MR Christopher Staker, Lead Counsel for Myanmar, presented his submissions to the ICJ in The Hague, the Netherlands, yesterday.

He said: Other than the FFM reports, the documents relied on by The Gambia as evidence of the claimed events of 2016 and 2017 consist primarily of witness statements, interview records, reports and documents of the United Nations and other official bodies and NGOs, and media articles.

Myanmar’s written pleadings individually address each annexe cited as evidence in the chapters of The Gambia’s pleadings relating to the claimed events of 2016 and 2017.

Myanmar says that, as in the case of the FFM reports, little or no weight can be given to any of the other material relied on by The Gambia to prove the core facts central to its claim of genocide.

In all of this other material, as in the FFM reports, the information concerning alleged atrocities overwhelmingly has as its ultimate source people living in the camps in Bangladesh. The witness statements are largely from people in the camps in Bangladesh. The reports of the United Nations, official bodies and NGOs, like the FFM report, are largely based on interviews of people in the camps in Bangladesh. The witness statements also predominantly come from such persons.

In all of this material, those providing the information are almost entirely anonymous. As I said on Friday, the FFM interviewed hundreds of witnesses, and almost all of them are anonymous. In the reports and documents of the United Nations and other official bodies and NGOs, the sources of information about atrocities are also largely anonymous. With rare exception, even the witness statements provided by the IIMM are redacted to conceal identities. That is truly remarkable because the IIMM is meant to be producing evidence for use in judicial proceedings, and it is difficult to see what use can be made in judicial proceedings of anonymous witness statements. The witness statements prepared by Legal Action Worldwide were also originally annexed to The Gambia’s written pleadings in anonymized form.

The Gambia filed new versions of 15 of these witness statements so that they now disclose the identities of these 15 witnesses. By doing this, The Gambia appears to acknowledge that anonymous statements lack evidential weight. However, the fact remains that many of the Legal Action Worldwide witness statements are still anonymous.

Due to the presence and influence of ARSA in the camps in Bangladesh, it is unlikely that anyone living there would give an account contradicting the ARSA narrative. Some living there will be members or sympathisers of ARSA, while others live in fear of ARSA. In either case, either loyalty to ARSA, or fear of ARSA, or a combination of both, will make it unlikely that accounts given are true and objective. ARSA has attacked and even killed others in the camps who oppose its views. At least two IIMM witnesses, when asked about those responsible for the ARSA attacks in northern Rakhine State, have stated openly that they are not able to speak about this because those concerned are present in the camps in Bangladesh.

The Gambia has claimed that this pervasive anonymity has been required because witnesses are at risk from the authorities in Myanmar, yet The Gambia has in fact presented no evidence to the Court to establish such a claim, nor has the Court ever made any finding that any such objective risk exists. Even the Head of the IIMM does not state that any such objective risk exists: rather, he says that witnesses express a subjective fear of such a risk. In fact, there is a large amount of evidence that witnesses in the camps in Bangladesh are at risk from ARSA, but none at all is presented of any actual risk from the authorities of Myanmar.

Having identified overarching features of the material relied on by The Gambia to establish the core elements of its claim, I now proceed to examine particular types of materials in turn. I begin with the reports and other documents of United Nations bodies, other official bodies, and NGOs.

I have already mentioned that the witnesses giving the witness statements prepared by Legal Action Worldwide are all clients of that organization, which is providing legal services to them in what is said to be their quest for “justice and accountability”. The purpose of preparing the Legal Action Worldwide witness statements is said by the executive director of Legal Action Worldwide to be “to gather witness testimony evidencing the physical acts of genocide”.

Legal Action Worldwide has also received support from the Government of Canada, which provided investigators from the Royal Canadian Mounted Police to take some of the witness statements prepared by Legal Action Worldwide. Canada has also stated that its intervention in this case would be to “support [the] efforts” of The Gambia, which Canada says has taken the “laudable step” of bringing this case before the Court. Canada, therefore, overtly sides with The Gambia. Myanmar’s written pleadings highlight other issues with the lack of neutrality of this organization.

Myanmar also does not accept the impartiality of Fortify Rights. Mr Smith of Fortify Rights is officially part of The Gambia’s delegation at this hearing. The evidence in the case includes documents produced by Fortify Rights, a witness statement by Mr Smith, an article authored by Mr Smith, and a witness statement that was taken by Mr Smith.

The position of Myanmar is that any evidential weight that might otherwise be given to any materials produced by the IIMM, Legal Action Worldwide, Fortify Rights, and certain other organizations, is seriously diminished by the lack of impartiality of these organizations.

Contrary to what The Gambia suggests, Myanmar does not take the position that witness statements taken by a party to the case, or by someone overtly siding with a party to the case, must necessarily be rejected out of hand. Rather, Myanmar asks the Court to apply its settled jurisprudence. The Court does not simply accept everything stated in a witness statement. The settled jurisprudence is that witness statements and affidavits are treated with caution. The weight such a document is given will depend on a consideration of various factors, including the form and the circumstances in which it is made.

I need not speak in detail about the witness statements of persons other than those in the camps in Bangladesh. These are addressed in detail in Myanmar’s written pleadings, to which The Gambia provides no substantive response.

The Gambia also has evidence from several defectors or deserters from the military. However, this material also lacks evidential weight. Apart from anything else, it is not possible to know whether the claimed defectors are in fact the persons that they claim to be, or whether they were actually in northern Rakhine State at the time of the events.

It seems The Gambia simply received documents from third parties or took them from public sources, and then unquestioningly and uncritically annexed them to its pleadings. There is no suggestion that The Gambia undertook investigations of its own, or steps to verify the accuracy, credibility and reliability of the information in the material received from third parties.

As to the witness statements, when all relevant factors are considered, including the form and the circumstances in which they were made, no evidential weight can be given to these either, or at least, none that could come anywhere near meeting the standard of proof required for a finding of genocide in proceedings against a sovereign State.

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