Public sitting held on Wednesday 11 December 2019, at 10 a.m., at the Peace Palace, President Yusuf presiding, in the case concerning Application of the Convention on the Prevention and Punishment of

CR 2019/19

International Court
Cour internationale
of Justice
de Justice

THE HAGUE
LA HAYE

YEAR 2019

Public sitting

held on Wednesday 11 December 2019, at 10 a.m., at the Peace Palace, President Yusuf presiding,
in the case concerning Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (The Gambia v. Myanmar)

VERBATIM RECORD

ANNÉE 2019

Audience publique

tenue le mercredi 11 décembre 2019, à 10 heures, au Palais de la Paix, sous la présidence de M.
Yusuf, président,
en l’affaire relative à l’Application de la convention pour la prévention et la répression du crime
de génocide (Gambie c. Myanmar)

COMPTE RENDU

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Present: President Yusuf Vice-President Xue
Judges Tomka
Abraham Bennouna Cançado Trindade Donoghue
Gaja Sebutinde Bhandari Robinson Crawford Gevorgian Salam Iwasawa
Judges ad hoc Pillay
Kress Registrar Gautier



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Présents : M. Yusuf, président
Mme Xue, vice-présidente MM. Tomka
Abraham Bennouna Cançado Trindade
Mme Donoghue
M. Gaja Mme Sebutinde MM. Bhandari
Robinson Crawford Gevorgian Salam Iwasawa, juges
Mme Pillay
M. Kress, juges ad hoc

M. Gautier, greffier



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The Government of the Republic of The Gambia is represented by:

H.E. Mr. Abubacarr Marie Tambadou, Attorney General and Minister of Justice, Republic of
The Gambia,

as Agent;

Mr. Paul S. Reichler, Attorney-at-Law, Foley Hoag LLP, member of the Bars of the United States
Supreme Court and the District of Columbia,

Mr. Philippe Sands, QC, Professor of International Law at University College
London, Barrister-at-Law, Matrix Chambers, London,

Mr. Payam Akhavan, LLM, SJD (Harvard), Professor of International Law, McGill University,
member of the Bars of New York and the Law Society of Ontario, member of the Permanent Court of
Arbitration,

Ms Tafadzwa Pasipanodya, Attorney-at-Law, Foley Hoag LLP, member of the Bars of New York and the
District of Columbia,

Mr. Pierre d’Argent, professeur ordinaire, Catholic University of Louvain, member of the Institut
de droit international, Foley Hoag LLP, member of the Bar of Brussels,

Mr. Andrew Loewenstein, Attorney-at-Law, Foley Hoag LLP, member of the Bar of
Massachusetts,

Mr. Arsalan Suleman, Attorney-at-Law, Foley Hoag LLP, member of the Bars of New York and the
District of Columbia,

as Counsel and Advocates;

H.E. Mr. Cherno Marenah, Solicitor General, Ministry of Justice, Mr. Hussein Thomasi, Ministry of
Justice,
Ms Bafou Jeng, Ministry of Justice,

Mr. Amadou Jaiteh, Permanent Mission of the Republic of The Gambia to the United Nations,

Mr. Peter Tzeng, Attorney-at-Law, Foley Hoag LLP, member of the Bars of New York and
the District of Columbia,

Ms Yasmin Al Ameen, Attorney-at-Law, Foley Hoag LLP,

Ms Jessica Jones, Barrister-at-Law, Matrix Chambers, London,

as Counsel;

H.E. Mr. Omar G. Sallah, Ambassador and Permanent Representative of the Republic
of The Gambia to the Organisation of Islamic Cooperation,

H.E. Mr. Youssef Aldobeay, Assistant Secretary General for Political Affairs, Organisation
of Islamic Cooperation,

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Le Gouvernement de la République de Gambie est représenté par :

S. Exc. M. Abubacarr Marie Tambadou, Attorney General et ministre de la justice de la République de
Gambie,

comme agent ;

M. Paul S. Reichler, avocat, cabinet Foley Hoag LLP, membre des barreaux de la Cour suprême des
Etats-Unis d’Amérique et du district de Columbia,

M. Philippe Sands, QC, professeur de droit international à l’University College de Londres, avocat,
Matrix Chambers (Londres),

M. Payam Akhavan, LLM, SJD (Université de Harvard), professeur de droit international à
l’Université McGill, membre du barreau de l’Etat de New York et du barreau de
l’Ontario, membre de la Cour permanente d’arbitrage,

Mme Tafadzwa Pasipanodya, avocate, cabinet Foley Hoag LLP, membre des barreaux de
New York et du district de Columbia,

M. Pierre d’Argent, professeur ordinaire, Université catholique de Louvain, membre de l’Institut de
droit international, Foley Hoag LLP, membre du barreau de Bruxelles,

M. Andrew Loewenstein, avocat, cabinet Foley Hoag LLP, membre du barreau du Massachusetts,

M. Arsalan Suleman, avocat, cabinet Foley Hoag LLP, membre des barreaux de New York et du district
de Columbia,

comme conseils et avocats ;

S. Exc. M. Cherno Marenah, Solicitor General, ministère de la justice,

M. Hussein Thomasi, ministère de la justice, Mme Bafou Jeng, ministère de la justice,
M. Amadou Jaiteh, mission permanente de la République de Gambie auprès de l’Organisation des
Nations Unies,

M. Peter Tzeng, avocat, cabinet Foley Hoag LLP, membre des barreaux de New York et du district de
Columbia,

Mme Yasmin Al Ameen, avocate, cabinet Foley Hoag LLP, Mme Jessica Jones, avocate, Matrix Chambers
(Londres),
comme conseils ;

S. Exc. M. Omar G. Sallah, ambassadeur et représentant permanent de la République de Gambie
auprès de l’Organisation de la coopération islamique,

S. Exc. M. Youssef Aldobeay, sous-secrétaire général aux affaires politiques, Organisation
de la coopération islamique,

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H.E. Mr. Hassan Ali Hassan, Director of Legal Affairs, Organisation of Islamic Cooperation, Mr.
Hassan Abedin, Adviser to the Secretary General, Organisation of Islamic Cooperation, Ms Yasmin
Ullah, President of the Rohingya Human Rights Network,
Ms Razia Sultana, Director of the Arakan Rohingya National Organization and Coordinator of the Free
Rohingya Coalition,

Mr. Wakar Uddin, Director General of the Arakan Rohingya Union, Ms Hasina Begum,
Ms Hamida Khatun, Mr. Yousuf Ali,
as Advisers;

Mr. Scott Edmonds, Cartographer, International Mapping, Ms Vickie Taylor, Cartographer,
International Mapping,
as Technical Advisers;

Ms Elise Barber, Washington, DC, Ms Nancy Lopez, Washington, DC,
as Assistants;

Mr. Mark van Melle,

Mr. Erik Alexander van Houwelingen, Mr. Robby Veltmeijer,
as Security Officers.

The Government of the Republic of the Union of Myanmar is represented by:

H.E. Ms Aung San Suu Kyi, Union Minister for Foreign Affairs of the Republic of the Union of
Myanmar,

as Agent;

H.E. Mr. Kyaw Tint Swe, Union Minister for the Office of the State Counsellor of the Republic of
the Union of Myanmar,

as Alternate Agent;

H.E. Mr. Kyaw Tin, Union Minister for International Cooperation of the Republic of the Union of
Myanmar,

as Senior member of the delegation;

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S. Exc. M. Hassan Ali Hassan, directeur des affaires juridiques, Organisation de la coopération
islamique,

M. Hassan Abedin, conseiller du secrétaire général, Organisation de la coopération islamique, Mme
Yasmin Ullah, présidente du réseau de droits de la personne Rohingya,
Mme Razia Sultana, directrice de l’Arakan Rohingya National Organization et coordinatrice
du réseau Free Rohingya Coalition,

M. Wakar Uddin, directeur général de l’Arakan Rohingya Union, Mme Hasina Begum,
Mme Hamida Khatun,

M. Yousuf Ali,

comme conseillers ;

M. Scott Edmonds, cartographe, International Mapping, Mme Vickie Taylor, cartographe, International
Mapping,
comme conseillers techniques ; Mme Elise Barber (Washington DC), Mme Nancy Lopez (Washington DC),
comme assistantes ;

M. Mark van Melle,

M. Erik Alexander van Houwelingen,

M. Robby Veltmeijer,

comme agents de sécurité.

Le Gouvernement de la République de l’Union du Myanmar est représenté par :

S. Exc. Mme Aung San Suu Kyi, ministre des affaires étrangères de la République de l’Union du
Myanmar,

comme agent ;

S. Exc. M. Kyaw Tint Swe, ministre de l’Union pour le bureau du conseiller d’Etat
de la République de l’Union du Myanmar,

comme agent suppléant ;

S. Exc. M. Kyaw Tin, ministre de l’Union pour la coopération internationale de la République de
l’Union du Myanmar,

comme membre principal de la délégation ;

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Mr. Christopher Staker, member of the Bar of England and Wales, 39 Essex Chambers,

Mr. William Schabas, OC, MRIA, Professor of International Law, Middlesex University and
Professor of International Criminal Law and Human Rights, Leiden University,

Ms Phoebe Okowa, Professor of Public International Law, Queen Mary University of London,
Advocate of the High Court of Kenya, member of the Permanent Court of Arbitration,

as Counsel and Advocates;

Mr. Andreas Zimmermann, LLM (Harvard), Professor of International Law, University
of Potsdam, Director of the Potsdam Centre of Human Rights, member of the Permanent Court of
Arbitration,

Ms Catherine Dobson, member of the Bar of England and Wales, 39 Essex Chambers,

as Counsel;

H.E. Mr. Soe Lynn Han, Ambassador of the Republic of the Union of Myanmar to the Kingdoms of
Belgium and the Netherlands,

Mr. Chan Aye, Director-General, International Organizations and Economic Department, Ministry of
Foreign Affairs,

Mr. Min Thein, Director-General, Protocol Department, Ministry of Foreign Affairs, Mr. Aung Ko,
Director-General, Political Department, Ministry of Foreign Affairs, Ms Thi Da Oo,
Director-General, Attorney General’s Office,
Ms Leena Ghosh, Advisor to the Alternate Agent, Senior Peace Adviser, National Reconciliation and
Peace Center,

Ms Aye Thida Myo, Minister Counsellor, Permanent Mission of Myanmar to the United Nations, New
York,

Ms Myo Pa Pa Htun, Minister Counsellor, Permanent Mission of Myanmar to the United Nations, Geneva,

Mr. Zaw Naing Win, Deputy Director/Personal Staff Officer to the Agent,

Ms Phoo Pwint Ko Ko, Counsellor, Myanmar Embassy, Kingdom of Belgium,

Mr. Thu Rein Saw Htut Naing, Assistant Director, International Organizations and Economic
Department, Ministry of Foreign Affairs,

Mr. Swe Sett, Assistant Director/Personal Staff Officer to the Alternate Agent, Mr. Chan Aye, First
Secretary, Myanmar Embassy, Kingdom of Belgium,
Ms May Myat Noe Naing, First Secretary, Myanmar Embassy, Kingdom of Belgium,

Mr. Kyaw Kyaw Lwin, Third Secretary, Permanent Mission of Myanmar to the United Nations,
Geneva,

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M. Christopher Staker, membre du barreau d’Angleterre et du pays de Galles, 39 Essex Chambers,

M. William Schabas, OC, MRIA, professeur de droit international à l’Université du Middlesex et
professeur de droit pénal international et des droits de l’homme à l’Université de Leyde,

Mme Phoebe Okowa, professeure de droit international public à la Queen Mary University
of London, avocate près la Haute Cour du Kenya, membre de la Cour permanente d’arbitrage,

comme conseils et avocats ;

M. Andreas Zimmermann, LLM (Université de Harvard), professeur de droit international à
l’Université de Potsdam, directeur du centre des droits de l’homme de l’Université de Potsdam,
membre de la Cour permanente d’arbitrage,

Mme Catherine Dobson, membre du barreau d’Angleterre et du pays de Galles, 39
Essex Chambers,

comme conseils ;

S. Exc. M. Soe Lynn Han, ambassadeur de la République de l’Union du Myanmar auprès des
Royaumes de Belgique et des Pays-Bas,

M. Chan Aye, directeur général du service des organisations internationales et de
l’économie, ministère des affaires étrangères,

M. Min Thein, directeur général du service du protocole, ministère des affaires étrangères,

M. Aung Ko, directeur général du service politique, ministère des affaires étrangères, Mme Thi Da
Oo, directrice générale, bureau de l’Attorney General,
Mme Leena Ghosh, conseillère auprès de l’agent suppléant, conseillère principale pour la
paix, Centre pour la réconciliation nationale et la paix,

Mme Aye Thidar Myo, ministre conseillère, mission permanente du Myanmar auprès de
l’Organisation des Nations Unies à New York,

Mme Myo Pa Pa Htun, ministre conseillère, mission permanente du Myanmar auprès de
l’Organisation des Nations Unies à Genève,

M. Zaw Naing Win, directeur adjoint du cabinet de l’agent,

Mme Phoo Pwint Ko Ko, conseillère, ambassade du Myanmar au Royaume de Belgique,

M. Thu Rein Saw Htut Naing, sous-directeur du service des organisations internationales et
de l’économie, ministère des affaires étrangères,

M. Swe Sett, sous-directeur du cabinet de l’agent suppléant,

M. Chan Aye, premier secrétaire, ambassade du Myanmar au Royaume de Belgique,

Mme May Myat Noe Naing, première secrétaire, ambassade du Myanmar au Royaume de
Belgique,

M. Kyaw Kyaw Lwin, troisième secrétaire, mission permanente du Myanmar auprès de
l’Organisation des Nations Unies à Genève,

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Mr. Zaw·Thet, Head of Branch II, Protocol Department, Ministry of Foreign Affairs, Mr. Kyaw Tin,
Legal Consultant,
Mr. Thihan Myo Nyun, Legal Consultant, Ms Tint Tint Tun, aide to the Agent,
Dr. Thet Lel Swe Aye, physician to the Agent,

as Members of the delegation;

Mr. Icarus Chan, Assistant to the Secretariat,

Mr. Matthew Christopher Terry, Assistant to the Secretariat,

M. Alison Onyango, Assistant to Counsel and Advocates,

as Assistants;

Pol. Lt. Pyae Phyo Naing, Security Officer to the Agent, Pol. Lt. Nay Min Tun, Security Officer to
the Agent, Pol. Lt Kyaw Zin Oo, Security Officer to the Agent, Pol. WO. Cherry Htet, Security
Officer to the Agent, Pol. Sgt. Ohn Mar Myint, Security Officer to the Agent,
as Security Officers.

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M. Zaw Thet, chef du service II, service du protocole, ministère des affaires étrangères,

M. Kyaw Tin, consultant juridique,

M. Thihan Myo Nyun, consultant juridique, Mme Tint Tint Tun, assistante de l’agent, Dr Thet Lel Swe
Aye, médecin de l’agent,
comme membres de la délégation ;

M. Icarus Chan, assistant au secrétariat,

M. Matthew Christopher Terry, assistant au secrétariat, Mme Alison Onyango, assistante des conseils
et avocats,
comme assistants ;

Pol. Lt. Pyae Phyo Naing, policier affecté à la sécurité de l’agent, Pol. Lt. Nay Min Tun, policier
affecté à la sécurité de l’agent, Pol. Lt. Kyaw Zin Oo, policier affecté à la sécurité de l’agent,
Pol. WO. Cherry Htet, policier affecté à la sécurité de l’agent, Pol. Sgt. Ohn Mar Myint, policier
affecté à la sécurité de l’agent,
comme agents de sécurité.

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The PRESIDENT: Please be seated. The sitting is open. The Court meets this morning to hear the
first round of oral observations of Myanmar on the Request for the indication of
provisional measures submitted by The Gambia. I shall now give the floor to the Agent
of Myanmar, Her Excellency Daw Aung San Suu Kyi. You have the floor, Madam.

Daw AUNG SAN SUU KYI:

STATEMENT BY THE AGENT
1. Thank you, Mr. President and Members of the Court. It is an honour to appear as Agent of the
Union of the Republic of Myanmar in these proceedings, in my capacity as Union Minister for Foreign
Affairs. For materially less resourceful countries like Myanmar, the World Court is a vital refuge
of international justice. We look to the Court to establish conditions conducive to respect for
obligations arising from treaties and other sources of international law, one of the
fundamental objectives of the United Nations Charter.
2. In the present case, Mr. President, the Court has been asked to apply the 1948 Genocide
Convention, one of the most fundamental multilateral treaties of our time.
Invoking the 1948 Genocide Convention is a matter of utmost gravity. This is the treaty that we
made following the systematic killing of more than six million European Jews, and
that my country whole-heartedly signed as early as 30 December 1949 and ratified on 14 March
1956. Genocide is the crime that the International Criminal Tribunal for Rwanda applied
in response to the mass-killing of perhaps 70 per cent of the Tutsis in Rwanda. It is the crime
that was not applied by the Tribunal to the former Yugoslavia for the displacement of approximately
one million residents of Kosovo in 1999. Neither was it applied by that Tribunal nor by this Court
when deciding upon the exodus of the Serb population from Croatia in 1995. In both
situations international justice resisted the temptation to use this strongest of legal
classifications because the requisite specific intent to physically destroy the targeted group in
whole or in part was not present.
3. Regrettably, The Gambia has placed before the Court an incomplete and misleading
factual picture of the situation in Rakhine State in Myanmar. Yet, it is of the utmost importance

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that the Court assess the situation obtaining on the ground in Rakhine dispassionately
and accurately.
4. The situation in Rakhine is complex and not easy to fathom. But one thing surely touches all of
us equally: the sufferings of the many innocent people whose lives were torn apart
as a consequence of the armed conflicts of 2016 and 2017, in particular those who have had to flee
their homes and are now living in camps in Cox’s Bazar.
5. Mr. President and Members of the Court, the troubles of Rakhine State and its population,
whatever the background, go back into past centuries and have been particularly severe over the
past few years. Currently, an internal armed conflict is going on there  between the
Arakan Army, an organized Buddhist armed group with more than 5,000 fighters, and the regular
Myanmar Defence Services. None of the speakers yesterday made any reference to this. The Arakan
Army seeks autonomy or independence for Rakhine  or Arakan as it was called  finding inspiration
in the memory of the historic Kingdom of Arakan. This conflict has led to the
displacement of thousands of civilians in Rakhine. Standard security restrictions 
such as curfew and check-points  are in place at present in the conflict zone and affect
the situation of civilians there, regardless of their background.
6. Mr. President, on 9 October 2016, approximately 400 fighters of the Arakan Rohingya
Salvation Army  known as ARSA  launched simultaneous attacks on three police posts in
Maungdaw and Rathedaung Townships in northern Rakhine, near the border with Bangladesh.
ARSA claimed responsibility for these attacks, which led to the death of nine police officers, more
than 100 dead or missing civilians, and the theft of 68 guns and more than 10,000
rounds of ammunition. This was the start of an internal armed conflict between ARSA
and Myanmar’s Defence Services which lasted until late 2017. The selective factual
propositions contained in The Gambia’s Application actually concern this conflict.
7. In the months following the 9 October 2016 attacks, ARSA grew in strength in the
Maungdaw, Buthidaung and Rathedaung Townships in northern Rakhine. It resorted to threats and
intimidation against local villagers in order to gain support and allegiance, executing
suspected

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informers. According to, among others, the International Crisis Group, ARSA
received weapons- and explosives training from Afghan and Pakistani militants1.
8. In the early morning of 25 August 2017, several thousand ARSA fighters launched
co-ordinated attacks on more than 30 police posts and villages, and an army base in
northern Rakhine. Most of the attacks took place on the narrow Maungdaw plain, which
is framed by densely forested hills to the east, and the border with Bangladesh to the west.
Indications are that ARSA’s objective was to seize Maungdaw Township.
9. It may aid the Court to briefly consider the historical significance of Maungdaw. When Britain
made Burma a colonial entity separate from British India in 1937, the border between
Burma and India was drawn along the River Naf, where we find today’s border between
Bangladesh and Myanmar. The historical Kingdom of Arakan had at times extended much further to the
north than the River Naf, including most of what is today Chittagong District in Bangladesh.
Members of some Rakhine communities therefore felt that the border drawn by the British was too far
south; others, that it was too far north. Myanmar has never challenged this border
since independence in 1948.
10. Britain did not lose control over what is today Maungdaw Township
during World War II. From September 1942, a number of local Muslim families offered
fighters to the British irregular V-Force set up to collect intelligence and initially absorb any
Japanese advance. Many Muslims gave their lives in combat against the Japanese in Rakhine. The
sacrifices made by Muslim fighters motivated a call for the creation of an autonomous
Muslim space in northern Rakhine, centred on Maungdaw. Whether or not this was encouraged by
British officers, Britain rejected this call as soon as it had reoccupied Burma, before
independence in 1948. The Muslim-Buddhist intercommunal violence of 1942 recurred in 1948 and
several times after that. This cycle of violence has negatively affected life in northern
Rakhine, making it the second- poorest state in Myanmar.
11. Mr. President and Members of the Court, may I go back to the situation in Rakhine on the
morning of 25 August 2017. More than 30 police stations and villages, and one military base,

1 International Crisis Group, “Myanmar’s Rohingya Crisis Enters a Dangerous New Phase”, Asia
Report No. 292, 7 Dec. 2017 (available at https://legal-tools.org/doc/22qmxu).

