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Ok folks - Day 2 of the #ICJ #Gambia v #Myanmar provisional measures hearings going to start - important as no submissions yet by Myanmar so, first formal indication of their legal strategy. [I’ll be away on an interview for a bit so hoping we have other “live tweeters”?? :)]
Agent of Myanmar: #ASSK takes the floor as minister for foreign affairs (is this the first time an agent doesn’t have a legal background); #genocide convention “wholeheartedly” signed by Myanmar; not applied to Kosovo or exodus of Serb population from Croatia. No Specific intent
Incorrect factual situation presented to court; though suffering of innocent people. #Rakhine state background - internal armed conflict; Arakan army seeks independence; displacement & conflict, affecting civilians
ARSA attacks - 9 police deaths, etc - start of #IAC lasting till late 2017. “Selective factual propositions” in Gambia application; Intl crisis group quoted as arsa getting weapons from Afghan and Pakistan.
Details of Maungdaw attack - historical details of colonial past; British border problematic but no challenge by Myanmar of border
Intercommunal violence in northern Rakhine - 25 August 2017 attack - “highly coordinated” by “organised armed group”; clashes in 12 places; “clearance operation” meaning distorted - used against Burma communist party and used in counter-terrorism - clear an area of terrorists
Use of AirPower avoided but helicopter used in one incident, may include non combatants; disproportionate force maybe in violation of #IHL; failure to prevent civilians looting;
Dealin with “Rebellion” and so genocide can’t be only hypothesis; criminal justice system - JAG court martial; ref to ICOE - 26 nov 2019 - taken witness statements and interviewed military personnel
Military justice - reversals can happen; reference to Indin village killing of 10 civilians and court martial; military pardon - which many were unhappy about (this is the Reuter’s reports case); other cases being detailed; JAG well resourced - expect investigations & prosecution
Genocidal intent if active investigations and prosecution? Will also be prosecution of civilians - “no tolerance”; automatic externalization of accountability - undercuts constitution of Myanmar & civ-mil cooperation & for democratization
Complementarity (arguments more appropriate for the ICC??); domestic justice system - trying to cope with challenges; also understood by the Gambia (ouch!)
#IAC - lead to exodus from northernmost towns like Croatia
(Ok bye, interview time)
(And I’m back after speaking with BBC) William Schabas: Croatia v Serbia (figured this would figure!) - break with case law - any claim inconsistent “plausible”; criteria- Belgium v Senegal - Greenwood - more appropriate to use “arguable”; legal arg & evidence to be “plausible”
Ukraine v Russia provisional measures important as criminal treaty; subjective intent critical; gravity of alleged violations to be taken into account - more grave, more confidence in evidence, and at PM phase.
Respondent more unlikely to have evidence (did I get this right? The evidence is in the purview of Myanmar not The Gambia); FFM report - available to read - contr practice direction 11; little on mental element - pattern of conduct not enough for this
FFM report “inference of genocidal intent” - not correct test - should be “only inference reasonably drawn” Croatia v Serbia para. 510 (but this is the final judgment 3 feb 2015 - not provisional measures)
PM application - test must be of genocidal intent is only plausible explanation; different test from applicant - fail alternate explanation; specific intent - Eichmann case, ICTR Akayesu trial chamber; used in domestic criminal law before ICl;
Domestic analogy to mental element in murder (this is not convincing); if alternative explanations - then no chance on merits - then application can’t succeed and so can’t succeed on PM request.
Role of ad hoc tribunals and here ICC may help; OTP application for “advisory opinion” 9 April 2018 - same reports as Gambia uses - deportation into Bangladesh - distinguished from mass exodus; therefore intent of clearance ops was deportation (!!!!)
#CAH #deportation - intended by and in furtherance of state policy; no admission by Myanmar though alternative explanation; PTC authorization of investigation - confirming the alternative inference
#Deportation not equal to destruction of group, #Croatia v #Serbia; even if proved intention was forced displacement, only actus reus of genocide if brings about physical destruction.
