Alina Miron submitted the rebuttal arguments on allegations concerning the violation of the obligation to punish and the destruction of evidence for the case of The Gambia versus Myanmar at the International Court of Justice in The Hague, the Netherlands, on 20 January.
She stated: It now falls to me to refute the
allegations concerning the obligation to punish genocide, developed by The
Gambia in Chapter 11 of its Counter-Memorial and Chapter 8 of its Reply. In
essence, The Gambia considers that Myanmar has failed in its obligation to
punish genocide because it has not conducted a serious investigation or brought
proceedings in relation to the facts brought to the Court’s attention and
because it has attempted to conceal evidence relating to these events.
The Gambia does not show how the failure to
conduct serious investigations and the concealment of evidence – assuming these
were established, which is not the case here – would in themselves contribute
to the destruction of the protected group, when they are not part of the actus
reus. Nor does it demonstrate how these facts would retrospectively shed light
on the specific intention to destroy a protected group that the respondent
State allegedly had at the critical moments.
However, this interpretation has not been
validated by any international case law, not even by that invoked by The
Gambia, which, in oral proceedings, was reduced to nothing.
The Gambia does not explain how the Court could
adopt the approach it proposes, given that it has no jurisdiction over
individual criminal responsibility and that the Gambia itself attributes the
material acts in question to members of the Myanmar armed forces and police.
In any event, if the ultimate objective of
invoking the obligation to prosecute is to bypass the requirement to prove
dolus specialis or to attribute certain potentially criminal acts to Myanmar,
it is bound to fail. Indeed, while The Gambia was unable to provide evidence of
this in its demonstration of the commission of genocide, it cannot dispense
with this requirement by invoking a complementary but distinct responsibility
for failure to repress.
Since The Gambia has failed to fulfil its
burden of proving that genocide was committed, there is simply no need to
examine the allegations of impunity and destruction of evidence. It is
therefore for the sake of completeness that I will show that Myanmar did not
fail to fulfil its obligation under the Convention to punish genocide.
The obligation to punish, like the obligation
to prevent, is an obligation of conduct and not of result, as stated by The
Gambia. The parties to the Convention have an obligation to use all appropriate
means at their disposal to punish those responsible for genocide. A contracting
party is only liable if it has manifestly failed to implement the measures
available to it for this purpose.
What is certain is that the obligation to
punish is only enforceable against a Party if the alleged acts fall within the
scope of the Convention. This requirement is linked to the Convention’s scope
ratione materiae. However, Gambia tends to accuse Myanmar of failing to punish «crimes/atrocities
committed against the Rohingya in general or, more specifically, ‘war crimes’
committed during the anti-terrorist operations of 2016 and 2017. It is clear,
however, that the obligation to punish under the Convention applies only to
acts referred to in Article III of the Convention.
The fact that certain crimes may have gone
unpunished or concealed does not mean that they constituted genocide. In order
to hold Myanmar accountable for its obligation to punish, The Gambia must
demonstrate that genocide was likely committed. These minimum details are
necessary to determine whether the facts and conduct in question are likely to
fall within the scope of the Convention. However, as my colleagues have shown,
The Gambia’s allegations are singularly lacking in precision.
It is still by denying the discretionary power
of the territorial State that The Gambia can assert that the absence of
prosecution constitutes in itself proof of a clear violation of the obligation
to punish, when in fact it is a matter of exercising the power to assess
evidence and qualify the facts. Here too, the Gambia is positing as a premise
what it must prove. In this case, it must prove that the absence of prosecution
is a manifest violation of the obligation to prosecute – in this case, this
implies reasonable grounds to believe that genocide was committed by the
persons whom Myanmar should have prosecuted. In the absence of such evidence,
and given that the obligation to punish is a duty of diligence, The Gambia
cannot suggest that the absence of prosecution or conviction constitutes ipso
facto a breach of the obligation to punish.
To an excessive degree – Myanmar has prosecuted
certain members of its armed forces for acts committed during anti-terrorist
operations and some have been sentenced to prison terms. Moreover, The Gambia
acknowledges this, while downplaying these examples – because it considers the
sentences unsatisfactory.
Finally, there are the allegations of
systematic destruction of Rohingya villages by fire or bulldozers, which The
Gambia considers to be evidence of dolus specialis on two counts: as an
indicator of genocide and as a practice of destroying evidence to conceal the
crime. In reality, The Gambia’s allegations regarding the destruction of
evidence suffer from the same deficiencies in narrative and evidence as the
allegations of genocidal acts. My colleagues have analysed them at length, and
I will be brief. Here, too, many questions arise about the relevance of the
lengthy discussions our opponents have devoted to this issue.
How could these facts constitute evidence of
genocide? In themselves, they do not constitute either actus reus or dolus
specialis. The Gambia does not even dispute this.
The Gambia conflates allegations relating to
events during the 2016 and 2017 counter-terrorism operations with those
relating to subsequent events. Myanmar accepts that destruction of homes took
place during the counter-terrorism operations, but these were aimed at
legitimate military targets. Other destruction was caused by the ARSA.
Contrary to what Gambia claims, the destruction
is far from widespread. I would nevertheless point out that, despite the
tendency to generalize geographically, which is also present in the allegations
concerning the destruction of evidence, hundreds of Bengali Muslim villages in
northern Rakhine State were not affected.
I finally come to the allegations concerning
Myanmar’s lack of cooperation with certain United Nations bodies, in particular
the investigative mechanism and the Special Rapporteur on the situation of
human rights.
Myanmar has explained, in its communications
with the United Nations and in its submissions in the present case, that its
refusal to recognize the mandate of the fact-finding mission was motivated by
its doubts about its impartiality. The same applies to the investigative
mechanism established after the fact-finding commission. It is not surprising
that The Gambia, whose case relies heavily on the reports of these bodies, does
not give credence to Myanmar’s concerns about the investigative methods on
which the work of these bodies is based. I would emphasize that Myanmar has the
right to challenge them and their conclusions without this constituting
evidence of dolus specialis or a violation of the obligation to punish.
#TheGlobalNewLightOfMyanmar
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