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had been attacked before sunrise in a highly co-ordinated fashion, by an organized armed group
operating along a densely forested hill-range that provides ample opportunity for hiding. Many of
the ARSA fighters had been recruited from local villages in the weeks and months preceding the
attack. Myanmar’s Defence Services responded to the attacks of ARSA fighters by the
use of ground forces. There were armed incidents in more than 60 locations. The main clashes
occurred in 12 places: in Min Gyi (Tola Toli) village, Chut Pyin village, Maung Nu village, Gutar
Pyin village, Alai Than Kyaw village, Myin Lut village, Inn Din village, Chein Kharli (Koetan Kauk)
village, Myo Thugyi ward, Kyauk Pandu village, wards of Maungdaw Town, and southern Maungdaw.
12. Mr. President, please allow me to clarify the use of the term “clearance
operation”, nae myay shin lin yeh in Myanmar. Its meaning has been distorted. As early as the
1950s, this term has been used during military operations against the Burma Communist
Party in Bago Range. Since then, the military has used this expression in
counter-insurgency and counter-terrorism operations after attacks by insurgents
or terrorists. In the Myanmar language, nae myay shin lin yeh  literally
means “clearing of locality”  simply means to clear an area of insurgents or terrorists.
13. It is still not easy to establish clear patterns of events in these 12 locations. Many ARSA
fighters died. There may have been several hundred casualties in some of the 12 locations. There
was some intercommunal violence. Buddhist and Hindu minority communities also feared for their
security after the original ARSA attacks and many fled from their homes.
14. It may be worth noting that the use of air power in military operations was avoided as far as
possible to minimize the risk of collateral damage. However, in one incident, in order to extract a
unit surrounded by hundreds of ARSA fighters, the use of a helicopter was required. There was
shooting from the helicopter which resulted in fatalities, which may have included non-combatants.
15. Mr. President, it cannot be ruled out that disproportionate force was used by members of the
Defence Services in some cases in disregard of international humanitarian law, or that they did not
distinguish clearly enough between ARSA fighters and civilians. There may also have
been failures to prevent civilians from looting or destroying property after fighting or
in abandoned villages. But these are determinations to be made in the due course of the criminal
justice process, not by any individual in the Myanmar Government.

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16. Please bear in mind this complex situation and the challenge to sovereignty and security in our
country when you are assessing the intent of those who attempted to deal with the rebellion.
Surely, under the circumstances, genocidal intent cannot be the only hypothesis.
17. Under its 2008 Constitution, Myanmar has a military justice system. Criminal cases
against soldiers or officers for possible war crimes committed in Rakhine must be investigated and
prosecuted by that system. On 25 November 2019, the Office of the Judge Advocate
General announced the start of a court martial for allegations linked to the Gutar Pyin village
incident, one of the 12 main incidents referred to earlier. The Office also let it be
known that there will be additional courts martial if further incriminating evidence is
brought up by the Independent Commission of Enquiry (ICOE). The ICOE is an independent
special-investigation procedure established for Rakhine allegations by the President of
Myanmar, chaired by a former Deputy Foreign Minister from the Philippines, with three
other members, including a former Under- Secretary-General of the United Nations from Japan.
18. On 26 November 2019, this Commission announced that it had taken about
1,500 witness statements from all affected groups in Rakhine, and that it has
interviewed 29 military personnel who were deployed to the affected townships in northern Rakhine
during the military operations from 25 August 2017 to 5 September 2017, as well as 20 police
personnel who were stationed at the police posts that were attacked on 25 August 2017. There is
currently no other fact-finding body in the world that has garnered relevant first-hand information
on what occurred in Rakhine in 2017 to the same extent as the Independent Commission of Enquiry and
the Office of the Judge Advocate General in Myanmar.
19. This fact reinforces my sense that I should refrain from any action or statement that could
undermine the integrity of these ongoing criminal justice processes in Myanmar. They
must be allowed to run their course. It is never easy for armed forces to recognize
self-interest in accountability for their members, and to implement a will to
accountability through actual investigations and prosecutions. I respectfully invite the Members
of the Court to consider for a moment the record of other countries. This is a common challenge,
even in resource-rich countries.
20. Recent cases in the news headlines illustrate that even when military justice works, there can
be reversals. This can also happen in Myanmar. As part of the overall efforts of the Myanmar

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Government to provide justice, a court martial found that ten Muslim men had been
summarily executed in Inn Din village, one of the 12 locations of serious incidents
referred to earlier. It sentenced four officers and three soldiers each to ten years in prison
with hard labour. After serving a part of their sentences, they were given a military pardon. Many
of us in Myanmar were unhappy with this pardon.
21. Other cases are undertaken without controversy. For example, in the Mansi case, a court martial
sat close to the location in Kachin State where three internally displaced civilians had been
killed. It sentenced six soldiers, each to ten years in prison, in January 2018.
Relatives of the victims and local civil society representatives were invited to the proceedings.
22. The Office of the Judge Advocate General in Myanmar is by our standards well
resourced, with more than 90 staff and a presence in all regional commands throughout the country.
I am encouraged by the Gutar Pyin court martial, and I expect the Office to continue
its investigations and prosecutions based on reliable evidence gathered in Rakhine and from
persons who witnessed what happened there.
23. Can there be genocidal intent on the part of a State that actively investigates, prosecutes and
punishes soldiers and officers who are accused of wrongdoing? Although the focus here is on members
of the military, I can assure you that appropriate action will also be taken against civilian
offenders, in line with due process. There will be no tolerance of human rights violations in the
Rakhine, or elsewhere in Myanmar.
24. Mr. President, there are those who wish to externalize accountability for alleged
war crimes committed in Rakhine, almost automatically, without proper reflection. Some of
the United Nations human rights mandates relied upon in the Application presented by The
Gambia have even suggested that there cannot be accountability through Myanmar’s military
justice system. This not only contradicts Article 20 (b) of the Constitution of Myanmar,
it undercuts painstaking domestic efforts relevant to the establishing of co-operation between
the military and the civilian government in Myanmar, in the context of a Constitution that needs to
be amended to complete the process of democratization. That process is now underway at the
Pyidaungsu Hluttaw, the Union Parliament.

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25. The emerging system of international criminal justice rests on the
principle of complementarity. Accountability through domestic criminal justice is the norm. Only
if domestic accountability fails, may international justice come into play. It would be
inconsistent with complementarity to require that domestic criminal justice should proceed
much faster than international criminal justice. A rush to externalize accountability may
undermine professionals in domestic criminal justice agencies. What does the appearance of
competition between domestic and international accountability do to the public’s trust in the
intentions of impatient international actors?
26. No stone should be left unturned to make domestic accountability work. It would not be helpful
for the international legal order if the impression takes hold that only resource-rich
countries can conduct adequate domestic investigations and prosecutions, and that the
domestic justice of countries still striving to cope with the burden of unhappy legacies and
present challenges cannot be made good enough. The Gambia will also understand this challenge with
which they too are confronted.
27. Mr. President and Members of the Court, these reflections are relevant to the
present hearing because the Applicant has brought a case based on the Genocide
Convention. We are, however, dealing with an internal armed conflict, started by
co-ordinated and comprehensive attacks by the Arakan Rohingya Salvation Army (ARSA), to which
Myanmar’s Defence Services responded. Tragically, this armed conflict led to the exodus of several
hundred thousand Muslims from the three northernmost townships of Rakhine into Bangladesh  just as
the armed conflict in Croatia with which the Court had to deal led to the massive exodus of, first,
ethnic Croats and later, ethnic Serbs.
28. As I have already stated, if war crimes have been committed by members of Myanmar’s Defence
Services, they will be prosecuted through our military justice system, in accordance with Myanmar’s
Constitution. It is a matter for the competent criminal justice authorities to assess
whether, for example, there has been inadequate distinction between civilians and ARSA fighters,
disproportionate use of force, violations of human rights, failure to prevent plundering of
property, or destruction, or acts of forcible displacement of civilians. Such conduct,
if proven, could be relevant under international humanitarian law or human rights
conventions, but not under the

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1948 Genocide Convention, for reasons on which Professor William Schabas will elaborate in
a moment.
29. Mr. President, allow me to share one further reflection in this Great Hall of
Justice. International law may well be our only global value system, and international justice a
practice that affirms our common values. Leaders of States and relevant
intergovernmental and non-governmental organizations should also be cognizant of their
responsibility to express and affirm fundamental values. Feeding the flames of an
extreme polarization in the context of Rakhine, for example, can harm the values of peace and
harmony in Myanmar. Aggravating the wounds of conflict can undermine unity in Rakhine. Hate
narratives are not simply confined to hate speech  language that contributes to extreme
polarization also amounts to hate narratives.
30. Several international actors face a challenge here. But Myanmar also could have done

more since the 1980s to emphasize the shared heritage and deeper layers of unity
among the diverse peoples of our country. Cycles of intercommunal violence in Rakhine going back
to the 1940s should be countered not just by practical measures aimed at sustainable
development and rule of law, but also by nourishing a spiritual mindset of unity. It is a moral
responsibility of leaders to guard the aspirations of people for harmony and peace.
31. U Thant, the third United Nations Secretary-General, had understood this. He wrote in his
memoirs View From the UN published in 1974: “I even believe that the mark of the
truly educated and imaginative person facing the twenty-first century is that he feels
himself to be a planetary citizen” (p. 454). Encouraging this added layer of identity 
a sense of planetary citizenship  is of fundamental importance for peaceful relations
between nations as well as between ethnic and religious groups.
32. A commitment to broadening the mindset must go hand in hand with practical steps to improve
lives. Even before the events of 2016-2017, Muslim, Buddhist and other communities in Rakhine faced
what the Kofi Annan Advisory Commission described as complex challenges of low development and
poverty rooted in enduring social conflict between the communities. The Myanmar Government
is committed to addressing these challenges. Together with our partners, we are now striving to
ensure that all communities enjoy the same fundamental rights. To expedite citizenship
verification and application, a mobile team is already in operation. All children born in

- 20 -

Rakhine, regardless of religious background, are issued with birth certificates. Arrangements have
been made to enable more Muslim youth to attend classes at universities across Myanmar. With the
support of international and local partners, scholarships will also be made available
to students from all communities living in Rakhine. The Government has started a social
cohesion model project in Maungdaw Township, to promote social harmony among all communities.
Interfaith fora have been encouraged. These are some of the steps taken to improve livelihoods,
security, access to education and to health, citizenship, and social cohesion for all
communities in Rakhine. Three internally displaced person (IDP) camps have already been
closed, and an IDP camp closure strategy has been adopted. Myanmar is also committed
to the voluntary, safe and dignified repatriation of displaced persons from Rakhine under the
framework agreement reached between Bangladesh and Myanmar.
33. Mr. President, how can there be an ongoing genocide or genocidal intent when these
concrete steps are being taken in Rakhine?
34. To conclude, Mr. President and Members of the Court, Rakhine today suffers an internal armed
conflict between the Buddhist Arakan Army and Myanmar’s Defence Services. Muslims are not a party
to this conflict, but may, like other civilians in the conflict area, be affected by security
measures that are in place. We pray the Court to refrain from taking any action that
might aggravate the ongoing armed conflict and peace and security in Rakhine. Right now, in
northern Rakhine an army base near Paletwa is under attack by a group of more than 400
Arakan Army fighters, and some 200 insurgents have surrounded a military column near Ann City in
Rakhine.
35. Since Myanmar gained independence in 1948, our people have not known the security of
sustainable development that is the fruit of peace and prosperity. Our greatest
challenge is to address the roots of distrust and fear, prejudice and hate, that
undermine the foundations of our Union. We shall adhere steadfastly to our commitment
to non-violence, human rights, national reconciliation and rule of law, as we go forward to
build the Democratic Federal Union to which our people have aspired for generations past. We look
to justice as a champion of the reconciliation and harmony that will assure the security and rights
of all peoples.
36. Mr. President and Members of the Court, I thank you for your kind attention and I ask that you
now call upon Professor William Schabas to continue the Myanmar submissions.

- 21 -

The PRESIDENT: I thank the Agent of Myanmar for her statement. I now
invite Professor Schabas to take the floor. You have the floor.

Mr. SCHABAS: Thank you very much, Mr. President. Mr. President, Your Excellencies, it is an honour
to appear before the Court today.

LACK OF A PLAUSIBLE CLAIM
1. Our hearing today does not concern the merits of the claim that The Gambia seeks
to bring. It is confined to whether the Court should indicate provisional measures. It is
established case law that certain preconditions must be met if the Court is to do so. My
presentation will focus on the requirement of a “plausible claim”. I will be followed by Mr.
Staker, who will speak to the requirements of prima facie jurisdiction and standing, and then by Ms
Okowa, who will complete our first round of observations by addressing the lack of real
and imminent risk of irreparable prejudice to the rights in dispute.

The test for plausibility
2. The Gambia seems to accept the plausibility test developed in the Court’s jurisprudence2, but
has misunderstood the standard applied by the Court. The plausibility requirement is a
necessary corollary of the mandatory nature of the Court’s provisional measures. For this reason,
the references to provisional measures orders in 1993 may not be as helpful to the
Court as The Gambia suggested yesterday3, given that they were adopted well prior to the Court’s
important ruling on binding provisional measures in the LaGrand case4. The Gambia claims that the
rights it alleges are plausible provided they are based on a mere “possible
interpretation of the Convention”5.
3. Mr. President, Your Excellencies, twice in the past 12 years this Court issued judgments on the
application of the Genocide Convention. It has examined in excruciating detail both
the

2 Application instituting proceedings and request for provisional measures (Republic of The Gambia
v. Republic of the Union of Myanmar), 11 Nov. 2019 (AG), para. 126.
3 CR 2019/18, p. 21, para. 3 (Akhavan); p. 54, para. 15 (d’Argent); p. 55, para. 17
(d’Argent); p. 57, para. 8
(Reichler); p. 65, para. 4 (Reichler); p. 66, para. 6 (Sands); p. 67, para. 9 (Sands); p. 72, para.
27 (Sands).
4 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109.
5 AG, para. 126.

- 22 -

material and the psychological elements of the crime, applying well-accepted principles
of interpretation, studying the travaux préparatoires and showing due deference for
specialized bodies like the International Criminal Tribunals for Rwanda and the
former Yugoslavia. Interpretations of the Convention that may have been “plausible” in 2006,
before the Judgment in Bosnia and Herzegovina v. Serbia, have ceased to be plausible since then.
And, if there was any doubt, the Court’s Judgment in Croatia v. Serbia in 2015, resoundingly
confirmed what it had said in 2007.
4. Yesterday, counsel for the Applicant avoided discussing the impact of these recent
judgments. There were several references to the 1951 Advisory Opinion6 but, apparently, none to the
2015 Judgment. In discussing the interpretation of Article 2 of the 1948 Convention, rather than
turn to the Court’s recent pronouncements counsel cited Raphael Lemkin’s famous book, published in
19447. In the sentence that was cited, Lemkin said that the focus of genocide was not on the
“immediate destruction” of a group but rather with “destruction of the essential foundations of the
life of national groups”. Alas, Lemkin’s original vision, which had much in common
with our modern conception of crimes against humanity, did not prevail in the General Assembly in
1948 when the Convention was adopted. The drafters of the Convention settled on a much narrower
view of the scope of genocide than Lemkin had contemplated in his book, and one that has since been
confirmed in the case law of this Court. It was only on the basis of this narrower conception of
the crime of genocide that States were willing to accept and undertake significant
obligations, including the compromissory clause. Indeed, more than 70 years later they still
hesitate to adopt a comprehensive equivalent convention dealing with crimes against humanity8,
despite noble efforts of the International Law Commission9.
5. Here we are, four years after Croatia v. Serbia, and the Court is being asked to indicate
provisional measures based upon allegations that simply cannot meet the terms of the Convention as
authoritatively interpreted by the Court. In Croatia v. Serbia, the Court described the distinction

6 CR 2019/18, p. 26, para. 21 (Akhavan); p. 51, paras. 5, 6 (d’Argent); p. 53, para. 13
(d’Argent).
7 CR 2019/18, p. 69, para. 16 (Sands).
8 Crimes against humanity, A/C.6/74/L.21.
9 Report of the International Law Commission, Seventy-first session (29 Apr.–7 June and 8 July–9
Aug. 2019), A/74/10, Chap. IV.

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between “ethnic cleansing” and genocide, with the former implying displacement and the
latter referring to destruction, as  and I have highlighted the words on the screen , “solidly
rooted in its jurisprudence”10. The authority of that Judgment is surely enhanced by the size of
the majority, 15 to 2. In Bosnia, the majorities, varying for each paragraph of the
disposif, were between 11 and 14. Unless the Court were now suddenly and abruptly to abandon its
jurisprudence constante, The Gambia, based upon the facts alleged in the Application, does not have
a “plausible” case, a case with any possibility of success.
6. Members of the Court may recall that in the Croatia v. Serbia case, Croatia invited the Court
to re-interpret the Convention provisions. You were told, and I quote counsel for Croatia, that
“the law has moved on over the past seven years”11. The quotation is on the screen. If this case
ever gets to the merits stage, I expect you will hear similar statements, proposing
once again a break with your established case law. Is this plausible? Does this mean that any
claim before the Court that is inconsistent with established case law is plausible because, to
return to the phrase in the Application, it consists of a “possible interpretation of the
[Genocide] Convention”? Can a challenge to something that is “solidly rooted”  those
are the words of the Court , in its jurisprudence have a plausible chance of success?

A stricter plausibility test in a genocide case
7. Mr. President, Your Excellencies, the “plausibility” criterion first appeared in the case law of
the Court a decade ago in Belgium v. Senegal12, a case involving no evidentiary issues13.
8. Subsequently, Judge Greenwood wrote that the Court might just as well have opted for the term
“arguable”, more widely used in common law jurisdictions. He said: “unless there is a
reasonable prospect that a party will succeed in establishing that it has the right which it claims
and

10 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 150, para. 510.
11 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), CR 2014/20, p. 27, para. 36; emphasis in the original.
12 Obligation to Prosecute or Extradite (Belgium v. Senegal) Provisional Measures, Order of 28 May
2009, I.C.J. Reports 2009, p. 151, para. 57.
13 Obligation to Prosecute or Extradite (Belgium v. Senegal) Provisional Measures, Order of 28 May
2009, I.C.J. Reports 2009, p. 152, para. 60.

