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