Gambia v Myanmar


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INTERNATIONAL COURT OF JUSTICE

REPUBLIC OF THE GAMBIA v. REPUBLIC OF THE UNION OF MYANMAR

11 November 2019 APPLICATION INSTITUTING PROCEEDINGS AND REQUEST FOR PROVISIONAL MEASURES

To the Registrar of the International Court of Justice,

The undersigned, being duly authorized by the Government of the Republic of The Gambia, states as follows:

1. In accordance with Articles 36(1) and 40 of the Statute of the Court and Article 38 of the Rules of Court, I have the honour to submit this Application instituting proceedings in the name of the Republic of The Gambia (“The Gambia”) against the Republic of the Union of Myanmar (“Myanmar”). Pursuant to Article 41 of the Statute, the Application includes a request that the Court indicate provisional measures to protect the rights invoked herein from imminent and irreparable loss.

I. Introduction

2. This Application concerns acts adopted, taken and condoned by the Government of Myanmar against members of the Rohingya group, a distinct ethnic, racial and religious group that resides primarily in Myanmar’s Rakhine State. These acts, which include killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births, and forcible transfers, are genocidal in character because they are intended to destroy the Rohingya group in whole or in part. They have been perpetrated in manifest violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”). 1 These acts are all attributable to Myanmar, which is thus responsible for committing genocide. Myanmar has also violated other fundamental obligations under the Genocide Convention, including by attempting to commit genocide; conspiring to commit genocide; inciting genocide; complicity in genocide; and failing to prevent and punish genocide. 3. In preparing this Application, The Gambia has taken care to pay close attention to the provisions of the Genocide Convention, including the circumstances of its adoption and its interpretation and application in the years following its entry into force on 12 January 1951. In

1 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951), 78 UNTS 277 [hereinafter Genocide Convention]. this regard, particular attention has been paid to the jurisprudence of the International Court of Justice, as well as of other international courts and tribunals, including the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court.

4. The Gambia is acutely aware that acts of genocide are distinct from other prohibited acts – such as discrimination, ethnic cleansing, persecution, disappearance and torture – but that there is often a close connection between all such acts. It is equally aware that acts of genocide are invariably part of a continuum, as Raphaël Lemkin recognised in his pioneering work,2 and for this reason it is important to place the acts of genocide in their broader context. Thus, when referring in this Application to Myanmar’s acts of persecution and other violations of international law that have been committed against the Rohingya, The Gambia’s case is based on those aspects constituting genocidal acts under the Genocide Convention.

5. The Gambia is cognisant of the Court’s important role as guardian of the Genocide Convention, especially in the absence of any international criminal tribunal with jurisdiction over individuals associated with the acts of genocide described in this Application. For this reason, and to assist the Court in the exercise of its grave responsibility, the Application provides a more detailed account of the relevant facts and their context than might otherwise have been necessary.3 6. Those facts are extensively documented by independent investigative efforts conducted under the auspices of the United Nations and corroborated by international human rights organizations and other credible sources. They establish that, against the backdrop of longstanding persecution and discrimination, from around October 2016 the Myanmar military (the “Tatmadaw”) and other Myanmar security forces began widespread and systematic

2 Raphaël Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (1944), chapter IX. 3 Myanmar is not a State Party to the Statute of the International Criminal Court. With the narrow exception of deportation and other crimes against humanity consummated on the territory of Bangladesh (a State Party to the ICC Statute), there is no basis for jurisdiction over crimes committed within the territory of Myanmar, including the crime of genocide. See ICC, Pre-Trial Chamber I, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, No. ICC-RoC46(3)-01/18 (6 September 2018); ICC, Office of the Prosecutor, Situation in the People’s Republic of Bangladesh / Republic of the Union of Myanmar, Request for authorisation of an investigation pursuant to article 15, No. ICC-01/19 (4 July 2019). In any event, the Court remains the sole basis for the attribution of State responsibility, which is distinct from other forms of accountability. “clearance operations” – the term that Myanmar itself uses – against the Rohingya group. The genocidal acts committed during these operations were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses. From August 2017 onwards, such genocidal acts continued with Myanmar’s resumption of “clearance operations” on a more massive and wider geographical scale.