- 24 -

that that right is applicable to the case, then it cannot be said that that right might be adjudged
to belong to it”14.
9. Over the years, of course, the Court has become more demanding. In recent cases it has held that
both the legal arguments and the evidence presented must be plausible15. In Ukraine v. Russia,
rejecting a request for provisional measures under the International Convention for the
Suppression of the Financing of Terrorism (ICSFT)16, the Court stressed that the applicant had to
“afford . . . a sufficient basis to find it plausible” and that the constitutive elements of
knowledge and intention required by the Convention were present17. The Court found that
there was no sufficient evidentiary basis to find it plausible that such elements of intention
and knowledge were indeed present18.
10. The rejection of provisional measures in Ukraine v. Russia is especially pertinent
because it involved a treaty of international criminal law, a cousin of the Genocide Convention as
it were. Subjective intent and knowledge are, of course, also requirements of
the Genocide Convention.
11. Thus, for the purposes of provisional measures, a “plausible claim” under the Genocide
Convention must include evidence of the required specific genocidal intent. For it is this
subjective intent that is the critical element distinguishing genocide from other violations of
international law

14 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I); declaration of
Judge Greenwood, p. 48, para. 5; emphasis in the original.
15 Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights
(Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3 October
2018, I.C.J. Reports 2018 (II), pp. 430-431, para. 67; Jadhav (India v. Pakistan), Provisional
Measures, Order of 18 May 2017, I.C.J. Reports 2017, pp. 242-243, para. 45; Application of the
International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United
Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p.
427, para. 54; Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of All Forms of Racial
Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017,
I.C.J. Reports 2017, p. 104, paras. 74-76.
16 Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of All Forms of
Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April
2017, I.C.J. Reports 2017, p. 104, paras. 75-76.
17 Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of All Forms of
Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April
2017, I.C.J. Reports 2017, p. 104, para. 75.
18 Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of All Forms of
Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April
2017, I.C.J. Reports 2017, p. 104, para. 75.

- 25 -

such as crimes against humanity and war crimes, for which in this case the Court obviously lacks
jurisdiction.
12. Furthermore, Mr. President, Your Excellencies, in assessing whether the required level of
plausibility is met, in relation to both legal and factual matters, the Court should
also take into account the gravity of the alleged violations. The Court’s well-established
approach, at the merits stage, is that “the graver the charge the more confidence must there be in
the evidence relied on”19.
13. This principle must apply, mutatis mutandis, at the provisional measures phase, which may also
result in a binding decision. Indeed, it must apply a fortiori because the Court is not able to
hear full argument, with the respondent  unlike the applicant  unable to fully develop its
own evidentiary base. In a case like this, involving allegations of
exceptional gravity, a correspondingly stricter plausibility standard should be applied
already at this phase of the proceedings.

Genocidal intent and plausibility: the only inference
14. Mr. President, Your Excellencies, in Bosnia and Herzegovina v. Serbia and Croatia v. Serbia,
the Court did not have much difficulty concluding that some of the underlying acts, listed in the
paragraphs of Article II of the Genocide Convention, had been established. I do not propose to
consume any time here this morning arguing about this point. Let us assume, without making any
admission for Myanmar, that a plausible case can be made for the application of at least one of the
paragraphs of Article II of the Convention. Much time was consumed at yesterday’s hearing with the
recital of what we can all read in the reports of the Fact-Finding Mission, and this despite your
reminder, Mr. President, of Practice Direction XI. The hard part, and it was on this that both the
applications and the counter-claim floundered in the two genocide cases decided recently by this
Court, is the mental element. On this point, the Applicant has had little to say,
other than the mistaken assumption that a pattern of conduct is enough to constitute a plausible
claim.
15. The United Nations Fact-Finding Mission, upon which the Application relies so heavily,
frequently refers to “the inference” of genocidal intent. The theory seems to be that certain types
of acts, taken individually or as a whole, tip the balance in favour of a conclusion
that they were
19 Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports
2003; separate opinion of Judge Higgins, p. 234, para. 33.

- 26 -

committed with genocidal intent. With respect, that is not what this Court said in the Bosnia and
in the Croatia cases. The real test, and the Court has repeated it on several
occasions, is not that genocidal intent be a possible inference. Let me use the language of
provisional measures: it is not that genocidal intent should be a plausible inference. The Court
has said it is necessary “that this is the only inference that could reasonably be drawn from the
acts in question”20.
16. Addressing the counter-claim in Croatia v. Serbia, the Court said that

“for a pattern of conduct, that is to say, a consistent series of acts carried out over a specific
period of time, to be accepted as evidence of genocidal intent [I have highlighted the
words up on the screen], it would have to be such that it could only point to the existence of
such intent, that is to say, that it can only reasonably be understood as reflecting
that intent”21.
In declaring that genocidal intent must be the only inference that can reasonably be drawn from the
acts in question, this Court has brought great clarity to the law. Instead of focusing
on whether genocidal intent is plausible, it looks in the other direction: is there another
explanation?
17. There is an enormous amount of unproductive speculation about genocide; it is
often prefaced with phrases like “if certain things were proven, it might even be genocide”. And
indeed, given the prevalence in the world of today, of racial and religious discrimination, of
apartheid-like policies, and of persecution of ethnic minorities, indigenous peoples, migrant
workers and refugees, in many countries and conflicts there is no shortage of acts that may fit
within the paragraphs of Article II of the Convention and about which it can be said “if certain
things were established, this might amount to genocide”.
18. By insisting that genocidal intent, if based on a pattern of conduct, be the only reasonable
inference, the Court has developed an effective, realistic and workable approach to the Genocide
Convention. Regrettably, there are too many commentators, political figures and campaigners who
either misunderstand the Court’s approach or prefer to ignore it. They cherry-pick paragraphs out
of its two great judgments yet fail to grasp the most fundamental principle: where genocidal intent

20 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 67, para. 148; 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, p. 43, para. 242.
21 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 151, para. 510.

- 27 -

is premised on a pattern of conduct, it must be the only inference that could reasonably be drawn
from the acts in question.
19. This is as essential to the provisional measures stage as it is to any
eventual determination of the merits. In the context of a provisional measures
application based upon Article IX of the Genocide Convention, the test must be whether it is
plausible that genocidal intent is the only inference that can be drawn. In other words, unless it
is plausible that another reasonable explanation of the intent for the acts can be
excluded, the application must fail. That is a very different test to the one proposed
by the Applicant, which is whether genocidal intent is one plausible explanation. The
Applicant, as well as the Fact-Finding Mission upon which the Application relies, fail
entirely to address the issue of alternative explanations for the intent element. And
yet, all they had to do was to read your Bosnia and Croatia decisions in order to know that
this was required.
20. The genocidal intent is often described with the term “specific intent” or dolus specialis. We
find pronouncements about the “specific intent” (sometimes the formulation is “special intent”) in
the earliest judgments based upon the provisions of the Genocide Convention, going right back to
the Eichmann case22, the two judgements of the tribunals in Israel, and the judgement of the Trial
Chamber of the International Criminal Tribunal for Rwanda in Akayesu23.
21. In fact, the term specific intent (or dolus specialis) was employed in domestic criminal law
long before international criminal law had even come into existence. In ordinary criminal law, as a
general rule crimes of specific intent also contain, or are underlain by, offences that do not
require the specific intent. For example, the crime of planned and premeditated murder generally
contains a kind of included offence of intentional homicide, or murder, and negligent homicide, or
manslaughter. Where the assessment of intent is based upon inferences drawn from a pattern
of conduct, rather than upon direct evidence of planning and premeditation, a person will never
be convicted of planned and premeditated murder if there is an alternative explanation
for that

22 A-G Israel v. Eichmann, (1968), International Law Reports (ILR), Vol. 36, p.18 (District
Court, Jerusalem), para. 26 (available at
https://www.asser.nl/upload/documents/DomCLIC/Docs/NLP/Israel/Eichmann_…- 1961.pdf).
23 Prosecutor v. Akayesu (ICTR-96-4-T), Judgement, 2 Sep. 1998, para. 498 (available at
https://unictr.irmct.org/
sites/unictr.org/files/case-documents/ictr-96-4/trial-judgements/en/980902.pdf;
https://unictr.irmct.org/sites/unictr.org/
files/case-documents/ictr-96-4/trial-judgements/fr/980902-1.pdf).

- 28 -

person’s mental element. This is nothing more than the reflection, in ordinary criminal law, of the
approach that this Court has taken with respect to genocide.
22. Myanmar submits that the information in the Application and in the materials invoked in its
support  essentially the reports of the Fact-Finding Mission, provide ample evidence to
indicate alternative inferences alternative explanations for the alleged conduct, other than that
it is the product of genocidal intent. Should the Court agree that there is ample
support for an alternative explanation, then it cannot but conclude that the Application has no
reasonable chance of success on the merits. Not a 50 per cent chance. Not a 25 per cent chance. No
chance. If there is a reasonable alternative explanation for the intent behind the alleged
acts then the Application simply cannot succeed. And if it cannot succeed, it is not
“plausible” for the purposes of a request for provisional measures.

Deportation: intent in the ICC proceedings
23. Mr. President, Your Excellencies, in both the Bosnia and Croatia cases, the Court was assisted
immensely by the work of the two ad hoc tribunals. Although more limited, there is some activity at
the International Criminal Court that may be of help here to the International Court of Justice.
It manifests the drawing of an alternative inference, other than genocidal intent, for
the alleged conduct of Myanmar.
24. In April 2018, the Prosecutor of the International Criminal Court applied to a Pre-Trial
Chamber for a form of advisory opinion as to whether she might be able to exercise jurisdiction
over the crime against humanity of deportation given the huge cross-border flows from Myanmar into
Bangladesh in 2017. Her application, as well as all of the subsequent proceedings in this matter
before the International Criminal Court, relied very heavily on the same materials that The Gambia
invokes in this case, principally the reports by the Fact-Finding Mission. It is worth recalling
that previous judgments of the Court in genocide cases have taken into account the
activities of the Prosecutors of international criminal tribunals24.

24 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 128, para. 440; 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), p. 132, para. 217, p. 145, para. 251, p.
197 para. 374.

- 29 -

25. In her application, the Prosecutor said that (and it’s on the screen) “the Rohingya people were
specifically and intentionally deported into Bangladesh”25. She referred to “the initiation on 25
August 2017 of a ‘clearance operation’ aimed at deporting all remaining Rohingya across the border
to Bangladesh”26. She expressly distinguished the situation “from a mass exodus of civilians from
one State caused for instance by an ongoing armed conflict, without evidence of deportation per
se”27. In other words, in her view, the intent of the so-called “clearance operation”
was deportation from Myanmar, not physical destruction.
26. It cannot have been otherwise, Mr. President, Your Excellencies, because the Rome
Statute requires that crimes be committed with intent and knowledge28. Crimes against humanity must
constitute an “attack directed against any civilian population” that takes place “pursuant to or in
furtherance of a State or organizational policy”29. In proceeding with
prosecutions for deportation  for the crime against humanity of deportation  the Prosecutor is
confirming her own view that the massive flows of persons to Bangladesh were not only intended by
those who are responsible, but that they are also pursuant to or in furtherance of a State or
organizational policy.
27. Let me make it clear that in discussing the work of the International Criminal Court, both the
Prosecutor and the Pre-Trial Chamber, I intend no admission or acknowledgment. But to the extent
that this serious and authoritative body provides an alternative explanation, the
genocide hypothesis necessarily fails.
28. Only a few days after the Application in the present case was filed, a Pre-Trial Chamber of
the International Criminal Court authorized the Prosecutor to proceed with an
investigation. Referring specifically to the crime against humanity of deportation, the
Pre-Trial Chamber concluded that “a reasonable prosecutor could believe that coercive
acts towards the Rohingya forced them to flee to Bangladesh, which may amount to the
crime against humanity of

25 Application under Regulation 46 (3), Prosecution’s Request for a Ruling on Jurisdiction under
Article 19 (3) of the Statute, 9 April 2018, para. 42 (available at
https://www.icc-cpi.int/CourtRecords/CR2018_02057.PDF).
26 Application under Regulation 46 (3), Prosecution’s Request for a Ruling on Jurisdiction under
Article 19 (3) of the Statute, 9 April 2018, para. 9 (available at
https://www.icc-cpi.int/CourtRecords/CR2018_02057.PDF).
27 Application under Regulation 46 (3), Prosecution’s Request for a Ruling on Jurisdiction under
Article 19 (3) of the Statute, 9 April 2018, para. 42, fn. 96 (available at
https://www.icc-cpi.int/CourtRecords/CR2018_02057.PDF).
28 Rome Statute of the International Criminal Court, (2002) 2187 UNTS
3, Art. 30 (available at
https://treaties.un.org/doc/Publication/UNTS/Volume%202187/v2187.pdf).
29 Rome Statute of the International Criminal Court, (2002) 2187 UNTS 3, Art.
7 (2) (a) (available at https://treaties.un.org/doc/Publication/UNTS/Volume%202187/v2187.pdf).

- 30 -

deportation”30. The Pre-Trial Chamber was confirming that an “alternative inference” for
the massive population flows in late 2017 is deportation, carried out with the intent
to deport and pursuant to a State or organizational policy.
29. This Court has confirmed that “[t]he forced displacement of a population, even if proved, would
not in itself constitute the actus reus of genocide”31. Here I cite a sentence from Croatia v.
Serbia on the screen. In the Bosnia case, the Court held that:
“Neither the intent, as a matter of policy, to render an area ‘ethnically homogeneous’,
nor the operations that may be carried out to implement such policy, can as such be designated
as genocide . . . [the] deportation or displacement of the members of a group, even if
effected by force, is not necessarily equivalent to destruction of that group”32.
The Court clearly distinguished between “the necessary specific intent (dolus specialis), that is
to say with a view to the destruction of the group, as distinct from its removal from the
region”33. This is a quote from the judgment; the references will appear in the written
transcript. Addressing Serbia’s counter-claim in the Croatia Judgment, the Court said that “even
if it were proved that it was the intention of the Croatian authorities to bring about the
forced displacement of the Serb population of the Krajina, such displacement would only be
capable of constituting the actus reus of genocide if it was calculated to bring about the physical
destruction”34.

The Applicant’s authorities on genocidal intent
30. Mr. President, Your Excellencies, let me now turn to the materials advanced by the
Applicant in support of the claim that there is genocidal intent.
31. In paragraph 5 of the Application, the Applicant explains that “facts are
extensively documented by independent investigative efforts conducted under the
auspices of the

30 Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, (ICC-01/19),
Decision Pursuant to Art. 15 of the Rome Statute on the Authorisation of an
Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the
Union of Myanmar, 14 Nov. 2019, para. 108 (available at https://www.icc-
cpi.int/CourtRecords/CR2019_06955.PDF).
31 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 139, para. 477.
32 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), p.
123, para. 190; emphasis in the original.
33 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), p.
123, para. 190.
34 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 140, para. 480.

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United Nations and corroborated by international human rights organizations and other
credible sources”. This paragraph in the Application will be discussed, but bearing in
mind of course Practice Direction XI.
32. In paragraph 6, the Application turns to the question of genocidal intent. Paragraph 6 of the
Application begins with the following claim: “Multiple UN investigations have underscored the
genocidal intent of these crimes.” What follows are references to three sources, which I will
discuss in turn.
33. The first is to the Special Rapporteur on the situation of human rights in
Myanmar, Ms Yanghee Lee. The Application explains that she “carried out extensive fact finding”
and, in a report to the Human Rights Council in March 2018 stated “I am becoming more convinced
that the crimes committed [in Myanmar] bear the hallmarks of genocide”35. The Application also
cites a news item from Reuters dated January 2019 where she is quoted saying
that the commander-in-chief of Myanmar’s military and other responsible individuals
should be held accountable for genocide in Rakhine. The news report also said that her interview
“marked the first time Lee has publicly called for the army chief to be prosecuted for genocide”.
She never made such statements in any of her reports to the United Nations. Indeed, in
various submissions she never mentioned the term genocide other than in a general formulation
about how certain acts “may amount to genocide, crimes against humanity and war crimes”36. In her
2019 report to the Human Rights Council, she did not even use the word genocide at
all37. When she spoke to the Third Committee of the General Assembly in October of
this year the only reference she made to genocide was observing that “the Gambia [is]
considering commencing proceedings before the International Court of Justice”38.

35 Report of the Special Rapporteur on the situation of human rights in Myanmar,
A/HRC/37/70, para. 65 (available at https://undocs.org/en/A/HRC/37/70;
https://undocs.org/fr/A/HRC/37/70).
36 Report of the Special Rapporteur on the situation of human rights in Myanmar,
A/73/332, paras. 36, 73 (available at https://undocs.org/en/A/73/332;
https://undocs.org/fr/A/73/332).
37 Report of the Special Rapporteur on the situation of human rights in Myanmar,
A/HRC/40/68 (available at https://undocs.org/en/A/HRC/40/68;
https://undocs.org/fr/A/HRC/40/68); Report of the Special Rapporteur on the situation
of human rights in Myanmar, A/74/342 (https://undocs.org/A/74/342;
https://undocs.org/fr/A/74/342); Myanmar: UN human rights expert calls for targeted
sanctions, Press release, 23 Oct. 2019 (available at
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25193…).
38 Statement by Ms Yanghee Lee, Special Rapporteur on the situation of human rights
in Myanmar at the 74th session of the General Assembly, Third Committee, 22 Oct.
2019 (available at https://www.ohchr.org/EN/
NewsEvents/Pages/DisplayNews.aspx?NewsID=25192&LangID=E).

- 32 -

34. In all of her writings, the Special Rapporteur provides no explanation
for her employment of the phrase “hallmarks of genocide”. She offers nothing whatsoever to
suggest that she understands the legal issues relating to its use or that she
appreciates the paramount significance of genocidal intent. Ms Lee is a developmental
psychologist, not an international lawyer. When the Applicant says in paragraph 6 that “multiple
UN investigations have underscored the genocidal intent of these crimes”, describing the remarks of
the Special Rapporteur, I submit should not be taken into account by this Court. They do not
underscore the genocidal intent. They refer to genocide, not genocidal intent, and they
constitute an opinion whose rationale is not explained, nothing more.
35. The second example of genocidal intent is a statement in March 2018 by the UN Special Adviser
on the Prevention of Genocide. Speaking of the intent, he says it was “possibly even to destroy
the Rohingya as such, which, if proven, would constitute the crime of genocide”39. A year later, he
issued a statement concerning Myanmar that spoke of “conduct that could possibly amount to the
crime of genocide”40. I draw your attention to Mr. Dieng’s cautious use of the word
“possibly”. In other statements on Rakhine State, Mr. Dieng used the formulation “atrocity crimes”
and not genocide41. It may not be without relevance to the issue of a risk of genocide in the
future that, and according to his website, the Special Adviser has not made any statement about
Rakhine State or Myanmar for 15 months. During that period, according to the website,
he has issued statements about South Sudan, Cambodia, Guatemala, Bosnia and Herzegovina, Mali,
Sri Lanka, Syria and the Democratic Republic of the Congo but not, apparently, Myanmar.
36. The Application considerably overstates the importance and significance of what Mr.
Dieng has said. The Special Adviser plays a fundamental role in the genocide-prevention

39 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, 13 Mar. 2018 (available at
https://www.un.org/en/genocideprevention/documents/2018-03-13%20Stateme…
esh_ FINAL.pdf).
40 Statement by Adama Dieng, United Nations Special Adviser on the Prevention of Genocide, on the
decision of the International Criminal Court Pre-Trial Chamber on the jurisdiction over the crime
of deportation of the Rohingya population from Myanmar. 7 Sept. 2018 (available at
https://www.un.org/en/genocideprevention/documents/20180907%
20Statement_ICC%20decision%20deportation%20Rohingya_FINAL.pdf).
41 Statement by Adama Dieng, United Nations Special Adviser on the Prevention
of Genocide and Ivan Simonovic, United Nations Special Adviser on the Responsibility to
Protect, on the situation in northern Rakhine state, Myanmar, 19 Oct. 2017 (available at
https://www.un.org/sg/en/content/sg/note-correspondents/2017-10-18/note-
correspondents-statement-adama-dieng-un-special).

