PROFESSOR Stefan Talmon submitted the rebuttal arguments on alleged hate speech and propaganda for the case of The Gambia versus Myanmar at the International Court of Justice in The Hague, the Netherlands, on 20 January.
He stated: One of The Gambia’s arguments is that the utterances of Myanmar soldiers are an indicator of genocidal intent. You were presented on screen with seven statements which allegedly represented “utterances of soldiers posted online”. However, the Reuters report that is adduced as evidence does not even mention the word “soldier”. All statements are unattributed. One of the seven statements is not even included in the report. One of the statements was a comment on a news article on attacks on police stations by Bengali militants.
This example is only to show that when the Court deals with the statements put forward by The Gambia, it needs to focus very closely on the original statements themselves. The Court should take note of the fact that, in many cases, The Gambia does not put forward the statement itself but relies on secondary sources, reports and news articles. Material of this nature is of no evidential value.
The Gambia says that the Court must determine whether Myanmar’s alleged use of hate speech and propaganda “constitutes an indicator of genocidal intent.” In its presentation last week, The Gambia referred thirteen times to “anti-Rohingya hate propaganda, and the hateful utterances of Myanmar soldiers” – speech acts it considers to be indicators of genocidal intent. It comes as no surprise that at the end of the presentation, The Gambia concluded that such hate speech and utterances are “conclusive indicators of genocidal intent”.
This approach has no basis in the Court’s case law. The Court follows an “inference from a pattern of conduct” approach. The Court first establishes a pattern of conduct from which genocidal intent is then inferred. So there is no direct inference of genocidal intent from hate speech or the tolerance of hate speech.
The only question, therefore, is whether hate speech and the toleration of hate speech could be relevant for establishing a pattern of conduct from which genocidal intent could be inferred. A pattern of conduct has been defined as “a consistent series of acts carried out over a specific period of time.” The two elements of genocide must be “linked”. It is the acts committed by the perpetrators of the attacks on the protected group that must form the pattern of conduct from which the inference is drawn. Extraneous factors, such as hate speech and toleration of hate speech, would inevitably raise the question of their relationship to the actual attacks and the question of causation.
The Gambia’s hate speech and propaganda argument is thus irrelevant for establishing an alleged general plan to destroy the Bengali Muslim group in whole or in part by way of inference from a pattern of conduct.
The Gambia would have to show that the speech acts are related to the particular circumstance in question and that the only reasonable inference from these acts was genocidal intent. Considering the other intents mentioned by The Gambia itself in its presentation, such as intent to incite hatred or violence against Bengali Muslims, or intent to take “revenge”, an intent to destroy would not be the only reasonable inference from these speech acts.
The Gambia’s attempts to insinuate an orchestrated top-down campaign of genocide led by Myanmar’s Senior General Min Aung Hlaing fail on the evidence. When read in their context and against the background of the counter-terrorism operations, the snippets from the General’s statements contain no espousal of genocidal intent, let
alone a call for genocide, or even simple violence.
There is no evidence of genocidal intent in these or other statements by the Senior General. Even if viewed in isolation, as a matter of their ordinary meaning, none of the statements selectively relied on by The Gambia calls for the physical destruction of the group of the Bangli Muslims, in whole or in part, as such.
None of these statements qualifies as direct and public incitement to genocide or is reflective of a genocidal intent of its author. The Gambia tries to gloss over this deficiency by referring instead to “hate speech and anti-group propaganda” as an indicator of Myanmar’s alleged genocidal intent.
There is, however, also another flaw in The Gambia’s argument. There is a difference between hate speech in general, or inciting discrimination or violence, and incitement to commit genocide. Incitement to commit genocide requires more than incitement to hatred or violence; it requires genocidal intent on the part of the instigator. The Gambia has not proven any genocidal intent on the part of the authors of the alleged hate speech acts.
Thus, even if the hate speech argument was relevant for establishing genocidal intent on the part of Myanmar, which it is not, The Gambia would have to prove by conclusive evidence that the authors of the hate speech acts themselves had genocidal intent. It has not done so.
Even if the statements which The Gambia refers to as “anti-Rohingya hate speech and propaganda” were relevant for establishing genocidal intent, The Gambia would still have to prove by conclusive evidence that these speech acts are reflective of genocidal intent on the part of their author. It has not done so.
Even if some of the statements were reflective of genocidal intent, the Gambia would have to prove, by conclusive evidence, that the speech acts in question are attributable to Myanmar. Again, The Gambia has failed to do so.
Even if some statements by individuals reflecting genocidal intent could be attributed to Myanmar, the State’s genocidal intent cannot be established by way of attributing the genocidal intent of one or more individuals. Accordingly, The Gambia’s submissions on hate speech are so far removed from, and fall so short of proving genocidal intent, that they cannot be sustained.
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