7. Multiple UN investigations have underscored the genocidal intent of these crimes. The UN Special Rapporteur on the situation of human rights in Myanmar, Ms. Yanghee Lee (of the Republic of Korea), carried out extensive fact-finding in regard to Myanmar’s campaign against the Rohingya. She reported first-hand accounts of “attacks in which homes were set ablaze by security forces, in many cases with people trapped inside, and entire villages razed to the ground.”4 She documented parents “witnessing their young children being thrown into fires.” 5 She described Myanmar’s “security forces calling families out of their homes, separating men and boys to be executed in front of their families or taken away.”6 She further recounted the “testimony of women and girls being raped and then killed, some burned alive in their homes while unconscious or tied up.”7 8. The UN Special Rapporteur concluded: “I am becoming more convinced that the crimes committed [in Myanmar] bear the hallmarks of genocide.”8 She has since stated, without equivocation, that the commander-in-chief of Myanmar’s military and other responsible individuals “should be held accountable for genocide in Rakhine.” 9 These individuals were indisputably acting on behalf of the State.

4 UN OHCHR, Statement by Ms. Yanghee Lee, Special Rapporteur on the situation of human rights in Myanmar at the 37th session of the Human Rights Council (12 March 2018), available at https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22806&LangID=E. 5 Ibid. 6 Ibid. 7 Ibid. 8 Ibid. 9 “Myanmar army chief must be prosecuted for Rohingya ‘genocide’: U.N. rights envoy,” Reuters (25 January 2019), available at https://www.reuters.com/article/us-myanmar-rohingya-un/myanmar-army-chief-must-be- prosecuted-for-rohingya-genocide-u-n-rights-envoy-idUSKCN1PJ1AK. 9. Similarly, the UN Special Advisor on the Prevention of Genocide, Mr. Adama Dieng (of Senegal), based on his own fact-finding activities, including interviews with survivors who had fled to Bangladesh, stated: “Rohingya Muslims have been killed, tortured, raped, burnt alive and humiliated, solely because of who they are. All the information I have received indicates that the intent of the perpetrators was to cleanse northern Rakhine state of their existence, possibly even to destroy the Rohingya as such, which, if proven, would constitute the crime of genocide.”10 10. The findings of the UN Human Rights Council’s Independent International Fact- Finding Mission on Myanmar (“UN Fact-Finding Mission”) are especially significant. The Mission was established on 24 March 2017 amidst escalating violence against the Rohingya, with the mandate “to establish the facts and circumstances of the alleged recent human rights violations by military and security forces, and abuses, in Myanmar, in particular in Rakhine State.”11 It was composed of three distinguished jurists: Marzuki Darusman (Chairman, from Indonesia), Radhika Coomaraswamy (Sri Lanka), and Christopher Sidoti (Australia). In carrying out its mandate, the Mission followed best practices established by the UN High Commissioner for Human Rights in its International Commissions of Inquiry and Fact-Finding Missions on International Human Rights Law and International Humanitarian Law – Guidance and Practice.12 11. The Mission conducted over 600 interviews with victims and eyewitnesses as well as over 250 consultations with stakeholders, including intergovernmental and non- governmental organizations, researchers and diplomats.13 It “took care to diversify its sources of information”14 and, in selecting interviewees, “strove to only speak with persons who had not previously spoken with any other organization or media outlet, and confirmed this ahead

10 UN Secretary-General, Note to Correspondents: Statement by Adama Dieng, United Nations Special Adviser on the Prevention of Genocide, on his visit to Bangladesh to assess the situation of Rohingya refugees from Myanmar (12 March 2018), available at https://www.un.org/sg/en/content/sg/note-correspondents/2018-03- 12/note-correspondents-statement-adama-dieng-united-nations. 11 UN Human Rights Council, Report of the independent international fact-finding mission on Myanmar (12 September 2018), UN Doc. A/HRC/39/64 [hereinafter UN Fact-Finding Mission, Report (2018)], para. 4; UN Human Rights Council, Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar (17 September 2018), UN Doc. A/HRC/39/CRP.2 [hereinafter UN Fact-Finding Mission, Report of the Detailed Findings (2018)], para. 4. 12 UN Fact-Finding Mission, Report of the Detailed Findings (2018), para. 9. 13 Ibid., paras. 19, 23, 754. 14 Ibid., para. 19. of the interview.”15 The Mission also “obtained a large body of satellite imagery and analysis with the support of UNOSAT [the United Nations Operational Satellite Applications Programme], and received a vast amount of documents, photographs and videos – some clandestinely recorded or obtained by the source.”16 It “only used those materials that it was able to authenticate,” and “[a]ll information was checked against secondary information assessed as credible and reliable, including organizations’ raw data or notes, expert interviews, submissions and open source material.”17 12. Based on its meticulous collection and review of the evidence, the UN Fact-Finding Mission concluded in its September 2018 Report of the Detailed Findings to the UN Human Rights Council that “the factors allowing the inference of genocidal intent are present.”18 It thus urged that “named senior generals of the Myanmar military” be “investigated and prosecuted in an international criminal tribunal for genocide.”19 On 24 October 2018, the Chairman of the Mission, Mr. Darusman, stated that the situation in Myanmar is an “ongoing genocide.”20 Those who carried out the genocidal acts were officials and agents of the State of Myanmar, and were acting on its behalf.