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activities of the United Nations. His function is early warning, not pronouncements on whether or
not genocide has been committed. I think he would himself object to being cited as authority for
the existence of genocidal intent.
37. The Application also did not mention the other UN bodies that have concerned
themselves with the situation in Rakhine State over the past two years. For example, shortly after
the events of August-September 2017, the High Commissioner for Human Rights described them as “a
textbook example of ethnic cleansing”42. Some months later, he started using the term
“genocide”, but again with the caution and equivocation that we have already seen with the other
mandate holders43. There are many other examples, some of them quite recent. The resolution on
Myanmar adopted by the Human Rights Council in September 2019 refers to “the need for
an urgent criminal investigation into alleged crimes against humanity and war crimes”44.
It doesn’t mention genocide. Nowhere is the word “genocide” used in the Human Rights Council
resolution. Similarly, a resolution on Myanmar adopted by the Third Committee only a few weeks ago
makes no reference to genocide45. In July of this year, the Deputy High Commissioner for Human
Rights reported on Myanmar to the Human Rights Council without reference to “genocide”46.
38. The most substantial discussion of genocidal intent, of course, and the one on which the
Application largely relies, is that of the Fact-Finding Mission. It launched the genocide claim in
its September 2018 report. The Mission concluded without equivocation that crimes against humanity
and war crimes had been committed47. On genocide, it was somewhat more circumspect: it said that
there was “sufficient information to warrant the investigation and prosecution of senior officials
in

42 “UN human rights chief points to ‘textbook example of ethnic cleansing’ in
Myanmar”, 11 Sept. 2017 (available at
https://news.un.org/en/story/2017/09/564622-un-human-rights-chief-point…-
cleansing-myanmar).
43 E.g., “U.N.’s Zeid toughens warning of ‘genocide’ in Myanmar”, Reuters, 18 Dec.
2017 (available at
https://www.reuters.com/article/us-myanmar-rohingya-un/u-n-s-zeid-tough…
anmar- idUSKBN1EC007; “The U.N. Isn't Ruling Out 'Elements of Genocide' in Myanmar”,
Time, 6 Dec. 2017 (available at
https://time.com/5051269/un-genocide-rohingya-zeid-raad-al-hussein/).
44 Situation of human rights of Rohingya Muslims and other minorities in Myanmar, A/HRC/RES/42/3,
para. 3 (available at https://undocs.org/en/A/hrc/res/42/3; https://undocs.org/fr/A/hrc/res/42/3).
45 Situation of human rights of Rohingya Muslims and other minorities in Myanmar, A/C.3/74/L.29
(available at https://undocs.org/en/A/C.3/74/L.29; https://undocs.org/fr/A/C.3/74/L.29).
46 Update on Myanmar at the 41st Session of the Human Rights Council Statement by
UN Deputy High Commissioner for Human Rights, Kate Gilmore, 10 July 2019
(available at https://www.ohchr.org/
EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=24811&LangID=E).
47 Report of the independent international fact-finding mission on Myanmar,
A/HRC/39/64, paras. 88-89 (available at https://undocs.org/en/A/HRC/39/64;
https://undocs.org/fr/A/HRC/39/64).

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the Tatmadaw chain of command, so that a competent court can determine their liability
for genocide in relation to the situation in Rakhine State”48.
39. The Mission briefly explains what it means by “reasonable grounds” in the introductory part of
its long report49. But it also adds the following caveat: “This standard of proof is lower than
that required in criminal proceedings”50.
40. There is a summary discussion of the intent issue in the 440-page supplement to
the Mission’s 2018 report. It devotes 113 words in a 440-page supplement to considering whether the
intent may have been “to displace the Rohingya population, but not to seek its
ultimate destruction”51. One hundred and thirteen words. And this is the very hypothesis
on which the Prosecutor of the International Criminal Court has based her activities. The
Mission does a little bit of textual sleight of hand by referring to the “physical destruction of
Rohingya life as it once was”, a formulation that ever so slightly blurs an important
distinction between physical and cultural genocide, one to which this Court has previously
attached considerable significance52.
41. Elsewhere, in words that are cited in the Application, the Fact-Finding Mission states: “The
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”53. But, they do not provide any reference or examples to what those other contexts are.
The Mission might just as well have said the opposite. Because in other contexts, similar in so
many respects to the circumstances in Myanmar, this Court and the International Criminal Tribunal
for the former Yugoslavia have concluded that genocidal intent was not established. The
Fact-Finding Mission essentially ignores this dimension. With respect, it is campaigning for a case
rather than assessing a

48 Report of the independent international fact-finding mission on Myanmar, A/HRC/39/64, para. 87
(available at https://undocs.org/en/A/HRC/39/64; https://undocs.org/fr/A/HRC/39/64).
49 A/HRC/39/CRP.2, para. 10; Detailed findings of the Independent International
Fact-Finding Mission on Myanmar, A/HRC/42/CRP.5, para. 31 (available at
https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM- Myanmar/20190916/A_HRC_42_CRP.5.pdf).
50 Report of the detailed findings of the Independent International Fact-Finding
Mission on Myanmar, A/HRC/39/CRP.2, para. 10 (available at
https://undocs.org/en/A/HRC/39/CRP.2).
51 Report of the detailed findings of the Independent International Fact-Finding
Mission on Myanmar, A/HRC/39/CRP.2, para. 1438 (available at
https://undocs.org/en/A/HRC/39/CRP.2).
52 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 63, para. 136.
53 Report of the independent international fact-finding mission on Myanmar, A/HRC/39/64, para. 85
(available at https://undocs.org/en/A/HRC/39/64; https://undocs.org/fr/A/HRC/39/64).

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situation in an objective and impartial manner, and it is indifferent as to factors that tend to
prove the contrary.
42. That said, the Fact-Finding Mission is not entirely consistent on the subject of intent. For
example, when it discusses what it calls a policy of “food starvation”, the Mission says that such
“targeted actions to deny access to food appear to constitute a policy of forcing Rohingya to flee
through food deprivation”54. The Mission says that starvation is intended to force Rohingya to
flee. That is not the same thing and does not necessarily point to physical
destruction. Yesterday, counsel for The Gambia suggested a genocidal intent with respect to food
deprivation without even addressing this alternative explanation, which is proposed by the
Fact-Finding Mission55.
43. Other statements in the Fact-Finding Mission report also point to an intent other than one to
destroy. It speaks in the report of the so-called “Four Cuts” counter-insurgency policy, which has
allegedly been practised since the 1960s. “The policy has been implemented through
‘clearance operations’, essentially scorched earth campaigns in which large numbers of civilians
are killed and entire villages destroyed, leading to mass displacement”, says the report56. But
nobody is seriously alleging that there has been a policy driven by genocidal intent
underway since the 1960s. Did something change? Why is a “clearance operation” in 2017
different from one in previous decades? This question is not addressed.
44. Counsel for the Applicant has attached significance to a statement by the Fact-Finding Mission
in its more recent report of this year, issued a few months ago, in September, that
genocidal intent has “strengthened”57. There were several references to this yesterday. Counsel did
not tell us why the Mission reached such a conclusion. And I can explain why Counsel did not
mention it: because the Mission did not mention it. It appears that the only thing that appears to
have strengthened is the insistence of the Mission on using the term. There is no real evidence of
any aggravation of the situation described in the report of the previous year; rather, the
contrary. If

54 Report of the detailed findings of the Independent International Fact-Finding
Mission on Myanmar, A/HRC/39/CRP.2, para. 1195 (available at
https://undocs.org/en/A/HRC/39/CRP.2).
55 CR 2019/18, pp. 39-41, paras. 13-19 (Pasipanodya).
56 Report of the detailed findings of the Independent International Fact-Finding
Mission on Myanmar, A/HRC/39/CRP.2, para. 1367 (available at
https://undocs.org/en/A/HRC/39/CRP.2).
57 CR 2019/18, p. 37, para. 2 (Pasipanodya), p. 57, para. 5 and p. 59, para. 12
(Reichler); p. 60, para. 17 (Reichler), referring to A/HRC/42/CRP.5, paras. 9 and 58.

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anything, the absence of allegations of significant numbers of killings in the second report ought
to suggest the contrary to what the Mission concludes.
45. Mr. President, Your Excellencies, the fact-finding missions of the United Nations  I
was the chairman of one of them  play a hugely important role in the protection and promotion of
human rights. The same can be said of the Special Rapporteurs and the Special Adviser
on the Prevention of Genocide. These comments are not meant to denigrate their work but only to
show how very limited their contribution can be to the issues that are before this Court,
especially when they go beyond their mandate of genuine fact-finding and begin to speculate on the
elements of international crimes. The Fact-Finding Mission’s mandate from the Human Rights Council
was “to establish the facts and circumstances”58, not to make legal findings. Its determinations,
couched in phrases like “reasonable grounds” and “sufficient information”, when the issue is
genocidal intent cannot be of help here. Most importantly, the validity of the opinion of the
Fact-Finding Mission about genocidal intent is undermined by its failure to consider, in any
substantive manner, the issue of alternative explanations. Although the Fact-Finding
Mission’s reports may contain valuable factual information, it is suggested that its legal
determination should simply be disregarded by the Court because of its flawed approach.
46. Mr. President, Your Excellencies, without the three sources invoked by the Applicant as
authority for the existence of genocidal intent, the Application is devoid of any
support for the existence of genocidal intent, beyond the implication that the Court infer the
existence of genocidal intent from a pattern of conduct  an approach that it has rejected more
than once. This is familiar territory for the Court, because it is not different in any meaningful
way from what it heard from counsel during the Bosnia and the Croatia cases.

Numbers and their relevance
47. There are some other striking omissions in the Application. Nowhere does
the Application specify the number of deaths, the total number of deaths, and compare this with the
size of the population that was allegedly attacked, and that crossed the border into Bangladesh. Of
course, the Application attaches considerable importance to the quantitative aspect, to
numbers,
58 Situation of human rights in Myanmar, A/HRC/RES/34/22, para. 11 (available
at https://undocs.org/ A/HRC/res/34/22; https://undocs.org/fr/A/HRC/res/34/22).

- 37 -

because on several occasions the Court is told how many buildings were destroyed59. The Court is
also informed of the number of villages that were destroyed, totally or partially60. And yesterday,
counsel for the Applicant told us of many hundreds of deaths in three villages,
totalling a little more than 1,000. It tried to present this as a kind of representative sample,
explaining that there was one village taken from each of the three townships. But in fact, these
were three of the four worst cases described in the Fact-Finding Mission report61. But no
total is proposed, either in the Application or in yesterday’s submissions. Perhaps this
is the first court proceeding anywhere involving the Genocide Convention where the total
number of victims was not volunteered by the applicant. Information on this point can be found in
the lengthy annex to the Report of the Fact- Finding Mission, where we are told that
there were an estimated 10,000 deaths, with 725,000 refugees who fled to
Bangladesh and 600,000 who remained in Myanmar62. The application by the Prosecutor
of the International Criminal Court also alleges “the killing of up to 10,000 Rohingya” and “the
deportation of over 700,000 Rohingya into Bangladesh”63. Is it possible, Mr. President, Your
Excellencies, that the Applicant neglected to provide the Court with allegations and evidence of
the estimated total number of deaths because it sees this as weakening its claim that the intent
was physical destruction of the group?
48. If this case ever goes to the merits, Myanmar will produce evidence challenging
the figure of 10,000 as an exaggeration. Any estimate, moreover, of the number of killings ought
also to provide some indication of the number of combatant deaths, and those attributable to the
Arakan Rohingya Salvation Army. The Fact-Finding Mission, moreover, provides
numerous aerial photographs, yet nowhere does it point to any evidence of mass graves.
Whatever the number,

59 AG, paras. 54, 85.
60 AG, paras. 84, 100.
61 Report of the detailed findings of the Independent International Fact-Finding
Mission on Myanmar, A/HRC/39/CRP.2, paras. 774, 796, 895.
62 On 10,000 deaths: Report of the detailed findings of the Independent International
Fact-Finding Mission on Myanmar, A/HRC/39/CRP.2, paras. 1008, 1275, 1395, 1437, 1482 (available at
https://undocs.org/en/A/HRC/39/CRP.2). On 725,000 refugees: Report of the detailed findings of the
Independent International Fact-Finding Mission on Myanmar, A/HRC/39/CRP.2, paras. 751, 1174,
1404, 1437, 1489. On 600,000 remaining in Myanmar: Detailed findings of the Independent
International Fact-Finding Mission on Myanmar, A/HRC/42/CRP.5, paras. 4, 57, 107, 120,
158, 212 (available at
https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/20190916…. pdf).
63 Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, (ICC-01/19),
Request for authorisation of an investigation pursuant to article 15, 4 July 2019, para. 68
(available at https://www.icc-cpi.int/ CourtRecords/CR2018_02057.PDF).

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every death is tragic. Families have been devastated. Killing non-combatants in an armed conflict
may violate the right to life. But 10,000 deaths out of a population of well over one million might
suggest something other than an intent to physically destroy the group. This inconvenient fact is
not addressed by the Fact-Finding Mission. I can already hear the objections from
counsel for the Applicant, who will explain that genocide is not just about the numbers. But here
is what this Court had to say in Croatia v. Serbia, four years ago:
“The Court considers that it is also relevant to compare the size of the targeted part of the
protected group with the number of Croat victims, in order to determine whether the JNA and Serb
forces availed themselves of opportunities to destroy that part of the group. In this
connection, [and the words are on the screen] Croatia put forward a figure of 12,500 Croat
deaths, which is contested by Serbia. The Court notes that, even assuming that this figure is
correct — an issue on which it will make no ruling — the number of victims alleged by Croatia
is small in relation to the size of the targeted part of the group.”64
49. The Court concluded that “Croatia has not established that the only reasonable inference that
can be drawn from the pattern of conduct it relied upon was the intent to destroy, in whole or in
part, the Croat group”65. Mr. President, Members of the Court, any reasonable consideration of the
situation in Myanmar, if it is guided by the case law of this Court, will ask
whether 10,000 deaths out of a population of well over a million raises the same doubts as it did
for this Court in the Croatia case.
50. Numbers are important in other respects. The Fact-Finding Mission referred to the
600,000 Rohingya who stayed behind. It said, in the detailed findings to the 2019 report, the more
recent one:
“The Mission found that movement restrictions, applied to the Rohingya in a discriminatory
and arbitrary manner, touch almost every aspect of the lives of the 600,000 Rohingya
remaining in Rakhine State, affecting basic economic, social and cultural rights, including
their ability to sustain themselves, obtain an education, seek medical assistance or even pray and
congregate.”66
This is a claim of human rights violations, of persecution, but not of destruction. Had there been
a genocidal plan afoot, one would expect a more sinister fate. I think the same can be said of
those
64 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 127, para. 437.
65 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 128, para. 440.
66 Detailed findings of the Independent International Fact-Finding Mission on Myanmar,
A/HRC/42/CRP.5, para. 2 (available at
https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/20190916… 42_CRP.5.pdf).

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allegedly confined to displacement camps, reportedly numbering well over 100,00067, who
have been in the camps for seven years68. And the Mission, the Fact-Finding Mission,
said that “[i]nsecurity levels in camps are high and many displaced persons have a sense of
despair for the future”69. It said that the adverse conditions in these camps “in extreme cases
lead[] to preventable deaths”70, a comment that stands out because the report does not
seem to contain any claim of intentional killing in the camps71. The Mission never attempts to
explain why there appears to be no evidence of systematic physical destruction in the displacement
camps, perhaps because this might provide a reasonable explanation that runs counter to the
genocidal intent hypothesis.
51. The similarities with the situation in Myanmar, as alleged in the Application, and
the findings of the Court in Croatia v. Serbia, are striking in other respects. In
Croatia, the Court found that
“In the present case, as emerges in particular from the findings of the ICTY, forced
displacement was the instrument of a policy aimed at establishing an ethnically homogeneous Serb
State. In that context, the expulsion of the Croats was brought about by the creation of
a coercive atmosphere, generated by the commission of acts including some that constitute the
actus reus of genocide within the meaning of Article II (a) and (b) of the Convention.
Those acts had an objective, namely the forced displacement of the Croats, which did not
entail their physical destruction. . . .
[And the final words are on the screen.] The Court finds that the acts committed by the JNA and
Serb forces essentially had the effect of making the Croat population flee the territories
concerned. It was not a question of systematically destroying that population,
but of forcing it to leave the areas controlled by these armed forces.”72
52. To conclude, Mr. President, Your Excellencies, the Application fails utterly to address the
essential issue of the specific intent to perpetrate genocide. As the Court has said repeatedly in

67 AG, para. 35; Report of the detailed findings of the Independent International
Fact-Finding Mission on Myanmar, A/HRC/39/CRP.2, paras. 312, 377, 519,
528, 689, 691, 1491 (available at
https://undocs.org/en/A/HRC/39/CRP.2); Detailed findings of the Independent International
Fact-Finding Mission on Myanmar, A/HRC/42/CRP.5, para. 57 (available at
https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM- Myanmar/20190916/A_HRC_42_CRP.5.pdf).
68 Detailed findings of the Independent International Fact-Finding Mission on Myanmar,
A/HRC/42/CRP.5, paras. 111, 113; 2018 long report, paras. 528, 693, 1491 (available at
https://www.ohchr.org/Documents/HRBodies/ HRCouncil/FFM-Myanmar/20190916/A_HRC_42_CRP.5.pdf).
69 Report of the detailed findings of the Independent International Fact-Finding
Mission on Myanmar, A/HRC/39/CRP.2, para. 378 (available at
https://undocs.org/en/A/HRC/39/CRP.2).
70 Report of the detailed findings of the Independent International Fact-Finding
Mission on Myanmar, A/HRC/39/CRP.2, para. 525 (available at
https://undocs.org/en/A/HRC/39/CRP.2).
71 There is one reference to shelling “in populated residential areas, including in IDP camps,
killing and injuring villagers and destroying property”. Report of the detailed findings of the
Independent International Fact-Finding Mission on Myanmar, A/HRC/39/CRP.2, para. 146 (available at
https://undocs.org/en/A/HRC/39/CRP.2).
72 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), pp. 126-127, para. 435.

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its recent case law, where proof of genocidal intent depends upon inferences drawn from a pattern
of conduct, other explanations for the mental element of the crime must be excluded.
The Application, and the oral submissions by counsel, do not even speak to this essential point.
For that reason alone, the request for provisional measures should be rejected.
Mr. President, Your Excellencies, that concludes my observations. I would ask,
Mr. President, if you would be kind enough to give the floor to my colleague, Mr. Staker, although
perhaps it is the right moment to take a break.

The PRESIDENT: I thank Professor Schabas for his statement. Before I give the floor to the next
speaker, the Court will observe a coffee break of 10 minutes. The sitting is adjourned.

The Court adjourned from 11.20 to 11.30 a.m.

The PRESIDENT: Please be seated. The sitting is resumed. I will now give the floor
to Mr. Staker. You have the floor.

Mr. STAKER:

LACK OF PRIMA FACIE JURISDICTION OF THE COURT; LACK OF PRIMA FACIE STANDING OF
THE GAMBIA; INAPPROPRIATENESS OF THE PROVISIONAL MEASURES REQUESTED

Introduction
1. Mr. President, Members of the Court, it is an honour to appear before you again, now on behalf
of Myanmar.
2. I will address you on two of the prerequisites for provisional measures: prima
facie jurisdiction73, and prima facie standing.

73 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 2 May 2019, para.
15; Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights
(Iran v. United States of America), Provisional Measures, Order of 3 October 2018, I.C.J.
Reports 2018 (II), p. 630, para. 24; Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order
of 23 July 2018,
I.C.J. Reports 2018 (II), p. 413, para. 14; Jadhav (India v. Pakistan), Provisional Measures, Order
of 18 May 2017, I.C.J. Reports 2017, p. 236, para. 15; Application of the International
Convention for the Suppression of the Financing of Terrorism and of the International
Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian
Federation), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 114, para. 17;
Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures,
Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1155, para. 31; Questions relating
to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia),
Provisional Measures, Order of 3 March 2014, I.C.J. Reports 2014, p. 151, para. 18.

