International Court of Justice [ICJ] :: APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (THE GAMBIA v. MYANMAR)

Myanmar – ICC

International Court of Justice [ICJ]
APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (THE GAMBIA v. MYANMAR)
23 January 2020
CHRONOLOGY OF THE PROCEDURE 1-13
I. PRIMA FACIE JURISDICTION 16-38
1. General introduction 16-19
2. Existence of a dispute relating to the interpretation, application or fulfilment of the Genocide
Convention 20-31
3. The reservation of Myanmar to Article VIII of the Convention 32-36
4. Conclusion as to prima facie jurisdiction 37-38
II. QUESTION OF THE STANDING OF THE GAMBIA 39-42
III. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN SUCH RIGHTS AND THE
MEASURES REQUESTED 43-63
IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY 64-75
V. CONCLUSION AND MEASURES TO BE ADOPTED 76-85

OPERATIVE CLAUSE 86 [p.25]
…86. For these reasons,
THE COURT,
Indicates the following provisional measures:
(1) Unanimously,
The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:
(a) killing members of the group;
(b) causing serious bodily or mental harm to the members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part; and
(d) imposing measures intended to prevent births within the group;

(2) Unanimously,
The Republic of the Union of Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide;

(3) Unanimously,
The Republic of the Union of Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide;

(4) Unanimously,
The Republic of the Union of Myanmar shall submit a report to the Court on all measures taken to give effect to this Order within four months, as from the date of this Order, and thereafter every six months, until a final decision on the case is rendered by the Court…

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Press briefing note on Myanmar
Spokesperson for the UN High Commissioner for Human Rights: Liz Throssell
Geneva, 24 January 2020
We welcome the Order by the International Court of Justice that Myanmar must take “all measures within its power” to protect the members of the Rohingya group from all future acts that may amount to genocide under the provisions of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide.*
The High Commissioner has repeatedly expressed serious concerns about the situation of the Rohingya following the repeated waves of violence suffered by them, most recently in 2016 and 2017. She has frequently called for the full protection of their human rights, and genuine accountability for the serious violations and abuses they have endured.
As the Secretary-General noted yesterday, these provisional measures indicated by the Court are binding under international law.
The UN Human Rights Office calls on Myanmar to immediately and unconditionally implement them in full, consistently with its obligations under the Charter and the Court’s Statute…

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Financial Times, 23 Jan 2020
Opinion : Myanmar
Aung San Suu Kyi: Give Myanmar time to deliver justice on war crimes
Independent commission has documented killing of civilians and looting

This week, a comprehensive inquiry into the 2017 violence and mass displacement in the state of Rakhine presented its final report to Myanmar’s president.

The Independent Commission of Enquiry interviewed close to 1,500 witnesses, including security personnel and affected persons. It has gathered more first-hand information than any other fact-finding body in the world.

Its findings and recommendations for further domestic investigation and prosecution are unequivocal, belying those who chose to prejudge it as ineffective. The material should now be given a chance to inform both discussions on accountability for human rights violations that occurred and a road map for change in the area.

Mobilising international justice takes time and dedication. The process can too easily become attached to specific testimonies of victimisation and consequently rendered inseparable from the narrative they feed. A fair reading of the ICOE report would show that this is a real risk in the current international proceedings on events in Rakhine.

The case against Myanmar before the International Court of Justice, the statements by the prosecutor to the International Criminal Court, and the private lawsuit brought in Argentina all rely extensively on a fact-finding mission by the UN Human Rights Council. This is precariously dependent on statements by refugees in camps in Bangladesh.

The ICOE reports that some refugees may have provided inaccurate or exaggerated information. While this is understandable, we have to recognise that there is a systemic challenge. The international justice system may not yet be equipped to filter out misleading information before shadows of incrimination are cast over entire nations and governments. Human rights groups have condemned Myanmar based on unproven statements without the due process of criminal investigation.

The international condemnation has had a negative effect on Myanmar’s endeavours to bring stability and progress to Rakhine. It has undermined painstaking domestic efforts to establish co-operation between the military and the civilian government. It hampers our ability to lay the foundation for sustainable development in a very diverse country. It has presented a distorted picture of Myanmar and affected our bilateral relations. Should countries with even fewer resources than Myanmar be similarly condemned, the consequences for them could be dire.

To provide the strongest protection for human rights, we need to reform the ways in which unsubstantiated narratives are relied upon by the UN and non-governmental organisations. The voice of victims must be heard and must always touch our hearts. But it is equally important that fact-finders are vigilant in their search for truth. Recommended Myanmar Aung San Suu Kyi says war crimes ‘may have been committed’

I stated at the ICJ that there would be domestic investigations and prosecutions if the ICOE report presented further evidence of violations in Rakhine. The ICOE has done that, concluding that war crimes were committed during the internal armed conflict with the Arakan Rohingya Salvation Army by members of Myanmar’s security forces and civilians. The report details killing of civilians, disproportionate use of force, looting of property, and destruction of abandoned homes of Muslims. The ICOE found no evidence of genocide.

Myanmar’s Union Attorney-general has already announced plans to investigate civilians who may have participated in looting or burning of villages. War crimes that may have been committed by members of the Defence Services will be prosecuted through our military justice system.

We need to respect the integrity of these proceedings and to refrain from unreasonable demands that Myanmar’s criminal justice system complete investigations in a third of the time routinely granted to international processes.

It is never easy for armed forces to recognise the self-interest in accountability for their members, and then follow through with actual investigations and prosecutions. This is a common challenge around the world. But that does not mean that international justice should immediately come into play.

An informed assessment of Myanmar’s ability to address the issue of violations in Rakhine can only be made if adequate time is given for domestic justice to run its course.

Justice can help us overcome distrust and fear, prejudice and hate, and end longstanding cycles of intercommunal violence. This has always been my goal. This is what we are working to achieve. International justice should not itself fall victim to the extreme polarisation which characterises discussions on the situation in Rakhine.
The writer is state counsellor of Myanmar