13. The UN Fact-Finding Mission issued an additional report on its detailed findings in September 2019, based on further investigation, with a particular attention to events that transpired since September 2018. 21 It conducted additional interviews with victims and witnesses, both targeted and randomly selected, taking “special care to avoid re-interviewing victims and witnesses.”22 It also “obtained and analysed satellite imagery, photographs and

15 Ibid., para. 20. 16 Ibid., para. 22. 17 Ibid. 18 Ibid., para. 1441. 19 Ibid., p. 1. 20 “Rohingya genocide is still going on, says top UN investigator,” The Guardian (24 October 2018), available at https://www.theguardian.com/world/2018/oct/24/rohingya-genocide-is-still-going-on-says-top-un- investigator. 21 UN Human Rights Council, Detailed findings of the Independent International Fact-Finding Mission on Myanmar (16 September 2019), UN Doc. A/HRC/39/CRP.2 [hereinafter UN Fact-Finding Mission, Report of the Detailed Findings (2019)], para. 1. 22 UN Fact-Finding Mission, Report of the Detailed Findings (2019), paras. 32-33. In total, the Mission conducted 419 interviews, some of which concerned situations elsewhere in Myanmar. Ibid., para. 32. videos and a range of documents,” and “cross-checked the information against secondary information assessed as credible and reliable.”23

14. The Mission’s September 2019 report confirmed its earlier conclusion that Myanmar is responsible for the “commission of genocide.”24 It found: “the evidence that infers genocidal intent on the part of the State against the Rohingya, identified in its last report, has strengthened.”25 Alarmingly, the Mission warned: “there is a serious risk that genocidal actions may occur or recur, and that Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalizing and punishing genocide.”26 15. The Gambia, mindful of the jus cogens character of the prohibition of genocide and the erga omnes and erga omnes partes character of the obligations that are owed under the Genocide Convention, institutes the present proceedings to establish Myanmar’s responsibility for violations of the Genocide Convention, to hold it fully accountable under international law for its genocidal acts against the Rohingya group, and to have recourse to this Court to ensure the fullest possible protection for those who remain at grave risk from future acts of genocide.

II. The Jurisdiction of the Court

16. The Gambia and Myanmar are both Members of the United Nations and therefore bound by the Statute of the Court, including Article 36(1), which provides that the Court’s jurisdiction “comprises … all matters specially provided for … in treaties and conventions in force.”

17. The Gambia and Myanmar are also parties to the Genocide Convention. Myanmar signed the Genocide Convention on 30 December 1949 and deposited its instrument of ratification on 14 March 1956. The Gambia deposited its instrument of accession on 29 December 1978. While the Genocide Convention entered into force on 12 January 1951, it became applicable between the Parties ninety days after 29 December 1978, pursuant to Article XIII of the Convention.

23 Ibid., para. 32. 24 Ibid., para. 9. 25 Ibid., para. 58. 26 Ibid. 18. Article IX of the Genocide Convention provides:

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.27

19. Neither The Gambia nor Myanmar has purported to enter any reservation to Article IX.

20. The Gambia has repeatedly expressed its concerns in respect of the conduct described in this Application. Because the prohibition of genocide has the character of a peremptory norm and the obligations under the Convention are owed erga omnes and erga omnes partes, 28 The Gambia has, in particular, made clear to Myanmar that its actions constitute a clear violation of its obligations under the Convention. In response to such statements, Myanmar has rejected and opposed any suggestion that it has violated the Genocide Convention.