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Factual background relevant to prima facie jurisdiction and prima facie standing
3. But I begin with some background facts, pertinent to both issues, taken from
publicly available documents contained in the Judges’ folder, under section 3, tabs 3.1 to tab
3.17.
4. The documents I will take you to show the following. Although The Gambia is the
nominal Applicant, these proceedings are in fact brought on behalf of the Organisation of Islamic
Cooperation, the “OIC”. The Gambia has been tasked by the OIC to bring them, acting
in its capacity as an OIC Member State and chair of an OIC organ, its ad hoc committee. Moreover,
the proceedings are financed by a fund supervised by the OIC. While the OIC decided to
bring this case as early as March this year, the earliest official reference we can
find to the Genocide Convention as the basis of the claim is in August. And the Applicant’s
lawyers were instructed to initiate proceedings a week before The Gambia even sent its 11 October
Note Verbale to Myanmar.
5. Time constraints require me to take you through these documents quickly, and I am
confident that they will be given all due consideration. I will refer to tabs: within a tab, the
French version, if available, follows the English version.
6. At tab 3.174 is a May 2018 OIC resolution establishing an ad hoc Ministerial Committee on
Accountability for human rights violations against the Rohingya, to be chaired
by The Gambia75. The Committee’s functions include to “[e]ngage to ensure accountability and
justice for gross violations of international human rights and humanitarian laws and principles”76,
and to “[m]obilize and coordinate international political support”77. A preambular
paragraph states that “ensuring accountability and justice is the most crucial step towards
preventing genocide and other mass atrocity crimes”78. It does not say that genocide has actually
been committed. In fact, the very opposite is implied when this statement is contrasted
with the previous preambular paragraph, expressing concern that “the Rohingyas taking shelter
in Bangladesh had been victims of gross and

74 Organisation of Islamic Cooperation, Res. No. 59/45-POL on The Establishment of an OIC ad hoc
Ministerial Committee on Accountability for Human Rights Violations Against the Rohingyas, adopted
at the Forty-fifth Session of the Council of Foreign Ministers, 5-6 May 2018,
OIC/CFM-45/2018/POL/RES/FINAL (available at https://www.oic-
oci.org/docdown/?docID=1868&refID=1078, p. 164 (English);
https://www.oic-oci.org/docdown/?docID=1881&refID= 1078, pp. 173-174 (French)).
75 Ibid., para. 1.
76 Ibid., para. 2 (a).
77 Ibid., para. 2 (c).
78 Ibid., seventh preambular paragraph.

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systematic violations of human rights and atrocity crimes”79, and an earlier preambular paragraph
that refers to “ethnic cleansing and forced expulsions”80.
7. That same session of the OIC Council of Foreign Ministers in May 2018 saw the adoption of the
“Dhaka Declaration”, which was referred to in the argument of The Gambia yesterday81,
found at tab 3.2. This document does not contain the word genocide. It does refer to
“ethnic cleansing”82 and to State-backed violence. The Government of Myanmar issued a
press release after that, found at tab 3.3, which affirmed that no violations of human rights
would be condoned, that allegations supported by evidence would be investigated and action taken in
accordance with the law, and that there was an immediate need for repatriation of displaced persons
from Rakhine in accordance with the bilateral MOU between Myanmar and Bangladesh.
8. On 25 September 2018, the President of The Gambia made a statement in the General
Assembly, relied on in oral argument yesterday, in which he referred to “terrible crimes against
the Rohingya Muslims”83, but made no mention of the Genocide Convention, or of genocide at all.
9. At tab 3.484 is an OIC resolution from March this year, virtually identical to the one at tab
3.1, with the same preambular paragraphs. Then at tab 3.585 is another resolution adopted at the
same session, in which Member States decide to “[e]ndorse the Ad Hoc Committee’s plan of action to
engage in international legal measures to fulfill the Ad Hoc Committee’s mandate”86,
and to

79 Organisation of Islamic Cooperation, Res. No. 59/45-POL on The Establishment of an OIC ad hoc
Ministerial Committee on Accountability for Human Rights Violations Against the Rohingyas, adopted
at the Forty-fifth Session of the Council of Foreign Ministers, 5-6 May 2018,
OIC/CFM-45/2018/POL/RES/FINAL, sixth preambular paragraph.
80 Ibid., third preambular paragraph.
81 Organisation of Islamic Cooperation, The Dhaka Declaration, Forty-fifth Session of the
Council of Foreign Ministers, 5-6 May 2018 (available at
https://www.oic-oci.org/docdown/?docID=1907&refID=1078 (English);
https://www.oic-oci.org/docdown/?docID=1908&refID=1078 (French)).
82 Ibid., para. 14.
83 CR 2019/18, p. 27, fn. 188, referring to UNGA, Seventy-third Session, 7th Plenary
Meeting, Address by Mr. Adama Barrow, President of the Republic of the Gambia, UN doc. A/73/PV.7
(25 Sep. 2018), p. 29.
84 Organisation of Islamic Cooperation, Res. No. 60/46-POL on The Establishment of an OIC ad hoc
Ministerial Committee on Accountability for Human Rights Violations Against the Rohingyas, adopted
at the Forty-Sixth Session of the Council of Foreign Ministers, 1-2 Mar. 2019,
OIC/CFM-46/2019/POL/RES/FINAL (available at https://www.oic-
oci.org/docdown/?docID=4444&refID=1250, p. 174 (English);
https://www.oic-oci.org/docdown/?docID=4476&refID
=1250, pp. 182-183 (French)).
85 Organisation of Islamic Cooperation, Res. No. 61/46-POL on The Work of the OIC ad
hoc Ministerial Committee on Accountability for Human Rights Violations Against the Rohingyas,
adopted at the Forty-Sixth Session of the Council of Foreign Ministers, 1-2 Mar. 2019,
OIC/CFM-46/2019/POL/RES/FINAL (available at https://www.oic-
oci.org/docdown/?docID=4444&refID=1250, pp. 176-177 (English);
https://www.oic-oci.org/docdown/?docID=4476 &refID=1250, pp. 184-185 (French)).
86 Ibid., para. 1.

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“[c]all upon member states to contribute voluntarily to the budget of the plan of action”87.
Contrary to what was suggested in oral argument yesterday88, this resolution contains no specific
reference to the International Court of Justice, but a media article, at tab 3.689, states that at
this OIC session there was a “major diplomatic breakthrough” in that a resolution was
adopted “to move the International Court of Justice (ICJ) for establishing the legal
rights of Rohingya Muslims”. According to this report, the Bangladesh Foreign Ministry announced
that the resolution to pursue a case in this Court “came after a long series of negotiations”.
10. An official press release at tab 3.7 then states that on 30 May, the Bangladesh Foreign
Minister appreciated the “Gambia led initiative of taking legal recourse to establish
Rohingya rights and address their justice question at the International Court of Justice
against Myanmar”. There is no mention of the legal basis of the claim.
11. At tab 3.890 is the 31 May Final Communiqué of the 14th Islamic Summit Conference, affirming
support for using all international legal instruments to hold accountable the perpetrators of
crimes against the Rohingya, and urging the ad hoc Ministerial Committee to launch the case at the
International Court of Justice on behalf of the OIC. Still no mention of the legal basis.
12. This Final Communiqué is referred to in an undated item on the website of the Office of the
President of The Gambia, at tab 3.991, except that the second paragraph of this page mistakenly
refers to the International Criminal Court rather than the International Court of Justice. The
Office of the President of The Gambia was possibly not clear on the details of this proposed court
case.

87 Organisation of Islamic Cooperation, Res. No. 61/46-POL on The Work of the OIC ad
hoc Ministerial Committee on Accountability for Human Rights Violations Against the Rohingyas,
adopted at the Forty-Sixth Session of the Council of Foreign Ministers, 1-2 Mar. 2019,
OIC/CFM-46/2019/POL/RES/FINAL, para. 2.
88 CR 2019/18, p. 48, fn. 189 and accompanying text.
89 Anadolu Agency, 4 Mar. 2019, “Islamic bloc approves legal action against
Myanmar” (available at
https://www.aa.com.tr/en/asia-pacific/islamic-bloc-approves-legal-actio…).
90 Final Communiqué of the 14th Islamic Summit Conference, 31 May 2019,
OIC/SUM-14/2019/FC/FINAL (available at https://www.oic-oci.org/docdown/?docID=4496&refID=1251,
pp. 10-11, para. 47 (English); available at
https://www.oic-oci.org/docdown/?docID=4499&refID=1251, pp. 11-12, para. 47 (French)),
referred to in the Application instituting proceedings of The Gambia, fn. 31 and
accompanying text.
91 Republic of The Gambia, Office of the President, “OIC tasks The Gambia to lead ICJ case against
Myanmar” (available at http://www.statehouse.gm/oic-tasks-gambia-lead-icj-case-against-myanmar).

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13. Tab 3.1092 is a 6 July media article, indicating that the OIC then formally proposed that The
Gambia lead proceedings in this Court, and that the Cabinet of The Gambia then approved that
proposal.
14. Paragraph 107 of the 8 August Fact-Finding Mission Report, tab 3.1193, then refers
to “the efforts of States, in particular Bangladesh and the Gambia, and the . . . [OIC] to
encourage and pursue a case against Myanmar before the International Court of Justice
under the [Genocide Convention]”. This is the earliest official document we are aware
of referring to the Genocide Convention as the proposed basis of the claim. The absence of any
earlier mention is striking. In oral argument yesterday, The Gambia relied on a press report
stating that a decision to base the claim on the Genocide Convention had been taken in
March94, but did not refer to any official document prior to August stating that.
15. The document at tab 3.1295 then says as follows. These proceedings are funded by
voluntary donations from OIC Member States96. Supervision of the funds is entrusted to the Chair of
the ad hoc Ministerial Committee and the OIC Secretary General97. Assistance has also
been requested from the Islamic Development Bank and the Islamic Solidarity Fund98.
16. At tab 3.1399 is a 26 September statement in the General Assembly by The Gambia’s
Vice-President that these proceedings involve “concerted efforts . . . ‘on behalf of the [OIC]’”.

92 Panapress, 6 July 2019, “Gambian gov’t approves OIC proposal to lead legal action against
Myanmar at ICJ” (available at
https://www.panapress.com/Gambian-gov-t-approves-OiC-propo-a_630596262-…).
93 UNGA, Human Rights Council (HRC), Report of the independent international
fact-finding mission on Myanmar, UN doc. A/HRC/42/50, 8 Aug. 2019 (available at
https://undocs.org/en/A/HRC/42/50, p. 17, para. 107 (English);
https://undocs.org/fr/A/HRC/42/50, p. 19, para. 107 (French)).
94 CR 2019/18, p. 48, fn. 190 and accompanying text, referring to Khin Khin Ei, “World Islamic
Group Votes to Take Myanmar Rohingya Abuses to International Court of Justice”, Radio
Free Asia (5 Mar. 2019) (available at
https://www.rfa.org/english/news/myanmar/world-islamic-group-votes-0305…).
95 Organisation of Islamic Cooperation, Report of the ad hoc Ministerial Committee on Human Rights
Violations Against the Rohingya, Held on the Sidelines of the Annual Coordination Meeting, 25 Sep.
2019, OIC/ACM/AD-HOC ACCOUNTABILITY/REPORT-2019/FINAL (available at
https://www.oic-oci.org/docdown/?docID=4519&refID=1255 (English);
https://www.oic-oci.org/docdown/?docID=4545&refID=1255 (French)).
96 Ibid., paras. 9-12.
97 Ibid., para. 10.
98 Ibid., para. 13.
99 UNGA, Seventy-fourth session, 8th plenary meeting, 26 Sep. 2019,
A/74/PV.8 (available at https://undocs.org/en/A/74/PV.8, p. 31, columns 1-2
(English); https://undocs.org/fr/A/74/PV.8, p. 34, column 2 (French)), referred to in the
Application instituting proceedings of The Gambia, fn. 36 and accompanying text.

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17. Two weeks later, on 11 October, The Gambia sent to Myanmar the Note Verbale seen at Annexes 1
and 2 of the Observations of The Gambia100.
18. Tab 3.14101 is an internet article reporting a statement of The Gambia’s Attorney General, now
its Agent, that lawyers were instructed to bring these proceedings on 4 October. Thus,
the instruction to issue these proceedings had in fact already been given to the Applicant’s
lawyers a week before the first Note Verbale was even sent to and received by Myanmar.
19. Tab 3.15102 is an 11 November item on the website of the law firm representing The
Gambia, confirming that “[t]he OIC appointed The Gambia, an OIC member, to bring the case on its
behalf”103.
20. Tab 3.16104 is an article from the Jakarta Post on 19 November, an example of media
confirming that this case is brought on behalf of the OIC.
21. At tab 3.17105 the OIC confirms on 24 November that these proceedings have indeed
been brought by “the Republic of The Gambia, as Chair of the OIC Ad Hoc Ministerial
Committee”, and that The Gambia has been “tasked with submitting the case to the ICJ, following a
decision by the OIC Heads of State”.
22. I note that, on 12 November, after this case had already been introduced, Myanmar sent the
Note Verbale found at Annexes 3 and 4 of the Observations of The Gambia106, to which
The Gambia’s response is at Annexes 5 and 6 of The Gambia’s Observations107.

100 Observations of the Republic of The Gambia (hereinafter “OG”), 2 Dec. 2019, Anns. 1 and 2.
101 The Organization for World Peace, “Why Is This Small African Nation Taking Myanmar To The ICJ
And Where Is The Rest Of The World?”, 31 Oct. 2019 (available at
https://theowp.org/why-is-this-small-african-nation-
taking-myanmar-to-the-icj-and-where-is-the-rest-of-the-world/).
102 Foley Hoag LLP, “Foley Hoag Leads The Gambia’s Legal Team in Historic Case to
Stop Myanmar’s Genocide Against the Rohingya”, 11 Nov. 2019
(available at https://foleyhoag.com/news-and-
events/news/2019/november/foley-hoag-leads-the-gambias-legal-team-in-case-to-stop-myanmar-genocide).

103 Emphasis added.
104 Jakarta Post, “RI defends approach to Rohingya problem”, 19 Nov. 2019.
105 OIC, press release, “OIC Welcomes first hearing of Legal Case on accountability
for crimes against Rohingya”, 24 November 2019 (available at
https://www.oic-oci.org/topic/?t_id=22925&t_ref=13830&lan=en (English);
https://www.oic-oci.org/topic/?t_id=22926&ref=13830&lan=fr (French)).
106 OG, Anns. 3 and 4.
107 Ibid., Anns. 5 and 6.

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Lack of prima facie jurisdiction of the Court: acting on behalf of an international organization
23. Mr. President, Members of the Court, it is unprecedented for a State to invoke
the Court’s contentious jurisdiction as the proxy for an international organization. The actual
seisin of the Court was performed by The Gambia as chair of the OIC Ad Hoc Ministerial
Committee108, as an organ of the OIC, not in its capacity as a contracting party to the Genocide
Convention.
24. While The Gambia is said to be “leading” this OIC initiative, it is unknown who else is
controlling it. It is unknown which States have donated what to the voluntary fund, or whether the
donors are even confined to States.
25. This is a circumvention of the limitations of Article 34 of the Statute: only States may be
parties in cases before the Court. An international organization without even a mandate to seek an
advisory opinion from the Court is seeking to circumvent that restriction by nominating a State to
act as its substitute and bring a contentious case. If permissible, this would allow “the
restrictions on personal jurisdiction which are matters of public policy, to be evaded, virtually
at will, simply by nominating a mandatory”109. Furthermore, Myanmar’s consent to the
Court’s jurisdiction is valid only vis-à-vis another State accepting the same obligation; it must
be inapplicable where the substantive applicant is an inter-governmental organization with no
standing before the Court.
26. Indeed, of the OIC’s Member States110, 13 are not even parties to the Genocide
Convention111, while seven  including most importantly Bangladesh112  have made
reservations to its Article IX that prevent them from bringing proceedings against Myanmar under
Article IX of that Convention113. For this reason alone jurisdiction is lacking.

108 Footnote 103 above.
109 Robert Kolb, The International Court of Justice (2013), p. 271; judges’ folder, tab 3.18.
110 https://www.oic-oci.org/states/?lan=en (English); https://www.oic-oci.org/states/?lan=fr
(French); judges’ folder, tab 3.19.
111 United Nations Treaty Centre, Status of the Convention on the Prevention and Punishment of the
Crime of Genocide; judges’ folder, tab 3.20 (Brunei-Darussalam, Cameroon, Chad, Djibouti,
Guyana, Indonesia, Mauritania, Niger, Oman, Qatar, Sierra Leone, Somalia, Suriname).
112 Ibid.
113 Ibid. (Algeria, Bahrain, Bangladesh, Malaysia, Morocco, United Arab Emirates, Yemen).

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Lack of prima facie jurisdiction of the Court: absence of a dispute
27. Mr. President, Members of the Court, a further requirement that is essential for
the exercise of the Court’s contentious jurisdiction is the existence of a dispute114.
This is also expressly required by Article IX of the Genocide Convention115 which
provides only for the submission to this Court of disputes between contracting States.
In the absence of a dispute, Article IX of the Genocide Convention simply does not apply116.
28. The erga omnes partes character of obligations under the Genocide Convention does not mean that
The Gambia can bring these proceedings in the absence of a dispute specifically between the two
Parties now before the Court. In Belgium v. Senegal, while the Court accepted that the
erga omnes partes character of a treaty obligation might be of some relevance to standing117, the
Court’s consideration of jurisdiction proceeded on the obvious premise that there had
to be a dispute between Belgium and Senegal for there to be jurisdiction under the
Convention against Torture118.
29. As Article IX of the Genocide Convention is the only basis of jurisdiction, the
only dispute over which this Court could potentially have jurisdiction is one concerning
obligations arising specifically under that Convention. The Court has no potential
jurisdiction over disputes concerning customary international law obligations regarding
genocide119, or disputes concerning alleged breaches of other treaty or customary international law
obligations, even if those alleged breaches are of obligations under peremptory norms, or
of obligations which protect essential humanitarian values, and which may be owed erga
omnes120.
114 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 2016 (II), p. 849, para. 36; Obligations concerning Negotiations
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall
Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016 (I), p.
269, para. 33; Obligations concerning Negotiations relating to Cessation of the Nuclear
Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2016 (II), p. 566, para. 33.
115 Convention on the Prevention and Punishment of the Crime of Genocide. Paris, 9 Dec. 1948,
UNTS, Vol. 78,

p. 277.

116 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,
I.C.J. Reports
2012 (II), p. 441, para. 45.
117 Ibid., pp. 448-450, paras. 64-70.
118 Ibid., pp. 441-445, paras. 44-55.
119 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), pp. 48-49, para. 88.
120Ibid., p. 46, para. 85, quoting 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), p. 104, para. 147.

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30. For the Court to have jurisdiction, there must accordingly be first, a dispute,
which secondly is specifically between The Gambia and Myanmar, and which
thirdly, concerns specifically the interpretation, application or fulfilment of the Genocide
Convention.
31. Beginning with the second of these requirements, there is no dispute
between The Gambia and Myanmar because these proceedings are in fact brought on behalf of and
funded by the OIC. We see that the Applicant delegation here in court includes several
high ranking officials of the OIC. If any dispute has been brought before the Court,
it is the OIC’s, not The Gambia’s.
32. But even aside from that, there is no dispute at all.

33. According to the established case law, the existence of a dispute is determined as at the date
on which the application is submitted to the Court121. The allegations
contained in The Gambia’s Application, and the arguments within these proceedings, cannot
generate a dispute de novo if one did not already exist at the date of Application122. For a
dispute to exist, “it must be shown that the claim of one party is positively opposed by the
other”, and that “the two sides hold clearly opposite views concerning the question of the
performance or non-performance of certain international obligations”123.
34. The Gambia relies on several matters to establish the existence of a dispute124.

121 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,
I.C.J. Reports 2012 (II), pp. 444-445, paras. 54-55; Obligations concerning Negotiations
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall
Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016 (II), p.
851, para. 42; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016 (I), p. 272, para. 40; Obligations concerning Negotiations relating
to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016 (II), p. 568, para. 39.
122 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 2016 (II), p. 851, para. 43, pp. 854-855, para. 54; Obligations concerning
Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall
Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016 (I),
p. 272, para. 40, p. 275, para. 50; Obligations concerning Negotiations relating to Cessation of
the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016 (II), p. 566, para. 34, p. 568,
para. 40.
123 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 2016 (II), p. 849, para. 37; Obligations concerning Negotiations
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall
Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016 (I), pp. 269-270,
para. 34; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms
Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2016 (II), pp. 571-572, para. 50; Alleged Violations
of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) Preliminary
Objections, Judgment, ICJ Reports 2016 (I), p. 26, para. 50.
124 AG, paras. 21 and 23.

