Prof Stefan Talmon Presents Counterarguments at ICJ

 

PROFESSOR Stefan Talmon submitted the rebuttal argu­ments on alleged hate speech and propaganda for the case of The Gambia versus Myanmar at the International Court of Jus­tice in The Hague, the Nether­lands, on 20 January.

He stated: One of The Gam­bia’s arguments is that the utter­ances of Myanmar soldiers are an indicator of genocidal intent. You were presented on screen with seven statements which al­legedly represented “utterances of soldiers posted online”. How­ever, the Reuters report that is adduced as evidence does not even mention the word “soldier”. All statements are unattributed. One of the seven statements is not even included in the report. One of the statements was a comment on a news article on attacks on police stations by Ben­gali militants.

This example is only to show that when the Court deals with the statements put forward by The Gambia, it needs to focus very closely on the original state­ments themselves. The Court should take note of the fact that, in many cases, The Gambia does not put forward the statement itself but relies on secondary sources, reports and news arti­cles. Material of this nature is of no evidential value.

The Gambia says that the Court must determine whether Myanmar’s alleged use of hate speech and propaganda “consti­tutes an indicator of genocidal intent.” In its presentation last week, The Gambia referred thirteen times to “anti-Rohingya hate propaganda, and the hateful utterances of Myanmar soldiers” – speech acts it considers to be indicators of genocidal intent. It comes as no surprise that at the end of the presentation, The Gambia concluded that such hate speech and utterances are “conclusive indicators of geno­cidal intent”.

This approach has no ba­sis in the Court’s case law. The Court follows an “inference from a pattern of conduct” approach. The Court first establishes a pattern of conduct from which genocidal intent is then inferred. So there is no direct inference of genocidal intent from hate speech or the tolerance of hate speech.

The only question, there­fore, is whether hate speech and the toleration of hate speech could be relevant for establish­ing a pattern of conduct from which genocidal intent could be inferred. A pattern of conduct has been defined as “a consistent series of acts carried out over a specific period of time.” The two elements of genocide must be “linked”. It is the acts committed by the perpetrators of the attacks on the protected group that must form the pattern of conduct from which the inference is drawn. Extraneous factors, such as hate speech and toleration of hate speech, would inevitably raise the question of their relation­ship to the actual attacks and the question of causation.

The Gambia’s hate speech and propaganda argument is thus irrelevant for establishing an alleged general plan to de­stroy the Bengali Muslim group in whole or in part by way of in­ference from a pattern of con­duct.

The Gambia would have to show that the speech acts are related to the particular circum­stance in question and that the only reasonable inference from these acts was genocidal intent. Considering the other intents mentioned by The Gambia itself in its presentation, such as in­tent to incite hatred or violence against Bengali Muslims, or in­tent to take “revenge”, an intent to destroy would not be the only reasonable inference from these speech acts.

The Gambia’s attempts to insinuate an orchestrated top-down campaign of genocide led by Myanmar’s Senior General Min Aung Hlaing fail on the evidence. When read in their context and against the back­ground of the counter-terrorism operations, the snippets from the General’s statements contain no espousal of genocidal intent, let

alone a call for genocide, or even simple violence.

There is no evidence of gen­ocidal intent in these or other statements by the Senior Gener­al. Even if viewed in isolation, as a matter of their ordinary mean­ing, none of the statements selec­tively relied on by The Gambia calls for the physical destruction of the group of the Bangli Mus­lims, in whole or in part, as such.

None of these statements qualifies as direct and public incitement to genocide or is re­flective of a genocidal intent of its author. The Gambia tries to gloss over this deficiency by re­ferring instead to “hate speech and anti-group propaganda” as an indicator of Myanmar’s al­leged genocidal intent.

There is, however, also an­other flaw in The Gambia’s ar­gument. There is a difference between hate speech in general, or inciting discrimination or vio­lence, and incitement to commit genocide. Incitement to commit genocide requires more than in­citement to hatred or violence; it requires genocidal intent on the part of the instigator. The Gam­bia has not proven any genocidal intent on the part of the authors of the alleged hate speech acts.

Thus, even if the hate speech argument was relevant for estab­lishing genocidal intent on the part of Myanmar, which it is not, The Gambia would have to prove by conclusive evidence that the authors of the hate speech acts themselves had genocidal intent. It has not done so.

Even if the statements which The Gambia refers to as “anti-Rohingya hate speech and propaganda” were relevant for establishing genocidal intent, The Gambia would still have to prove by conclusive evidence that these speech acts are re­flective of genocidal intent on the part of their author. It has not done so.

Even if some of the state­ments were reflective of geno­cidal intent, the Gambia would have to prove, by conclusive evidence, that the speech acts in question are attributable to Myanmar. Again, The Gambia has failed to do so.

Even if some statements by individuals reflecting genocid­al intent could be attributed to Myanmar, the State’s genocidal intent cannot be established by way of attributing the genocidal intent of one or more individu­als. Accordingly, The Gambia’s submissions on hate speech are so far removed from, and fall so short of proving genocidal intent, that they cannot be sustained.

#TheGlobalNewLightOfMyanmar