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Day 3 - last day of #ICJ provisional measures hearings, #TheGambia v #Myanmar #GenocideConvention #Rohingya. First up, #TheGambia Reichler: Myanmar not denied UN #FFM conclusion of “inference of genocidal intent” or the 7 indicators; 2019 report para 224 - extreme brutality;
Quoted ASSK admission of #IHL violations; ignoring of #sexual violence; #hate narratives - commander in chief Min Aung Hlaing #Facebook page quoted; discriminatory policies including #citizenship law & NVC process; govt tolerance of hate; failure to investigate prosecute
This last one was the only point disputed by Myanmar - “what state is she talking about?” - military justice system must investigate & prosecute - difficulties admitted by ASSK; how can the #Tatmadaw hold itself accountable when top 6 commanders recommend for prosecution?
US govt #sanctions against these top commanders - for the same acts as in UN #FFM; (#Myanmar arguments really opened the door on this - Pandora’s box!) 1 prosecution, full pardon issued - pictures for extreme brutality as evidence of genocidal intent (pic of Inn Din 10 Rohingya)
#Reuters reporters trial - eventually killers tried, full pardon after 7 months - ASSK “unhappy” but unable or unwilling to do anything about this; other instance not related to #Rohingya
New prosecution by #ICoE? Chair stated “no blaming or finger pointing”; Spl #Rapporteur on Myanmar - #impunity & Myanmar incapable of delivering #accountability;
#Repatriation + concrete steps argument - this is a “complete fraud”; #FFM report - nothing indicating safe dignified sustainable return, contra active efforts to prevent this.
#UNHCR collaboration argument - no quotes from actual reports of UNHCR such as submitted to #SecurityCouncil sept 2018; statement of high commissioner of UNHCR - waiting for access
Refusal to use the word #Rohingya by ASSK; Myanmar no internation to allow return; mischaracterization of Govt of #Bangladesh - June 2019 MoFA report; Myanmar misconstrues state actions - Japan China India - upto Myanmar to create conditions of voluntary return
(I don’t recall any other PM hearing that has gone into such details of #humanitarianaccess humanitarian considerations at the ICJ - anyone else know of other cases?)
Fighting terrorists - gang rapes + burning villages to the ground? Where is evidence that clearance ops primarily directed at #terrorists not #civilians? 11 August deployment of Tatmadaw - so not attack of 25 August as indicated
Not contending no terrorists or armed conflict or right of Myanmar to respond - but cannot be an excuse for genocide; everyone was a target though
Report detailing Living conditions of the Rohingya; not correct that no mass graves - Myanmar denies access where clearance ops were carried out - Associated press has found 5 mass graves
No urgency - sarcastic question by Myanmar Ochoa - “what hapenned in between?” - yes, FFM report in Sept 2019 so Gambia then moved fast. Imminence of action prejudicial of rights at stake is the question
Most compelling case for PM - not contradicted by Myanmar; urgency to prevent irreparable harm to Gambia’s rights as a state party to the GC.
D’Argent: prima facie #jurisdiction - argument that #Gambia proxy for #OIC - Gambia suggested OIC adopt resolution - Gambia sought support of OIC and nothing to prevent financial support. Gambia not agent of OIC. Legal act submitting proceedings undeniably for Gambia & MOJ signed
No proof of circumvention of art 34; encouragement of other states; irrelevant that 13 states aren’t bound by convention; dispute between Gambia and Myanmar and not OIC and Myanmar
(Ok am off for an interview on the case. Back in 20 mins!)
(I’m back!) Philippe Sands: Holocaust Museum - “compelling evidence” of ethnic cleansing, CAH & genocide. Schabas track record - Al Jazeera - can change mind; not frivolous in 2013 - before clearance ops in 2017, so how can it be implausible now?
“Conspicuous silence” of Myanmar on sexual violence; no committing to cooperate with UN, or to prosecute. Nothing on women and girls subjected to these violations. “Madam agent, your Silence said far more then your words”
Now #ICC - prosaic explanation - jurisdiction - no element of genocide committed on Bangladesh terr, but #CAH #deportation relevant; distinct crimes can coexist, recognised by #ICTR, #ICTY, #ICC. Bosnia v Serbia - parallel acts of ethnic cleansing w Art 2 GC - specific intent
Ethnic cleansing - evidence of genocidal intent; precedent - para 452 Bosnia judgment - binding nature of orders creating legal obligations;
PM - agree and court should go further and specify with more precision 1&2; no objection to adding acts identified by Schabas 2013 interview (!!!) such as prevention of births etc;
Birth certificates - “concession by agent that they are human beings” - silence re genocide at Srebrenica - 8000 - too small for recognition according to Myanmar; not a numbers game
PM 3: Preservation of mass graves, villages and all other evidence that Myanmar says it will gather for investigations PM 4: aggravation of dispute - standard; PM5: not human rights monitoring but just inform court of compliance - routine for law of the sea, not as grave as this
PM6: fundamental to preventing impunity for genocide and art.1 obligation. No access & so material impediment to justice. Bulldozing villages. Unwilling to investigate therefore order cooperation with Independent Mechanism for Myanmar #IIMM
Frontier dispute case - gathering of evidence already impeded; same order as frontier dispute case adapted to this case - linked to art 41 preserving rights of the parties & integrity of proceedings
“Genocide is not a single act” - continuum - different actions individually and together amount over time to genocide; unlike Bosnia no intl crim tribunal - hopes of Gambia and rohingya who are in the great hall “rest entirely on you”. Break the chain of genocide.
Myanmar approach - do nothing. Freedom to act unfettered. Trust Court will exercise judicial function and not abdicate judicial functions and responsibility. “The eyes of the world —- are upon this court”
Abubacarr Tambadou: dire situation; urgent and imminent risk of genocide; Gambia - “keen and special interest in seeing no one suffers genocide”- protect its rights under GC - erga omnes partes obligations are fulfilled to Gambia and all other state parties.
Open about dispute and about support from other states; Gambia tabled resolutions and support of 56OIC states + Canada and Netherlands - filed application and note verbale in its sovereign capacity
Rights of Gambia connected to plausible rights; extreme urgency and so issue PM. (Reading out PM requested - application, para. 132 (a) - (e))
Conclusion of #Gambia second round of observation. (End of Gambia’s submissions on provisional measures - next round is Myanmar in a few hours)
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