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35. First, The Gambia relies on various OIC documents125. These clearly do not give rise to a
relevant dispute between The Gambia and Myanmar. They contain no positive statement
that Myanmar is in breach of its obligations under the Genocide Convention. Indeed, as
I have explained, the preamble to two OIC resolutions implies the opposite. In any event, this
Court has affirmed that a State’s vote on a resolution of an international organization is not of
itself indicative of that State’s position on each proposition within the resolution, let alone
of the existence of a legal dispute with another State regarding one of those propositions126.
Furthermore, Myanmar is not a member of the OIC and there is nothing to indicate that Myanmar was
put on notice of all of its resolutions.
36. Secondly, The Gambia relies on reports of the Fact-Finding Mission127. However,
statements in reports of the Fact-Finding Mission do not constitute claims by The Gambia or the OIC
or its Member States. Statements by the Fact-Finding Mission do not put Myanmar on notice of what
particular claims those States and the OIC might be intending to make in Court
proceedings.
37. Thirdly, the general statement by the Vice-President of The Gambia that The Gambia is “ready
to lead concerted efforts” to bring this case128 does not even mention the Genocide
Convention.
38. Similarly, the statement by Myanmar’s Union Minister for the Office of the State
Counsellor129 does not mention the Genocide Convention.
39. In short, these documents do not amount to allegations against Myanmar of violations of the
Genocide Convention, and are not otherwise sufficient to found a justiciable dispute between the
Parties130.

125 AG, para. 21, bullet points 2 and 3.
126 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race
and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 2016 (II), p. 855, para. 56; Obligations concerning Negotiations
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall
Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016 (I), p.
276, para. 53; Obligations concerning Negotiations relating to Cessation of the Nuclear
Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2016 (II), p. 572, para. 53.
127 AG, para. 21, bullet points 1, 4 and 5.
128 AG, para. 21, bullet point 6.
129 AG, para. 21, bullet point 7.

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40. There is then the 11 October Note Verbale131. The Gambia’s case is that because
Myanmar failed to respond to it within a month, by 11 November a dispute between the Parties
concerning the matters set out in that document had suddenly arisen.
41. However, the existence of a dispute can be inferred from a failure to respond to a claim only
in circumstances where a response is called for132, and where an acceptable time for
any response has expired.
42. This Note Verbale did not call for a response. It contained only a sweepingly general claim
that Myanmar had “responsibility for the ongoing genocide against Myanmar’s Rohingya
population”. It contained no particulars. It does not specify which particular facts are relied on
in support of the assertion of that responsibility. It does not specify which
provisions of the Convention are claimed to have been violated by which facts. It provides no
particulars of the facts that are alleged to constitute “Myanmar’s refusal to acknowledge and
remedy its responsibility”. It refers only in the most general way to the reports and findings of
the Fact-Finding Mission and to OIC resolutions (but specifies only one of each), and generically
to obligations under the Genocide Convention, customary international law and human rights
covenants. It does not make any particular legal or factual claim that could be positively
opposed by Myanmar. It merely states a legal conclusion — that there is an ongoing genocide for
which Myanmar is responsible — without stating any claim that is said to justify that conclusion.
43. It cannot be sufficient, for there to be a “dispute” under Article IX of the
Genocide Convention, that the Applicant has referred the Respondent to a report of an
international organization, or an NGO, or anyone else, suggesting that the latter is in breach of
its obligations under that Convention, and that the latter has not responded.
44. A failure to respond to the Note Verbale therefore could not give rise to a
dispute. However, even if it could, it cannot possibly be argued that the response was called for
in the space
130 Compare Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary
Objections, Judgment, I.C.J. Reports 2011 (I), pp. 101-102, 105, 108-112, paras. 65, 67,
77, 84, 86-87, 89 and 92.
131 AG, para. 21, bullet point 8; OG, Anns. 1 and 2.
132 Compare Application of the International Convention on the Elimination of
All Forms of Racial Discrimination, (Georgia v. Russian Federation), Preliminary
Objections, Judgment, I.C.J. Reports 2011 (I), p. 84, para. 30; Obligations concerning
Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament
(Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016 (II),
p. 850, para. 40.

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of a single month, given that the detailed findings of the Fact-Finding Mission are some 180 pages
long, and the Note Verbale contains no more than an unparticularized conclusion133. Furthermore, as
the Agent of Myanmar observed earlier this morning, allegations of the most serious crimes need to
be considered and determined in the course of the criminal justice process. These are not matters
on which political representatives of countries can be required to take firm positions in short
spaces of time  and even less so where the State making such a claim does not provide any timeline
for any such response in the first place.
45. The second Gambian Note Verbale of 24 November134 adds nothing. It was sent after this case
had already been brought, and cannot ex post facto bring about a relevant dispute. In
any event, it does nothing further to identify a legal claim.
46. Furthermore, the OIC, on whose behalf the proceedings are brought, has never directly accused
Myanmar of violations of the Genocide Convention. Rather, the OIC has expressed support
more generally for “using all international legal instruments to hold accountable the
perpetrators of crimes”135. These proceedings are the initiative of an OIC subcommittee whose task
is generally to “[e]ngage to ensure accountability and justice for gross violations of
international human rights and humanitarian laws and principles”136. The impression is that the OIC
wanted to bring “a” case before the Court, but was not particularly concerned with the
legal basis of the claim, that Article IX of the Genocide Convention was simply identified at
some point by someone as a vehicle for invoking the Court’s jurisdiction, and that the
OIC would have been equally prepared to use any other treaty it could identify for that
purpose.
47. If The Gambia had a genuine dispute with Myanmar concerning the interpretation,
application or fulfilment of the Genocide Convention, why did it not give notice of this claim to
Myanmar in March, when a decision to bring these proceedings was made  or in August when the 2019
Fact-Finding Mission report noted that it was intended to bring a claim based on the
Genocide Convention? Why did it not give notice of this claim to Myanmar before
instructing

133 UNGA, HRC, Detailed findings of the Independent International Fact-Finding Mission
on Myanmar, UN doc. A/HRC/42/CRP.5, 16 Sept. 2019 (available at
https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM- Myanmar/20190916/A_HRC_42_CRP.5.pdf).
134 OG, Anns. 3 and 4.
135 See paragraph 10 above.
136 See paragraph 6 above.

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lawyers on 4 October to institute proceedings? The inference is that the Note Verbale was sent as a
legal formality, considered necessary to enable proceedings to be issued, once all preparations for
the proceedings were already in place.
Mr. President, Members of the Court,

48. Myanmar’s position is that for all these reasons, the lack of jurisdiction is manifest, and
that even at the provisional measures stage, it is clear that the proceedings should
not continue further. The appropriate course would be to strike the case from the Court’s General
List. As the Court said in two137 of the previous cases138 where it adopted such a course at this
stage, it would most assuredly not contribute to the sound administration of justice to keep a case
on the General List when it appears certain that the Court cannot adjudicate on the merits.

Lack of prima facie standing of The Gambia
Mr. President, Members of the Court,

49. I now turn to the issue of prima facie standing.

50. The Gambia says it has standing to bring the case, even though it is not specially affected by
the subject-matter of the claim, because of the erga omnes and erga omnes partes character of
obligations owed under the Genocide Convention139.
51. At the outset, I note that erga omnes and erga omnes partes are not the same thing.

52. The term erga omnes refers to obligations under customary international law owed to the
international community as a whole. Thus, in the Barcelona Traction Judgment140, the
Court referred to rights that had entered “into the body of general
international law”141, with

137 Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999,
I.C.J Reports 1999 (II), p. 773, para. 35; Legality of Use of Force (Yugoslavia v. United
States of America), Provisional Measures, Order of 2 June 1999, I.C.J Reports 1999 (II), p.
925, para. 29.
138 See also Request for an Examination of the Situation in Accordance with Paragraph
63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case
(New Zealand v. France), Order of 22 September 1995, I.C.J Reports 1995, p. 288.
139 AG, paras. 15, 120, 123-125, 127.
140 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase),
Judgment , I.C.J. Reports 1970, p. 32, paras. 33-35.
141 Ibid., para. 34, quoting Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23.

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corresponding obligations of States owed to “the international community as a whole”
being labelled obligations erga omnes142.
53. On the other hand, the term erga omnes partes refers to multilateral treaty obligations. Such
obligations are owed only to the community of States parties to that particular treaty. As this
Court said in Belgium v. Senegal143, each State party has an interest in compliance
with such obligations.
54. Myanmar accepts that at least some obligations under the Genocide Convention are

erga omnes partes144.
55. However, even if The Gambia has an interest in Myanmar’s compliance with erga omnes partes
obligations under that Convention, it does not follow without more that The Gambia also has
standing to bring a case before the Court in respect of a claimed breach by Myanmar, without being
specially affected.
56. A State that is specially affected by the events the subject-matter of these proceedings is
obviously Bangladesh. However, Bangladesh could not have instituted these proceedings without the
consent of Myanmar because of a reservation that it has made to Article IX of the Genocide
Convention145. In fact, none of Myanmar’s neighbours, with the exception of Laos. could
have done so, since each of the others is either not a party to the Genocide Convention146 or has
made a reservation that Article IX applies either not at all147, or only with the consent of all
parties to the dispute148. If a State such as The Gambia that is not specially affected by an
alleged breach of a treaty could bring a case, in circumstances where a State that is
specially affected cannot, this would represent a major inroad into fundamental principles
concerning the consensual nature of this Court’s jurisdiction.

142 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase),
Judgment , I.C.J. Reports 1970, p. 32, para. 33.
143 Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Judgment, I.C.J. Reports 2012 (II), pp. 449-450, paras. 68-69.
144 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v.
Serbia), Judgment, I.C.J. Reports 2015 (I), p. 47, para. 87.
145 United Nations Treaty Centre, Status of the Convention on the Prevention and Punishment of the
Crime of Genocide; judges’ folder, tab 3.20.
146 Ibid. (Thailand).
147 Ibid. (China).
148 Ibid. (Bangladesh, India).

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57. Indeed, the implications are far wider than this. If a State not specially affected can seek
enforcement of erga omnes partes obligations by bringing a claim in this Court, there would be no
reason why it could not seek enforcement of those obligations by other means permitted
under international law, such as by taking countermeasures. Yet, in the course of its work
on its draft Articles on State Responsibility, the International Law Commission (ILC) noted, in
the context of countermeasures, that “even accepting the proposition, on the basis of the Barcelona
Traction case, that States at large had a legal interest in respect of violations of
certain obligations, it did not necessarily follow that all States could vindicate those
interests in the same way as directly injured States”149. A subsequent 2001 report by the then
special rapporteur observed, in relation to the then draft Article providing that any State
could take countermeasures in cases of an internationally wrongful act that constitutes a
serious breach by a State of an obligation owed to the international community as a whole and
essential for the protection of its fundamental interests that “[t]he thrust of Government comments
is that [the provision], has no basis in international law and would be destabilizing”150.
58. In Barcelona Traction the Court did not address this specific question of standing
because the case as such was not concerned with obligations erga omnes and even less
with obligations erga omnes partes. It was only Judge Ammoun who did expressly accept the right of
any State to enforce obligations erga omnes by way of bringing a case before the Court151, making
the omission of any other judge or the Judgment itself to do so significant.

149 UNGA, Report of the International Law Commission on the work of its fifty-second
session (2000), UN doc. A/CN.4./513 of 15 Feb. 2001 (available at
https://documents-dds-ny.un.org/doc/UNDOC/GEN/ N01/251/22/PDF/N0125122.pdf?OpenElement, para.
181,(English); https://documents-dds-ny.un.org/doc/UNDOC/GEN/
N01/251/23/PDF/N0125123.pdf?OpenElement (French)).
150 UNGA, Fourth report on State responsibility by Mr. James Crawford, Special
Rapporteur, UN doc A/CN.4/517 of 2 Apr. 2001, para. 72 (available
at https://undocs.org/en/A/CN.4/517, (English); https://undocs.org/fr/A/CN.4/517
(French)); read in conjunction with the Draft articles provisionally adopted by the
Drafting Committee on second reading, UN doc. A/CN.4/L.600 of 21 August
2000 (available at https://legal.un.org/docs/?symbol=A/CN.4/L.600 (English)), draft
Articles 41 and 52.
151 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second
Phase), Judgment,
I.C.J. Reports 1970; separate opinion of Judge Ammoun, pp. 325-327.

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59. Moreover, in all other cases brought before the Court involving the
Genocide Convention, the Applicant was a specially affected State and thus the proceedings did not
involve any kind of actio popularis152.
60. In the Bosnia Genocide case, Judge Oda in fact expressed the view that while
legal obligations arising under the Genocide Convention are “borne in a general manner erga omnes
by the Contracting Parties”, a failure to comply with such obligations cannot be
rectified by an inter-State dispute before this Court153, while the late Roberto Ago had
previously taken the same view154.
61. It is true that in Belgium v. Senegal155, the Court held that Belgium had standing as a
State party to the Convention against Torture to bring a case against Senegal for alleged breaches
of that Convention. The Court therefore declined to pronounce on whether Belgium also
had a special interest with respect to Senegal’s compliance156. However, I would emphasize:
62. First, this one case does not amount to established jurisprudence of the Court,
and Judge Skotnikov157 and Judge Xue158 disagreed with the Court’s decision on standing.
63. Secondly, Belgium itself did in fact claim to be an “injured State” under Article 42 (b) (i) of
the ILC Articles on State Responsibility159.
64. And thirdly, Belgium was indeed affected by the outcome of that case. The Convention against
Torture contained an aut dedere aut judicare obligation, and Belgium had availed itself of

152 Trial of Pakistani Prisoners of War (Pakistan v. India), application instituting
proceedings, 11 May 1973; Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), application instituting
proceedings, 20 March 1993, para. 133; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Croatia v. Serbia), application instituting proceedings, 2
July 1999, p. 2; Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda), application instituting proceedings, 28 May 2002,
p. 2.
153 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections,
Judgment, I.C.J. Reports 1996 (II); declaration of Judge Oda, p. 626, para. 4.
154 Roberto Ago, “Obligations Erga Omnes and the International Community”, in J.
Weiler et al. (eds.), International Crimes of State: A Critical Analysis of the ILC's Draft
Article 19 on State Responsibility (1989), p. 238; judges’ folder, tab 3.21.
155 Questions relating to the Obligation to Prosecute or Extradite (Belgium
v. Senegal), Judgment,
I.C.J. Reports 2012 (II), p. 422.
156 Ibid., p. 450, para. 70.
157 Ibid.; separate opinion of Judge Skotnikov, p. 481.
158Ibid.; dissenting opinion of Judge Xue, pp. 574-577, paras. 12-23.
159 Questions relating to the Obligation to Prosecute and to Extradite (Belgium v. Senegal), CR
2012/6, p. 54, para. 60 (Wood).

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the specific right under Article 5 to exercise jurisdiction and to request extradition160. This
case was thus not a genuine actio popularis, brought by a State that was individually completely
unaffected by the subject-matter of the claim. In contrast, the Genocide
Convention contains no aut dedere aut judicare obligation, and indeed, Myanmar has made a
reservation to Article VI of the Genocide Convention that prevents the courts of any other State
from exercising jurisdiction over genocide allegedly committed in its territory161.
65. Ultimately, no decided case is precedent for standing for a pure actio popularis of this kind.
While every State to whom an erga omnes partes obligation is owed may have an interest in
compliance with that obligation, and may even be entitled to invoke the claimed breach
in international relations, when it comes to standing to bring a claim before this Court, a
balance has to be achieved. Allowing a pure actio popularis would open potential
floodgates, to use a hackneyed but apt expression.
66. Normally, it is States most specially affected by international crises who are involved in
diplomatic negotiations and practical initiatives to seek a resolution of the situation.
It is those States who are best placed to judge when the bringing of a case before this Court
would help or hinder those efforts. Allowing any State party to a major international
treaty like the Genocide Convention, no matter how far removed from events they are, to bring a
case such as this at any time of its own choosing against any other contracting party, could well
prove counterproductive to such diplomatic negotiations and practical initiatives.
67. Furthermore, even if, contrary to my submissions, such an actio popularis was possible, this
would not mean that the Court could order provisional measures in such a case. Under
Article 41, paragraph 1, of the Statute, the Court only has power to indicate provisional measures
“to preserve the respective rights of either party”.
68. There is also one further reason why The Gambia has no standing.

69. Myanmar has made a reservation to Article VIII of the Genocide Convention. As the
Court is aware, Article VIII states that “[a]ny Contracting Party may call upon 
“saisir” in

160 Questions relating to the Obligation to Prosecute and to Extradite (Belgium v.
Senegal), Judgment, I.C.J. Reports 2012 (II), pp. 448-449, para. 65.
161 United Nations Treaty Centre, Status of the Convention on the Prevention and Punishment of the
Crime of Genocide; judges’ folder, tab 3.20.

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French — the competent organs of the United Nations to take such action under the Charter of the
United Nations as they consider appropriate for the prevention and suppression of acts
of genocide”162. However, Myanmar’s reservation means that Article VIII does not apply to it163.
70. Article IX of the Convention, to which Myanmar has made no reservation, clearly
confers jurisdiction on the Court in the circumstances described. However, this Court
can only exercise jurisdiction if it is first validly seised of a case. Valid seisin of the Court
 “saisine de la Cour”  thus constitutes a necessary condition precedent to the exercise of the
Court’s contentious jurisdiction164. We submit that Article VIII, as confirmed by its
wording, deals with seisin. It permits any of the contracting parties of the Convention
to seise any competent organ of the United Nations with any alleged situation of genocide,
and to request it to take action under the Charter of the United Nations, of which the Court’s
Statute forms an integral part. The reference in Article VIII to competent organs of the United
Nations must include this Court,165 which, to state the obvious, is one of its principal
organs166. Even if the conclusion were to be reached that a genuine actio popularis is
possible under the Genocide Convention, sed quod non, this would be the result of Article VIII
rather than the result of Article IX. By contrast, Article IX does not refer to any dispute; it
is confined to “disputes between the Contracting Parties in relation to the
interpretation, application or fulfilment of the present Convention”. Nor does Article IX speak of
any contracting party; it applies only to “the Contracting Parties” and “the parties to the
dispute”. These linguistic differences make clear that Article IX has a narrower remit than Article
VIII.
71. Thus, where, as here, the respondent State has made a valid reservation to Article VIII, the
effect is that the Court cannot be seised of this case, even though there is no
reservation to Article IX.

p. 277.
162 Convention on the Prevention and Punishment of the Crime of Genocide. Paris, 9 Dec. 1948,
UNTS, Vol. 78,

163 United Nations Treaty Centre, Status of the Convention on the Prevention and Punishment of the
Crime of
Genocide; judges’ folder, tab 3.20.
164 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Judgment, I.C.J.
Reports 1995,
p. 23, para. 43; see also dissenting opinion of Judge Shahabuddeen, p. 60.
165 For such a possibility, see Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)),
Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, pp. 22-23, para. 47;
Giorgio Gaja, “The Protection of General Interests in the International Community: General
Course on Public International Law (2011)”, Collected Courses of the Hague Academy of
International Law (2012), Vol. 364, p. 83; judges’ folder, tab 3.22.
166 Article 7 of the United Nations Charter.

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72. As this Court has said, “[t]he consent allowing for the Court to assume jurisdiction must be
certain”; “whatever the basis of consent, the attitude of the respondent State must ‘be capable of
being regarded as “an unequivocal indication” of the desire of that State to accept
the Court’s jurisdiction in a “voluntary and indisputable” manner’”167. On any view, it is evident
from the fact of Myanmar’s reservation to Article VIII that it has not given any such unequivocal
indication in an indisputable manner.
73. For all these reasons, Myanmar submits that The Gambia has no prima facie standing.

Inappropriateness of the provisional measures requested
74. Mr. President, Members of the Court, as a prelude to Ms Okowa’s observations, I will finally
address you on the wording of the six provisional measures requested by The Gambia.
75. The first two provisional measures, requested by The Gambia in paragraph 132 (a) and
(b) of the Application, are essentially the same as the first two orders that it seeks by way of
final relief in paragraph 112. It seeks provisional measures requiring Myanmar to comply with the
Genocide Convention, and final relief finding that it has breached the Genocide Convention.
76. Now it may be that there is a precedent for this, in that these first two
requested provisional measures are very similar to the first two provisional measures indicated in
the Bosnia Genocide case168. But that does not mean that the Court should now follow a 26-year-old
precedent given before such developments as the recognition since LaGrand that orders
for provisional measures are legally binding169.

