12 Dec The Gambia v Myanmar: Day 2 of the Provisional Measures hearing at the International Court of Justice
On 11 December 2019, Myanmar presented its case before the International Court of Justice, in the matter of provisional measures brought by The Gambia in relation to the Rohingya, under the Genocide Convention. Even though the hearings were for a specific determination – that of provisional measures – the arguments presented by Myanmar are a glimpse of the legal strategy going forward.
As a first point, the argument presented by Myanmar is quite simply: denial. This emerged from the first presentation of the day, that of Aung Sang Suu Kyi, the state counsellor of Myanmar and appearing in her capacity as Union Minister for Foreign Affairs (not, contrary to reports, in her personal capacity). A side note – something of relevance later on – is the fact that she has no legal training and is not a lawyer. Clearly, her presentation was to set the record straight, as it were – and to reframe the narrative thus: the state of Rakhine has a complicated past which is misunderstood by the world, and that the acts of terrorists as part of an internal armed conflict have resulted in the need for “clearance operations” – which she took pains to clarify from the Burmese language as essentially a strategy of counter-insurgency. There was an admission that perhaps there “may have been” some violations of international humanitarian law but for which there was little tolerance, and that the military courts were working hard to investigate and prosecute. As a final touch, clearly a “rebellion” could not constitute a genocide. What was really striking in the opening remarks was the omission of a word for the most part – the Rohingya.
These initial remarks were to set the stage for the more technical arguments, delving into the substance of the hearing. Distilling the arguments and keeping in mind the aim of this hearing – the request of the court to order provisional measures – it is necessary to understand the requirements to be satisfied for provisional measures. Remember, at this stage, the aim is not to delve into the details of the case or the ‘merits’ – it is to keep focused on the requirements of the court to issue provisional measures, or interim measures of protection. Essentially, there are a few basic requirements: that the court has prima facie jurisdiction, i.e. it can hear the case; that there are ‘plausible rights’ that exist in question that could be affected; that there is a matter of urgency and irreparable harm that could be caused. It is also important to note that the ICJ has a long history of issuing provisional measures, and so there is much to rely on in terms of the courts understanding of how to apply these requirements to any given case.
Moving now to the arguments by the Myanmar counsel, and addressing the provisional measures component, paraphrasing, it is simply this: The court should not be looking into this case due to a lack of standing of The Gambia – it is not affected per se by the Rohingya exodus and does not have a real connection. In addition, the OIC has put The Gambia up to this, and international organizations do not have standing before the court. This may have been persuasive had the IOC been asserting the right to appear before the court – but it is not. And this does not detract from the right of The Gambia to assert rights erga omnes or on behalf of the community of states, given the nature of the crimes being discussed which are considered jus cogens norms (i.e. of such importance under international law that all have an interest in their prevention and protection) As part of this argument, Myanmar also sought to downplay the existence of a ‘dispute’ which is a pre-requisite to approach the court under Article 9 of the Genocide Convention.
On the existence of ‘plausible rights’, this is where things got a bit strange. The ICJ typically has interpreted ‘plausible rights’ narrowly for the purposes of provisional measures, so a party claiming provisional measures needs to prove that these rights exist and are in peril. However, it is important to also note that per the jurisprudence of the ICJ, these do not have to be proved to exist ‘definitively’. The Myanmar legal team sought a peculiar line of argumentation in seeking to disprove the existence of plausible rights – by going down the path of arguing that there are other alternatives to genocide, namely, the possibility of crimes against humanity, and therefore these are not plausible rights that can be adjudicated. This is an argument that delves into the standards of establishing genocide – and sets the bar much higher than normal for the establishment of provisional measures. As a legal strategy, the value of this is doubtful. In addition, to make this argument, Myanmar went down a dangerous and insensitive path – arguing that in fact numbers of those killed are relevant (per jurisprudence, they are not), and that the prosecutor of the International Criminal Court in focusing on deportations as a crime against humanity for her case indicates the existence of other alternatives besides genocide (not addressing the fact that this was for issues of jurisdiction, and that potentially the door does remain open for genocide). A notable absence in the arguments was ignoring sexual and gender-based violence, a core component of the allegations of the crimes as detailed by The Gambia. But this perhaps should have been expected. Another aspect was the focus on the factfinding relied upon by The Gambia – as noted previously, much reliance was placed on the UN Independent International Fact-Finding Mission on Myanmar (FFM) – and Myanmar focused on the credibility of the reports of the FFM as well as attacked the credibility of the Special Rapporteur on Myanmar, Yanghee Lee, as not appreciating the evidence sufficiently as she was “not an international lawyer”. No small irony here, given the lack of legal training of one of the agents of Myanmar.
The last leg of the arguments, that of urgency and irreparable harm, was perhaps the strangest of all. In effect, Myanmar argued that there was no urgency or harm as individuals in the displacement camps were being looked after. The fact that there were multiple agencies and countries that were providing assistance, and the fact that there were developmental projects underway, was asserted as the basis to dismiss this requirement. In broaching this legally tenuous and perhaps irrelevant argument, Myanmar may have gotten itself into a diplomatic imbroglio. The various humanitarian agencies listed in detail – including UNDP, UNHCR, WFP, the Red Cross and Red Crescent movement – and the governments named including Japan, India, Bangladesh and others – may have something to say at being essentially used to whitewash atrocities committed, based on the provision of humanitarian assistance.
It is important to reiterate that the elements required for provisional measures such as jurisdiction and plausible rights do not have to be “definitively determined” at this stage, in the words of the court in the most recent provisional measures cases of Ukraine v Russia as well as Qatar v UAE. Those are aspects that will be determined subsequently, on merits. The court now has the opportunity to hear from The Gambia and Myanmar again today, before applying itself to the case at hand and coming to its own conclusions.