21. Myanmar has been made fully aware of the grave concerns expressed by The Gambia and others as to its responsibility for acts of genocide. The latest relevant events include, inter alia, the following:

• 12 September 2018: After a year documenting atrocities committed by Myanmar’s military and security forces against the Rohingya group, the UN Fact-Finding Mission presented its first report affirming that “[t]he crimes in Rakhine State, and the manner in which they were perpetrated, are similar in nature, gravity and scope to those that have allowed genocidal intent to be established in other contexts.”29

27 Genocide Convention, art. IX. 28 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015, pp. 45-47, paras. 85-88 (citing Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 110-111, para. 161). 29 UN Fact-Finding Mission, Report (2018), para. 85. • 1-2 March 2019: The Gambia, through its membership in the Organization of Islamic Cooperation (“OIC”), called upon Myanmar “[t]o honor its obligations under International Law and Human Rights covenants, and to take all measures to immediately halt all vestiges and manifestations of the practice of … genocide … against Rohingya Muslims.”30 • 31 May 2019: At the 14th OIC Summit Conference, The Gambia affirmed its support for the Ad hoc Ministerial Committee on Human Rights Violations against the Rohingyas in Myanmar and declared the urgency of “using all international legal instruments to hold accountable the perpetrators of crimes against the Rohingya.”31 • 8 August 2019: The UN Fact-Finding Mission submitted to the UN General Assembly its consolidated findings in an additional report confirming “[the] perpetration by Myanmar of genocide and the State’s failure to prevent and punish genocide.”32 • 16 September 2019: The UN Fact-Finding Mission emphasized before the UN Human Rights Council the need to hold Myanmar accountable for the crime of genocide.33 The UN Fact-Finding Mission also demonstrated that Myanmar “continues to harbour genocidal intent” and therefore that “the Rohingya remain under serious risk of genocide.”34 In doing so, the UN Fact-Finding Mission welcomed the efforts of “The Gambia … and the Organisation of Islamic Cooperation to encourage and pursue a case against

30 OIC, Resolution No. 4/46-MM on the Situation of the Muslim Community in Myanmar, OIC Doc. OIC/CFM- 46/2019/MM/RES/FINAL (1-2 March 2019), available at https://www.oic- oci.org/docdown/?docID=4447&refID=1250, para. 11(a). 31 OIC, Final Communiqué of the 14th Islamic Summit Conference, OIC Doc. OIC/SUM-14/2019/FC/FINAL (31 May 2019), available at https://www.oic-oci.org/docdown/?docID=4496&refID=1251, para. 47. 32 UN Human Rights Council, Report of the independent international fact-finding mission on Myanmar (8 August 2019), UN Doc. A/HRC/42/50 [hereinafter UN Fact-Finding Mission, Report (2019)], para. 108; see also ibid., paras. 18, 90. 33 UN Fact-Finding Mission, Report of the Detailed Findings (2019), paras. 41, 220. 34 Ibid., para. 140; see also ibid., para. 213. Myanmar before the International Court of Justice (ICJ) under the Genocide Convention.”35

• 26 September 2019: In response to the latest reports of the UN Fact-Finding Mission, Her Excellency Mrs. Isatou Touray, Vice-President of the Republic of The Gambia, stated during the general debate of the 74th Session of the UN General Assembly that “The Gambia is ready to lead the concerted efforts for taking the Rohingya issue to the International Court of Justice.”36 • 29 September 2019: Kyaw Tint Swe, Union Minister for the Office of the State Counsellor of Myanmar, reacted at the general debate of the 74th Session of the UN General Assembly to the latest reports of the UN Fact- Finding Mission, by denying the conclusions: “[The Mission’s] Reports, without exception, are biased and flawed, based not on facts but on narratives.”37 • 11 October 2019: The Gambia’s Permanent Mission to the United Nations in New York transmitted to Myanmar’s Permanent Mission a Note Verbale concerning Myanmar’s ongoing breach of its obligations under the Genocide Convention. The Gambia expressed its concerns over the findings of the UN Fact-Finding Mission and Myanmar’s rejection of those findings. The Gambia also called Myanmar’s attention to OIC Resolution No. 4/46- MM of 2 March 2019. Finally, The Gambia urged Myanmar to take actions to return to compliance with the Convention, to make reparations to the victims and to issue assurances and guarantees of non-repetition.38

35 Ibid., para. 40. 36 UN General Assembly, 74th Session, 8th Plenary Meeting, Official Records, UN Doc. A/74/PV.8 (26 September 2019), p. 31. 37 The Republic of the Union of Myanmar, State Counsellor Office, U Kyaw Tint Swe, Union Minister for the Office of the State Counsellor and Leader of Myanmar Delegation to the 74th Session of United Nations General Assembly Delivers Statement at High-Level General Debate (New York, 29th September 2019) (30 September 2019), available at https://www.statecounsellor.gov.mm/en/node/2551, p. 11. 38 Note Verbale from Permanent Mission of the Republic of The Gambia to the United Nations to Permanent Mission of the Republic of the Union of Myanmar to the United Nations (11 October 2019). 22. Despite all the evidence, and the calls on it to desist from further acts of genocide, Myanmar continues to deny any wrongdoing. It has not responded to The Gambia’s Note Verbale of 11 October 2019.

