Kyi, the representative of Myanmar. Madam, you have the floor.
Aung San Suu Kyi:
Statement by the Representative
1. Thank you, Mr. President, and the members of the Court. It is an honour for me to be present in these proceedings as Minister for Foreign Affairs as a representative of the Republic of the Union of Myanmar. For resource-poor countries such as Myanmar, the International Court of Justice is an important sanctuary for international justice. We look forward to the Court creating conditions conducive to respect for obligations arising from treaties and other sources of international law, which is one of the fundamental objectives of the Charter of the United Nations.
2. Mr. President, in this case, the Court was called upon to apply the 1948 Genocide Convention, one of the most fundamental multilateral treaties of our time. The invocation of the 1948 Genocide Convention is an extremely serious problem. This is the treaty we follow, which was signed after the systematic killing of more than 6 million European Jews, signed wholeheartedly by my country as early as December 30, 1949, and ratified on March 14, 1956. Genocide is a crime applied by the International Criminal Tribunal for Rwanda to the mass murder of 70 per cent of rwandan Tutsis. In 1999, the International Criminal Tribunal for the Former Yugoslavia did not apply this crime to the displacement of some 1 million inhabitants of Kosovo. Neither the Tribunal nor the Court applied this provision in its 1995 ruling on the exile of the Serb population from Croatia. In both cases, international jurisdictions have resisted the temptation to use this most powerful legal classification, since there is no concrete intention necessary to actually destroy the target group, in whole or in part, in the above-mentioned cases.
3.Regrettably, the Gambia submitted to the Court an incomplete and misleading report on the situation in Rakhine State, Myanmar. Above all, however, the Court should calmly and impartially assess the situation on the ground in Rakhine State.
4. The situation in Rakhine State is complex and not easy to understand. But one thing has undoubtedly touched us all as well: many innocent people have been plunged into misery, their lives torn apart by the armed conflict of 2016 and 2017, especially those who have had to flee their homes and are now living in cox's Bazar camp.
5. Mr. President and members of the Court, the troubles of Rakhine State and its people, regardless of background, date back centuries and have been particularly severe in the past few years. There is currently an internal armed conflict going on there – between it and the Myanmar Regular Defence Forces, the Alakan Army is an organized Buddhist armed group with more than 5,000 fighters. None of the speakers mentioned that yesterday. The Arakan army sought autonomy or independence for Rakhine – or Aracan – an inspiration sought in the memories of the historic kingdom of Aracan. The conflict has led to the displacement of thousands of civilians in Rakhine State. Standard security restrictions — such as curfews and checkpoints — are now in place in conflict zones and affect the situation of civilians there, regardless of their background.
6. Mr. Dean, on October 9, 2016, about 400 Aracan Rohingya Salvation Army fighters – known as Alsa (ARSA) – simultaneously attacked three police posts in the towns of Mondu and Ladedang in northern Rakhine State near the Bangladeshi border. Alsa claimed responsibility for the attacks, which resulted in the deaths of 9 policemen, the death or disappearance of more than 100 civilians, and the theft of 68 guns and more than 10,000 rounds of ammunition. This was the beginning of an internal armed conflict between Alsa and the Myanmar Defence Forces, which lasted until the end of 2017. The selective factual view contained in the Gambia's application actually addresses this conflict.
7. In the months following the october 9, 2016 attack, ARSA in the towns of Muang Du, Buti Dong and Ladedang in northern Rakhine State has increased. It threatens and intimidates local villagers to gain support and allegiance, executing suspected whistleblowers. According to agencies such as the International Crisis Group, ARSA received weapons and explosives training from afghan and Pakistani militants.
8. In the early morning of August 25, 2017, thousands of ARSA fighters launched a coordinated attack on more than 30 police posts and villages in northern Rakhine State, as well as a military base. Most of the attacks took place on the narrow Mondu Plain, which borders densely forested hills to the east and the Bangladesh border to the west. There are indications that Alsa's goal is to capture the town of Mondu.
9. It can help the court briefly consider the historical significance of Mondu. In 1937, when britain separated Burma from British India, the border between Burma and India was drawn along the Naf River, where we can see the border between present-day Bangladesh and Burma. The historic kingdom of Aracan sometimes extended farther north than the Naf River, encompassing much of the chittagong region of present-day Bangladesh. As a result, some members of the Rakhine state community believe that the border drawn by the UK is too southern; others believe it is too northern. Myanmar has never questioned this border since its independence in 1948.
10. During the Second World War, the British did not lose control of the present-day town of Mondu. From September 1942 onwards, many local Muslim families supplied fighters to Britain's irregular V-Force, which was established to gather intelligence and initially absorb any Japanese offensive. Many Muslims gave their lives in the battle against the Japanese in Rakhine State. The sacrifices made by Muslim fighters prompted calls for the establishment of a Muslim autonomous region centered on Mondu in northern Rakhine State. Whether or not this was encouraged by British officials, britain rejected the call when it reoccupied Burma before independence in 1948. The Muslim-Buddhist inter-tribal violence of 1942 recurred in 1948 and has since occurred several times. This cycle of violence has had a negative impact on life in northern Rakhine State, making it the second poorest state in Myanmar.
11. Mr. President and members of the Court, allow me to return to the situation in Rakhine State on the morning of August 25, 2017. Before sunrise, more than 30 police stations, villages and a military base were attacked by a highly coordinated attack by an organized armed group operating on densely forested mountain ridges, providing plenty of shelter opportunities. Many Alsa fighters were recruited from local villages in the weeks and months leading up to the attack. The Myanmar Defence Forces used ground forces to respond to attacks by Alsa combatants. Armed incidents have taken place at more than 60 locations. The main clashes took place in 12 places: Min Gyi (Tola Toli), Chut Pyin, Maung Nu, Gutar Pyin, Alai Than Kyaw, Myin Lut, Inn Din, Chein Kharli (Koetan Kauk), Myo Thugyi District, Kyauk Pandu Village, Mondu Town District and The Southern Mondu Town.
12. Mr. Dean, allow me to clarify the use of the term "clearance operation" in Myanmar. Its meaning has been distorted. As early as the 1950s, the term was used in military operations against the Burmese Communist Party in the Bago Mountains. Since then, the military has been using this narrative in counterinsurgency and counterterrorism after insurgent or terrorist attacks. In Burmese, nae myay shin lin yeh – which literally means "cleared area" – simply means to clear an area of rebels or terrorists.
13. Establishing a clear pattern of events at these 12 locations is still not easy. Many Alsa warriors died. There could be hundreds of casualties at some of the 12 locations. There is some inter-communal violence. Buddhist and Hindu minority communities also feared their safety after the initial Alsa attack, with many fleeing their homes.
14. It is worth noting that the use of air power should be avoided as much as possible in military operations in order to minimize the risk of collateral damage. In one incident, however, helicopters were needed in order to evacuate troops surrounded by hundreds of ARSA fighters. Bullets fired from helicopters kill people, which may include non-combatants.
15. Mr. Dean, it cannot be excluded that F-FDTL members have used inappropriate force in defiance of international humanitarian rules in certain circumstances, or that they have not sufficiently and clearly distinguished between ARSA combatants and civilians. It may also not have been prevented from civilians from being looted or destroyed property after the fighting or in abandoned villages. However, these judgements will be made in the appropriate course of the criminal justice process and not by any individual of the Government of Myanmar.
16. As you assess the intentions of those who are trying to deal with the rebels, keep in mind this complex situation and the challenge to the sovereignty and security of our country. Of course, in this case, genocidal intent cannot be the only assumption.
17.Under the 2008 Constitution, Myanmar has a military justice system. Criminal cases of soldiers or officers who may have committed war crimes in Rakhine State must be investigated and prosecuted by the system. On November 25, 2019, the Attorney General's Office announced that a military tribunal would begin hearing allegations related to the Incident in the village of Gutar Pyin, one of the 12 major incidents mentioned earlier. The office also said there would be more military tribunals if the Independent Commission of Inquiry (ICOE) presented further evidence of guilt. The commission, an independent special investigative process set up by myanmar's president for rakhine state allegations, is chaired by the former deputy foreign minister from the Philippines and three other members, including a former U.N. under-secretary-general from Japan.
18.On 26 November 2019, the Commission announced that it had collected some 1,500 witness testimonies from all affected groups in Rakhine State and interviewed 29 military personnel deployed to affected towns in northern Rakhine State during military operations from 25 August 2017 to 5 September 2017, as well as 20 police officers stationed at police posts that were attacked on 25 August 2017. Currently, no other fact-finding agency in the world has been able to gather first-hand information about the events in Rakhine State in 2017 as the Independent Commission of Inquiry and the Office of the Attorney General of Myanmar.
19. This fact reinforces my sense that I should refrain from any action or remark that could undermine the integrity of these ongoing criminal justice proceedings in Myanmar. They must be allowed to go their own way. It is not easy to make the armed forces aware of the responsibility of their members in terms of accountability and to implement the will to accountability through actual investigations and prosecutions. I respectfully invite members of the Court to consider the records of other States. This is a common challenge, even in resource-rich countries.
20.Recent cases in the headlines suggest that even if military justice is effective, reversals can occur. This could also happen in Myanmar. As part of the Myanmar government's overall efforts to bring justice, the military tribunal ruled that 10 Muslim men were executed in the village of Inn Din, one of the 12 sites of serious incidents mentioned earlier. It sentenced four officers and three soldiers to ten years' imprisonment and hard labor each. After serving a period of imprisonment, they received a military pardon. Many of us in Myanmar are unhappy with this pardon.
21.There is no dispute in the hearing of other cases. For example, in the Mansi case, a military tribunal was located near the site where three internally displaced civilians were killed in Kachin State. In January 2018, it sentenced six soldiers to 10 years in prison. Relatives of the victims and representatives of local villagers were invited to attend the trial.
22.By our standards, the Office of the Attorney General of Myanmar is well-resourced, with more than 90 staff and a presence in all regional commands throughout the country. I am encouraged by the Court-Martial in Gutar Pyin, and I hope that the Office will continue to investigate and prosecute on the basis of reliable evidence gathered in Rakhine State and from those who witnessed the events that took place there.
23. Does a State actively investigate, prosecute and punish soldiers and officers accused of wrongdoing have genocidal intentions? While the focus here is on military personnel, I can assure you that appropriate action will also be taken against civilian criminals in accordance with due process. Human rights violations will not be tolerated in Rakhine State or elsewhere in Myanmar.
24.Mr. Dean, there are those who wish to almost automatically externalize responsibility for war crimes committed in Rakhine State without proper reflection. Some of the United Nations human rights bodies on which the Gambia's application is based have even indicated that Myanmar's military justice system is unlikely to hold accountable. This not only contradicts article 20 (b) of the Myanmar Constitution, but also weakens the strenuous domestic efforts associated with the establishment of cooperation between the Burmese military and civilian governments in the context of the need to amend the Constitution to complete the democratization process. This process is currently under way in the Union Parliament, Pyidaungsu Hluttaw.
25.The emerging international criminal justice system is complementary. Accountability through domestic criminal justice is the norm. The International Court of Justice can play its role only if domestic accountability systems fail. It is incompatible with complementarity to require domestic criminal justice to proceed much faster than international criminal justice. Rushing to externalize responsibility could harm professionals in domestic criminal justice institutions. What is the impact of competition between domestic and international accountability for public trust in the intentions of impatient international actors?