167 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v
France), Judgment, I.C.J. Reports 2008, p. 204, para. 62. See also Armed Activities on
the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 18, para. 21.
168 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures,
Order of 8 April 1993, I.C.J. Reports 1993,
p. 3.
169 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, pp. 502-506,
paras. 102-109,
p. 516, para. 128 (5); Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation),
Provisional Measures, I.C.J. Reports 2008, p. 397, para. 147; Questions relating to the Seizure and
Detention of Certain Documents and Data (Timor-Leste v. Australia), Provisional Measures,
I.C.J. Reports 2015, p. 160, para. 53; Immunities and Criminal Proceedings (Equatorial
Guinea v. France), Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1171, para. 97; Jadhav
(India v. Pakistan), Order of 18 May 2017, I.C.J. Reports 2017, p. 245, para. 59; Application of
the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v.
United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II),
p. 433, para. 77; Alleged Violations of the 1955 Treaty of Amity, Economic Relations,
and Consular Rights (Islamic Republic of Iran v. United States of America), Provisional
Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II), p. 652, para. 100.

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77. If a Court makes an order — legally binding on a party, and non-compliance with which is a
breach of international law — then justice requires that that party be able to know, from the time
that the order is made until the time that it ceases to apply, what that party is required to do in
order to comply. That is plainly impossible if the content of the obligations imposed
by the provisional measures can only be known after the Court has given any judgment on the
merits.
78. For instance, in the LaGrand, Breard, Avena and Jadhav cases, the Court indicated
provisional measures in terms requiring the respondent State to take all means at its
disposal to ensure that named individuals were not executed pending the final decision
of the Court. These provisional measures were stated in objective language, with genuine
non-prejudice to the merits. But, imagine if those provisional measures had instead stated as
follows: “pending a decision on the merits, the respondent is required to take all measures within
its power to prevent all acts that constitute a violation of the Vienna Convention on Consular
Relations”. What would a respondent State be expected to do?
79. Well, if the Respondent thinks that its conduct does not violate the treaty, it would see no
need to change to its conduct. Indeed, its lawyers would no doubt advise it not to cease its
conduct unless and until a judgment on the merits requires it to do so, since any earlier change in
conduct in response to a provisional measures order would be perceived as tacit acceptance that the
conduct is in breach of the treaty.
80. On the other hand, the public will undoubtedly perceive the provisional measures
as some kind of Court pronouncement on the merits, and the applicant State is unlikely to
discourage that. If the Respondent does not change its conduct, the Applicant will now accuse it of
breaches of the provisional measures order as well. There will now be two disputes instead of one.
Provisional measures orders of this kind will do little to “preserve the respective rights of
either party” or to avoid an aggravation of the dispute, which is what they are meant to do.
81. And indeed, there is a further problem. Suppose that the Court were to indicate
provisional measures in the terms requested, and were then to find later that it lacks jurisdiction
to determine the merits. That would not prevent The Gambia from alleging that the Court still
has jurisdiction to determine whether or not Myanmar has violated the provisional
measures order. However, to determine compliance with the provisional measures order, the Court
would have to

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determine whether Myanmar had, after the provisional measures were indicated,
failed to “prevent . . . acts which amount to or contribute to the crime of genocide”. In other
words, in order to determine compliance with the provisional measures order, the Court would need
to determine the merits of the case, despite having found that it lacks jurisdiction to do so.
82. Provisional measures in such terms serve no useful purpose. Myanmar, as a party to the Genocide
Convention, is bound to comply with its terms in any event, and an order from this Court requiring
it to do so does not in any way add to its obligations. But if granted by the
Court, politicians, activists and journalists will herald the ruling as a first step in
condemnation of the Respondent. For instance, a press release of The Gambia’s
representatives170, reported in the media171, states that the purpose of provisional measures in
this case would be “to stop Myanmar’s genocidal conduct immediately”. Also, in oral argument
yesterday, Mr. Sands said that the effect of the first and second requested provisional
measures is “to prevent the further genocide of the Rohingya group”172. Both thereby
suggest that a grant of provisional measures would be an acknowledgment that the
Applicant’s claim on the merits had already been established.
83. For this reason, judges of the Court have sometimes pointed to the danger of
prejudgment of the merits in the award of provisional measures173. Indeed, commentators
have warned of the danger of requests for provisional measures being made for this very purpose, as
part of a political or litigation strategy. It has been said that in some cases the applicant may
see the

170 Foley Hoag LLP, “Foley Hoag Leads The Gambia’s Legal Team in Historic Case to
Stop Myanmar’s Genocide Against the Rohingya”, 11 Nov. 2019 (available at
https://foleyhoag.com/news-and-events/news/2019/
november/foley-hoag-leads-the-gambias-legal-team-in-case-to-stop-myanmar-genocide); judges’ folder,
tab 3.15.
171 Bloomberg, “Foley Hoag Leads The Gambia’s Legal Team in Historic Case to Stop
Myanmar’s Genocide Against the Rohingya”, 11 Nov. 2019 (available at
https://www.bloomberg.com/press-releases/2019-11-11/foley-hoag-
leads-the-gambia-s-legal-team-in-historic-case-to-stop-myanmar-s-genocide-against-the-rohingya);
judges’ folder, tab 3.23.
172 CR 2019/18, p. 66, para. 9 (Sands).
173 Application of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of All Forms of
Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19
April 2017, I.C.J. Reports 2017; separate opinion of Judge Owada, pp. 144-145, 148-149,
paras. 9, 10, 25, 27; Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order
of 23 July 2018, I.C.J. Reports 2018 (II); dissenting opinion of Judge ad hoc Cot; Certain
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional
Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I); declaration of Judge Xue; Certain
Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I); separate opinion of
Judge ad hoc Dugard, p. 61, para. 2; Passage through the Great Belt (Finland v. Denmark),
Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991; separate opinion of Judge
Shahabuddeen, pp. 29, 30, 36; Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures,
Order of 10 July 2002, I.C.J. Reports 2002; declaration of Judge Buergenthal, p. 257, para. 9.

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request for provisional measures as more important than the proceedings on the merits, brought in
the hope that the Court will make statements that the applicant can use to its
advantage before world public opinion even if the Court subsequently finds that it
lacks jurisdiction in the main proceedings174.
84. Furthermore, and apart from anything else, it is impossible to know what precise conduct might
be within provisional measures worded in such broad terms. The Gambia has suggested that these
provisional measures might affect, for instance, restrictions on movement in Rakhine State, or the
process for applying for national verification cards. How would Myanmar know if, or how, that was
so? If there is currently an armed conflict in Rakhine State, will it be suggested that measures
taken to deal with this are a breach of these provisional measures if they are indicated?
85. As to the third provisional measure requested in paragraph 132 (c) of the Application, for
similar reasons, if Myanmar is to be directed not to destroy evidence, it is required to know what
that evidence might be. Of what consists “any evidence related to the events described
in the Application”?
86. The fourth provisional measure requested in paragraph 132 (d) of the Application is that “no
action [be] taken which may aggravate or extend the existing dispute”. However, any
dispute — even if the Court finds there to be one — consists of the sending by one party to the
other of a single Note Verbale. It is difficult to see that being aggravated or
extended in a way requiring provisional measures. Furthermore, this kind of provisional measure
is only indicated in conjunction with other concrete measures175.
87. The fifth provisional measure, requested in paragraph 132 (e) of the Application, would require
both Myanmar and The Gambia to report to this Court on measures taken. Such a
provisional measure would be akin to the reporting obligation under, say, Article 40 of
the

174 Tullio Treves, “The Political Use of Unilateral Applications and Provisional
Measures Proceedings”, in Frowein, Schariot, Winkelmann and Wolfrum, (eds.), Verhandeln
fuer den Frieden, Negotiating for Peace, Liber Amicorum Tono Eitel (2003), pp. 463-481;
judges’ folder, tab 3.24; Karin Oellers-Frahm, “Use and Abuse of Interim Protection before
International Courts and Tribunals”, in Hestermeyer, König, Matz-Lück, Röben, Seibert-Fohr, Stoll
and Vöneky (eds.), Coexistence, Cooperation and Solidarity, Liber Amicorum Rüdiger Wolfrum
(2011), p. 1685 (“the request for interim protection becomes part of the litigation
strategy . . . it may be used because it offers a forum for addressing the international
public”); judges’ folder, tab 3.25.
175 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), p. 21, para. 62;
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January
2007, I.C.J. Reports 2007 (I), p. 16, para. 49.

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International Covenant on Civil and Political Rights, or Article 19 of the Torture
Convention. However, the Genocide Convention contains no such reporting obligation nor
any specific supervisory body, and if it did, this Court would not be the body to which such
reports would be submitted. It is not the role of the Court to create human rights
monitoring machinery through provisional measures not foreseen in the treaty that allegedly
provides for the Court’s jurisdiction.
88. The sixth provisional measure was requested only on 9 December, and would require
Myanmar to grant access to and co-operate with United Nations fact-finding bodies that
are engaged in investigating alleged genocidal acts. This is not a provisional measure. This
is not a measure that would preserve existing rights of the parties pending a final decision by
the Court. Myanmar is at present under no obligation under international law to permit access to
its territory to, for instance, the Fact-Finding Mission or the Special Rapporteur on
Myanmar. Furthermore, even if such an obligation did exist, the basis of any such obligation would
not be the Genocide Convention. This provisional measure goes well beyond preservation of
any existing rights. It would create entirely new substantive obligations of Myanmar
vis-à-vis certain United Nations bodies. Such obligations would have nothing to do with
The Gambia, unless The Gambia is contending that such a reporting obligation would be erga
omnes. There is no principled basis for this requested provisional measure.
89. Furthermore, this provisional measure would be a circumvention of Myanmar’s
reservation to Article VIII of the Genocide Convention, to which I have referred. By virtue of that
reservation, other contracting parties may not call upon the United Nations organs to take action
under the Charter. The Court cannot impose an obligation which Myanmar has expressly excluded by
way of a reservation to which The Gambia has not objected.
90. Mr. President, Members of the Court, that concludes my observations. I would invite
you, Mr. President, to call on Ms Okowa to complete the first round of our oral observations.

The PRESIDENT: I thank Mr. Staker for his statement. I will now invite Ms Okowa to
address the Court. You have the floor, Madam.

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Ms OKOWA:

LACK OF REAL AND IMMINENT RISK OF IRREPARABLE PREJUDICE TO THE RIGHTS IN DISPUTE

LACK OF REAL RISK OF IRREPARABLE PREJUDICE TO SPECIFIC RIGHTS AND LACK OF URGENCY

A. Introduction
1. Mr. President, Madam Vice-President, Members of the Court, I appear before the Court for the
first time. It is a great honour for me to do so on behalf of the Union of Myanmar.
2. I will address you on the last of the prerequisites for the indication of
provisional measures, namely the requirement that there must be a real and imminent
risk of irreparable prejudice to the rights in dispute before the Court gives its final
decision176. In four cases in which a request for provisional measures was not granted, the
applicant State had failed to demonstrate urgency of the measures sought177. We
argue that notwithstanding what you heard from Mr. Reichler yesterday178, the case for
ordering provisional measures in this case is not blindingly obvious. We argue that The Gambia’s
request fails to meet the threshold for provisional measures as developed in the Court’s
jurisprudence and fails to satisfy the requirement of urgency.
3. I will develop four points in these submissions:

176 Alleged Violations of The 1955 Treaty of Amity, Economic Relations, and Consular Rights
(Islamic Republic Of Iran v. United States of America), Provisional Measures, Order of 3
October 2018, I.C.J. Reports 2018 (II), pp. 645-656, para. 78; Application of The
International Convention on The Elimination of All Forms of Racial Discrimination (Qatar
v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II),
p. 428, para. 61; Jadhav (India v. Pakistan), Provisional Measures, Order of 18 May 2017, I.C.J.
Reports 2017, p. 231 para. 50; Application of the International Convention for the
Suppression of the Financing of Terrorism and of the International Convention on the
Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation),
Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 136, para. 89;
Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of
7 December 2016, I.C.J. Reports 2016 (II),
p. 1168, para. 83; Questions relating to the Seizure and Detention of Certain Documents
and Data (Timor-Leste v. Australia), Provisional Measures, Order of 3 March 2014, I.C.J.
Reports 2014, p. 154, para. 32; Certain Activities Carried Out by Nicaragua in the Border
Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica), Provisional Measures, Order of 22 November 2013, I.C.J. Reports 2013,
p. 360-362, paras. 25 and 35; Request for Interpretation of the Judgment of 15 June 1962 in
the Case concerning the
Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order
of 18 July 2011,
I.C.J. Reports 2011 (II), p. 548 para. 47.
177 Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July
1991, I.C.J. Reports 1991, pp. 17-18, paras. 23-27; Trial of Pakistani Prisoners of War, Interim
Protection, Order of 13 July 1973,
I.C.J. Reports 1973, p. 330, para. 14; Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v. Belgium), Provisional Measures, Order of 8 December 2000, I.C.J. Reports 2000,
p. 201, para. 72; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional
Measures, Order of 23 January 2007, I.C.J. Reports 2007 (I), pp. 13-14, para. 42.
178 CR 2019/18, p. 56, para. 3 (Reichler).

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(a) The first is that in order to meet the final requirement, The Gambia needs to satisfy the
Court that there is a real and imminent risk of Myanmar committing breaches of the
Genocide Convention prior to the conclusion of these proceedings.
(b) Secondly, the current situation in Myanmar is inconsistent with the existence of an imminent
risk of genocide. Myanmar is currently engaged in repatriation initiatives to support the return of
displaced persons presently in Bangladesh. These have the support of a range of regional and
international actors, support which would not be forthcoming if there was there an imminent or
ongoing risk of genocide.
(c) Thirdly, Myanmar is currently engaged in a range of initiatives aimed at bringing stability to
Rakhine State, protecting those who are there or who will return there, and bringing to account
those responsible for past violence, actions which are inconsistent with it harbouring genocidal
intent, as alleged by The Gambia yesterday.
(d) Finally, The Gambia has failed to provide any evidence to support its claim that
the recent instability in Rakhine State is attributable to Myanmar and fails to
acknowledge the role of insurgent groups in the region.

B. Legal principles relevant to provisional measures
4. I will now turn to the legal principles relevant to provisional measures. The requirements of
irreparable prejudice and urgency are well established in the Court’s jurisprudence179. However, it
is useful to make two brief observations on how these principles apply to The Gambia’s request.
5. The first is that provisional measures are indicated only where there is a risk
that irreparable prejudice could be caused to the rights sub judice180. The Court would therefore
need to be satisfied that there is a real and imminent risk of Myanmar committing breaches of the
Genocide Convention prior to the conclusion of these proceedings. All this, of course, is assuming
that the Court is satisfied that it has jurisdiction, that The Gambia has standing to bring this
claim and that

179 See Application of the Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008,
I.C.J. Reports 2008, p. 396, para. 143; Armed Activities on the Territory of the Congo
(Democratic Republic of Congo v. Uganda), Provisional Measures, Order of 1 July 2000, I.C.J.
Reports 2000, p. 128, para. 43, Application of the International Convention for the Suppression of
the Financing of Terrorism and of the International Convention On the Elimination of All Forms of
Racial Discrimination (Ukraine v. Russian Federation), Provisional measures, Order of 19 April
2017, I.C.J Reports 2017, p. 138, para. 96.
180 See Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 152, para. 62.

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there is a plausible case that breaches of the Genocide Convention might occur  which for the
reasons given by Professor Schabas and Mr. Staker is not the case.
6. The second is that provisional measures are concerned with future threats, not past events. The
Court must be satisfied that there exists today a real and imminent risk of irreparable prejudice
to the claimed right181.

C. The application of the legal principles in the circumstances of this case
7. I turn now to address the application of these principles in the circumstances of the case at
hand. There are four submissions that I would like to develop in that regard.
8. My first point goes to urgency. The decision to launch these proceedings was taken as
early as March 2019182. The Application was then filed as late as November 2019, more than half a
year later. So, was there something that happened in November or October that made
them “urgent”? If The Gambia really believed that there was an urgent need to protect, would it not
have shown greater diligence in bringing its case and its request for provisional measures? The
Gambia’s request fails to advance a change in circumstances necessitating this application.
9. The second submission is that a number of regional and international actors are currently
supporting the repatriation to Rakhine State of displaced persons currently in Bangladesh.
(a) The United Nations High Commission for Refugees (UNHCR) has been at the forefront
of supporting repatriation efforts. Together with the United Nations Development Programme
(UNDP), it entered into a Memorandum of Understanding (MoU) with Myanmar regarding the repatriation
process in June 2018183. In May of this year, the MoU was extended until 5 June 2020184 and in
August, the UNCHR confirmed its continuing support for the repatriation

181 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, Order of
8 April 1993, I.C.J. Reports 1993, p. 16, para. 25.
182 OIC, “Resolution No. 61/46-POL The Work of the OIC Ad hoc Ministerial Committee on
Accountability for Human Rights Violations Against the Rohingyas” p. 177 (available at
https://www.oic-oci.org/docdown/?docID=4444 &refID=1250); See also “Final Communiqué of The
14th Islamic Summit Conference, Makkah Al-Mukarramah, Kingdom Of Saudi Arabia” (31 May 2019)
OIC/SUM-14/2019/FC/FINAL para.47 (available at https://www.oic-oci.org/
docdown/?docID=4496&refID=1251) .
183 “Memorandum of Understanding between The Ministry of Labour, Immigration and
Population of the Government of the Republic of the Union Myanmar and The United Nations
Development Programme and The Office of the United Nations High Commissioner for Refugees”; judges
folder, tab 4.1.
184 UNDP, “UNHCR, UNDP and Government of the Union of Myanmar extend MoU” (28 May 2019) (available
at
https://www.mm.undp.org/content/myanmar/en/home/presscenter/pressreleas…
-of-the- union-of-myanmar-extend-mou.html).

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effort185. The UNDP and the UNHCR are currently implementing a total of 43 “quick impact projects”
in Rakhine State186. As part of a confidence building exercise we know that senior officials from
Myanmar have met with displaced persons in Bangladesh with the support of the United Nations High
Commission for Refugees187. Mr. President, Members of the Court, it is improbable to say the
least that the United Nations High Commission for Refugees  an organization with eyes
and ears on the ground  would be facilitating meetings between displaced persons with a
view to their repatriation to Myanmar . . .

The PRESIDENT: Ms Okowa, would you kindly speak more slowly for the interpreters?

Ms OKAWA: I will just go over the last sentence again.

Mr. President, Members of the Court, it is improbable to say the least that the United Nations High
Commission for Refugees  an organization with eyes and ears on the ground  would be facilitating
meetings between displaced persons with a view to their repatriation to Myanmar if there were
any reason to believe that those who would return are at imminent risk of genocide.
The unequivocal and continuing support of both, UNHCR and UNDP for Myanmar’s repatriation programme
cannot be reconciled with the suggestion of such a risk.
(b) What is more, in November this year, the Association of Southeast Asian Nations (ASEAN)
expressed their support for a “more visible and enhanced presence and enhanced role
for ASEAN to support Myanmar in providing humanitarian assistance, in
facilitating the repatriation process and promoting sustainable development of Rakhine State”188.
This was the position reached following the deployment of the ASEAN Emergency
Response and Assessment Team (ASEAN-ERAT) from Indonesia, Malaysia, Singapore and
Thailand to

185 “UNHCR Statement on Voluntary Repatriation to Myanmar”, (22 Aug. 2019) (available at
https://www.unhcr.
org/news/press/2019/8/5d5e720a4/unhcr-statement-voluntary-repatriation-myanmar.html).
186 “Update on the Operationalization of the Tripartite Memorandum of Understanding in
Rakhine State September-October 2019” p. 1; judges’ folder, tab 4.2.
187 Supra, fn. 185.
188 “Chairman’s Statement of The 35th ASEAN Summit Bangkok/Nonthaburi,” (3 Nov. 2019) para. 37
(available at
https://asean.org/storage/2019/11/Chairs-Statement-of-the-35th-ASEAN-Su…).

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Myanmar in March 2019 to assess the readiness of the transit and reception centres189. In their
assessment, ASEAN team found that systems prepared by the Myanmar Government for the repatriation
of returnees are all in place and operational, noting that “it is evident that
significant efforts have been made by the Government of Myanmar to facilitate a smooth
repatriation process”190.
(c) Bangladesh, the country that has borne the brunt of the crisis, has also entered into a MoU
with Myanmar to provide an organized framework for repatriation of displaced persons191. Under the
Memorandum, there shall be “no restrictions on the number of persons to be
repatriated, as long as they can establish bona fide evidence of their residence in Myanmar”192.
This is proof of the fact that Bangladesh, as Myanmar’s close neighbour, is not of the view that
Muslims are at risk of imminent genocide should they return193.
(d) Mr. President, Members of the Court, neighbouring States have also provided practical support
for the repatriation effort. For example, in February of this year, China donated 20 trucks to the
Committee on Repatriation and Resettlement of Displaced People194 and Japan provided US$
37 million to cover the humanitarian and development projects in Rakhine State
throughout 2019195.

