Myanmar Counsels Submit Final Oral Arguments at ICJ in Gambia versus Myanmar Case

Oral hearings in the case between The Gambia and Myanmar were held at the International Court of Justice in The Hague, the Netherlands, from 12 to 29 January. Myanmar counsels submitted their second round of submissions on the final day from 10 am to 1 pm and from 3 pm to 4:30 pm local time on 29 January.

Myanmar’s counsels submitted the arguments regarding the insufficiency of The Gambia’s evidence, and in response to the Judges’ questions.

Myanmar’s counsel, Ms Alina Miron, responded to Judge Gomez Robledo Verduzco. She said that Myanmar granted Ms Yang Hee Lee access more than six times, including visits to Rakhine State. However, Myanmar contended that her public statements in July 2017 were “undiplomatic” and detrimental to the citizens of Myanmar, leading to undermining the mutual trust.

Since 2021, Myanmar’s representatives have been denied participation in the principal organs of the United Nations. It contended that the Human Rights Council adopted unilateral procedures to collect information without Myanmar’s participation or consent, and that, accordingly, Myanmar was under no obligation to cooperate with the Fact-Finding Mission (FFM). Myanmar further maintained that neither the Genocide Convention nor the Charter of the United Nations provides the legal provisions requiring a sovereign state to grant admission to such investigative bodies to its territory.

In response to Judge Gomez Robledo’s question regarding evidentiary matters, Myanmar’s counsel argued that while States parties to a dispute have a duty to cooperate in the pursuit of truth, it is already stated in the case that there is no duty to cooperate with third parties like the FFM and IIMM. Therefore, the Court should not conclude, based on the Genocide Convention and the legal facts, that Myanmar is under an obligation to cooperate where no such obligation exists. Regarding the submission that Myanmar should take action against security forces and others, The Gambia had previously and consistently identified six key responsible individuals by name. Since The Gambia’s Agent omitted these names from their final submission, it can, therefore, be assumed that they have withdrawn these specific allegations.

Furthermore, regarding the duty to investigate facts, details of criminal prosecutions have been included in the reports on Myanmar’s implementation of provisional measures. The Independent Commission of Enquiry (ICOE) was established in 2018 and comprises two Myanmar nationals and two international experts. Under its Terms of Reference (TOR), it is impartial and considered superior to the FFM. Following its preliminary findings, ICOE initiated further investigations. The Criminal Investigation and Prosecution Body (CIPB), including members from the Myanmar Police Force and the Ministry of Legal Affairs (formerly known as the Union Attorney General’s Office), was formed to prosecute cases based on ICOE data and findings. The CIPB was mandated to investigate and prosecute cases involving ARSA members, police, and civilians. Allegations concerning military personnel are handled separately under the Military Justice System.

Regarding questions from Judges Charlesworth and Pillay, Myanmar stated that investigations into sexual violence face a lack of sufficient evidence due to the absence of victim complaints and the long delay in reporting. Concerning arson allegations, Myanmar argued that while the military is accused of destroying villages, The Gambia has failed to provide concrete evidence to support these claims.

Myanmar’s counsel, Mr Sam Blom-Cooper, argued that, in The Gambia’s second-round arguments, The Gambia had failed to provide conclusive evidence that Myanmar acted with genocidal intent. He noted that The Gambia’s expert witness only introduced the concept of a “modus operandi” late in the proceedings to allege genocidal intent. This purported pattern included claims that claims of encircling villages, indiscriminate firing, separating men and children from women, gang rape, extrajudicial killings, and arson, followed by land clearing.

Myanmar’s counsel, Mr Hooper, had pointed out our critical weaknesses in the expert’s testimony. Although the expert alleged sexual violence at fifty-four locations, The Gambia’s second-round submissions referred to only ten locations. Furthermore, Myanmar argued that casualty figures for children cited from Médecins Sans Frontières (MSF) are merely generalized, extrapolated estimates and should be considered exaggerated rather than precise data.

