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Home Posts tagged "fact-finding"

ICJ Indicates Provisional Measures in the Myanmar Genocide Case

Published on January 23, 2020        Author: 

 

Today the International Court unanimously issued its provisional measures order in the case brought by The Gambia against Myanmar under the Genocide Convention. The order is available here, the three separate opinions here. For our previous coverage of the case, see here. The fact that the Court ordered provisional measures and did so unanimously is obviously a win for The Gambia, and for the Rohingya cause more generally, but its impact should not be overstated. A couple of quick noteworthy points:

(1) The Court adopts a rather flexible approach to the issue of plausibility, and relies mainly on the reports of UN fact-finding commission to support the issuance of provisional measures (on the fact-finding commission reports see in particular Mike Becker’s earlier post). The Court specifically rejects Myanmar’s argument that a more rigorous standard of proof should be required at the provisional measures stage of a genocide claim (para. 56). However that doesn’t mean at all that Gambia will succeed on the merits (it likely won’t, as I’ll explain below).

(2) The Court indicated all but two of the provisional measures that Gambia had requested, but it’s interesting how exactly it did so.

(3) First, the principal measures it indicated, at para. 86 (1) and (2), effectively replicate state obligations under the Genocide Convention, i.e. they do not strictly legally speaking add anything new to the corpus of obligations that Myanmar already has. Second, in indicating these measures the Court omitted the references to more specific acts (e.g. rape or the burning of villages) from Gambia’s request (compare at para. 5) – basically the Court didn’t want to give the impression that any of such specific acts were proven, and the final language is more palatable and diplomatic.

Third, the Court specifically ordered Myanmar (para. 86(3)) to ‘take effective measures to prevent the destruction and ensure the preservation of evidence,’ but again it avoided the more explicit and specific language from Gambia’s request. Fourth, the Court rather laconically rejected Gambia’s (late) request for a specific measure requiring Myanmar to provide access to UN investigators, saying simply (para. 62) that it ‘does not consider that its indication is necessary in the circumstances of the case.’ This is hardly a surprising result, bearing in mind sovereignty concerns and the intrusiveness of such a measure, but the paucity of the reasoning is difficult to justify. Fifth, the Court (rather surprisingly) decided not to indicate the general, innocuous non-aggravation measure, saying that it was unnecessary due to the specific measures that it did indicate (para. 83). Finally, the Court ordered Myanmar to provide it with periodic reports on its implementation of the measures indicated – this has the potential for some bite, but obviously it remains to be seen with what rigour the Court and the parties will observe this requirement.

(4) Bearing in mind how it handled the prima facie jurisdiction analysis in this order, it seems extremely unlikely that the Court will dismiss this case at the jurisdictional stage. I see no reasonable way in which Myanmar could win on jurisdiction, but its contestation of jurisdiction will of course prolong the Court’s examination of the case.

(5) That said, the most likely outcome of the merits stage is still that Myanmar will win, i.e. that Gambia will not be able to provide clear and convincing evidence that genocide (as opposed to crimes against humanity or war crimes) were committed against the Rohingya – basically the same outcome as in the Bosnian and the Croatian genocide cases. The evidentiary requirements were set so high in those cases (in my view rightly so), that they could not be met even with the existence of a fully-fledged international criminal tribunal that could reliably establish the facts. The Court will not have the luxury of the ICTY’s assistance in this case, and once counsel for Myanmar start probing the specific evidence behind the UN fact-finding reports bit by little bit it seems probable that they’ll raise sufficient doubt as to the existence of genocidal intent. But this outcome, even though in my view highly likely, is still many years down the line.

 

The Challenges for the ICJ in the Reliance on UN Fact-Finding Reports in the Case against Myanmar

Published on December 14, 2019        Author: 

 

This past week’s provisional measures hearing in the case against Myanmar at the International Court of Justice (ICJ) made for a remarkable spectacle (see here, here, and here). Acting as the head of her country’s delegation, Nobel Peace Prize winner Aung San Suu Kyi sat silently as The Gambia’s legal team laid out its case alleging violations of the 1948 Genocide Convention, including brutal descriptions of the atrocities that have been exacted upon the Rohingya minority. When Aung San Suu Kyi addressed the Court herself, she pointedly did not utter the word “Rohingya”—except in a sole reference to the Arakan Rohingya Salvation Army, an insurgent group that Myanmar places at the center of what it frames as an internal armed conflict. Instead, she asked the Court to reject the provisional measures request and to resist the efforts by The Gambia and others to “externalize accountability” for alleged war crimes, leaving Myanmar to addresses these matters itself (CR 2019/19, pp 17-18, paras 24-25) .

In brief, The Gambia accuses Myanmar of engaging in a systematic policy of oppression and persecution against the Rohingya, a Muslim minority in a predominantly Buddhist country, that reaches back decades. Based on the Application, the ICJ will be asked to focus on military campaigns (termed “clearance operations” by Myanmar) carried out against the Rohingya since 2016, which are estimated to have caused more than 10,000 deaths and more than 700,000 people to seek refuge in Bangladesh. This is not the first time that a non-injured State has sought to enforce obligations erga omnes partes at the ICJ, but it is the first such case brought under the Genocide Convention.

I wrote previously about the possibility of an ICJ case against Myanmar and some of the attendant challenges. This post aims to highlight a specific challenge that these proceedings will pose for the Court: The Gambia’s extensive reliance on UN fact-finding reports, combined with the absence of prior or parallel international criminal proceedings relating to these events. Read the rest of this entry…

 

Facts, Alternative Facts, and International Law

Published on May 29, 2017        Author: 

On October 3, 2015, at 2:08a.m., a U.S. Special Operations AC-130 gunship attacked a Doctors Without Borders [Médecins Sans Frontières, MSF] hospital in Kunduz, Afghanistan, with heavy fire. Forty-two people were killed, mostly patients and hospital staff members. Dozens of others were injured, and the hospital building was severely damaged and subsequently closed. When the dust finally settled, the question that pre-occupied the press and most pundits was whether this was a war crime.

Attempts to answer this question prompted discussions about the relevant laws and their proper interpretation, which, in turn, fueled disputes about specific facts relevant to these laws. Recent news stories about the Trump administration’s plan to relax some of the battlefield rules further intensified the legal controversies. Unfortunately this focus on questions of law, guilt, and blame divert attention from the more basic questions of what actually happened, why it happened, and what might be done to prevent similar incidents in the future.

The attack on the Kunduz hospital and the controversy that followed it exemplify a broader phenomenon. Legal fact-finding reports set to resolve factual disputes often trigger more controversies, and are poorly equipped to mobilize domestic sanctioning and condemnation of war criminals by their societies. People are motivated to believe what they already know, and to reject facts that are inconsistent with their prior beliefs and political ideology. Legal fact-finding reports are susceptible to social biases just as any other source of information. Therefore, they often fail to create a shared understanding of ‘what happened’ or to combat denialism of crimes. They also lack the emotional appeal, participatory value, and social cues that moral expressions or other types of social truth-telling entail. Read the rest of this entry…

Filed under: EJIL Analysis, War Crimes
 
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