26.Every effort must be made to make domestic accountability work. This is not helpful for the international legal order if it is assumed that only resource-rich Countries can conduct adequate domestic investigations and prosecutions, while the domestic jurisdictions of those that are still grappling with their unfortunate heritage and current challenges cannot be adequately improved. The Gambia also understands the challenge they face.
27.Mr. President and members of the Court, these reflections are relevant to this hearing, as the applicant has brought a case under the Genocide Convention. However, we are dealing with an internal armed conflict that was initiated by a joint all-out attack by the Arakam Rohingya Salvation Army, to which the Myanmar defence sector responded. Sadly, this armed conflict has led to the exodus of hundreds of thousands of Muslims from three northernmost towns in Rakhine State to Bangladesh — just as the Croatian armed conflict, which the court had to deal with, led to a massive outflow of Croats and later Serbs.
28.As I have already indicated, if members of the Myanmar Defence Forces commit war crimes, they will be prosecuted through our military justice system in accordance with the Myanmar Constitution. For example, it is for the competent criminal justice authorities to assess whether there is an inadequate distinction between civilians and Alsa combatants, excessive use of force, violations of human rights, failure to prevent looting or destruction of property, or forced displacement of civilians. Such acts, if proven, may be relevant to international humanitarian law or human rights conventions, but not to the 1948 Genocide Convention, the reasons for which Professor William Schabas will elaborate later.
29.Mr. Dean, allow me to share my views further in the Great Hall of Justice. International law is likely to be our only global value system, and the International Court of Justice is a practice that affirms our shared values. Leaders, relevant intergovernmental international organizations and non-governmental organizations should also recognize their responsibility to express and affirm fundamental values. For example, fuelling the flames of extreme polarization in Rakhine State could undermine Myanmar's values of peace and harmony. Exacerbating the trauma of the conflict could undermine unity in Rakhine State. Hate narratives are not limited to hate speech – language that leads to extreme polarization is also equivalent to hate narratives.
30.Some international actors face challenges in this regard. But Myanmar could have done more since the 1980s to emphasize the common heritage and deeper solidarity among the different peoples of our country. The cycle of inter-communal violence in Rakhine State dating back to the 1940s should not be contained merely through practical measures aimed at achieving sustainable development and the rule of law, but also by fostering a spirit of solidarity. Defending the people's aspirations for harmony and peace is the moral responsibility of leaders.
31.The third SECRETARy-General of the United Nations, U Thant, understands this. In his memoir, The United Nations Perspective, published in 1974, he wrote: "I even think that the mark of a truly educated and imaginative man facing the twenty-first century is that he feels like a citizen of the earth" (p. 454). Encouraging this additional level of identity — a sense of citizenship on earth — is essential for peaceful relations between nations and between ethnic and religious groups.
32.The commitment to expanding the conceptual model must go hand in hand with practical steps to improve lives. Even before the events of 2016-2017, Muslims, Buddhists and other ethnic groups in Rakhine State faced the complex challenges of low development and poverty, as described by kofi Annan advisory committee, rooted in protracted social conflicts between communities. The Government of Myanmar is committed to addressing these challenges. We are working with our partners to ensure that all communities enjoy the same fundamental rights. To expedite citizen identity verification and application, a mobile group is already in operation. All children born in Rakhine State, regardless of their religious background, receive a birth certificate. Arrangements have been made to enable more Young Muslims to attend classes at universities throughout Myanmar. With the support of international and local partners, scholarships will also be offered to students living in all communities in Rakhine State. The Government launched a social cohesion demonstration project in Mondo Township to promote social harmony among all communities. Interfaith forums were encouraged. These are some of the steps taken to improve livelihoods, security, education and health, citizenship and social cohesion in all communities in Rakhine State. Three internally displaced persons (IDP) camps have been closed and a strategy for the closure of camps for internally displaced persons has been adopted. Myanmar is also committed to the voluntary, safe and dignified repatriation of displaced persons from Rakhine State in accordance with the framework agreement reached between Bangladesh and Myanmar.
33. Mr. Dean, how can there be continuing genocide or genocidal intent when Rakhine State is taking concrete steps?
34. All in all, Mr. Dean, members of the Court, Rakhine State is today suffering from an internal armed conflict between the Buddhist Arakan Army and the Myanmar National Defence Force. Muslims are not parties to this conflict, but may be affected by the security measures that have been taken, as are other civilians in conflict areas. We ask the Court not to take any action that could exacerbate the ongoing armed conflict and peace and security in Rakhine State. Currently, in northern Rakhine State, an army base near Paletwa is being attacked by more than 400 Arakan fighters, and about 200 rebels have surrounded a military column near the city of Ann in Rakhine State.
35.Since Myanmar gained independence in 1948, our people have been unaware of the security of sustainable development as the fruit of peace and prosperity. Our greatest challenge is to address the root causes of mistrust and fear, prejudice and hatred that undermine the foundations of our alliance. We will remain steadfast in our commitment to non-violence, human rights, national reconciliation and the rule of law, as we will continue to build the democratic federal union to which our people have aspired for generations. We expect justice to be the defender of reconciliation and harmony, which will ensure the security and rights of all peoples.
36.Mr. Dean and members of the Court, I thank you for your attention, and I ask you to now ask Professor William Schabas to proceed with the presentation by the Myanmar side.
DEAN: I thank the representative of Myanmar for his statement. I now give the floor to Professor Schabas. Please.
Mr. Schabas: Thank you very much, Mr. Dean. Your Excellency, Mr. Dean, it is an honour for me to appear in court today.
Lack of reasonable claims
1. Our trial today does not deal with the merits of the claims that the Gambia is trying to make. It is limited to whether the court should direct interim measures. Case law provides that certain preconditions must be met if the court is to do so. I will focus my statement on the demand for a "reasonable claim". Next up is Mr. Staker, who will touch on the requirements for preliminary jurisdiction and eligibility to sue, and then Ms. Okowa, who will complete our first round of presentations by presenting the lack of a real and urgent risk of irreparable harm to the disputed right.
Jurisprudence of reasonableness
2.The Gambia appears to accept the reasonableness jurisprudence established in the Court's jurisprudence, but misunderstands the criteria applied by the Court. The requirement of reasonableness is an inevitable consequence of the court's adoption of coercive interim measures. Thus, the 1993 interim measures order may not have been as helpful to the Court as the Gambia suggested yesterday, as they were adopted long before the Court made a significant decision on the binding interim measures in the LaGrand case. The Gambia claims that its claimed rights are justified as long as they are based solely on "possible interpretations of the [Genocide] Convention".
3. Your Excellency, Mr. President, twice in the past 12 years, the Court has rendered judgements on the application of the Genocide Convention. It examined the material and psychological aspects of crime in great detail, applied accepted principles of interpretation, studied travaux préparatoires and showed full respect for specialized agencies such as the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia. Prior to the judgement in Bosnia-Herzegovina v. Serbia, the 2006 interpretation of the Convention may have been "reasonable" and has since ceased to be credible. If in any doubt, the Court clearly confirmed what it said in 2007 in its 2015 judgment in Croatia v. Serbia.
4. Yesterday, the applicant's lawyer avoided discussing the impact of these recent judgments. There are several references to the 1951 advisory opinion, but apparently no reference is made to the 2015 judgement. In discussing the interpretation of article 2 of the 1948 Convention, counsel did not refer to the court's recent decision, but cited the famous work of Raphael Lemkin, published in 1944. In the sentence quoted, Lemkin said that the focus of genocide was not on "immediately destroying" a group, but on "destroying the basic foundations of the life of an ethnic group." Regrettably, Lemkin's original vision had much in common with our modern concept of crimes against humanity, but when the Convention was adopted in 1948, it did not prevail in the General Assembly. The drafters of the Convention had a much narrower view of the scope of genocide than Lemkin had envisaged in his book, and that view was later confirmed in the Court's case law. Only on the basis of this narrow concept of genocide will States be willing to accept and assume significant obligations, including compromise clauses. Indeed, more than 70 years later, despite the noble efforts of the International Law Commission, they were still hesitant to adopt a comprehensive and equivalent convention dealing with crimes against humanity.
5.Four years after Croatia v. Serbia, we are here to hear where the Court was required to instruct provisional measures on the basis of allegations that are not at all consistent with the provisions of the Convention as authoritatively interpreted by the Court. In Croatia v. Serbia, the Court described the distinction between "ethnic cleansing", which means displacement, and genocide, which means destruction, as mentioned earlier — I have highlighted the words on the screen ——, "firmly rooted in its jurisprudence". The authority of this decision is certainly enhanced by a 15-to-2 majority. In the Bosnian case, the majority of votes was between 11 and 14 votes, which varied according to each paragraph of the right of disposition. Unless the Court now abruptly abandons its jurisprudence, none of the cases in The Gambia are "reasonable" and one that has any possibility of success, based on the facts alleged in the application.
6.The judges of the Court may recall that in Croatia v. Serbia, Croatia requested the Court to reinterpret the provisions of the Convention. I quote a Croatian lawyer to tell you that "the law has been progressing for the last seven years". Reference content on the screen. If this case goes to the merits stage, I hope you will hear similar statements again proposing to break your established case law. Is this possible? Does this mean that any claim made to the Court that is inconsistent with established case law is justified, since returning to the wording in the application, it includes "a possible interpretation of the [genocide] convention"? Is it possible to challenge what is "entrenched" – is that the court's words——, is it possible to succeed in its jurisprudence?
Stricter jurisprudence of reasonableness in genocide cases
7.Your Excellency, Mr. President, the criterion of "reasonableness" first appeared in the case law of the Court ten years ago, namely, Belgium v. Senegal, a case that did not involve evidentiary issues.
8. Subsequently, Judge Greenwood wrote that courts may wish to opt for the term "contentious" that is more widely used in common law jurisdictions. "Unless a party has a reasonable presupposition that it has the right it asserts and that it applies to the present case, it cannot be said that the right may be judged to belong to that party," he said.
9. Of course, over the years, the court's demands have become higher and higher. In recent cases, the Court has held that both legal arguments and evidence must be credible. In Ukraine v. Russia, the court, after rejecting a request for interim measures under the International Convention for the Suppression of the Financing of Terrorism (ICSFT), stressed that the applicant must "provide ... Sufficient basis for its reasonableness "The constituent elements of the cognition and intent required by the Convention already exist. The court found that there was insufficient evidentiary basis to establish that these elements of perception and intent actually existed.
10.In Ukraine v. Russia, the court's refusal to direct provisional measures was particularly important, as it involved an international criminal law treaty that was a close relative of the Genocide Convention. Subjective intent and perception are also required by the Genocide Convention.
11.Thus, for the purposes of interim measures, a "reasonable claim" under the Genocide Convention must include evidence of the specific genocidal intent required. For it is precisely this subjective intention that is the key factor in distinguishing genocide from other violations of international law, such as crimes against humanity and war crimes, which in the present case clearly lack the jurisdiction of the Court.
12. In addition, Mr. President, Excellencies, in assessing whether the required degree of reasonableness has been met in respect of legal and factual matters, the Court shall also take into account the gravity of the alleged violations. The court's established policy at the merits stage is that "the heavier the allegations, the more confident the evidence on which they are based".