23. A dispute therefore exists between The Gambia and Myanmar relating to the interpretation and application of the Genocide Convention and the fulfilment by Myanmar of its obligations to prevent genocide and to desist from its own acts of genocide, as well as Myanmar’s obligation to make reparations to the victims and offer assurances and guarantees of non-repetition.

24. Accordingly, pursuant to Article 36(1) of the Court’s Statute and Article IX of the Genocide Convention, the Court has jurisdiction to hear the claims submitted in the present Application by The Gambia against Myanmar.

III. The Facts

A. Background

25. Myanmar (formerly known as Burma) is located in Southeast Asia. It is bordered by Thailand and Laos to the east, by China to the north, and by India and Bangladesh to the west. The Bay of Bengal lies to the south.

Map of Myanmar39

39 UN Geospatial Information Section, Myanmar, Map No. 4168 Rev. 3 (June 2012), available at https://www.un.org/Depts/Cartographic/map/profile/myanmar.pdf. 26. Myanmar is “inhabited by a large number of groups with various ethnic, cultural, linguistic and religious backgrounds.”40 The Bamar, who are predominantly Buddhist, are Myanmar’s largest ethnic group, estimated to comprise 60-70 percent of the population.41 The Rohingya, who are Muslim, are one of Myanmar’s ethnic and religious minorities.

27. Nearly all members of the Rohingya group reside in Myanmar’s Rakhine State, which is located in the westernmost extremity of the country, along the border with Bangladesh. The Rohingya are a minority within Rakhine State as well; the majority of the State’s population are ethnic Rakhine (also known as Arakanese), a group that is predominantly Buddhist. The Rohingya speak their own language, known as Rohingya. The ethnic Rakhine speak Arakanese, a regional dialect of Burmese.

28. Prior to the genocidal acts that began in 2016, most members of the Rohingya group lived in the townships of Maungdaw, Buthidaung and Rathedaung, located in the northern part of Rakhine State. Until that time, the Rohingya lived predominantly in villages where all or nearly all the inhabitants were ethnic Rohingya. Some members of the Rohingya group also lived in ethnically mixed villages and towns. After the Myanmar military attacked and displaced ethnic Rohingya in 2012, many were confined by Myanmar’s security forces to enclosed camps which the Rohingya are still forbidden to leave without authorization.

B. Myanmar’s Persecution of the Rohingya Group

29. Myanmar has subjected the Rohingya group to persecution for decades. As far back as October 1992, the UN Special Rapporteur on Freedom of Religion or Belief reported:

since late 1989, the Rohingya citizens of Myanmar … have been subjected to persecution based on their religious beliefs involving extrajudicial executions, torture, arbitrary detention, forced disappearances, intimidation, gang-rape, forced labour, robbery, setting of fire to homes, evictions, land confiscation and population resettlement as well as the systematic destruction of towns and mosques.42

40 UN Fact-Finding Mission, Report of the Detailed Findings (2018), para. 84. 41 Ibid., para. 84. 42 Ibid., para. 100. 30. More recently, the UN Fact-Finding Mission’s September 2018 report found that: “The Rohingya are in a situation of severe, systemic and institutionalised oppression from birth to death. Their extreme vulnerability is a consequence of State policies and practices implemented over decades.”43 The Mission found that the “level of oppression faced by the Rohingya is hard to fathom” and that “[c]umulatively” the “rules, regulations, orders and practices” that Myanmar has imposed have “made life for the Rohingya in Rakhine State slowly but steadily unbearable.” 44 Myanmar has adopted these measures, the Mission concluded, “to implement a racist and exclusionary vision.”45 31. The Gambia describes below elements of Myanmar’s persecution of the Rohingya group that the UN Fact-Finding Mission determined are particularly indicative of genocidal intent, including its systematic denial of legal rights to members of the group and its support for, and participation in, pervasive hate campaigns designed to achieve the collective demonisation and dehumanisation of the Rohingya as a group.46 1. Denial of Legal Rights to Members of the Rohingya Group