189 Union Enterprise for Humanitarian Assistance, Resettlement and Development in
Rakhine (UEHRD), “2nd High Level meeting on ASEAN cooperation to repatriate displaced
persons from Rakhine” (28 May 2019) (available at
https://rakhine.unionenterprise.org/index.php/latest-news-en/738-2nd-hi…-
cooperation-to-repatriate-displaced-persons-from-rakhine).
190 ASEAN-ERAT, “Preliminary Needs Assessment for Repatriation in Rakhine State, Myanmar” (May
2019); judges’ folder, tab 4.3, p. 24.
191 “Arrangement on Return of the Displaced Persons from Rakhine State” (23 Nov. 2017);
judges’ folder, tab 4.4; “Meeting Minutes of the First Meeting of the Joint Working Group on the
Repatriation of Displaced Myanmar Residents from Bangladesh, Nay Pyi Taw, Myanmar” (15-16
Jan. 2018); judges’ folder, tab 4.5; see also “Agreed Minutes of the Fourth Meeting of the
Joint Working Group on the Repatriation of Displaced Myanmar Residents from Bangladesh, Nay Pyi
Taw” (3 May 2019); judges’ folder, tab 4.6.
192 Ibid, “Arrangement on Return of the Displaced Persons from Rakhine State”, para. 9.
193 Yusof Ishak Institute, “Repatriating the Rohingya: What Regional Cooperation Can
and Cannot Do” (13 Sept. 2019), ISEAS 2019 (73) (available at
https://www.iseas.edu.sg/images/pdf/ISEAS_Perspective_2019_73.pdf).
194 The Republic of the Union of Myanmar- Ministry of Information, “PRC donates 20 Sinotruck Howo
cars to Rakhine State for repatriation, resettlement processes” (available at
https://www.moi.gov.mm/moi:eng/?q=news/28/ 02/2019/id-16828U).
195 UNICEF, “Ongoing UN and Japan Cooperation on Rakhine extended in 2019 to also support
communities in Kachin and Shan” (26 Feb. 2019) (available at
https://www.unicef.org/myanmar/press-releases/ongoing-un-and-japan-
cooperation-rakhine-extended-2019-also-support-communities).

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(e) At a meeting on 4 November 2019 between India’s Prime Minister Narendra Modi and
Myanmar’s State Counsellor, Mr. Modi confirmed his unequivocal support for the repatriation of
refugees from Bangladesh as being in the best interests of the three neighbouring States196.
(f) In November 2019, the United Nations Secretary-General’s Special Envoy to Myanmar,
Christine Shraner-Burgener met with government officials of Myanmar and discussed, amongst other
things, the return of the displaced persons and the potential use of third-party mediation to
reduce the fighting in Rakhine State197. Mr. President, Members of the Court,
these arrangements are repeatedly referred to by these agencies as the only uncontested solution to
the humanitarian crisis in Rakhine State.
10. It is true that few displaced persons have returned. A number of factors may account for this.
There is the continuing insurgency in Rakhine between Myanmar’s armed forces and the
Arakan Army198. Secondly, the displaced Muslim residents of Rakhine have made their
return conditional on a number of demands including the grant of full citizenship, their
recognition as a distinct ethnic group, return of land and compensation for past
injustices199. These demands sit uneasily with the suggestion that they are at risk of
imminent death. Both the requirements of citizenship and ethnicity remain contested and as yet
there is no consensus on the issue. There is no doubt that instability is deterring many from
returning. But  and this is significant  it is a concern shared by displaced persons of
a number of ethnicities. The fact is that the insurgency in Rakhine State has led to the
displacement of people of varied ethnic and religious backgrounds, including ethnic Buddhist
Rakhine, Hindus and Muslims. It is not the case that the region is

196 The Economic Times, “India attaches importance to Myanmar’s Co-operation against
Insurgent Groups” (4 Nov. 2019) (available at
https://economictimes.indiatimes.com/news/politics-and-nation/india-att…-
myanmars-cooperation-against-insurgent-groups-pm-modi-to-suu-kyi/articleshow/71895007.cms?from=mdr).

197 Thar Shwe Oo, “UN Special Envoy meets with displaced persons in Maungdaw” (Eleven Media Group
Ltd., 20 Nov. 2019) (available at
https://elevenmyanmar.com/news/un-special-envoy-meets-with-displaced-pe…- maungdaw); Khin
Myat Myat Wai, “Burgener suggests third-party mediation in Rakhine strife” (Myanmar Times,
19 Nov. 2019) (available at
https://www.mmtimes.com/news/burgener-suggests-third-party-mediation-ra…- strife.html).
198 “UNDP-UNHCR, Rapid Needs Assessment in Rakhine State, Round 1 to 5, Operationalization of the
UNDP- UNHCR-GoM MoU” (Nov. 2019); judges’ folder, tab 4.7, p. 15.
199 Strategic Executive Group, ”2019 Joint Response Plan For Rohingya
Humanitarian Crisis: January-December” p. 13, para. 14 (available
at https://www.humanitarianresponse.info/sites/
www.humanitarianresponse.info/files/documents/files/2019_jrp_for_rohing…
ssed.pdf); Agreed Minutes of the Fourth Meeting of the Joint Working Group (supra, fn.
188); Yusof Ishak Institute (supra, fn. 193).

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dangerous for Muslims but safe for other ethnic groups200. Yet you heard not one word yesterday
about the plight of other communities in Rakhine.
11. The key point is that the support for these repatriation initiatives from these sources and the
broader international community201 evidences a shared understanding that their return does not
present imminent danger; and is obviously inconsistent with the existence of an imminent risk of
genocide occurring in Myanmar.
12. The third point that tells against the existence of any imminent risk of genocide is that
Myanmar is currently engaged in a wide range of initiatives aimed at bringing stability to Rakhine
province, protecting those who are there or who return there, and bringing to account
those responsible for past violence. It is not possible in the short time
available to provide a comprehensive list of the actions which Myanmar has taken so
far. I will confine myself to highlighting initiatives taken in two key areas.
13. First, Myanmar has taken a full range of initiatives to improve the overall stability and
enhance the development of Rakhine State. These have included the establishment of the Central
Committee on the Implementation of Peace, Stability and Development of Rakhine State, led by the
State Counsellor, Myanmar’s Agent in these proceedings202; the Rakhine State Investment
Committee, tasked with enabling local communities to derive benefit from investment as well as to
promote participation by the local population203; the Committee for Supporting Peace and Stability
in Rakhine204; and, the Advisory Commission on the Rakhine State, then chaired by the late United
Nations Secretary-General Kofi Annan, to advise on how best to achieve stability,
development

200 Agreed Minutes of the Fourth Meeting of the Joint Working Group (supra, fn. 191); Arrangement
on Return of the Displaced Persons from Rakhine State (supra, fn. 191).
201 Strategic Executive Group, (supra, fn. 199) para. 15, p. 13; “EU Introductory
Statement  United Nations 3rd Committee: human rights of Rohingya Muslims and other
minorities in Myanmar” (14 Nov. 2019) (available at
https://eeas.europa.eu/headquarters/headquarters-homepage/70464/eu-intr…-
united- nations-3rd-committee-human-rights-rohingya-muslims-and_en).
202 Republic of the Union of Myanmar-Office of the President, “Govt forms committee to
implement peace, stability, development in Rakhine State” (31 May 2016) (available
at http://www.president-office.gov.mm/en/
?q=issues/rakhine-state-peace-and-stability/id 6391& cf_chl_captcha_tk
=e98e482cd27d24b8ff5cd8d063124f
7d17224628-1575619035-0-AVPiyrKLeNP8lkWhP2m0_sNlYs-59e9nJ-sz5qXeZWselfNYThoMZBmtylmywMLItgZ
p5aWeiHj8-NntdDpw7Xl1Z).
203 The Republic of the Union of Myanmar- Ministry of Information, “Rakhine investment fair can
pave way for JVs with foreign investor” (available at
https://www.moi.gov.mm/moi:eng/?q=news/19/02/2019/id-16703).
204Xinhua, “Myanmar gov't forms supportive committee for Rakhine state's peace,
stability” (15 Mar. 2019) (available at
http://www.xinhuanet.com/english/2019-03/15/c_137898273.htm).

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and meaningful coexistence between the different groups in Rakhine province205. In a recent report,
progress was recorded in implementing recommendations by the Commission. This included
significant investment in transport infrastructure, with the construction of nine
industrial roads nearing completion and 49 bridges in progress, as well as the implementation of
100 new houses for the relocation of Taung Paw Internally Displaced Persons’ camp206.
14. Secondly, the Government of Myanmar has undertaken several initiatives to investigate the
violence that occurred since the regrettable events of 2016 and 2017. This has included:
(a) The establishment (in December 2016) of the Investigation Commission on Maungdaw to
probe into the background causes of the attacks on 9 October and 12 to 13 September 2016207;
(b) In January 2018, a military court established in Mansi Township sentenced six soldiers to ten
years imprisonment for their role in the killing of three men208;
(c) The establishment (in July 2018) of the Independent Commission of Enquiry (ICOE)
to investigate the allegations of human rights violations and related issues in Rakhine
State209; also worth noting,
(d) We also have the establishment (in March 2019) of a Military Court of Inquiry to investigate
incidents related to the terrorist attacks which occurred in Buthidaung-Maungdaw
region210. The Court of Inquiry has conducted investigations in Buthidaung and Maungdaw townships.
On 25 November 2019, it was announced that the military court will begin court martial
proceedings against a group of soldiers involved in fighting against the Arkan Rohingya

205 Advisory Commission on Rakhine State, “Final Report of The Advisory Commission On
Rakhine State- Towards a Peaceful, Fair And Prosperous Future For The People
Of Rakhine” (Aug. 2017) (available at
http://www.rakhinecommission.org/app/uploads/2017/08/FinalReport_Eng.pdf).
206 “Report to the people on the progress of the Implementation committee on recommendations on
Rakhine State between January and August 2019” (Report to the People, Jan.-Aug. 2019); judges’
folder, tab 4.8, p. 16.
207 Republic of the Union of Myanmar-President’s Office, “Notification 89/2016—Formation
of Investigation Commission” (1 Dec. 2016) (available at
http://www.president-office.gov.mm/en/?q=briefing-room/news/2016/12/05/…- 6883).
208 “Military Court Gives Soldiers 10 Years for Murder of 3 Kachin” (22
Jan. 2018) (available at https://www.legal-tools.org/doc/623bd1/pdf/).
209 Republic of the Union of Myanmar-Office of the President, “Government of the Republic of the
Union of Myanmar Establishes the Independent Commission of Enquiry” (Press Release,
30 July 2018) (available at https://www.icoe-myanmar.org/).
210 Office of the Commander in Chief of Defence Services, “Information released on formation of
investigation court to further scrutinize and approve incidents related to terror attacks of
extremist Bengali terrorists which occurred in Buthidaung-Maungtaw region of Rakhine State”
(available at http://cincds.gov.mm/node/2135).

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Salvation Army in Gu Dar Pyin village, in Buthidaung township211. Regional and international
bodies, including the Association of Southeast Asian Nations, have expressed support for these
measures aimed at accountability212.
15. Mr. President, Members of the Court, these initiatives, as well as the international effort to
repatriate displaced peoples, are completely at odds with the case presented by The Gambia. If The
Gambia’s allegations were to be taken at face value, it would have to follow that in all of the
aforementioned initiatives, Myanmar is acting in bad faith, participating in all these
initiatives, whilst in truth harbouring an entirely inconsistent genocidal intent. Such bad faith
on the part of a State cannot be assumed by the Court, even at the provisional measures stage, in
the absence of sound evidential basis to that effect.
16. Turning to The Gambia’s case213, it is worth noting what is omitted from the portrayal of the
current situation-no doubt quite deliberately. Conspicuously absent is any acknowledgment of the
complexity of the situation in Rakhine State. There is no mention of the ongoing insurgency in
Rakhine by militant Muslim groups (Arakan Rohingya Salvation Army (ARSA)) and separatist
Rakhine groups, like the Arakan Army (AA), opposed to the union with Myanmar214. Significantly, The
Gambia does not cite any material which conclusively attributes recent attacks against homes and
villages to the organs of the State of Myanmar. What is more, no State in the region, not even
Bangladesh, has asserted that the displaced persons, if returning to Myanmar, would be at risk of
genocide.
17. For example, the International Crisis Group in its most recent report noted the role of the
ethnic armed groups, such as the Arakan Army, the separatist group excluded from the peace talks,

211 Office of the Commander in Chief of Defence Services, “Court-Martial Trial on
Incident of Gutapyin Commences” (available at http://cincds.gov.mm/node/5471).
212 Chairman’s Statement of The 35th ASEAN Summit (supra, fn. 188), para. 38; Strategic
Executive Group (supra, fn. 199), para. 15, p. 13.
213 AG, paras. 99-110.
214 International Crisis Group, “A new Dimension of Violence in Myanmar’s Rakhine
State” (24 Jan. 2019) (available at
https://d2071andvip0wj.cloudfront.net/b154-myanmar-s-rakhine-state.pdf.; See also Yusof Ishak
Institute (supra, fn. 193). ; “Security Council Briefing on Myanmar, Special Envoy Christine
Schraner-Burgener” (28 Feb. 2019) (available at
https://dppa.un.org/en/security-council-briefing-myanmar-special-envoy-…).

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in aggravating conflict215. And just last week the Arakan Army claimed responsibility for an attack
on a ferry carrying government officials216.
18. Much is made in the Application217 of the alleged restrictions on the freedom of
movement of Muslim groups in Rakhine, who are confined in “displacement camps”  where
access is strictly controlled by the Myanmar Military Police. But The Gambia does not mention that
the deployment of the police is due to security considerations. It fails to indicate
that these restrictions on movement have affected access of all communities, Muslims and
non-Muslims alike, to education and also to health services218. In fact, a 2019 “Preliminary Needs
Assessment” done by the Association of Southeast Asian Nations found that the local community in
Rakhine view the presence of border guards as a critical element in rebuilding public
confidence and deterring potential conflicts219.
19. The allegation of a State-sponsored policy of starvation is not supported either.
The Application instituting proceedings220 cites only three documents, at footnotes 197 to 198, one
of which is the Fact-Finding Mission’s detailed findings merely referring to two other
documents. One of these other documents does not refer to any deliberate State policy of forced
starvation, but merely refers to “concerns” of people “reportedly experiencing conditions of forced
starvation”221. The other is a statement by Ms Yanghee Lee, who says that there “appears” to be a
policy of forced starvation in place, but does not give any further particulars.
20. The region, it is acknowledged, is facing a period of great instability. There is no doubt that
this is having consequences for civilians caught up in the unrest. At Myanmar’s request the Red
Cross and the Red Crescent Movement  comprised of the ICRC and the Red Crescent

215 International Crisis Group, “ Myanmar: A violent Push to Shake up Ceasefire Negotiations” (24
Sept. 2019) (available at https://d2071andvip0wj.cloudfront.net/b158-myanmar-a-violent-push_0.pdf).
216 Ei Ei Toe Lwin, Myanmar Times, “Arakan Army claims responsibility for ferry attack in Rakhine”
(2 Dec. 2019) (available at
https://www.mmtimes.com/news/arakan-army-claims-responsibility-ferry-at…).
217 CR 2019/18, p. 37, paras. 5 and 6 (Pasipanodya).
218 UNDP-UNHCR Rapid Needs Assessment in Rakhine State, Nov. 2019, 15 and 19; judges’ folder.
219 ASEAN-ERAT, “Preliminary Needs Assessment for Repatriation in Rakhine State,
Myanmar” (supra, fn. 190), p. 52.
220 CR 2019/18, p. 41, paras. 17 and 19 (Pasipanodya).
221 CEDAW, “Concluding observations on the report of Myanmar submitted under the
exceptional reporting procedure” (18 Mar. 2019) UN doc. CEDAW/C/MMR/CO/EP/1
(available at https://undocs.org/en/CEDAW/ C/MMR/CO/EP/1), para. 45 (quoted in AG, fn. 198.)

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Societies (IFRC)  have been providing humanitarian assistance in Maungdaw and
Sittwe districts222. The World Food Programme (“WFP”) has been present with Myanmar’s
support223, since 2017. It is significant that the WFP, in its monthly briefings, has made no
suggestion of a policy of starvation. In fact, what it reports is food shortages affecting
non-Muslim ethnic groups, attributable to ongoing fighting with insurgent groups224.
21. Again, the various States and organizations who are supportive of the repatriation
process have not suggested that there is any State policy of starvation in place, and
it is hardly likely that they would be promoting repatriation efforts if they considered that
there was any such risk.
22. To summarize, the ongoing causes and consequences of the hostilities in Rakhine State are
complex and difficult to disentangle. The Court is not in a position to work through the disputes
of fact in the context of a provisional measure’s application. What is clear is that there is
simply no evidence that the Muslim community is at risk of acts deliberately aimed at them by
Myanmar’s organs at their destruction as a group “in whole or in part”.

Conclusion
23. Mr. President, Members of the Court, in our submission the request provides no factual basis
for the conclusion that there is an imminent risk of Myanmar committing breaches of
the Genocide Convention. On the contrary, Myanmar has made, and continues to make, great efforts to
de-escalate the conflict that affects Rakhine State, and to advance peace,
stability, and reconciliation in the region.
24. Myanmar’s efforts have been endorsed by the international actors at the highest level225.
Importantly, they are recognized by regional and international players, including China, Indonesia,

222 Red Cross Movement, “Rakhine Operational Response” (Jan. 2018) (available at
https://www.icrc.org/sites/
default/files/wysiwyg/Worldwide/asia/Myanmar/red_cross_movement_rakhine_operational_response_-_jan_2
018.pdf); ICRC, “Myanmar Conflict: Rakhine State, Myanmar” (available at
https://www.icrc.org/en/where-we-work/asia- pacific/myanmar/myanmar-conflict).
223 WFP, “Myanmar Country Brief” (Oct. 2017) p. 1 (available at
https://reliefweb.int/sites/reliefweb.int/ files/resources/wfp273246_1.pdf).
224 WFP, “Myanmar Country Brief” (Oct. 2019) p. 1 (available at
https://reliefweb.int/sites/reliefweb.int/files/ resources/WFP-0000110696.pdf).
225 See paragraph 9 above.

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and Japan, as the only realistic solution to a humanitarian crisis against the
backdrop of an on-going insurgency in Rakhine.
25. It is on this note that I turn briefly to the Court’s discretion whether or not
to order provisional measures, even if it considers that the criteria of Article 41 are met. In
this case, there is a powerful factor that goes to discretion. To quote the late United
Nations Secretary-General, Mr. Kofi Annan, speaking at the time of the publication of
the Advisory Commission’s Interim Report: “the challenges facing Rakhine State and its peoples
are complex and the search for lasting solutions will require determination, perseverance and
trust”226. If this Court were to find that there is an imminent risk of genocide in Myanmar,
it would create an immediate and insurmountable obstacle to the current repatriation efforts
underway. This is a highly relevant factor for the Court to consider when determining whether or
not to grant provisional measures.
26. However, I do stress again that Myanmar firmly and emphatically denies that the criteria in
Article 41 are met in this case.
27. This concludes the first round of oral pleading of Myanmar. I would like to thank you very much
for your kind attention.

The PRESIDENT: I thank Ms Okowa. Your statement indeed brings to an end the first round of oral
observations of Myanmar. The Court will meet again tomorrow, 12 December 2019, at 10
a.m. to hear the second round of oral observations of The Gambia. Myanmar will also present its
second round of oral observations tomorrow, at 4.30 p.m. I recall that for the second round, each
Party will have a maximum of 90 minutes to present its observations. Today’s sitting
is now adjourned.
The Court rose at 12.50 p.m.

226 Press Release, “Statement by Kofi Annan, Chair of the Advisory Commission on
Rakhine State (Interim Report)” (16 Mar. 2017) (available at
http://www.rakhinecommission.org/statement-kofi-annan-chair-advisory-
commission-rakhine-state-interim-report/).