13.This principle must be applied mutatis mutandis to the interim measures phase, which may also lead to binding decisions. In fact, it must be applied further, since the court cannot hear the defendant's full arguments — unlike the applicant — and the defendant cannot fully develop its own evidentiary base. In such cases, allegations involving exceptionally seriousness should be subject to corresponding and stricter criteria of reasonableness at this stage of the investigation.
Genocidal Intent and Legitimacy: The Only Inference
14.Your Excellency, Mr. President, in the cases of Bosnia and Herzegovina v. Serbia and Croatia v. Serbia, it is not difficult for the Court to conclude that some of the basic acts set out in the paragraphs of article II of the Genocide Convention have been established. I am not going to take any time to discuss this here this morning. Let us suppose that, in the case of disagreement with Myanmar, a reasonable reason could be made to apply at least one paragraph of article 2 of the Convention. At yesterday's hearing, we spent a lot of time reviewing what we could read in the fact-finding mission report, even though it was Article 11 of the Practice Guidelines that Mr. Dean reminded us. The hardest part is that it is precisely at this point that in the two genocide cases recently decided by this Court, both the application and the counterclaim were in trouble, that is, psychological factors. At this point, the applicant has little to say other than mistakenly believing that a pattern of conduct is sufficient to constitute a reasonable claim.
15.The United Nations fact-finding mission on which the application is based often refers to the "inference" of genocidal intent. The theory seems to hold that certain types of behavior, whether taken individually or as a whole, upset the balance, favoring the conclusion that they were motivated by genocidal intent. With all due respect, this is not what this Court said in the Bosnian and Croatian cases. The Court has repeatedly reiterated that the real test is not genocidal intent as a possible inference. Let me use the wording of interim measures: this is not to say that the intention of genocide should be a specious inference. The court said it was necessary that "this is the only inference reasonably drawn from the conduct in question".
16.In Croatia v. Serbia, the Court stated in dealing with the counterclaim
"In order for a pattern of behavior, i.e. a series of coherent acts carried out within a particular period, to be accepted as evidence of genocidal intent [I highlighted these words on the screen], it must be such that it can only point to the existence of such intent, that is, it can only be reasonably understood as reflecting that intention".
The Court's declaration that genocidal intent must be the only inference reasonably drawn from the conduct in question makes the law very clear. Instead of focusing on the legitimacy of genocidal intent, it looks in a different direction: are there other explanations?
17. There is a great deal of futile speculation about genocide; it often begins with the phrase "if something proves, it could even be genocide". Indeed, in view of the prevalence of racial and religious discrimination, apartheid-like policies and the persecution of minorities, indigenous peoples, migrant workers and refugees in today's world, there is no shortage of acts in many countries and conflicts that are consistent with the provisions of the second paragraph of the Convention, and it can be said that "if something is established, it may constitute genocide".
18.The Court insisted that if genocidal intent based on a pattern of conduct was the only reasonable inference, it established an effective, realistic and feasible approach to the Genocide Convention. Regrettably, too many commentators, politicians and activists have either misunderstood the Court's approach or preferred to ignore it. They single out a few passages from two great verdicts, but fail to grasp the most basic principle: if genocidal intent is premised on a pattern of behavior, then it must be the only inference that can be reasonably drawn from the conduct in question.
19.This is essential for the interim measures phase and equally important for the finalization of the merits. In the case of the application of interim measures under article IX of the Genocide Convention, the test must be whether the intention to commit genocide is the only inference that can be drawn. In other words, the application must fail unless other reasonable explanations of intent can be excluded. This is a completely different test than the one presented by the applicant, i.e. whether the intention to genocide is a reasonable explanation. The applicant and the fact-finding mission on which the application relied were completely unable to resolve the issue of alternative interpretation of the element of intent. However, all they have to do is read your decisions in the Bosnia and Croatia cases to know that it is necessary.
20. Genocidal intent is usually described by the term "specific intent" or specific psychology. The statements of "specific intent" (sometimes expressed as "special intention") that we found in the earliest judgements based on the provisions of the Genocide Convention can be traced back to two judgements of Israeli tribunals — the Eichmann case , and the judgment of the Trial Chamber of the International Criminal Tribunal for Rwanda in Akayesu.
21.In fact, the term specific intent (or specific purpose) was used in domestic criminal law long before the advent of international criminal law. In ordinary criminal law, as a general rule, crimes with specific intent also contain or constitute crimes that do not require specific intent. For example, the crime of planned and premeditated murder generally includes intentional homicide or murder, manslaughter or manslaughter. If the assessment of intent is based on inferences drawn from patterns of behavior, rather than on direct evidence of planning and premeditation, then if there are other explanations for a person's psychological factors, he will never be convicted of planned and premeditated murder. This is nothing more than a reflection of the Court's approach to genocide in ordinary criminal law.
22.Myanmar considers that the information in the application and in the material cited in its support — essentially the report of the fact-finding mission — provide sufficient evidence to indicate alternative inferences and alternative interpretations of the alleged conduct, but not the product of genocidal intent. If the court agrees that there is sufficient evidence to support an alternative interpretation, then it has to conclude that, on the merits of the case, the application has no reasonable chance of success. There is no 50% chance. There is no 25% chance. There is no chance. If there is a reasonable alternative interpretation of the intent behind the alleged act, the application simply cannot succeed. If it does not succeed, it is not a "reasonable" interim measure as far as the request is concerned.
Expulsion: intent in ICC proceedings
23.Excellencies, Mr. President, the work of the two ad hoc Tribunals in the Bosnian and Croatian cases has greatly helped the Court. Some of the Activities of the International Criminal Court, while relatively limited, may be useful to the Court in this regard. It shows an extrapolation of the alleged acts of Myanmar in addition to the intention to commit genocide.
24.In April 2018, the Prosecutor of the International Criminal Court applied to the Pre-Trial Chamber for a form of advisory opinion on whether she would be able to exercise jurisdiction over deportations for crimes against humanity, taking into account the large number of cross-border flows from Myanmar to Bangladesh in 2017. Her application and all subsequent proceedings before the International Criminal Court on the matter relied heavily on the same material cited by the Gambia in the present case, mainly the report of the fact-finding mission. It is worth recalling that the Court's previous judgements in genocide cases have taken into account the activities of the Prosecutor of the International Criminal Court.
25. In her application, prosecutors said (as shown on the screen) that "the Rohingya were explicitly and deliberately deported to Bangladesh". She mentioned that "a 'clearance operation' was launched on August 25, 2017, aimed at deporting all remaining Rohingya across borders to Bangladesh". She explicitly distinguishes this situation from "the mass flight of civilians from a country, for example, as a result of ongoing armed conflict, without evidence of expulsion per se". In other words, she believes that the purpose of the so-called "clearance operation" was to deport from Myanmar, not to destroy the body.
26.Your Excellencies, Mr. Dean, this is not possible, because the Rome Statute requires that the crime must be intentional and informed. Crimes against humanity must constitute "attacks against any civilian" that occur "in accordance with or promote the policies of States or organizations". In the conduct of the expulsion prosecution — deportation for crimes against humanity — the Prosecutor confirmed her own view that the influx of large numbers of persons into Bangladesh was not only the intention of those responsible, but also based on or promoted State or organizational policies.
27.Let me make it clear that I do not intend to recognize or endorse the work of the Prosecutor and the Pre-Trial Chambers of the International Criminal Court when discussing them. But if this serious and authoritative body offers an alternative explanation, the genocide hypothesis is bound to fail.
28.A few days after the application for the present case was filed, the Pre-Trial Chamber of the International Criminal Court authorized the Prosecutor to conduct an investigation. The Pre-Trial Chamber referred in particular to the crime of deportation against humanity and concluded that "reasonable prosecutors can believe that acts of coercion against the Rohingya forced them to flee to Bangladesh, which may constitute deportations against humanity". The Pre-Trial Chamber confirmed that the "alternative inference" of mass population movements at the end of 2017 was deportation, the purpose of which was to be expulsed and carried out in accordance with national or organizational policies.
29.The Court has confirmed that "the forced displacement of a population, even if proven, does not in itself constitute an act of genocide". I quote a quote from Croatia v. Serbia on the screen. In the Bosnian case, the Court held that:
"Neither the intention to 'racially homogenize' a region as a policy, or the possible actions taken to implement such a policy, cannot be considered genocide ... [The expulsion or expulsion of members of a group, even by force, is not necessarily equivalent to the destruction of that group. ] ”
The Court made a clear distinction between "the specific intent necessary, that is, to destroy the group, as distinct from its expulsion from the area". This is a reference to the judgment; references will appear in the written record. In response to Serbia's counterclaim in the Croatian judgement, the Court stated that "even if it were proved that the Croatian authorities intended to force the displacement of the Serb population in Krajina, such displacement would only constitute a criminal act of genocide if it was deliberately causing actual destruction".
The applicant's main statement about genocidal intent
Mr. Dean, Mr. President, let me now turn to the material submitted by the applicant in support of the claim that there is genocidal intent.
31.In paragraph 5 of the application, the applicant explains that "the independent investigation conducted under the auspices of the United Nations has extensively documented the facts and has been confirmed by international human rights organizations and other credible sources". This paragraph of the application will be discussed, bearing in mind the provisions of Article 11 of the Practice Guidelines.
32.In paragraph 6, the application turned to the question of genocidal intent. Paragraph 6 of the application begins with the following statement: "Numerous United Nations investigations have highlighted the genocidal intent of these crimes. "I'll discuss the three sources in turn below.
33.The first is the Special Rapporteur on the situation of human rights in Myanmar, Ms. Lee Leung Hee. The application explains that she "conducted an extensive fact-finding investigation" and noted in a report submitted to the Human Rights Council in March 2018 that "I am increasingly convinced that crimes committed [in Myanmar] have the character of genocide". The application also quoted a Reuters News report in January 2019 quoting her as saying that the commander-in-chief of Myanmar's army and other chiefs were responsible for the genocide in Rakhine State. News reports also said her interview "marks the first time Lee Myung-bak has publicly called for the indictment of the army commander-in-chief for genocide." She had never made such a statement in any report to the United Nations. In fact, in various submissions, she never referred to the term genocide, but only to certain acts that "may constitute genocide, crimes against humanity and war crimes". In her 2019 report to the Human Rights Council, she didn't even use the term genocide. In October, when she addressed the Third Committee of the General Assembly, the only thing she referred to was that "the Gambia [is] considering proceedings before the International Court of Justice".
34.In all her written submissions, the Special Rapporteur did not provide an explanation for the phrase "characteristics of genocide" that she used. She did not provide any evidence that she understood legal issues related to the use of genocidal intent. Ms Lee is a developmental psychologist, not an international lawyer. When the applicant described the Special Rapporteur's remarks in paragraph 6, he said that "numerous investigations by the United Nations have highlighted the genocidal intent of these crimes", I do not believe that this Court should consider this. They did not emphasize the intention of genocide. They refer to genocide, not genocidal intent, and they constitute an idea whose rationale is not explained, nothing more.
35.A second example of genocidal intent is the statement issued by the UN Special Adviser on the Prevention of Genocide in March 2018. Speaking of this intention, he said that "it is even possible to destroy the Rohingya themselves, which, if proven to be true, would constitute genocide". A year later, he issued a statement on Myanmar, speaking of "acts that may constitute genocide." I draw your attention to Mr. Dieng's careful use of the word "may". In other statements on Rakhine State, Mr Dieng used the term "atrocity" rather than genocide. He has not made any statements about Rakhine State or Myanmar for 15 months, according to the special adviser's website, which may be related to the issue of the risk of future genocide. During this period, he made statements about South Sudan, Cambodia, Guatemala, Bosnia and Herzegovina, Mali, Sri Lanka, Syria and the Democratic Republic of the Congo, but apparently did not, according to the website.