On factual sources: para 6 of application - genocidal intent - Special Rapporteur on Myanmar - “extensive fact finding” & becoming “more convinced of hallmarks of genocide”; news report - she indicated Myanmar military may be implicated; disputed by Myanmar
Spl Rapp Yanghee Lee not an “international lawyer” and should not be taken into account (whoa. Lots to talk about on this point.. quite personal..); Adama Dieng - cautious use of atrocity crimes and not genocide; no statement about Rakhine/ Myanmar for 15 months on website
Overstates Diengs role - prevention - and he would object to being cited (!!); High commissioner on HRts - caution re use of “genocide”; also in HRC resolutions, 3rd committee of UN;
#FFM 2018 report - #CAH And #warcrimes committed; more cautious on genocide; also lower standard of proof; intent to displace but not destroy - and ICC prosecutor bases her case on this.
#FFM - “campaigning for a case” not assessing objectively and impartially; starvation doesn’t point to physical destruction, but alternative; counter insurgency operations - no policy since 1960s - why is 2017 clearance op different?
Sept 2019 #FFM report - “insistence of mission on using term” no real aggravation of situation so presents the contrary. Comments not to denigrate work but “limited contribution to issues” when “beyond mandate” and speculate on intl crimes
Failure of #FFM to consider alternative explanations and so “disregard legal determination”, while its facts may be useful.
Application weaknesses: No total number of deaths in comparison while other statistics relied on; three village deaths - presented as representative, but no total (why is this important? Numbers not basis for a finding of Genocide) discrepancies in numbers detailed
Number of 10,000 will be challenged by Myanmar is goes to merits phase; no evidence of mass graves though aerial pictures presented; 10,000/1 million - may be intent other than to destroy the group.
Croatia v Serbia para 437 - discussion of figure and why important - small number in relation to targeted group - reasonable consideration guided by case law will raise same doubts as Croatia case.
Those that remained - persecution and #humanrights violations - “more sinister fate if genocidal intent” ( so basically, everyone should have been killed..?) no evidence of systematic killing in displacement camps. Again Croatia case relied on
Exclude other explanations - but application doesn’t speak to this. PM should be rejected.
(Coffee break. I feel like I need a drink - something stronger than coffee!!)
(It is 6.20 pm where I am...)
Staker/Straker(?): #OIC role - takes Gambia to bring case - funded by OIC; 2019 March green light, use of “genocide” in August and note verbale in October. 2018 - steps for accountbility (Where is this going?)
OIC May 2018 Council of Foreign Ministers Dhaka Declaration - ethnic cleansing but genocide not used. Elaboration of various statements now to the same point.
(I think we get the point. My attention is straying...)
Earliest document referring to genocide - August 2019 - voluntary donations by OIC states - assistance from Islamic Devp Bank and solidarity fund; October 2019 note verbale - Gambia AG - lawyers instructed 4 October (at The Hague conclave I presume?) - week before first NV
24 November confirmation by OIC re Gambia bringing proceedings - 12 nov - Myn sent NV to Gambia; “unprecedented for a state to invoke jurisdiction as a proxy of an IO” - Gambia bringing as part of the organisation & not as a state party (expected argument but still interesting!)
Reservations to art 9 incl by Bangladesh; and many members of OIC not party to genocide convention; erga omnes partes - doesn’t mean gambia can bring this without a “dispute”; Belgium case - obvious premise of dispute. Here only basis of jurisdiction is art.9
No disputes re customary IL and only under the treaty for jurisdiction; requirements: dispute; specifically between Gambia and Myanmar; high ranking OIC officials here - if dispute, bw OIC; dispute can not be generated at date of application - must be before and opposite views
#OIC resolutions - no ref to genocide; Myanmar not a member of OIC - not put on notice; FFM statements - don’t put Myanmar on notice; docs don’t amount to allegations of violations of GC so not justifiable dispute
Failure to respond to claim - existence only when response called for and when an acceptable time has been given. Not the case in The Gambia October note verbale; no specification of provisions of the GC and no facts. General ref to OIC and FFM.