32. The UN Fact-Finding Mission found evidence of genocidal intent in the “existence of discriminatory plans and policies,”47 including Myanmar’s 1982 Citizenship Law, a statute that remains in force, which makes citizenship and the legal rights associated therewith contingent upon belonging to one of the country’s predetermined racial categories – known as “national races.”48 Pursuant to this legal regime, the Rohingya are not a “national race,” and therefore have no rights. The Myanmar authorities even consider that “the Rohingya do not

43 Ibid., para. 458; see also ibid., para. 748 (referring to “[d]ecades of gradual marginalisation and eroding of rights, resulting in a State-sanctioned and institutionalised system of oppression affecting the lives of Rohingya from birth to death”). 44 Ibid., para. 622. 45 Ibid., para. 497. 46 ICTY, Trial Chamber, Prosecutor v. Kupreškić et al., Case No. IT-95-16-T, Judgement (14 January 2000), para. 636 (“[W]hen persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide.”). 47 UN Fact-Finding Mission, Report of the Detailed Findings (2018), para. 1425. 48 See ibid., paras. 477-479. On 8 October 1982, Myanmar’s then Head of State, General Ne Win, declared that there should be “three classes of citizens,” with full citizenship reserved for “pure-blooded nationals,” and the remaining classes for those who “cannot [be] trust[ed] fully” and who therefore must be denied “full rights.” UN Fact-Finding Mission, Report of the Detailed Findings (2018), para. 476 (citing Online Burma/Myanmar Library, Translation of the speech by General Ne Win provided in The Working People’s Daily, 9 October 1982, available at http://www.burmalibrary.org/docs6/Ne_Win%27s_speech_Oct-1982-Citizenship_Law.pdf). The 1982 Citizenship Law also permits citizenship through means not relevant here, including through naturalisation. belong in Myanmar” because they “are not considered a ‘national race.’”49 According to the UN Fact-Finding Mission, the Myanmar authorities “object” to the very “use of the name ‘Rohingya,’” insisting instead that they be referred to as “Bengali” so as to suggest they belong not in Myanmar but in neighbouring Bangladesh.50 33. Myanmar’s persecutory laws and regulations include measures that restrict the ability of the Rohingya to marry and bear children. Regional Order 1/2005 of the Maungdaw Township Peace and Development Council, adopted in 2005, includes a section – applicable only to those who marry “as per the Islamic religion,” i.e., the Rohingya – that mandates obtaining special marriage permission from the relevant government authorities. Those who manage to receive permission to marry “must limit the number of children.”51 34. Members of the Rohingya group are also subjected to “severe restrictions” on their “freedom of movement,” including their “ability to move between villages in the same township, between townships and outside Rakhine State”52 Rohingya must obtain “travel permits to leave their township.”53 In northern Rakhine State, “movement between villages is also restricted and curfews are imposed.”54 The restrictions are enforced through at least 160 security checkpoints.55 35. Since 2012, 128,000 members of the Rohingya group and the Kaman group (another Muslim minority) in central Rakhine State have been confined in displacement camps that are “effectively places of deprivation of liberty.”56 The members of the Rohingya group who reside in these camps are “cordoned off from the outside world … unable to move outside freely.”57 The Mission found: “In most cases, access is strictly controlled by checkpoints set up by the Myanmar Police Force. Moreover, many camps are surrounded by barbed wire fencing. There are also police checkpoints and military posts in the camp area, further limiting

49 UN Fact-Finding Mission, Report of the Detailed Findings (2018), para. 460. 50 Ibid. 51 Ibid., para. 590. 52 Ibid., para. 500. 53 Ibid., para. 525. 54 Ibid. 55 Ibid. 56 Ibid., paras. 512, 517. 57 Ibid., para. 517. freedom of movement.” 58 In the town of Sittwe, approximately 4,000 members of the Rohingya and Kaman groups are confined to a quarter that the Mission describes as “effectively a closed ghetto,” guarded by “armed police, checkpoints and barbed wire.”59 There, “Muslims are trapped and have lived separately from the rest of the population since 2012.”60 Members of the Rohingya group “can only leave the quarter with special permission and in organized convoys with police escorts.”61 36. The UN Fact-Finding Mission determined that the restrictions which Myanmar has imposed since 2012 amount to a “policy of segregation” under which Rohingya are generally barred from moving to “ethnic Rakhine areas, including the main towns and markets.”62 The Mission concluded that this State-mandated segregation fosters a “conducive environment for dehumanization and hate campaigns.”63