36.The application greatly exaggerates the importance and significance of what Mr. Dieng said. The Special Adviser plays an important role in the United Nations campaign to prevent genocide. His function was to give early warning, not to declare whether genocide had occurred. I think he himself would object to being cited as an authority with genocidal intent.
37.The application also does not mention that other relevant UN agencies have expressed concern about the situation in Rakhine State over the past two years. For example, shortly after the events of August-September 2017, the High Commissioner for Human Rights described it as a "textbook example of ethnic cleansing". A few months later, he began to use the term "genocide," but again with the same caution and ambiguity that we see in other mission-bearers. There are many other examples, some of which have only recently emerged. The Human Rights Council resolution on Myanmar adopted in September 2019 refers to "the need for urgent criminal investigations into alleged crimes against humanity and war crimes". It makes no mention of genocide. The term "genocide" is not used in Human Rights Council resolutions. Similarly, a resolution on Myanmar adopted by the Third Committee a few weeks ago made no reference to genocide. In July, the Deputy High Commissioner for Human Rights reported to the Human Rights Council on the situation in Myanmar, but did not mention "genocide".
38.The most substantive discussion of genocidal intent, and of the main reliance on which the application depends, is, of course, the discussion of the fact-finding mission. It made allegations of genocide in its September 2018 report. The Mission concluded unequivocally that crimes against humanity and war crimes had been committed. On the issue of genocide, it was more cautious: it said, "there is sufficient information justification for investigating and prosecuting senior officials of the government military chain of command so that the competent courts can determine their responsibility for genocide in relation to the situation in Rakhine State".
39.The Mission briefly explained the meaning of "reasonable grounds" in the introduction to its long-term report. But it also adds the following warning: "This standard of proof is lower than what is required in criminal proceedings".
The issue of genocidal intent was briefly discussed in the 440-page supplementary information for the Delegation's 2018 report. It uses 113 words in its 440-page supplement to consider whether its intention is to "leave the Rohingya from their homes, but not to seek ultimate destruction." One hundred and thirteen words. That is the assumption on which the ICC Prosecutor is based in his activities. The Mission played a bit of a rhetorical trick by referring to "the physical destruction of the lives of the Rohingya", which slightly blurred the important distinction between physical and cultural extinction, which the Court had previously attached considerable importance to.
41.Elsewhere, in the words quoted in the application, the fact-finding mission states that "the crimes committed in Rakhine State and the manner in which they were committed are similar in nature, severity and scope to those that would have allowed the establishment of genocidal intent in other circumstances". However, they do not provide any references or examples to illustrate what these other contexts are. The Mission may say the opposite. Because in other cases, similar in many respects to the situation in Myanmar, the Court and the International Criminal Tribunal for the Former Yugoslavia have concluded that no genocidal intent has been established. Fact-finding missions have largely ignored this dimension. WITH ALL DUE, it is propaganda for a case, not an objective and impartial assessment of a situation, and it is indifferent to factors that tend to prove the opposite.
42.Nevertheless, fact-finding missions are not entirely unanimous on the question of intent. For example, in discussing the so-called "food hunger" policy, the mission said that this "targeted action of denying access to food appears to constitute a policy of forcing the Rohingya to flee due to food scarcity". The mission said the hunger was to force the Rohingya to flee. This is not the same thing, nor does it necessarily mean physical destruction. Yesterday, lawyers in the Gambia presented a genocidal intent on food scarcity without even mentioning this alternative explanation proposed by the fact-finding mission.
43.Other statements in the report of the fact-finding mission also indicate an intention rather than an intention to destroy. The report refers to the so-called "four cuts" counterinsurgency policy, which has allegedly been in place since the 1960s. "This policy was implemented through 'clearance operations', which were essentially scorched earth campaigns, in which a large number of civilians were killed and entire villages were destroyed, leading to massive displacement," the report said. But no one seriously claims that there has been a policy driven by genocidal intent since the 1960s. What's changed? Why is the "cleanup operation" in 2017 different from previous decades? This issue has not been resolved.
44.The applicant's counsel values a statement made by the fact-finding mission in its latest report of the year, which was issued a few months ago, in September, which noted that the genocidal intent had "intensified". This was mentioned several times yesterday. Counsel did not tell us why the mission came to such a conclusion. I can explain why the lawyer did not mention it: because the investigation team did not mention it. The only thing that seems to have been strengthened, it seems, is the Mission's insistence on using the term. There is no actual evidence of any deterioration in the situation described in the previous year's report; If anything, the absence of allegations of mass killings in the second report should indicate the contrary to the conclusions of the mission.
45.Excellencies, Mr. Dean, the fact-finding missions of the United Nations — and I am the head of one of them — play an extremely important role in the protection and promotion of human rights. The same is true of the Special Rapporteur and Special Adviser on the prevention of genocide. These comments are not intended to denigrate their work, but rather to show how limited their contribution to the issues before the Court is, especially when they go beyond the mandate of a genuine fact-finding and begin to speculate on the elements of international crimes. The mandate of the Human Rights Council's fact-finding mission is to "establish the facts and circumstances", not to make legal findings. The decision it expresses in terms such as "reasonable reasons" and "sufficient information" does not help here when the issue is genocidal intent. Above all, the validity of the opinion on the fact-finding mission of genocidal intent is undermined, since it does not consider the question of alternative interpretation in any substantial way. While the reports of fact-finding missions may contain valuable factual information, it was suggested that the Courts should ignore their legal decisions because of the flaws in their practices.
46.Your Excellency, Mr. Dean, there are no three sources cited by the applicant as a basis for the existence of genocidal intent, and the application does not support the existence of genocidal intent, but merely implies that the Court infers the existence of genocidal intent on the basis of patterns of conduct — a method it rejected more than once. This is an area familiar to the Court, as it is not at all meaningfully different from what the Court has heard from lawyers in bosnian and Croatian cases.
Numbers and their relevance
47.There are also some obvious omissions in the application. The application did not specify the number of deaths, the total number of deaths, nor did it compare it with the number of people allegedly attacked and the number of people crossing the border into Bangladesh. Of course, the application attaches great importance to the quantitative aspect, as there have been several times when the tribunal has been informed how many buildings have been destroyed. The Court was also informed of the number of villages destroyed in whole or in part. Yesterday, the applicant's lawyer told us that hundreds of people had died in three villages, a total of just over 1,000. It sought to use this as a representative sample, explaining that each of the three townships had a village. But in fact, these are three of the four worst cases described in the fact-finding mission's report. However, neither the application nor the materials submitted yesterday have been submitted in total. This is perhaps the first court proceeding involving the Genocide Convention, in which the total number of victims was not voluntarily provided by the applicant. Information on this can be found in the lengthy annex to the report of the fact-finding mission, in which we were informed that about 10,000 people died, of which 725,000 refugees fled to Bangladesh and 600,000 remained in Myanmar. The ICC prosecutor's application also alleges "killing as many as 10,000 Rohingya" and "deporting more than 700,000 Rohingya to Bangladesh". Mr. Dean, Excellencies, is it possible that the applicant neglects to provide the Court with allegations and evidence estimating the total number of deaths because it believes that this weakens its claim that its intention was to physically damage the group?
48.If the facts of the case are true, Myanmar will present evidence to question whether the figure of 10,000 people is exaggerated. In addition, any estimate of the number of kills should also provide some indicators on the number of combatants killed and the number of deaths attributable to the Alakan Rohingya Salvation Army. In addition, the fact-finding mission provided many aerial photographs, but there was no evidence of the existence of mass graves. Whatever the number, every death is a tragedy. Families are devastated. The killing of non-combatants in armed conflict may violate the right to life. But 10,000 people in a population of more than 1 million died, which could mean some sort of intent, not to destroy the group. The fact-finding mission did not address this disturbing fact. I have heard the objections of the applicant's lawyer, who would claim that genocide is not just a matter of quantity. But this is the view of the Tribunal four years ago in Croatia v. Serbia:
"The Court found that it was also relevant to compare the size of the target group of the protected group with the number of Croat victims in order to determine whether the Yugoslav People's Army and Serb forces had taken advantage of the opportunity to destroy this part of the group. Croatia has come up with a figure of 12,500 Croats killed, which Serbia has questioned. The Court noted that even assuming that this figure was correct — and it would not rule on the issue — the number of victims alleged by Croatia was still very small relative to the number of people in the target group. ”
49.The Court concluded that "Croatia has not yet established that the only reasonable inference that can be drawn from the pattern of conduct on which it is based is the intention to destroy the Croat community, in whole or in part". Mr. President, the judges of the Court, any reasonable consideration of the situation in Myanmar, guided by the Court's case law, would ask whether the deaths of 10,000 people out of a population of more than 1 million would raise the same doubts as in the Croatian case of this Court.
50. Numbers are important in other ways as well. The fact-finding mission referred to the 600,000 Rohingya left behind. In the detailed findings of the 2019 report, the Mission most recently stated:
"The mission found that the restrictions imposed on the Rohingya in discriminatory and arbitrary ways involved almost every aspect of the lives of the 600,000 Rohingya who remain in Rakhine State, affecting basic economic, social and cultural rights, including their ability to sustain themselves, receive education, seek medical assistance and even pray and assemble, a statement of human rights violations, persecution rather than destruction. If there is an ongoing genocide plan, one would expect an even more sinister fate. I think the same thing can happen to those who are allegedly confined to displacement camps, who are reported to be well over 100,000 people who have been in camps for seven years. According to the fact-finding mission, "the level of security in the camps is high and many displaced persons are desperate for the future". It said that the disadvantages in these camps "in extreme cases lead to preventable deaths", a comment that stands out because the report does not appear to contain any reference to intentional killings in the camps. The Mission never attempted to explain why camps for displaced persons appeared to be free of evidence of systematic physical destruction, perhaps because that might provide a plausible explanation contrary to the genocidal intent assumptions.
51.The similarities with the situation in Myanmar as alleged in the application, as well as the Court's decision in Croatia v. Serbia, are also striking in other respects. In the Croatia case, the Court ruled
"In the present case, in particular the findings of the ICTY, forced displacement is a policy tool aimed at establishing an ethnically homogeneous Serb State. In this regard, the expulsion of Croats was due to the commission of acts, including a number of acts of violence, which created a climate of coercion that constituted, at least, acts of genocide within the meaning of article II, subparagraphs (a) and (b), of the Convention, which had the objective of forcing the croatians to displace them, without causing their actual destruction... [The text behind is on the screen.] The Court held that the acts committed by the Yugoslav People's Army and the Serb forces essentially had the consequence of causing Croats to flee the territory in question. It is not a question of systematically destroying these people, but of forcing them out of the areas controlled by these armed forces. ”
52.Finally, Mr. Dean, Excellencies, the application does not at all address the fundamental question of the specific intention to commit genocide. As the Court has repeatedly pointed out in its recent case law, where the proof of genocidal intent depends on inferences drawn from patterns of behaviour, other interpretations of the psychological factors of crime must be excluded. The application and the oral presentation of the lawyer did not even address this point. For that reason alone, requests for interim measures should be denied.
