The International Court of Justice (ICJ) is the first international court to consider whether what happened to the Rohingya – a Muslim minority in Myanmar – was genocide. “Gambia is going to have to show that genocide was committed. They are not showing individual’s special intent because this is not an international criminal trial where one individual is on trial. It is the broader state responsibility” that this court considers, says Melanie O’Brien of the university of Western Australia.
Lawyers for Gambia are presenting their case years after the only two previous genocide cases were argued at the ICJ – Bosnia versus Serbia, finished in 2007, and Croatia versus Serbia, judged in 2015. Even though it has ruled that genocide was committed in Bosnia by Bosnia Serb forces, and that Serbia was in breach of the Genocide Convention, “the ICJ has never ruled that a state itself was responsible for committing genocide,” reminds Reed Brody of the International Commission of Jurists, “because the court has historically set the bar very high for that kind of finding”. In previous cases the court ruled on a variety of issues that Gambia will need to address, and lawyers will be following most closely the courts’ “very strict test”, says Juliette McIntyre of Adelaide University, on whether the evidence is so clear that “the only possible inference [the judges can draw] is genocidal intent.”
From history of genocides to the use of Facebook
So far, from the first couple of days, says O’Brien, Gambia’s arguments are looking “excellent”. Gambia has to prove both the facts on the ground, and the specific special intent by the state to commit genocide.
During the opening session Philippe Sands, speaking for Gambia, pulled out a first edition of a book by Raphaël Lemkin, the author of the Genocide Convention, to support his arguments about what the states have signed up for. Later in the week, Gambia spent several sessions on the horrific descriptions of the alleged acts on the ground by the Myanmar armed forces, the Tatmadaw, of destruction of villages and the murder and rape of Rohingya men, women and children. And several further sessions, to bolster their analysis of how the only possible inference from the evidence presented was intent to commit genocide.
“Gambia is doing really accurate comparisons to past genocides” to show “patterns” and “similarities” with genocides like Srebrenica, the Holocaust or Rwanda, describes O’Brien. Lawyers of the Gambia are both “walking through the history of using the law to persecute and discriminate against the Rohingya in Myanmar and talking about the use of Facebook as the main media for distributing hate speech”, she says.
In addition, adds Brody, there is strategy behind the various elements presented by different lawyers: “You put things in a pleading just for one of the judges. You take the 15 judges, you say, this is what we need for this judge. These are the six judges we have to concentrate on. Paul Reichler [member of the Gambia’s legal team] is really good at that, so is Philippe [Sands]”.
Marking the work of other UN bodies
The hearings will go on for three weeks until the end of January. Gambia is basing its case on the reports of the UN Fact Finding Mission (FFM), along with reports from the Independent Investigative Mechanism for Myanmar (IIMM) about what happened in 2017. A few sessions will be behind closed doors, when three witnesses will testify. “It’s not unheard of” McIntyre says. “In the Croatia genocide case, they had witnesses who used pseudonyms and who were examined and cross-examined in camera to protect them. In a case like this, it’s obviously very sensitive and the evidence that they’re going to be giving is very harrowing.”
Relying on the UN reports poses “a few potential problems” says McIntyre. “One is that the methodology for collecting the facts, testing the veracity of the evidence isn’t always clear.” And the second potential problem is that the UN reports “go further than simply stating facts. They actually get into the question of whether they think there’s genocide here or not, kind of doing the court’s job for it in some places” she adds.
In response to Myanmar’s suggestions that the reports are unreliable, lawyer for Gambia Reichler says that when it comes to the court’s decisions to rely on UN reports its “jurisprudence makes clear, it has done so only after carefully scrutinizing these reports to ensure that they meet the standards, articulated in its case law, for establishing their reliability. Doing so here would be consistent with the Court’s long-standing practice”.
Reichler argues that with “the FFM and the IIMM reports, there can be no doubt of their probative value, or that they merit great evidentiary weight” and describes how comprehensive they are – with “confidential interviews conducted by the Mission or its staff with more than 1,200 victims, witnesses, perpetrators and former Myanmar officials with direct knowledge of the issues; satellite imagery; authenticated video and photo material; publicly available admissions of relevant facts by Myanmar officials; laws, policies and directives of Myanmar; internal Myanmar documents; and statistics, surveys and other quantitative information generated by Myanmar or the United Nations”.
