Sam Blom-Cooper Presents Rebuttal Arguments at ICJ

 

Mr Sam Blom-Cooper, Advocate for Myanmar, submitted the rebuttal arguments that genocide has not been established for the case of The Gambia versus Myanmar at the International Court of Justice in The Hague, the Netherlands, on 20 January.

He stated: I will present to you now the reasons why The Gambia has failed to prove the acts have been committed that constitute the actus reus of genocide; or any such acts were committed with the requisite or specific intent physically or biologically to destroy the claimed group as such.

The Gambia’s evidence also lacks weight due to the pervasive anonymity of the ultimate sources of information, and the fact that the FFM reports and other reports relied upon were not the product of a court, or court-like process. It is another extraordinary feature of this case that not even the Applicant, let alone Myanmar or the Court, knows the identities of the vast majority of witnesses in this case. I turn now to deal specifically with the events of 2016 and 2017.

In the Croatia case, this Court held that the term “killing” in Article II (a) does not apply to civilian deaths occurring as a result of use of force exclusively directed against military targets, if the civilian deaths were not caused deliberately Analogously, it will not apply to the death of armed persons engaged in committing a terrorist attack, in the course of a necessary military or security operation; or to civilian deaths during such operations, if such operations were exclusively directed at legitimate targets, and the civilian casualties were not caused deliberately.

Throughout its case, The Gambia does not attempt to quantify how many of those who allegedly died in the operations of 2016 and 2017 were actively participating in the violence. Instead, The Gambia merely refers to the FFM’s unverified ‘death toll’ figures and the vague and generalized claim that the operations in August 2017 “directly resulted in more than 10,000 deaths”. The evidence presented by The Gambia.

While there is no specific numeric threshold in respect of killings within Article II (a), given the estimated size of the Bengali population in northern Rakhine State before August 2017 was approximately 1.4 million, The Gambia’s estimated number of deaths would have been insufficient to contribute to the physical or biological destruction of the group, and would have been incapable of bringing about its physical destruction.

I turn next to paragraph (b) of Article II, which refers to “causing serious bodily or mental harm to members of the group”. Paragraph (b) applies only to acts of intentionally causing serious bodily or mental harm. Thus, this provision does not extend to bodily or mental harm inflicted by combatants on each other in the course of battle in armed conflict. Nor does it extend to serious harm inflicted upon insurgents or terrorists in battle or during law enforcement operations. Nor does it extend to unintentional collateral casualties in the course of such operations.

Restrictions on, or deprivation of, food must be more than “occasional denials of food supplies”, but must be “of a systematic or general nature”, “calculated to bring about the physical destruction in whole or in part” of the group. It is perhaps telling that The Gambia elected to remove the very section of the FFM dedicated to “Access to food and malnutrition” from its Annexe of its Memorial. It does not support its case.

The Gambia fails to identify any evidence of deliberate deprivation of medical care, let alone any restriction on medical care that comes close to meeting the threshold within Article II (c).

The Gambia does not show that the movement of part of the population to Bangladesh occurred “in circumstances calculated to result in the total or partial physical destruction of the group”.

The Gambia has not addressed how any of these alleged acts constitute measures calculated to bring about the physical or biological destruction of the Bengali population as such. To the contrary, the evidence shows that Bengalis have readily been able to marry, procreate, and earn a living in northern Rakhine State. An illuminating example of evidence in this regard is to be found within The Gambia’s own evidence, such that 51 of 55 (i.e. 93 per cent) of The Gambia’s signed witness statements originate from married persons, and that 50 of 55 (i.e. 91 per cent) are parents to children, with on average fiveeach.

I now proceed to paragraph (d) of Article II, which refers to “imposing measures intended to prevent births within the group”. According to The Gambia, the actus reus of this paragraph is satisfied by what is alleged to be a high prevalence of rape and other brutal forms of sexual violence. The Gambia claims that such acts impaired the willingness and ability of alleged victims to procreate, both because it affected their possibility of marriage, and because the trauma has led them not to procreate.

Put shortly, this argument fails for the same reasons it was rejected in the Croatia case, in that there was no evidence “that the acts of sexual violence were perpetrated to prevent births within the group”.

The Gambia’s evidence does not show that any alleged acts of rape and sexual violence committed during Myanmar’s military operations have, in fact, prevented meaningful numbers from finding spouses or procreating.

The Gambia does not specify exactly when or where these particular alleged incidents are said to have taken place, or the evidential basis for the assertion. Nor does The Gambia establish by evidence any causal nexus between any alleged incident of sexual violence and the prevention of any births.

The first feature of the evidence to be considered is the existence and activities of ARSA in the region, and the context in which the operations of 2016 and 2017 took place. In short, ARSA was a serious threat. It was both necessary and justified to deploy military force to confront such a threat when it commenced its attacks.

Accordingly, Myanmar disseminated Rules of Engagement, which are accepted as being consistent with internationally-recognized standards, to its command headquarters and on pocket-cards to its personnel, in advance of conducting the operations. Such a step, to place limits on the use of military force, is manifestly at odds with the intent on the part of the State to destroy the protected group.