Your Excellency, Mr. Dean, this concludes my comments. I would like to give the floor to you, Mr. Dean, to my colleague Mr. Staker, although this may be an appropriate time for a break.
DEAN: I thank Professor Schabas for his statement. Before I give the floor to the next speaker, the Tribunal will have a 10-minute coffee break. Recess.
The Tribunal was adjourned from 11.20 a.m. to 11.30 a.m.
Dean: Please take a seat. Trial is now resumed. I now give the floor to Mr. Staker. Please.
Mr. Staker:
The Court lacked preliminary jurisdiction;
1. Mr. President, members of the Court, it is an honour to represent Myanmar at the hearing once again.
2. I will introduce you to two prerequisites for interim measures: preliminary jurisdiction, and prima facie evidence.
Factual background relating to preliminary jurisdiction and prima facie evidence
3. But I start with some background facts related to these two issues, taken from public documents in the judges' folders, section 3, tables 3.1 through 3.17.
4. I will take you to see the following documents. Although the Gambia is the nominal applicant for these lawsuits, it was actually filed on behalf of the Organization of Islamic Cooperation. The Gambia was entrusted by the Organization of the Islamic Conference to convene them before its Ad Hoc Committee in its capacity as The Member States of the Organization of the Islamic Conference and as Chairmen of an OIC body. In addition, the proceedings are funded by a fund overseen by the Organization of the Islamic Conference. Although the OIC decided to bring the case as early as March this year, the earliest official document we can find as the basis for the genocide convention was in August. A week before the Gambia even sent a note verbale to Myanmar on October 11, the applicant's lawyer was instructed to file a lawsuit.
5. Due to time constraints, I need to take you through these documents quickly and I am sure they will get the consideration they deserve. I will mention the various tables: in the table, the French version (if applicable) will follow the English version.
6.Table 3.1 is a resolution of the Organization of the Islamic Conference of May 2018 establishing an ad hoc ministerial committee on violations of the human rights of the Rohingya, chaired by the Gambia. The Commission's functions include "ensuring accountability and justice for serious violations of international human rights and humanitarian law and principles" and "mobilizing and coordinating international political support". The preamble states that "ensuring accountability and justice are the most critical steps in preventing genocide and other crimes of mass atrocity". It does not say that genocide actually took place. In fact, when this statement and the preamble express concern that "the Rohingya who have taken refuge in Bangladesh are victims of serious and systematic crimes of human rights violations and atrocities" and the reference in the preamble to "ethnic cleansing and forced evictions".
7.In May 2018, the Same Session of the Council of Foreign Ministers of the Organization of the Islamic Conference adopted the Dhaka Declaration, which was mentioned in yesterday's debate in the Gambia, as shown in Table 3.2. The document does not contain the term genocide. Following its reference to "ethnic cleansing", the Government of Myanmar issued a press release, contained in Table 3.3, affirming that it would not tolerate any human rights violations, that it would investigate and act in accordance with the law, and that it would immediately repatriate displaced persons and personnel from Rakhine State on the basis of a bilateral memorandum of understanding between Myanmar and Bangladesh.
8. On 25 September 2018, the President of the Gambia addressed the United Nations General Assembly in his oral statement yesterday referring to "horrific crimes against Rohingya Muslims", but did not mention the Genocide Convention or any genocide.
Table 3.4 is a resolution adopted by the Organization of the Islamic Conference in March this year, which is almost identical to Table 3.1 and has the same preamble. Table 3.5 is another resolution adopted at the same session in which member States decided to "support the Ad Hoc Committee's plan of action to implement the mandate of the Ad Hoc Committee" and "call upon all Member States to contribute voluntarily to the budget of the plan of action". This is in contrast to the suggestion made in yesterday's oral debate, which does not specifically mention the International Court of Justice, but a media article (see table 3.6) notes that at this session of the Organization of the Islamic Conference, a resolution "promoting the establishment by the International Court of Justice (ICJ) of the legitimate rights of Rohingya Muslims" was a "major diplomatic breakthrough". According to the report, the Ministry of Foreign Affairs of Bangladesh declared that the resolution before the Court "was made after a long series of negotiations".
An official press release in Table 3.7 went on to say that on May 30, Bangladesh's foreign minister appreciated "the Gambia's lead in taking legal action to establish the rights of the Rohingya and to prosecute Myanmar before the International Court of Justice to resolve the justice of the Rohingya," but did not mention the legal basis for this claim.
11.Table 3.8 is the final communiqué of the Fourteenth Session of the Islamic Summit Conference of 31 May, affirming support for the use of all international legal instruments to hold perpetrators of crimes against the Rohingya accountable and urging the Ad Hoc Ministerial Committee to bring the case before the International Court of Justice on behalf of the Organization of the Islamic Conference, but still without mentioning the legal basis.
12.The undated item in table 3.9 on the website of the Office of the President of the Gambia refers to this Final Communiqué, but the second paragraph of this page incorrectly refers to the International Criminal Court instead of the International Court of Justice. The Office of the President of the Gambia may not be aware of the details of the proposed court case.
Table 13.10 is a media article dated 6 July indicating that the OIC formally proposed that the Gambia take charge of the proceedings before the Court, which was subsequently approved by the Cabinet of Ministers of the Gambia.
14.In paragraph 107 of the report of the fact-finding mission dated 8 August, table 3.11, the reference was made to "States, in particular Bangladesh and the Gambia, and ... [The OIC] encourages and prosecutes Myanmar's efforts under the [Genocide Convention]". This is the first official document known to use the Genocide Convention as a proposed basis for its claims. It is shocking not to mention this before. In yesterday's oral debate, the Gambia relied on a news report that said it had taken a decision in March to make a claim under the Genocide Convention, but did not mention any official documents before August.
15. The files in Table 3.12 are shown below. These procedures are made by voluntary contributions from the member States of the Organization of the Islamic Conference. The supervision of funds is entrusted to the Chairman of the Ad Hoc Ministerial Committee and the Secretary-General of the Organization of the Islamic Conference. Assistance was also requested from the Islamic Development Bank and the Islamic Solidarity Fund.
Table 3.13 is a statement made by the Vice-President of the Gambia at the General Assembly on 26 September that these procedures relate to "concerted efforts made on behalf of [OIC]".
Two weeks later, on 11 October, the Gambia sent a note verbale to Myanmar, in annexes 1 and 2 to the Gambia Views.
18.Form 3.14 there is an internet article reporting a statement by the Attorney-General of the Gambia (now the representative of the Gambia) that counsel was instructed to file these proceedings on 4 October. Therefore, the instructions to issue these proceedings were in fact sent to the applicant's lawyer a week before the first note verbale was sent to Myanmar and received by Myanmar.
19. Table 3.15 is an item on the website of the law firm representing the Gambia on 11 November, confirming that "the OIC appointed the Gambia as a member of the OIC to bring proceedings on its behalf".
20. Table 3.16 is an article in the Jakarta Post on 19 November, which is a media report confirming that the case was filed on behalf of the Organization of the Islamic Conference.
21.In Table 3.17, the OIC confirmed on 24 November that the proceedings were indeed brought by the "Chairman of the Ad Hoc Ministerial Committee of the Republic of the Gambia as OIC" and that the Gambia "is responsible for referring the case to the International Court of Justice after the decision of the OIC Head of State".
I note that, on 12 November, after the case had been filed, Myanmar sent notes verbales contained in annexes 3 and 4 to the Gambia Views, the responses of which are contained in annexes 5 and 6 to the Views of the Gambia.
The Court lacks preliminary jurisdiction: to act on behalf of an international organization
23.Mr. President, members of the Court, it is unprecedented for a State to invoke the Disputed Jurisdiction of the Court as a representative of an international organization. The actual jurisdiction of the Court is exercised by the Gambia as Chairman of the Ad Hoc Ministerial Committee of the Organization of the Islamic Conference, which serves as an organ of the Organization of the Islamic Conference and not as a party to the Genocide Convention.
24.Although the Gambia is said to be the "leader" of the OIC initiative, it is not known who else controls the initiative, nor which countries contribute to the Voluntary Fund, or whether the donors are limited to States.
25.This is a circumvention of the limitation of article 34 of the Statute: only the State may be a party to a case before the Court. An international organization that did not even have an advisory authority to seek an advisory opinion from the Court was seeking to circumvent that restriction by nominating a State as its substitute and bringing disputed cases. Admittedly, this would allow "the restrictions on individual jurisdiction that are public policy matters can be circumvented almost at will by simply nominating a mandatory law". Moreover, Myanmar's consent to the court's jurisdiction is valid only for another State that has accepted the same obligation;
26.In fact, of the States members of the Organization of the Islamic Conference, 13 are not even parties to the Genocide Convention, while 7 States — most importantly Bangladesh — have made reservations to article IX of the Genocide Convention to prevent them from bringing proceedings against Myanmar under article IX of the Convention. For this reason alone, there is a lack of jurisdiction.
Lack of preliminary jurisdiction by the court: the absence of a dispute
27.Mr. President, members of the Court, another requirement necessary for the exercise of the Court's disputed jurisdiction is the existence of a dispute. This is also an explicit requirement of article IX of the Genocide Convention, which provides only that disputes between States parties shall be referred to the Court. In the absence of a dispute, article IX of the Genocide Convention does not apply at all.
28.The universal party nature of the obligations under the Genocide Convention does not mean that the Gambia can bring these proceedings before the Courts in the absence of a specific dispute between the parties at present. In belgium v. Senegal, the Court recognized that the universal party nature of treaty obligations might have a special character relevant to the Rules of Procedure, and the Court's consideration of jurisdiction was based on the obvious premise that there must be a dispute between Belgium and Senegal in order to have jurisdiction under the Convention against Torture.
29.Since article IX of the Genocide Convention is the sole basis of jurisdiction, the only disputes that the Court may have jurisdiction over are those relating to obligations specified in that Convention, the Court has no potential jurisdiction over disputes relating to obligations of customary international law relating to the crime of genocide, or disputes concerning alleged breaches of other treaties or obligations under customary international law, even if those alleged violations are obligations under peremptory norms or obligations to protect humanitarian values, which may be what all should have.
30.For the Court to have jurisdiction, therefore, must first have a dispute, followed by a dispute between the Gambia and Myanmar, and thirdly, a dispute relating to the interpretation, application or performance of the Genocide Convention.
31.There is no dispute between the Gambia and Myanmar from the second request, as these proceedings were in fact brought on behalf of the OIC and financed by the OIC. We have seen that the delegation of applications before the Tribunal included several senior officials of the Organization of the Islamic Conference. If any dispute is brought before the Tribunal, it is the responsibility of the OIC and not of the Gambia.
32. But even so, there is no controversy.
33.In accordance with established case law, the existence of a dispute is determined on the date of filing the application with the court. The Gambia's application, and the arguments in these proceedings, cannot be reconverted if there is no dispute at the date of the application. For a dispute to exist, "it must be proved that one party's claim is actively opposed by the other" and that "the parties hold clearly opposite views on the issue of the performance or non-performance of certain international obligations".
34.The Gambia relies on a number of matters to determine the existence of a dispute.
