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Here we go. Commencement of provisional measures hearings at the #ICJ: first up, the appointment of the two #judges #adhoc - biographies of Navanethem Pillay & Claus Kress - chosen by #TheGambia & #Myanmar respectively. Art. 31, ICJ #Statute.
Priority of request of indication of provisional measures prioritized over all other cases, balanced with opportunity for parties to be represented. 3 hours per party Tuesday & Wednesday, after which reply on Thursday for each. ICJ Procedure.
No entering into merits of case, stick to requirements for provisional measures.
Gambia AG #Tambadou: #Rohingya part of the delegation. Case to awaken conscience of the world. #Genocide doesn’t occur in a vacuum; propaganda that dehumanizes. Indifference of international community, genocide unfolding. “It is our business”
ICJ principal judicial organ - believe in values court has upheld, and confidence in manner of dispensation of justice. All sovereign nations treated with equality. “You restore hope when all seems lost” (no pressure, ICJ!)
Gambia AG: Tell Myanmar to stop senseless killings, and acts of barbarity that have shocked collective conscience. Give the Rohingya a chance of a dignified life.
Payam Akhavan: reference to ICJ #Bosnia provisional measures order of 8 April - “grave risks of acts of genocide”, which is the #FFM report conclusion for Myanmar.
(My comments will only be in parenthesis for clarity in the thread) reliance on the #FFM - details of the composition, time and approach - must be given significant weight, finding of fact authorized by the #UN
Deminization of group as “illegal Bengali immigrants” via hate speech; extreme vulnerability due to state policies & practices; escalation from 2016. “Everyone was a target and no one was spared” targeting of women and girls for sexual violence plus impact on children “shocking”
Destruction - physical or biological; acts read as a checklist; UN FFM - recommended names of #Tatmadaw for investigation & prosecution, including Min Aung Hlaing.
Article II (a), #genocide convention - Killing members of the group - extensive detail in the FFM report. Recounting survivor testimony; Article II (b) - #rape and #sexualviolence, ref to #Akayesu #ICTR - physical & psychological destruction. #FFM - pattern of gang rape.
(Graphic details of rape / assault testimony - hard to hear) “voices of survivors convey immense gravity of the request before you” #FFM - ongoing and unabated - reference to para 224 of sept 2019 of report - seven indicators to infer genocidal intent, including #citizenship law
All indicators linked to all state organs by act or omission; no reasonable conclusion except genocidal intent; confiscation of land and bulldozing of villages destroying evidence, and chairperson of state organ responsible is agent of Myanmar (!)
Villages still there and 600,000 Rohingya still in Myanmar who need protection.
Andrew Lowenstein: evidence of genocidal action and intent. FFM report - all factors for forecasting genocide present in Myanmar today. Existential threat to Myanmar by Rohingya described; dehumanizing language used
Focus on hate speech; intent evidenced by toleration for rhetoric of hatred; Facebook posts referenced; words used “maggots”, “rapists”, “pigs”; other examples detailed of #hatespeech. Intent also present by lack of remorse or acknowledgement by government.
Three instances being detailed of atrocities and denial. Burning villages plus killings and rape. (Stomach churning) satellite imagery of complete destruction.
(And... technical glitch now so waiting for feed to resume...and it’s back!) extreme brutality, organised nature of the violence and focus on women and girls; FFM - lack of accountability & public acknowledgment; impunity by Tatmadaw allowed by govt, echoed by special rapporteur
Tafadzwa Pasipanodiya: focus on the current threat to #Rohingya; barbed wire, restriction of movement; denial of internment; checkpoints at camps; permission to leave required. September 2019 FFM report - travel permits needed and increase in restrictions recently.
More camps being built based on reports to #OHCHR; slower method of destruction - denial of #food and essentials of life, and this is being done now by govt laws & policies; Article II (c) - confiscation of #lands beyond destruction of villages during clearance ops
Policy of forced #starvation - same determination by #CEDAW committee. Land, food, identity denial - all ongoing and so risk of genocide. Plight has deteriorated.UN Spl Rapp fortnight ago - at risk. “No other alternative” than to order provisional measures.
#Commissions of inquiry in Myanmar - no prosecutions as a result. Obligations under GC to investigate & prosecute - not followed, acc to UN FFM. Rakhine Commission - quitting of comm by Bill Richardson
“Fake Rape” comments by chairperson of investigative committee - false narratives & sham investigations, so provisional measures order must be provided.
(And... 10 min break! Next up - the requirements of article 41 - the heart of this hearing - provisional measures - will be more technical and less factual - to satisfy requirements such as prima facie jurisdiction, underlying rights etc. stay tuned!)
(Now on Article 41, #ICJ #Statute specifically, indication of provisional measures) M. Arsalan Suleman: prima facie jurisdiction - Art 9, genocide convention & Art. 36, ICJ Statute - both parties to convention; no reservations to article 9, GC therefore consent to jurisdiction
Acts capable of falling within instrument and that court has prima facie jurisdiction; acts complained fall within article III of GC; little doubt of jurisdiction rationae materia; “dispute” - opposite views of performance/non-performance of intl obligations
No doubt of #Gambia’s understanding of the subject matter of dispute and #Myanmar put on notice on several occasions; #OIC meeting May 2018 - Dhaka Declaration - violations and accountability sought by ad hoc ministerial committee by Gambia - Myanmar refuted this. So,early notice
(Making the case for a “dispute” - detailing actions by OIC/ the Gambia and responses by Myanmar) denial of resolutions by Myanmar as well as of #FFM report; 11 October - note verbale sent by Gambia UN mission to Myanmar UN mission - “ongoing breach of GC convention&customary IL”
Myanmar confirmed note verbal - formal diplomatic protest not needed but here it exists. Prima facie case within art 9 of Genocide Convention and Myanmar well aware of dispute.