2. Hate Propaganda Against the Rohingya Group

37. The UN Fact-Finding Mission found further evidence of genocidal intent in the Myanmar authorities’ “tolerance for public rhetoric of hatred and contempt for the Rohingya,” as well as in the “insulting, derogatory, racist and exclusionary utterances of Myanmar officials and others.”64 Such propaganda includes the Government of Myanmar’s incitement of anti- Rohingya hatred that portrays the group as a “threat, not only to the local Buddhist communities, but also to the nation and its Buddhist character as a whole.”65 The Mission determined that these hate campaigns employ “dehumanising language” and are undertaken with the “involvement of and condoning by State authorities and influential figures of authority.”66 This propaganda alleges that the Rohingya identity cannot be reconciled with

58 Ibid. 59 Ibid., para. 520. 60 Ibid. 61 Ibid. 62 Ibid., para. 525. 63 Ibid., para. 516. 64 UN Fact-Finding Mission, Report of the Detailed Findings (2019), para. 224. 65 UN Fact-Finding Mission, Report of the Detailed Findings (2018), para. 606. 66 Ibid., para. 748. belonging to Myanmar. According to the Myanmar military: “Despite living among peacocks, crows cannot become peacocks.”67

38. The UN Fact-Finding Mission described the vast extent of Myanmar’s hate campaign against the Rohingya group:

The Mission has examined documents, publications, statements, Facebook posts and audio-visual materials that have contributed to shaping public opinion on the Rohingya and Muslims more generally. The analysis demonstrates that a carefully crafted hate campaign has developed a negative perception of Muslims among the broad population in Myanmar. This campaign has been the work of a few key players: nationalistic political parties and politicians, leading monks, academics, prominent individuals and members of the Government. This hate campaign, which continues to the present day, portrays the Rohingya and other Muslims as an existential threat to Myanmar and to Buddhism. In the case of the Rohingya, it has gone a step further. It is accompanied by dehumanising language and the branding of the entire community as “illegal Bengali immigrants.”68

39. The systematic and sustained hate campaign against the Rohingya group has included, inter alia:

• the fomenting of anti-Rohingya sentiment by the Association for the Protection of Race and Religion, an organization founded in June 2013 by the monk Ashin Wirathu, who, among other things, has likened Rohingya to an invasive species, claiming: “[t]he African catfish have a very great population and they eat each other and destroy nature” and that “[t]hese catfish are not allowed into the country to breed”;69 • the distribution of literature by monks in Rakhine State directing ethnic Rakhine not to “do business with” or “associate” with “Bengalis” and claiming that the “Bengalis who dwell on Arakanese land, drink Arakanese

67 Ibid., para. 85. 68 Ibid., para. 696. 69 Ibid., para. 90; Dr. Kjell Anderson, “The Enemy Next Door: Hate Speech in Burma,” The Sentinel Project (17 October 2014), available at https://thesentinelproject.org/2014/10/17/the-enemy-next-door-hate-speech-in- burma/. water, and rest under Arakanese shadows are now working for the extinction of the Arakanese”70;

• the dissemination of the publication Fear of Extinction of the Race, which exhorts people to “protect their race and religion,” calls for not patronizing Muslim shops, an act it describes as akin to “watering poisonous plants,” and warns, using a racially charged slur used to denote dark skin or foreign ancestry, “[i]f we are not careful, it is certain that the whole country will be swallowed by the Muslim Kalars”;71 • the publication of the book Influx viruses – The Illegal Muslims in Arakan, which, among other things, refers to the Rohingya as “hairy with long beards” and to “Bengali Kalars … swallowing other races”72; and • the publication of the magazine Paccima zone, whose patrons and committee members include government and police officials, and which has published articles with such titles as “Black tsunami in a pitiful disguise” and “Slow invasion” that refer to the Rohingya as the “common enemy” of all Myanmar ethnic groups.73 40. This pervasive campaign of dehumanization has included appeals for extreme measures against the Rohingya. On 26 June 2012, for example, the Rakhine Nationalities Development Party (RNDP), which at the time held the majority of seats in the Rakhine State legislature,74 called for a “final solution” to deal with the threat posed by what it referred to as the “present population of Bengali.”75