35.First, the Gambia relies on various OIC documents. These apparently did not give rise to the related disputes between the Gambia and Myanmar. They do not contain positive statements by Myanmar of its violation of its obligations under the Genocide Convention. In fact, as I have explained, the preambles of the two OIC resolutions imply the opposite. In any event, the Court has confirmed that the vote of a State on the resolutions of an international organization does not in itself indicate the position of that State on each of the claims contained in the resolution, let alone the existence of a legal dispute with another State over one of those claims. Moreover, Myanmar is not a member of the Organization of the Islamic Conference and there is no indication that Myanmar has been notified of its resolution by all States.
36.Secondly, the Gambia relies on the reports of fact-finding missions. However, the statements contained in the report of the fact-finding mission do not constitute claims by the Gambia or the Organization of the Islamic Conference or its member States. The fact-finding mission's statements did not draw Myanmar's attention to specific claims that those States and the OIC might intend to make in court proceedings.
37.Thirdly, the General Statement of the Vice-President of the Gambia, which states that the Gambia is "ready to lead a concerted effort" to bring the case, does not even mention the Genocide Convention.
38.Similarly, the statement of the Minister of the Office of the State Adviser of the Union of Myanmar makes no reference to the Genocide Convention.
39.In short, these documents do not constitute allegations of violations of the Genocide Convention by Myanmar, nor are they sufficient to find a court-ready dispute between the parties.
40. There is also a note verbale dated 11 October. In the case of the Gambia, where, owing to Myanmar's failure to respond within a month, by 11 November there had been a sudden dispute between the two sides over the matters referred to in the document.
41.However, the existence of a dispute can be inferred from a claim of failure to respond only if a response is requested and the acceptable time for any response has elapsed.
42.The note verbale did not call for a response, but simply declared that Myanmar was "responsible for the ongoing genocide against the Rohingya in Myanmar." It does not contain any details. It did not specify which particular facts were the basis for supporting that claim of responsibility. It does not specify which facts are alleged to violate which articles of the Convention. It did not provide information that allegedly constituted "Myanmar's refusal to recognize and correct its responsibilities". It refers in the most general way to the reports and findings of fact-finding missions and to the resolutions of the Organization of the Islamic Conference (but only to specify one of them), and refers in general terms to obligations under the Genocide Convention, customary international law and human rights conventions. It did not make any specific legal or factual claims that could be actively opposed by Myanmar. It merely states a legal conclusion — that Myanmar is responsible for the ongoing genocide — without stating any legal basis for that conclusion.
43.In accordance with article IX of the Genocide Convention, if there is a "dispute", it is not sufficient for the applicant to submit to the respondent a report from an international organization, non-governmental organization or any other person showing that the latter has breached its obligations under the Convention and that the latter has not responded.
44.The failure to respond to the note verbale is therefore not controversial. However, even if it could, it could not be considered necessary to respond within a month, since the detailed findings of the fact-finding mission were about 180 pages long and the note verbale contained only one unspecific conclusion. Moreover, as stated earlier this morning by the representative of Myanmar, charges of the most serious crimes need to be considered and determined in the criminal justice process. These issues do not require a firm position on the part of political representatives in a short period of time — even worse if the States that make such claims do not initially provide a timetable for any such responses.
45.The second Gambia note verbale of 24 November did not add anything. The note was sent after the case had already been submitted and could not give rise to controversy afterwards. In any case, it would not further determine the legitimate claim.
46.In addition, the Organization of the Islamic Conference, which initiated the proceedings on its behalf, has never directly accused Myanmar of violating the Genocide Convention. On the contrary, the OIC more generally expressed support for "the use of all international legal instruments to hold perpetrators accountable". These procedures are the initiative of a subcommittee of the Organization of the Islamic Conference, whose task is usually "to ensure accountability and justice for serious violations of international human rights and humanitarian law and principles". The impression was that the OIC wanted to bring "one" case before the Court, but did not pay particular attention to the legal basis for the claim, namely that article IX of the Genocide Convention had only been identified by someone at some point as a tool for invoking the court's jurisdiction, and that the OIC was likewise prepared to use any other treaty for which it could be determined.
47. If there is a genuine dispute between the Gambia and Myanmar over the interpretation, application or implementation of the Genocide Convention, why did it not notify Myanmar of this request when it decided to institute these proceedings in March – or in August, the 2019 fact-finding mission report indicated that it intended to make a claim under the Genocide Convention? Why did it not give Myanmar notice of this claim before instructing counsel to file a lawsuit on 4 October? The corollary is that the note verbale was issued as a legal form and was considered necessary to issue proceedings after all preparations for the proceedings had been made.
Mr. President, members of the Court,
48.Myanmar's position is that, for all these reasons, the lack of jurisdiction is obvious and it is clear that the proceedings should not continue even at the stage of interim measures. It would be appropriate to remove the case from the Court's general list. As the Court has said in two previous cases, if the Court adopts this approach at this stage, then, if it certainly does not seem to be able to rule on the merits of the case, the inclusion of cases in the general list will certainly not contribute to the sound administration of justice.
The Gambia lacks prima facie evidence
49.I shall now turn to the question of prima facie evidence.
50.The Gambia indicated that it was eligible to institute proceedings because of its erga omnes obligations under the Genocide Convention and the erga omnes partes, although it was not particularly affected by the claims.
51.At the outset, I note that obligations erga omnes and obligations erga omnes of States parties are different.
52.The term erga omnes refers to obligations under customary international law towards the international community as a whole. Thus, in the Barcelona Traction case, the Court referred to the right to "enter the general system of international law", and the corresponding obligation of the State to the "international community as a whole" was referred to as an obligation erga omnes.
53.On the other hand, the term erga omnes partes refers to multilateral treaty obligations. Such an obligation is assumed only by the community of States parties to the treaty. As in the Court's belgium v. Senegal case, every State party is under an obligation to comply with those obligations.
54.Myanmar recognizes that the Genocide Convention provides at least some obligations of general application.
55.However, even if the Gambia is interested in Myanmar's compliance with its obligations erga omnes under the Convention, the Gambia is entitled to bring proceedings before the courts for breaches alleged by Myanmar without being particularly affected.
56.The country particularly affected by the events subject to these proceedings is clearly Bangladesh. However, Bangladesh could not have instituted these proceedings without Myanmar's consent, as it had made a reservation to article IX of the Genocide Convention. In fact, with the exception of Laos, Myanmar's neighbors are none. This could have been done because the other parties were not parties to the Genocide Convention or had made reservations that article IX either did not apply at all or only with the consent of the parties to the dispute. If a State such as the Gambia, which is not particularly affected by the so-called violation of the Treaty, were able to institute proceedings in the absence of the Particularly Affected State, it would be a grave violation of the fundamental principle of the consensual nature of the jurisdiction of the courts concerned with the treaty.
57. In fact, its impact goes far beyond that. If a State not subject to particular influence could seek enforcement of obligations erga omnes by making a claim to the Court, there was no reason why it could not seek enforcement of those obligations by other means permitted by international law, such as countermeasures. However, in the course of its work on the draft articles on State responsibility, the International Law Commission (ILC) stated in the context of countermeasures that "even if the Barcelona Traction case accepts the claim that a State in general has a legal interest in the breach of certain obligations does not necessarily mean that all States can defend those interests in the same way as the directly injured State". The then Special Rapporteur subsequently stated in a 2001 report that, with regard to the draft articles at that time, any State could take countermeasures in cases where an internationally wrongful act constituted a serious breach by a State of its obligations to the international community as a whole and was essential to protecting the international community, i.e. "the thrust of the Comments of the Government was that [the article] had no basis in international law and would be destabilizing".
58.In the Barcelona Traction case, the Court did not address this specific issue of the status of action, since the case itself did not deal with obligations erga omnes, much less the obligations erga omnes of the parties. Only Judge Ammoun expressly accepts the right of any State to enforce obligations erga omnes by bringing proceedings before the courts, making the omissions or judgments of any other judges of great significance in themselves.
59.In addition, in all other cases before the Court relating to the Genocide Convention, the applicant is a particularly affected State and therefore the proceedings do not involve any form of mass conduct.
60.In the Bosnian genocide case, Judge Oda in fact stated that while the legal obligations under the Genocide Convention are "generally borne by the parties", non-compliance with those obligations cannot be remedied through inter-State disputes before the Court, as roberto Ago, which was the same view earlier.
61.Indeed, in Belgium v. Senegal, the Court held that Belgium, as a Party to the Convention against Torture, was qualified to prosecute Senegal for violations of the Convention. The Court therefore refused to comment on whether Belgium also had a special interest in complying with Senegal. However, I would like to emphasize:
62.First, the case does not constitute the established jurisprudence of the Court, and Judges Skonikov and Judge Xue disagree with the Court's decision on eligibility to sue.
63.Secondly, Belgium itself does claim to be an "injured State" under article 42 (b) (i) of the International Law Commission's articles on State responsibility.
64.Thirdly, Belgium was indeed affected by the outcome of the case, the Convention against Torture contains an obligation to extradite or prosecute, and Belgium has taken advantage of the specific right under article 5 to exercise jurisdiction and to request extradition. Therefore, the present case is not a genuine popular action initiated by a State whose individual is completely unaffected. In contrast, the Genocide Convention does not have an obligation to aut dedere aut judicare and, in fact, Myanmar has made reservations to article VI of the Genocide Convention, which prohibits the courts of any other State from exercising jurisdiction over genocide allegedly committed in its territory.
65.In the final analysis, no adjudicated case is a precedent for such purely mass acts, and every State with an obligation erga omnes may have an interest in complying with that obligation, and even have the right to invoke the alleged breach of the obligation. In international relations, a balance must be struck when it comes to asserting positions with the Court. Allowing pure mass action would open potential floodgates, in an old-fashioned but appropriate way of expressing it.
66.Usually, the countries most affected by international crises engage in diplomatic negotiations and practical actions to seek a solution to the situation. When proceedings before the Court will help or hinder those efforts, those States are the most appropriate to make the judgement. Allowing any State party to take a major decision an international treaty such as the Genocide Convention, no matter how far from the event, to institute such proceedings against any other party at any time of its own choosing may prove counterproductive to such diplomatic negotiations and practical initiatives.
67.Moreover, even if, contrary to my opinion, such public action is possible, this does not mean that the Court may order interim measures in such circumstances under article 41, paragraph 1, of the Statute, and that the Court has only the right to direct interim measures "in order to preserve the respective rights of either Party".
68.There is another reason why the Gambia is not eligible to prosecute.
69.Myanmar has made a reservation to article VIII of the Genocide Convention, which, as the Court is aware, provides that "any State Party may request — 'saisir' in French — that the competent organs of the United Nations take such action, in conformity with the Charter of the United Nations, to prevent and punish acts of genocide or any other act listed in article III". However, Myanmar's reservation meant that Article VIII did not apply to it.
70.Myanmar has not made a reservation to article IX of the Convention, which clearly stipulates that in the circumstances in question, the courts are competent to exercise jurisdiction. However, the Court may exercise jurisdiction only on the first valid hearing of a case. The effective exercise of jurisdiction therefore constitutes a necessary precondition for the exercise of the Court's disputed jurisdiction. In our view, its wording confirms that article VIII deals with crimes. It allows any State party to the Convention to refer any suspected case of genocide to any competent organ of the United Nations and requires it to act under the Convention, of which the Statute of the Court is an integral part. The competent organs of the United Nations referred to in article VIII must include the Court, which is clearly one of its principal organs. Even if it is concluded that genuine mass action is possible under the Genocide Convention, it will be the result of article VIII, not article ix. In contrast, article IX does not refer to any dispute; Article IX also did not refer to any Party; it applied only to the language differences between "Parties" and "Parties to the Dispute", indicating that Article IX was narrower in scope than Article 8.