Pierre d’Argent: “plausible rights” under article 41 - advisory opinion on genocide convention - “denial of right of existence of a human group”; Gambia protecting right of Rohingya group to exist; contacting states have a common interest; erga omnes obligations, peremptory norm
Convention against #torture - erga omnes partes responsibility (no autocorrect, it’s not eggs omnes party!!) if special interest, no state could make a claim; 2012 ICJ ruling - erga omnes partes; Barcelona Traction; no justification of special interest and is a shared interest
Gambia implementing its right - obligation and rights - for each contracting party to ask for; duty of responsible state to perform obligation breaches. Gambia holds rights which it asks to be respected. Full execution expected by Myanmar.
Right of existence of entire #rohingya group - main purpose to safeguard all national religious racial or ethnic groups; protection of members of group; #Genocide Convention first modern treaty protecting #humanrights
ICJ should declare rights are plausible - Genocide Convention. beneficiaries are not just state parties, but groups& members whose rts are violated when acts violate the convention. Art 41 - protect rights Gambia holds under GC & includes those of the Rohingya (this is the crux)
Gambia can solicit protection of all rights under GC; measures requested are to protect rights and linked to these rights.
Paul S. Reichler - on urgency and irreparable harm under article 41- “blindingly obvious” based on credible reports that provisional measures are required; “most compelling” that has ever been heard at ICJ. Urgency - acts susceptible of prejudice can occur - UNFFM conclusion
UNFFM September 2019 report - real & significant danger of deterioration; serious risk of genocidal actions may “occur or recur”; conclusions based on thorough meticulous investigations (I assume Myanmar will attack this forcefully, especially lack of access, given reliance)
ICJ has found urgency and irreparable harm met when threats to human rights / fundamental rights are at issue and issued PM in: Uganda case; Certain Activities case; Ukraine v Russia; Here massive loss of life threatens #Rohingya, loss existence as a group.
also, Qatar v UAE; here, slaughter of Rohingya and threat of genocide has “grown even worse”; UN FFM it has “strengthened” (glad to see focus on PM cases incl #Qatar v #UAE - my write up on PM in the case upcoming early next year for @asilorg International Legal Materials)
If PM justified in all of these cases, must be allowed here. Treaty of Amity case (Iran v USA) - risk of measures may entail irreparable consequences (PM in that case related to aviation and humanitarian access incl medical devices & safety of aviation)
Assurances could not be a substitute for provisional measures. (Important point generally but limited value here I think given no such assurances by Myanmar, but rather only denial)
“All in it together” reference to #ASSK billboards with Myanmar military (brutal and effective!) ICJ Advisory Opinion on GC 1951: elementary moral and legal principles - reference to General Dallaire re #Rwanda genocide - “never again” not followed through.
UN failure / international community - apologies not enough; failure to act, invites catastrophe; Dallaire - “failure of humanity that could easily happen again”; has hapenned again.
Independent excepts call this genocide including Holocaust Museum calling this a genocide (22 August 2019); Myanmar denies this. Insufficient response by international community so Gambia has approached the ICJ. “Time to prevent further genocide is now...”
Q not whether to order PM, but what: 1 & 2 - immediate; 3 - evidence not to be destroyed to ensure integrity of proceedings before the ICJ; 4 & 5 - prevent aggravation of dispute, report to court on implementation; 6 - cooperate with UN bodies. All based on courts jurisprudence.
Requests 1 & 2 - all genocidal acts within meaning of Article II - heart of Gambia application to protect Rohingya group. Based on “value of humankind”. 2016 - state counsellor stated refrain from use of word “Rohingya”; dehumanizing group.
Reference to ASSK in UNFFM report - para. 1528; need for protective measures is urgent. Duty to prevent genocide - Based on Lemkin - not immediate destruction of a nation, but a coordinated plan of different actions, incl disintegrated of social & political institutions.
“Genocide is a continuum and you are called to act now...” ILC draft article on state responsibility - continues; Srebrenica genocide - was two years after PM order in Bosnia, so here different approach.
Order must explicitly set out acts of genocidal nature which must be avoided; specificity needed to prevent recurrence - as specific as possible. Procedural PM - integrity of proceedings - preservation of evidence, prevent aggravation of dispute and reporting within 4 months.
In addition, no cooperation with #UN #FFM or Spl Rapp and no access to #Rakhine; should not be allowed to continue as obstruction of fair administration of justice. So Myanmar must grant access & cooperate.
Evidential imbalance between parties as evidence is in Myanmar territory. Orders will protect against non-compliance such as in Bosnia. Progress made in implementation of order - not active role but given -#Srebrenica, clear reporting needed.
Grave if no specific PM & implementation- “reputation of this court” for effective realisation of provisional measures - balance of #equity calls for far reaching PM. Ref Primo Levi. Power of interim relief - “fully discharge your judicial responsibility and power” The End, Day1!
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