(Ok admittedly this is a stronger argument) failure to respond couldn’t give rise to dispute; even if so, cannot be responded to in a month - FFM 180 pages, NV “unparticularised allegations” - state making claim provides no timeline
24 November NV - doesn’t add to this as after application filed; OIC - proceedings work of sub-cmtte - impression of OIC bringing “a case” but not the legal basis of the claim - any other treaty could also be used
NV - “legal formality” once was ready; Myanmar position - proceedings should not go further and strike from the list; not contribute to “sound admin of justice” when court can’t adjudicate on merits.
Standing: erga omnes and erga omnes partes not the same (And... internet stalled...!)
(Argh. Back) ILC Draft articles on state responsibility- Barcelona Traction - 2001 report re countermeasures - no basis in IL and destabilizing. Court did not address standing EO or EOP, except individual judge. GC cases - applicant specially affected state.
Failure to comply with obligations can’t be rectified by recourse to dispute settlement; Belgium v Senegal - one case isn’t established jurisprudence; Belgium claimed injured state status; Belgium affected by case; CAT aut dedere aut judicare only - so not entirely unaffected
No case with this standing as precedent - actio popularis would “open floodgates”; specially affected states best placed to judge case before ICJ; any state party bringing a case - counterproductive. Even if possible, couldn’t indicate PM as to preserve rights of either party.
Article 8 reservation by Myanmar; seizing of case though is a precedent for jurisdiction; if convention is to apply, it is through Art 8 not article 9. Art 9 narrower than art 8. So Court can’t be seized even if no reservation to art 9; consent “must be certain”
Provisional measures: request 1 & 2 - similar to Bosnia - party should know what it is meant to do. La Grand, Avena & Jadhav cases - no execution without prejudice to merits - specific whereas here vague (but Court can then order specificity?)
Application of PM may be seen as more important than merits, used politically; no destruction of evidence - what does this mean?; aggravation of dispute - NV doesn’t require PM.
PM requesting reporting back to the court - not forseen by GC - not human rights monitoring body; last PM - wouldn’t preserve existing rights and no obligation to provide access to FFM or Spl Rapp, is obligation not under GC. Entirely new substantive obligations
Ochoa: urgency and irreparable injury - not “blindlingly obvious”; four points including #repatriation initiatives being used as the argument and supported by other states (!!!);
real and imminent risk of breaches of GC - March to November time frame - lack of urgency; regional & IOsupporting repatriation - UNHCR, UNDP MOU June 2018, extended to 2020, both implementing projects in Rakhine stage (while problematic, this is quite the mischaraterization!!)
#ASEAN support for transit and reception centres (ok these arguments I find incredibly cynical and of less legal relevance); MOU - bona fide evidence of repatriation so Bangladesh not of the view of risk of imminent genocide
Japan support; Support by India to Myanmar; (again elaboration on the same cynical theme - create a humanitarian crisis...)
Instability deterring many from returning (no use of the term #refugee or #rohingya clearly, only #displaced...); Initiatives at stability and protecting those returning abs bringing to account - but can’t provide a comprehensive list of actions (!!)
Advisory commission on Rakhine chaired by Kofi Annan and progress in implementation of these recommendations (where’s the fact check on this? No access so how can this be verified?); prosecutions and ICoE noted + Military court of inquiry re “terrorist attacks”
#ASEAN supports these accountability initiatives; bad faith on states part can’t be assumed by court. Complex situation in Rakhine, no mention of separatist actions.
#Bangladesh not asserted risk of genocide. intl crisis group - role of arakan gp in aggravating violence; restrictions of movement - due to violence and affects all. #starvation policy - not supported.
Instability - now #RedCross #redcrescent movement mentioned as providing humanitarian assistance and #WFP - no mention of policy of starvation. No evidence of destruction of group in whole or in part.
Myanmar - efforts to deescalate, recognised by IOs and regional players including China Indonesia and Japan. Criteria of article 41 does not apply. FIN.
Ok. Well. A lot to process at the end of this session - some of it superfluous and easily dealt with - especially the latter part - but other points more precise and to be addressed. More tomorrow, over and out from me for now!
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