Myanmar’s counsel Professor Talmon argued that regarding The Gambia’s request for reparations, the Court’s jurisdiction is limited to determining whether genocide occurred and ordering the cessation of such acts. Responding to Judge Cleveland’s question on the appropriateness of awarding reparations, he noted that in cases brought by a “non-injured” state party, the intended beneficiaries are not citizens of the applicant state. There is currently no legal precedent for a non-injured state to claim such compensation.

He further argued that such claims are generally only applicable under specific regional frameworks, such as the European, American, or African human rights conventions. He cited the ICJ’s own Advisory Opinion on Climate Change to affirm that a non-party to a dispute cannot claim compensation for damages. Professor Talmon cautioned that allowing non-injured states to seek reparations could lead to competing or inconsistent claims among nations and present significant practical difficulties in ensuring funds reach the actual victims. Therefore, he concluded that the Court should focus strictly on treaty compliance and the cessation of alleged violations.

Regarding Judge Cleveland’s question about whether The Gambia’s evidence meets the required legal standards, Mr Staker clarified that Myanmar does not claim information from UN bodies, and NGOs have no evidentiary value at all. However, he argued they fail to meet the exceptionally high standard required for genocide. To prove that widespread and systematic atrocities constitute genocide, the evidence must be so conclusive that no other inference can be drawn.

Myanmar maintains that because these UN and external organizations rely primarily on hearsay (second-hand information), their reports do not meet the evidentiary standards required for this case. Counsel argued that such evidence would be inadmissible in ordinary civil courts or international criminal tribunals. Furthermore, it was noted that despite being established for seven years, the IIMM has only been able to provide 42 statements relevant to this specific case. Myanmar’s counsel argued that citing FFM and NGO reports regarding ARSA was not intended to validate those reports as evidence. Instead, it was to highlight that The Gambia’s evidence fails to meet the required legal standards.

He emphasized that the burden of proof rests solely on The Gambia. Furthermore, he noted that while The Gambia defends the FFM’s expertise, the mission lacked specialists in fields like forensics. He concluded that, despite extensive allegations based on hearsay, The Gambia has failed to produce any primary photographic or video evidence, except for the Inn Din incident.

Professor Talmon argued that the burden of proof rests entirely with the applicant, The Gambia. He emphasized that because genocide is a grave accusation that leaves an eternal stigma on both the State and its millions of citizens, the evidence must meet a “fully conclusive” standard. In response to Judge Hmoud’s question on whether “genocidal intent” should be assessed separately for individuals and the State, Prof. Talmon stated that such a separation is unnecessary, as the evidentiary standards must remain consistent. Furthermore, he argued that if a state has motives or objectives other than the destruction of a group, such as military or security goals, this significantly diminishes the existence of the required special intent (dolus specialis).

The Counsel further argued that the Court cannot adopt “creative” legal theories to compensate for the absence of evidence, such as the lack of hate speech. He contended that, contrary to the arguments of The Gambia’s expert, Professor Newton, a “systematic military operation” or a “consistent pattern of conduct” does not automatically equate to genocidal intent under the law. Furthermore, he asserted that the scale of destruction is a fundamental factor in determining genocide; therefore, The Gambia’s claim that the specific number of victims is irrelevant is legally incorrect. Finally, he maintained that Myanmar’s decision not to cooperate with the FFM and IIMM cannot be legally interpreted as a “cover-up” or an admission of guilt. To reach a conviction, the Court must be able to prove that the operations were specifically designed to achieve the destruction of the group.

After the arguments of Myanmar’s counsels, Agent of Myanmar Union Minister U Ko Ko Hlaing made a speech, and submitted an application requesting the court to dismiss all of Gambia’s appeals. (The speech of the Myanmar Agent, Union Minister U Ko Ko Hlaing, is reported above).

MNA/TTA

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