Ms Leigh Lawrie KC, Advocate for Myanmar, presented her rebuttal arguments on other location as Chapter 9 of Myanmar’s written pleadings for the case of The Gambia versus Myanmar at the International Court of Justice in The Hague, the Netherlands, on 19 January.
She stated: The crux of The Gambia’s case is that the counter-terrorism operations conducted in 2016 and 2017 followed a “consistent pattern”, involving killing, extreme brutality and sexual violence in “hundreds” of Bengali villages across Rakhine State. From this, it asks the Court to draw an inference of genocidal intent. If it cannot prove this alleged consistent pattern across hundreds of villages, little if anything remains of its claim of genocide.
However, the evidence of this consistent pattern is just not there. The purpose of this forensic presentation is to explain why. Before getting into the details, four headline points can be made.
First, The Gambia cannot even fix on the total number of locations it says form part of its pattern. Despite claiming that “hundreds” of villages were affected, the Memorial focuses on just three – the three main locations dealt with by Mr Blom-Cooper. According to Myanmar’s analysis, the Memorial discusses events at a further 38 locations, including Kha Maung Seik, but it does so in an extremely generalized way. In its Reply, The Gambia adds allegations for, in essence, another four locations, given that it confuses two different villages with the same name. In its oral submissions last week, it added another location not previously expressly mentioned, that is, Nga Yant Chaung. Therefore, it appears the current total is 46 locations, not the claimed “hundreds”.
As there were 509 locations in northern Rakhine State which were either entirely or partially inhabited by Bengalis in August 2017, The Gambia is making allegations for less than 10 per cent of Bengali inhabited settlements in northern Rakhine State.
Second, The Gambia doesn’t undertake the necessary analysis to support its claimed “consistent pattern”. It should be obvious that to demonstrate a consistent pattern, the evidence relating to each location must first be examined individually. Once events in each location are established, they can then be compared and a judgment formed as to whether they show a pattern between them. The Gambia does not do this. It also somewhat surprisingly argues that it is not required to do this. This argument is clearly flawed. To prove a pattern, some sort of repetition must be established among all locations said to form part of the pattern otherwise, a key finding in this case will be made by extrapolation alone.
Third, by not properly specifying its case, many of The Gambia’s claims are not anchored by an identified witness, a specific location or by any date. I am sure you remember the allegations of “tongues and hands cut off”, of “hundreds of body parts hanging from trees”, and of “heads floating in the river like footballs.” These come from two reports – one prepared by the Public International Law & Policy Group (“PILPG”) and the other prepared by the US State Department. As you will see on your screen, the sources of the first two allegations taken from the PILPG report are “Questionnaires”. For the other allegation, taken from the US State Department report, no information is given about the source. All we know is that US investigators spoke to residents of camps in Bangladesh. This is the totality of the information we have to defend Myanmar in relation to these allegations. They make for dramatic sound bites, but we are not here to consider sound bites. How does Myanmar, or indeed any State, positively challenge such vague allegations or call evidence to contradict them? It’s impossible!
Fourth, despite not bearing the burden of proof, it is Myanmar which undertakes the necessary analysis of the evidence. As has been explained in earlier presentations, Myanmar’s general contention is that the material relied on by The Gambia can be given no or no significant evidential weight. Without prejudice to that position, Myanmar’s detailed location-by-location analysis demonstrates additionally that this material does not show a “consistent pattern” of atrocities in the 46 locations.
My review of these locations will be broken up into three parts. The first will examine the evidence in relation to the six locations that were the subject of specific examination by the FFM in its 2018 report. The second part will examine the 11 locations which only concern crimes allegedly committed in 2016. The third part will examine the remaining 25 locations mentioned in The Gambia’s Memorial, Reply and oral submissions.
The Advocate stated her location-by-location analysis for the villages: Gu Dar Pyin, Ah Lel Than Kyaw, Myin Hlut, Kyauk Pan Du, Koe Tan Kauk / Chein Khar Li, Inn Din, Doe Tan, Nga Khu Ya, Ngar Sar Kyu, Kyet Yoe Pyin, Pwint Hpyu Chaung, U Shey Kya, Myaw Taung, Yae Khat Chaung Gwa Son, Dar Gyi Zar, Wa Peik, Dar Paing Sa Yar, Ngan Chaung, Hpar Wut Chaung, Zin Pai Nyar, Kyein Chaung / Done Paik / Ree Dar, Laung Don, Naung Dar Khar Li, Hpaung Taw Pyin, Chin Tha Mar, Maung Gyi Taung, Kun Taing / Myaung Nar, Yin Ma Kyaung Taung, Taung Bazar, Thin Baw Kway, Hpet Leik, Gaw Du Thar Ra, La Ba Daung, Hang Cha Ma Gulang, Khun Thi Pyin, Ta Man Thar, Du Oh The Ma, Kar Lar Day Hpet, Tha Pyay Taw, Pan Be Chaung, and Nga Yant Chaung.
She concluded the arguments with the following three points: First, while the crux of The Gambia’s case is that the Myanmar Defence Services conducted operations in “hundreds” of Bengali villages across Rakhine State pursuant to the same “consistent pattern of conduct”, The Gambia, at most, mentions a total of 46 locations in support of its claim.
Secondly, Myanmar’s careful analysis of all these locations shows that there is no “consistent pattern of conduct”. Specifically, the analysis of the 42 locations just undertaken demonstrates: No allegations of any form of sexual violence in 17 locations that is almost half; No killings in 12 locations, just a quarter; 11 locations only concern events in 2016; A single allegation involving a single victim is made for three locations; and No allegation of any criminality is made for one location.
Thirdly, the arrival of Myanmar’s Defence Forces at the locations just described in 2016 and 2017 was not “an amazing coincidence”, as The Gambia put it last week. Nor is it Myanmar’s position that it “accidentally attacked 76 different sites at the same time.” Such statements by The Gambia are not serious. Rather, Myanmar’s location-by-location analysis shows that if there was any pattern of conduct, it was one of responsive, targeted and time-limited action by security forces against violence by ARSA.
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