First, the operations in October 2016 only began after there had been a series of coordinated ARSA attacks upon security personnel and infrastructure in Maungtaw and Rathedaung Townships. On this occasion, ARSA’s campaign of violence extended to more than 50 locations and involved many killings of non-Muslim civilians, not least at Kha Maung Seik.

Since early September 2017, the threat from ARSA to civilians and state security personnel has diminished, and accordingly, there have been no comparable military operations. The Gambia makes not a single allegation, and has not adduced any evidence, of any killings or other serious acts of violence which it claims amount to demonstrations of genocidal intent by the Myanmar security services against Bengalis since that date, more than eight years ago. The Gambia has no explanation for how or why the violent expression of its alleged genocidal intent, said to be underpinned by a “deep-seated hatred”, simply evaporated after seven days in late August 2017.

Accordingly, following the 2016 attacks, certain security measures were implemented, which included: requiring residents to remove fences from their homes; confiscating items that could be used as weapons, such as large knives; and imposing curfews, which applied to Bengali and non-Bengali residents alike.

To these alleged preparatory genocidal measures, The Gambia falsely suggests that Myanmar used starvation as a means of weakening the population and preparing it for destruction. This is, again, a claim without evidential support and simply wrong for the reasons given by Ms Lawrie. In fact, the available evidence positively shows that Myanmar ensured the supply of food to affected Bengali communities, as security considerations would allow.

It is beyond doubt that a tight geographical nexus exists between ARSA activity and responsive military operations. As Ms Lawrie and I have set out in detail in respect of all 46 specific locations where genocidal violence is alleged, without exception, military operations were conducted only at, or in direct proximity to, locations where ARSA had attacked or was known to be active.

The Gambia uncritically adopts, and presents as conclusive, the FFM’s ‘reasonable grounds’ estimate of “more than 10,000 deaths” as having been the direct result of the military operations in August 2017. By contrast, the total figure of “520 people killed” (comprising 376 ARSA fighters, 131 “ethnic/Hindu/Bengali people” and 13 “members of security force”), as recorded by Myanmar, is dismissed by the FFM merely because it does not conform to its own estimate.

In any event, even if The Gambia’s contended figure of 10,000 deaths was proven, and even if every one of those deaths was an intentional killing such as to come within Article II (a), this number would still be “small in relation to the size of the targeted part of the group”, to follow the language of the Court in the Croatia case. The alleged targeted group of Bengalis in this case stood at approximately 1.4 million. The disputed figure of some 10,000 fatalities constitutes some 0.7 per cent of the total, which is about the same – in fact slightly less – than considered in Croatia.

In particular, at the time of the military operations of 2016 and 2017, 126,000 Bengalis were living in IDP camps in Rakhine State. There is no evidence that any of them were subjected to any military operations or other form of violence at all. There is also no evidence that conditions in those camps were such as to lead to the physical or biological destruction of those living there.

Testimony from multiple IIMM witnesses reveals that the military would: ask them why they were leaving; or, tell them not to leave Myanmar; or, tell them they could go where they wished; or, photograph them in groups; or, direct them where to go; or, they simply ignored them. Moreover, Myanmar denies that sexual violence took place in the manner or on the scale alleged, and this has not been proved by The Gambia.

Myanmar accepts that, following the 2016 military operations, there were numerous arrests, detentions and prosecutions of Bengalis, mostly men, allegedly involved in ARSA’s attacks. This was not indiscriminate targeting of any or all Bengalis, but only those reasonably suspected of involvement in ARSA’s violence.

The Gambia claims that there was a deliberate targeting of Bengali leaders and that “Myanmar systematically detained, tortured and killed — often in public view — Rohingya community leaders, including religious leaders, throughout northern Rakhine State.” It rests on the most tenuous, anonymous, summary hearsay evidence that does not even indicate who or what the source was, nor when, where, or how any such alleged incidents are said to have taken place. It is little more than an assertion, from which no pattern of conduct can be said to arise, nor from which an inference of genocidal intent could reasonably be inferred.

There was no “consistent pattern of conduct” from which an intent to destroy any protected group as such can be inferred. While there was a significant number of casualties in three locations where the most intense clashes with ARSA took place, in the other 43 locations, alleged violence and loss of life were far less, and often minimal or even non-existent. Without exception, the counter terrorism operations were responsive to ARSA violence.

Myanmar’s operations were only conducted in locations proximate to those where ARSA was active; Bengali villages where ARSA was not active were simply not subject to any form of military engagement. Indeed, many Bengali villages were completely untouched.

The operations were short-lived, lasting only a matter of days. No allegations of homicide, or even an assault, post-date 5 September 2017, which begs the question why expression of the alleged genocidal intent disappeared so precipitously and remained so?

Myanmar did not attempt to harm a single individual out of 126,000 Bengali Muslims living in the Internally Displaced Persons camps in Rakhine State, who, on any view, would have been supremely vulnerable to destruction had a genocidal intent existed. Myanmar is confident that this Court will carefully and fairly assess all of the evidence, and when it does, will conclude that genocide has not been established, and did not take place.

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