70 Human Rights Watch, “All you can do is Pray”: Crimes Against Humanity and Ethnic Cleansing of Rohingya Muslims in Burma’s Arakan State (2013), available at https://www.hrw.org/sites/default/files/reports/burma0413_FullForWeb.pdf, p. 25. 71 UN Fact-Finding Mission, Report of the Detailed Findings (2018), para. 697 & n. 1510. 72 Ibid., para. 700. 73 Ibid., paras. 701-702. 74 The Rakhine Nationalities Development Party held 18 seats out of 35 seats in the Rakhine (Arakan) State parliament. See The Burma Fund UN Office, Burma’s 2010 Elections: A comprehensive report (January 2011), available at http://www.burmalibrary.org/docs11/BurmaFund-Election_Report-text.pdf, p. 34, table 3. 75 UN Fact-Finding Mission, Report of the Detailed Findings (2018), para. 713. 41. The UN Fact-Finding Mission observed that the RNDP “praised Hitler and argued that inhuman acts” are “sometimes necessary to maintain a race.”76 In November 2012, its magazine referred to the need to take “a decisive stand on the issue of Bengali Muslims” and warned that “if we do not courageously solve these problems, which we have inherited from several previous generations, and instead hand them over to the next generation, we will go down in history as irresponsible.”77 It stated: Although Hitler and Eichmann were the greatest enemies of the Jews, they were probably heroes to the Germans. America had to drop nuclear bombs on Hiroshima and Nagasaki. Why? If inhumane acts are sometimes permitted to maintain a race, a country and the sovereignty ... our endeavours to maintain the Rakhine race and the sovereignty and longevity of the Union of Myanmar cannot be labelled as inhumane.78

42. The Myanmar Government itself has spread, as well as condoned, similarly extremist anti-Rohingya propaganda. Myanmar’s Ministry of Immigration and Population (now the Ministry of Labour, Immigration and Population) has employed the following slogan as its motto since 1995: “The earth will not swallow a race to extinction but another race will.”79 43. In August 2011, during parliamentary discussion of the issuance of registration cards to members of the Rohingya group, Myanmar’s Minister of Immigration stated: “Our Ministry is trying its best to uphold the slogan ‘Race is not swallowed by the earth but by another race.’”80 44. In June 2012, the spokesperson of the President of Myanmar posted a statement on his Facebook account warning of the arrival of “Rohingya terrorists” who the Myanmar military would “completely destroy.”81 He stated: We don’t want to hear any humanitarian or human rights excuses. We don’t want to hear your moral superiority, or so-called peace and loving kindness. (Go and look at Buthidaung, Maungdaw areas in Rakhine

76 Ibid. 77 Ibid. (citing Rakhine Nationalities Development Party, Toe Thet Yay Journal, Vol. 2, No. 12 (2012)). 78 UN Fact-Finding Mission, Report of the Detailed Findings (2018), para. 713. 79 Ibid., paras. 698-699. 80 Ibid., para. 699. 81 Ibid., para. 705. State. Our ethnic people are in constant fear in their own land. I feel very bitter about this. This is our country. This is our land.)82

45. Investigative reporting by The New York Times disclosed in October 2018 that the “Myanmar military were the prime operatives behind a systematic campaign on Facebook that stretched back half a decade and that targeted the country’s mostly Muslim Rohingya minority group.”83 This involved “hundreds of military personnel who created troll accounts and news and celebrity pages on Facebook and then flooded them with incendiary comments and posts timed for peak viewership.”84 The head of cybersecurity policy at Facebook said the company had found “clear and deliberate attempts to covertly spread propaganda that were directly linked to the Myanmar military.”85 46. Myanmar has specifically sought to instil hatred of the Rohingya among its military recruits. The UN Fact-Finding Mission reported that in October 2012 soldiers received training on the “expansion of Islam” and the consequent “extinction of Buddhism.”86 They were also given an anti-Muslim presentation entitled “Fear of extinction of the race” that referred to the need to “protect our race and religion as much as possible.”87

C. The Commission of Genocidal Acts Against the Rohingya as a Group

47. As set out below, and as will be described in greater detail over the course of these proceedings, Myanmar’s persecution against the Rohingya population as a group escalated dramatically in October 2016, when its military and security forces commenced so-called “clearance operations” against Rohingya villages, leading to the genocidal acts that are the subject of this Application.