Genocidal Intent
All observers are interested to see how Gambia is dealing with the court’s previous strict approach to genocidal intent.
O’Brien says that in “the previous ruling of the court, when they talked about genocidal intent in the Bosnia and Croatia cases, and that genocidal intent has to be the only inference that can be made from the evidence before it, was heavily criticised.” “It’s also not supported by the text of the convention or by reality, with the simultaneous commission of other international crimes like war crimes at the same time; there can be other intents”.
Reichlersmartly said he agreed with the court standards, and argued that “the only reasonable inference that can be drawn from the evidence is that Myanmar acted with the intent to destroy the Rohingya as a group, as such, in whole or in part”.
Reichler told the court that, contrary to Myanmar’s arguments – which have not yet been made public - “deliberately targeting, shooting indiscriminately at, and massacring thousands of Rohingya civilians unarmed, unthreatening and defenceless Rohingya civilians is not counterterrorism.” He also provided context to support genocidal intent: “The Rohingya were despised, discriminated against and targeted by the Myanmar government, based on their race and religion… They were denied citizenship and nationality; subjected to restrictions on marriage and childbirth to prevent population growth; denied opportunities of employment and livelihood; restricted in their movement and access to food and health care; deprived of basic rights available to other ethnic, racial and religious groups. As publicly proclaimed by the Tatmadaw’s supreme commander, the very presence of the Rohingya had long been a problem; and the ‘clearance operations’ were launched to finally solve this problem. This was not counter-terrorism. It was the antithesis of counter-terrorism. It was genocide” he concluded.
Sexual violence as evidence of intent
Another important aspect of the case is the emphasis by Gambia on sexual and gender-based violence, particularly rape and gang rape of girls and women, which was “a prominent part and continues to be a prominent of the violence against the Rohingya” says O’Brien.
On the first day in court, “we saw multiple references to sexual and gender-based violence” noted Ashita Alag of the NGO Global Justice Center. “The FFM recorded sexual violence, not just against women and girls, but also men and boys during the 2017 operations including rape, genital mutilation, sexualized torture. Sexual violence against men and boy is also often used.” However, the bulk of the sexual violence was against women and girls. There is evidence, she says, of “mass gang rapes on women and girls, often involving multiple perpetrators and multiple victims at the same time. These sort of incidents of sexual violence are often perpetrated in front of the victims’ children or other family members, so as to almost make a spectacle out of it. There’s evidence of women raped to death.”
“To show the special intent, you have to show destruction of a group in whole or in part. That destruction, the ICJ has already said, is both physical and biological. Rohingya women and girls of reproductive age perform an important social function for that group in sustaining its regenerative capacity and thereby are a prominent part of the whole group. And so biological destruction of this part of the group can evidence an intent to commit genocide. This violence is being perpetrated in this manner against women and girls of reproductive age to destroy this community biologically, to impact its regenerative capacity. It’s only pushing for a gendered understanding of what genocide is,” says Alag.
O’Brien agrees that, in the Rohingya case, “the whole range of genocide was highly gendered in the fact that generally, you see men are killed and women are subject to sexual and gender-based violence and perhaps murdered afterwards. This could lead to a much more gender sensitive decision coming out of the court that acknowledges how significant the commission of sexual and gender-based crimes are in the genocide process and that it isn’t necessarily just about killing.”
Myanmar will bring its alternative interpretation before the court from Friday onwards.
Implications in the Gaza case?
“This is going to be the first judicial decision about whether or not genocide took place against the Rohingya in Myanmar”, says O’Brien. “It will be so significant for the survivors to have an independent judicial body made up of a variety of judges from all around the world who have assessed a wide range of evidence. That will be highly significant.”
The court’s decision can also have implications beyond Myanmar, notes Brody: “This case is widely seen as a dry run for South Africa’s case against Israel and how the court reasons about intent and evidence here will shape genocide law for years to come and in particular for the Gaza case.” Indeed, agrees O’Brien, “when the merits decision comes out here, no doubt that it will impact and be included in the arguments of the state parties to the other proceedings that we have;Ukraine-Russia, South Africa-Israel, Nicaragua-Germany”.
It will take the judges months to consider the evidence presented at the three weeks of hearings, but a ruling will be expected this year.