71.Thus, as stated in the present case, if the respondent State makes a valid reservation to article VIII, the effect is that even if there is no reservation to article VIII, the court will not be able to entertain the case under article IX.
72.As the Court has stated, "the consent to allow the Court to exercise jurisdiction must be certain" and "whatever the basis of consent, the attitude of the respondent State" must be seen as "a clear indication of "the desire of that State to accept the jurisdiction of the Court in a 'voluntary and indisputable manner'". In any event, it is clear from the fact that Myanmar has reserved article VIII that it has not made any such clear expression in an indisputable manner.
73.For all these reasons, Myanmar considers the Gambia ineligible to prosecute.
The interim measures requested were inappropriate
74.Mr. President, members of the Court, as a prelude to Ms. Okowa's comments, I will conclude by presenting to you the wording of the six interim measures requested by the Gambia.
75.The first two interim measures requested by the Gambia in subparagraphs 132 (a) and (b) of the application are essentially the same as the first two orders it sought through final relief in paragraph 112. It sought interim measures to require Myanmar to comply with the Genocide Convention and found it a violation of the Genocide Convention.
76.This may be precedent-setting, as the interim measures required by the first two are very similar to those noted in the Bosnian genocide case. But that doesn't mean the court should now follow precedent from 26 years ago, such as since LaGrand, where courts have recognized interim measures orders as legally binding.
77.If a court makes an order — legally binding on a party and failure to comply with it is a violation of international law — then the judiciary requires that party know the specifics of the obligations under the interim measure from the time the order was made until the order ceased to apply.
78.In the LaGrand, Breard, Avena and Jadhav cases, for example, the Court directed interim measures requiring the respondent State to use all available means to ensure that the named individual was not executed until the Court had taken a final decision. These interim measures are presented in objective language and do not really prejudice the merits of the case. Imagine, however, if these interim measures were replaced by the following provision: "Before a decision is taken on the merits of the case, the accused must take all measures, within his or her powers, to prevent all acts constituting a violation of the Vienna Convention on Consular Relations". What does the defendant Congress do?
79.Well, if the respondent State considers that its conduct is not contrary to the treaty, it will consider it unnecessary to change its conduct. In fact, its counsel would no doubt advise it not to cease its conduct unless and until a judgement on the merits required it to do so, since any earlier change of conduct in response to an order for interim measures was unnecessarily considered to be acquiescence in violation of the treaty.
80.On the other hand, the public will undoubtedly regard interim measures as some kind of court decision on the merits, and the applicant State is unlikely to prevent such a verdict. If the defendant does not change his conduct, the applicant will now also charge him with violating the interim measures order. There will now be two disputes in which such interim measures orders will do little to "uphold the respective rights of either party" or to avoid the escalation of the dispute, which is what they were intended to do.
81.In fact, there is also the problem that, assuming that the Tribunal were to instruct the interim measure to meet the required provisions, it would subsequently find that it lacked jurisdiction to determine the merits. That wouldn't stop the Gambia from alleging that the court still had jurisdiction to determine whether Myanmar had violated the interim measures order. However, to determine whether an interim measures order has been complied with, the court must determine whether Myanmar has failed to comply with the "prevention of ... acts constituting or contributing to the crime of genocide". In other words, in order to determine compliance with an interim measures order, the court needs to determine the merits of the case, even though it considers that it does not have the jurisdiction to do so.
82.Interim measures in such articles are of no use. As a State party to the Genocide Convention, Myanmar is obliged to comply with its provisions in all circumstances, and an order of this Court requiring it to comply with those provisions does not increase its obligations. But with the approval of the court, politicians, activists and journalists will declare the ruling a first step toward condemning the respondent State. For example, the press release of the representative of the Gambia reported in the media stated that the purpose of the interim measures in this case was to "immediately cease the genocide in Myanmar". Thus, both measures indicate that the approval of the interim measure would be an acknowledgement that the applicant's claim on the merits has been established.
83.For this reason, court judges sometimes point to the risk of prejudgment of merits in interim measures decisions. In fact, commentators have warned of the dangers of making requests for interim measures for this purpose as part of a political or litigation strategy. It was said that, in some cases, the applicant might consider the request for interim measures to be more important than the action on the merits, hoping that even if the court subsequently found that it lacked jurisdiction in the main proceedings, it would make a statement before world opinion to enable the applicant to take advantage of it.
84.In addition, it is not possible, inter alia, to know what exact conduct might be in an interim measure in such broad wording. For example, the temporary measures could affect restrictions on movement of rakhine residents or the process of applying for a national identity card, the Gambia said. Does Myanmar know, or how? If there is currently armed conflict in Rakhine State, will measures be recommended to address the problem and, if these interim measures are instructed, will they be in violation of them?
85.With regard to the third interim measure required by paragraph 132 (c) of the application, if Myanmar is instructed not to destroy evidence for similar reasons, it is necessary to know what the evidence in the application may be?
86.The fourth interim measure required by paragraph 132 (d) of the application is "no action that could aggravate or widen the existing dispute". However, any dispute, even if the court finds that there is a dispute, is for one party to send a note verbale to the other. It is difficult to see that this situation will be exacerbated or exacerbated in a manner that requires interim measures. Moreover, such interim measures will only be used in conjunction with other specific measures.
87.The fifth interim measure called for in paragraph 132 (e) of the application would require Myanmar and the Gambia to report to the Court on the measures taken, similar to the reporting obligations under article 40 of the International Covenant on Civil and Political Rights or article 19 of the Convention on Torture. However, the Genocide Convention has neither such a reporting obligation nor any specific monitoring body, and if so, the Court will not be the submitting body for such reports. It is not the court's duty to establish human rights monitoring mechanisms through interim measures not foreseen in treaties that allegedly provide for the Court's jurisdiction.
88.The sixth interim measure, introduced only on 9 December, requires Myanmar to allow access to and cooperate with UN fact-finding agencies involved in the investigation of alleged acts of genocide. This is not an interim measure. This is not a measure to protect the existing rights of the parties until the Court makes a final decision. Under international law, Myanmar is not currently obliged to allow access to its territory, such as fact-finding missions or the Special Rapporteur on Myanmar. Moreover, even if such an obligation did exist, the basis of any such obligation would not be the Genocide Convention. This interim measure goes far beyond the protection of any existing rights. That would place Myanmar with entirely new substantive obligations towards certain United Nations bodies. Such an obligation is not relevant to the Gambia unless the Gambia considers such a reporting obligation to be universal. The requested interim measure has no basis in principle.
89.In addition, this interim measure would circumvent Myanmar's commitment to the reservation to article 8 of the Genocide Convention to which I referred. Pursuant to that reservation, no other Contracting Party may require a United Nations body to act under the Charter. The Court could not impose an obligation that Myanmar had expressly excluded by reservations, and the Gambia had no objection to that.
90.Mr. Dean, members of the Court, this concludes my comments. Mr. Dean, I invite you to invite Ms. Okowa to complete our first round of oral presentations.
DEAN: I thank Mr. Staker for his statement. I now give the floor to Ms. Okowa. Madam, you have the floor.
Ms. Okowa:
There is a lack of real and imminent risk of irreparable harm to the disputed right
Lack of real risk of irreparable harm to specific rights and lack of urgency
A. Introduction
1. Mr. Dean, Madam Vice President, judges, this is my first appearance. It is a great honour for me to represent the Union of Myanmar before the Tribunal.
2. I will introduce you to the last prerequisite for instructing interim measures, namely the requirement that there must be an irreparable real and imminent risk of damage to the right in dispute before the court makes a final decision. In four cases where requests for interim measures were not granted, the applicant State failed to demonstrate the urgency of the measures sought. We believe that, although you heard it from Mr. Reichler yesterday, the reasons for ordering interim measures in this case are not obvious. In our view, the Gambia's request did not meet the threshold of interim measures set out in the Court's jurisprudence and did not meet the urgent requirements.
3. I would make four points in these submissions:
(a) First, in order to satisfy the final requirement, the Gambia needs to convince the Courts that there is indeed an urgent risk of violations of the Genocide Convention in Myanmar before these proceedings are concluded.
(b) Secondly, the current situation in Myanmar is at odds with the imminent danger of genocide. Myanmar is currently undertaking repatriation operations to support the return of displaced persons currently in Bangladesh to their homes. These actions are supported by a range of regional and international actors, which will not be supported if there is an imminent continuing danger of genocide or unforeseen conflicts.
(c) Thirdly, Myanmar is currently undertaking a series of initiatives aimed at achieving stability in Rakhine State, protecting those who are there or will return there and holding accountable those responsible for past acts of violence that contradict Myanmar's genocide, the intentions claimed by the Gambia yesterday.
(d) Finally, the Gambia has not provided any evidence to support its claim that the recent instability in Rakhine State is attributable to Myanmar, nor has it acknowledged the role of rebel groups in the region.
B. Legal principles relating to interim measures
4. I shall now turn to the legal principles relating to interim measures. The court's jurisprudence clearly sets out the requirements of irreparable bias and urgency. However, it was necessary to make two brief comments on how those principles applied to the Gambia request.
5. First, interim measures are instructed only if there is a risk that irreparable prejudice may have an impact on the jurisdiction. The Court therefore needs to be satisfied that there is indeed an urgent risk of violating the Genocide Convention in Myanmar before these proceedings are concluded. Of course, all of this is hypothetical, and the Court is convinced that it has jurisdiction and that the Gambia is qualified to make that claim, and that there is a plausible case of the possibility of a violation of the Genocide Convention — which is not the case, according to the reasons given by Professors Schabas and Mr. Staker.
6. Second, interim measures focus on future threats rather than past events. The Court must be convinced that there is a real reality and an imminent risk of irreparable prejudice against claimed rights today.
C. Application of legal principles in the circumstances of the present case
7.I shall now turn to the application of these principles in the present case. In that regard, I would like to make four comments.
8. My first point is about urgency. The decision to start these procedures was made as early as March 2019. The application was filed no later than November 2019, more than half a year later. So, what happened in November or October that made them "urgent"? If the Gambia truly believes that protection is urgently needed, will it show greater effort in the presentation of cases and requests for interim measures? The Gambia's request failed to induce a change in the circumstances in which the application had to be filed.
9.The second observation is that a number of regional and international actors are currently supporting the repatriation of displaced persons currently in Bangladesh to Rakhine State.
(a) The Office of the United Nations High Commissioner for Refugees (UNHCR) has been at the forefront of supporting repatriation efforts. It signed a memorandum of understanding with Myanmar on repatriation procedures in June 2018 with the United Nations Development Programme (UNDP). In May, the Memorandum of Understanding was extended until 5 June 2020, and in August 2020, UNHCR confirmed its continued support for repatriation. UNDP and UNHCR are currently implementing a total of 43 "quick-impact projects" in Rakhine State. As part of the confidence-building effort, we know that senior Myanmar officials met with displaced persons in Bangladesh with the support of the Office of the United Nations High Commissioner for Refugees. Mr. President, members of the Court, at least it is impossible to say that the Office of the United Nations High Commissioner for Refugees — an organization with eyes and ears on the ground — will facilitate meetings between displaced persons in order to repatriate them to Myanmar...
Dean: Ms. Okowa, would you please slow down for the interpreters?
