Burma on Jan. 16 began its defense before the International Court of Justice (ICJ) in the ground-breaking genocide case brought by the Gambia, rejecting [12] all allegations of genocide against the Muslim Rohingya minority.
Myanmar's agent Ko Ko Hlaing emphasized Burma's recognition of the 1948 Convention on the Prevention & Punishment of the Crime of Genocide [16], but said the country did not breach any of its obligations under international law. He stated [17]: "A finding of genocide would place an indelible stain on my country and its people. These proceedings are of fundamental importance for my country’s reputation and future."
He noted that the military operations carried out in northern Rakhine state in 2016 and 2017 were counter-terrorism operations and were not carried out with genocidal intent. Furthermore, he rejected the claim that Burma denies the existence or rights of the Muslim population in northern Rakhine state. He stated, "Myanmar considers that Bengalis in northern Rakhine State are culturally, ethnically and religiously part of the same group as the population living immediately across the border in Bangladesh."
Stefan Talmon, an international law professor at the University of Bonn [18], also spoke on behalf of Burma. Professor Talmon's argument [19] rested on the high burden and standard of proof for establishing a breach of the Genocide Convention. He argued that the Gambia, which brought the case against Myanmar, must meet the highest standard of proof, "beyond a reasonable doubt." Talmon additionally questioned the validity of the Gambia's argument on the grounds that it does not follow precedent established in the Bosnia v Serbia [20] and Croatia v Serbia [21] cases. He asserted that the Gambia's argument is inductive, as opposed to the deductive approach used in the prior cases.
The ICJ has traditionally set a high bar for establishing genocide. The only time it has found a violation of the Genocide Convention was regarding the Srebrenica genocide [22] during the Bosnian war. However, the court held that Serbia only breached its obligation to prevent genocide but had not directly committed genocide.
The Gambia's case alleges [23] that Burma's armed forces have conducted widespread and systemic "clearance operations" against the predominantly Muslim Rohingya population with genocidal intent. Violence in northern Burma has led to over a million Rohingya living in a Bangladeshi refugee camp. The case opened in November 2019, when the Gambia requested that the court begin proceedings against Burma under to the Genocide Convention [13]. In 2020, Burma was ordered to halt and prevent all genocidal acts against the Rohingya.
The Gambia's case against Burma is the first instance where a state not affected by the facts of the case brings forward proceedings in ensuring compliance with the Genocide Convention. The case serves as important precedent for South Africa's application against Israel [14], which alleges that Israel's actions against Palestinians amount to genocide.
From JURIST [24], Jan. 17. Used with permission. Internal liniks added.
See our last reports on the Rohingya [25], the ICJ case [26], the parallel ICC investigation [27], and the Srebrenica genocide [28].
Note: This report originally used the country’s new rendering of Myanmar. We changed it to Burma in conformity with our style, which we explain here [29].