MS OKOWA: I'll repeat that last sentence. Mr. President, members of the Court, at least it is impossible to say that the Office of the United Nations High Commissioner for Refugees — an organization with eyes and ears on the ground — would facilitate meetings between displaced persons with a view to their repatriation to Myanmar if there was any reason to believe that those who would return were about to face the imminent danger of genocide. UnHCR and the United Nations Development Programme had given clear and sustained support to the repatriation programme in Myanmar, which would otherwise not be coordinated with the recommendations for such risks. (b) In addition, in November this year, the Association of Southeast Asian Nations (ASEAN) expressed its support for "a more visible and enhanced ASEAN presence and role in providing humanitarian assistance, facilitating the repatriation process and promoting sustainable development in Rakhine State in Myanmar". This is the position reached in March 2019 following the deployment of the ASEAN Emergency Response and Assessment Team (ASEAN-ERAT) from Indonesia, Malaysia, Singapore and Thailand to Myanmar to assess the readiness of transit and reception centres. In its assessment, the ASEAN Group found that the regimes put in place by the Government of Myanmar for the repatriation of returnees were in place and operational, noting that "it is clear that the Government of Myanmar has made significant efforts to facilitate a smooth repatriation process".
(c)Bangladesh, which bore the brunt of the crisis, has also signed a memorandum of understanding with Myanmar, which provides an organized framework for the repatriation of displaced persons. The memorandum stipulates that "there is no limit on the number of repatriations as long as there is evidence of their residence in Myanmar". This proves that Bangladesh, as a close neighbour of Myanmar, does not believe that Muslims are in danger of genocide once they return.
(d) Mr. President, a member of the Court, and neighbouring countries have also provided practical support for the repatriation process. For example, in February, China donated 20 trucks to the Committee for the Repatriation and Resettlement of Displaced Persons, and Japan provided $37 million for humanitarian and development projects in Rakhine State throughout 2019.
(e) On 4 November 2019, Prime Minister Narendra Modi of India met with the State Adviser of Myanmar, and Mr. Modi confirmed that his unequivocal support for the repatriation of refugees from Bangladesh is in the best interests of the three neighbouring countries.
(f) In November 2019, the UN Secretary-General's Special Envoy for Myanmar, Christina Shlana Bergina, met with Myanmar government officials to discuss, inter alia, the return of displaced persons and the possible use of third-party mediation to resolve issues to reduce fighting in Rakhine State. Mr. President, members of the Court, these bodies have repeatedly referred to these arrangements as the only uncontroversial solution to the problem of the humanitarian crisis in Rakhine State.
10.Indeed, very few displaced persons have returned. There are many factors that can explain this. The Burmese Armed Forces and the Arakan Army continue to rebel in Rakhine State. Secondly, displaced Muslim residents in Rakhine State have proposed conditions for return, including the granting of full citizenship, recognition of them as a distinct ethnic group, land restitution and compensation for past injustices. The demands are troubling, suggesting that they are in imminent danger of death. Citizenship and racial requirements remain controversial, but there is no consensus on the issue. There is no doubt that instability is preventing many people from returning. But — and this is important — this is a common concern of displaced persons of some ethnic groups. In fact, the rebellion in Rakhine State has led to the displacement of people of different ethnic and religious backgrounds, including Rakhine Buddhists, Hindus and Muslims. This is not to say that the region is dangerous for Muslims, but that it is safe for other ethnic groups. However, you didn't hear anything about the plight of other communities in Rakhine State yesterday.
11.The key point is that the support of these sources and the wider international community for these repatriation initiatives demonstrates a consensus that their return does not pose an imminent danger;
12.The third point is that Myanmar is currently taking a series of actions to ensure stability in Rakhine State, to protect those who are there or return there, and to hold accountable those responsible for past acts of violence, which is not conducive to the existence of any imminent genocide. It is not possible in a short period of time to provide a comprehensive list of actions taken by Myanmar to date. I will confine myself to highlighting initiatives in two key areas.
13.First, Myanmar has taken a number of initiatives to improve the overall stability and development of Rakhine State. These include the establishment of the Rakhine State Executive Central Committee for Peace, Stability and Development, headed by the State Counsellor and Myanmar's agent in these proceedings; the Rakhine State Investment Committee, whose mission is to enable local communities to benefit from investment and promote the participation of the local population; the Rakhine State Committee for Peace and Stability; and the Rakhine State Advisory Committee, then chaired by the late United Nations Secretary-General Kofi Annan, on how to achieve stability among different groups in Rakhine State. Development and meaningful coexistence provide advice. In a recent report, the Committee had made progress in implementing its recommendations. This includes significant investment in transport infrastructure, the near-completion of 9 industrial roads, the construction of 49 bridges and the construction of 100 new houses for the relocation of the Taung Paw camp for internally displaced persons.
14.Secondly, the Government of Myanmar has taken a number of initiatives to investigate the violence that has occurred since the regrettable events of 2016 and 2017. This includes:
(a) The Mondu Commission of Inquiry was established in December 2016 to investigate the background causes of the attacks of 9 October and 12-13 November 2016;
(b) In January 2018, a court-martial established in the town of Mansi sentenced 6 soldiers involved in the killing of three men to 10 years' imprisonment;
(c)the Independent Commission of Inquiry (ICOE) established in July 2018 to investigate allegations of human rights abuses and related issues in Rakhine State; it is also worth noting that
(d) We also established a Military Investigation Tribunal in March 2019 to investigate incidents related to the terrorist attacks in the Buti Dong-Mundaw area. The investigative courts conducted investigations in buti Cave and Mundaw townships. On November 25, 2019, the court-martial announced that it would begin court-martial trials against a group of soldiers involved in the fight against ARSA in the village of Gu Dar Pyin in the town of Butidong. Regional and international bodies, including the Association of South-East Asian Nations, have expressed support for these proposed measures aimed at accountability.
15.Mr. President, members of the Court, these initiatives and international efforts to repatriate displaced persons are totally at odds with the situation proposed by the Gambia. If the Gambia's allegations are superficial, it must be pointed out that in all of the above-mentioned initiatives, Myanmar has acted dishonestly, participated in all of them, and in fact harbored completely inconsistent genocidal intentions. The court cannot bear such bad faith of a State even at the stage of interim measures, in the absence of a reliable evidentiary basis in this regard.
16.With regard to the case in the Gambia, it is worth noting that the omission in the description of the current situation was undoubtedly deliberate. There is a clear lack of any recognition of the complexity of the situation in Rakhine State. There is no mention of the ongoing rebellion in Rakhine State by radical Muslim groups (ARSA) and separatist Rakhine groups such as AA, which oppose an alliance with Myanmar. Notably, the Gambia has not cited any material to conclusively attribute the recent attacks on homes and villages to Myanmar state organs. More importantly, no country in the region, not even Bangladesh, claims that displaced persons would be in danger of genocide if returned to Myanmar.
17.For example, in its latest report, the International Crisis Group has pointed out the role of ethnic armed groups such as the Aracan Army, a separatist group excluded from the peace talks, in exacerbating the conflict. Just last week, Arakan forces claimed responsibility for the attack on a ferry carrying government officials.
18.In Rakhine State, the so-called restrictions on the freedom of movement of Muslim groups held in "camps for displaced persons" are largely reflected in the application – the Myanmar gendarmes strictly control access. But the Gambia did not mention that the deployment of the police was motivated by security concerns. It does not show that these restrictions on movement affect access to education and health care for all communities, whether Muslim or non-Muslim. In fact, a "preliminary needs assessment" conducted by the Association of Southeast Asian Nations in 2019 found that local communities in Rakhine State viewed the presence of border guards as a key factor in rebuilding public confidence and safety and deterring potential conflict.
19.Allegations of state-sponsored hunger policies have also not been supported. The application for the filing of the proceedings cites only three documents, footnotes 197 to 198, one of which is the detailed findings of the fact-finding mission and refers to only two other documents. One of the documents does not refer to any deliberate state policy of forced hunger, but only to the "concerns" of those who are "reportedly experiencing conditions of forced hunger". Another was a statement by Ms Lee Liang-hee, who said there "appeared" to be a policy of forced starvation but did not provide any further details.
20.It is recognized that the region is facing a period of extreme instability. There is no doubt that this will have consequences for civilians caught up in unrest. At the request of Myanmar, the Red Cross and Red Crescent Society Action Organization , composed of ICRC and Red Crescent Societies — has been providing humanitarian assistance in the Mondu and Sittwe areas. The World Food Programme ("WFP") has been supported by Myanmar since 2017. Importantly, WFP does not make recommendations for hunger policies in its monthly newsletter. In fact, it reported food shortages affecting non-Muslim ethnic groups, attributed to ongoing fighting with rebel groups.
21.Similarly, the countries and organizations supporting the repatriation process do not indicate the existence of any national policies of forced hunger, and it is difficult to facilitate repatriation if they believe that there is any such risk.
22. In sum, the causes and consequences of the ongoing hostilities in Rakhine State are complex and difficult to sort out. The court is unable to settle disputes of fact where interim measures are applied. What is clear is that there is no evidence that the Muslim community is at risk of the Myanmar government's deliberate targeting of them, leaving them "in whole or in part" destroyed as a whole.
conclusion
23.Mr. President, members of the Court, in the material submitted by us, this request does not provide any factual basis for concluding that Myanmar is in immediate danger of violating the Genocide Convention. On the contrary, Myanmar has made and will continue to make great efforts to de-escalate the conflict affecting Rakhine State and to promote peace, stability and development and reconciliation in the region.
24.Myanmar's efforts have been recognized by the highest level of international actors. Importantly, they are seen by regional and international actors, including China, Indonesia and Japan, as the only realistic solution to the humanitarian crisis in the context of the ongoing insurgency in Rakhine State.
25.It is on the basis of this that I would like to briefly refer to the discretion of the Court on whether to order interim measures, even if it considers that the criteria of article 41 have been met. In this case, there is a powerful factor that needs to be done with caution. Quoting the late United Nations Secretary-General, Mr. Kofi Annan, in his remarks in the advisory committee's interim report: "The challenges facing Rakhine State and its people are complex and the search for durable solutions requires determination, perseverance and trust". If the Court finds that there is an imminent danger of genocide in Myanmar, this will create a direct and insurmountable obstacle to the repatriation efforts currently under way. This is a highly relevant factor that the court considers when deciding whether to grant an interim measure.
26.However, I would like to stress once again that Myanmar categorically denies that the circumstances of the present case meet the criteria set out in article 41.
27.The first round of oral presentations in Myanmar has come to an end. I really appreciate your attention.
DEAN: I thank Ms. Okowa. Your statement did conclude the first round of oral presentations to Myanmar. The Court will meet again tomorrow at 10 a.m. on 12 December 2019 to hear the second round of oral observations from the Gambia. Myanmar will also submit a second round of oral submissions at 4.30 p.m. tomorrow. I recall that in the second round of oral submissions, the parties had up to 90 minutes to submit their comments. Today's trial is now closed.
The court opened at 12.50 p.m.
【Copyright Notice】1, the copyright belongs to the creator of [Today's Headlines] "Twelve Heavens"; 2, without the permission of the original author, the content of this article shall not be reproduced, otherwise it will be regarded as infringement; 3, reprinting or quoting the content of this article Please indicate the source and original author; 4, for those who do not comply with this statement or other illegal use of the content of this article, I reserve the right to pursue according to law.