Alina Miron submitted the rebuttal arguments on allegations concerning the violation of the obligation to punish and the destruction of evidence for the case of The Gambia versus Myanmar at the International Court of Justice in The Hague, the Netherlands, on 20 January.
She stated: It now falls to me to refute the allegations concerning the obligation to punish genocide, developed by The Gambia in Chapter 11 of its Counter-Memorial and Chapter 8 of its Reply. In essence, The Gambia considers that Myanmar has failed in its obligation to punish genocide because it has not conducted a serious investigation or brought proceedings in relation to the facts brought to the Court’s attention and because it has attempted to conceal evidence relating to these events.
The Gambia does not show how the failure to conduct serious investigations and the concealment of evidence – assuming these were established, which is not the case here – would in themselves contribute to the destruction of the protected group, when they are not part of the actus reus. Nor does it demonstrate how these facts would retrospectively shed light on the specific intention to destroy a protected group that the respondent State allegedly had at the critical moments.
However, this interpretation has not been validated by any international case law, not even by that invoked by The Gambia, which, in oral proceedings, was reduced to nothing.
The Gambia does not explain how the Court could adopt the approach it proposes, given that it has no jurisdiction over individual criminal responsibility and that the Gambia itself attributes the material acts in question to members of the Myanmar armed forces and police.
In any event, if the ultimate objective of invoking the obligation to prosecute is to bypass the requirement to prove dolus specialis or to attribute certain potentially criminal acts to Myanmar, it is bound to fail. Indeed, while The Gambia was unable to provide evidence of this in its demonstration of the commission of genocide, it cannot dispense with this requirement by invoking a complementary but distinct responsibility for failure to repress.
Since The Gambia has failed to fulfil its burden of proving that genocide was committed, there is simply no need to examine the allegations of impunity and destruction of evidence. It is therefore for the sake of completeness that I will show that Myanmar did not fail to fulfil its obligation under the Convention to punish genocide.
The obligation to punish, like the obligation to prevent, is an obligation of conduct and not of result, as stated by The Gambia. The parties to the Convention have an obligation to use all appropriate means at their disposal to punish those responsible for genocide. A contracting party is only liable if it has manifestly failed to implement the measures available to it for this purpose.
What is certain is that the obligation to punish is only enforceable against a Party if the alleged acts fall within the scope of the Convention. This requirement is linked to the Convention’s scope ratione materiae. However, Gambia tends to accuse Myanmar of failing to punish «crimes/atrocities committed against the Rohingya in general or, more specifically, ‘war crimes’ committed during the anti-terrorist operations of 2016 and 2017. It is clear, however, that the obligation to punish under the Convention applies only to acts referred to in Article III of the Convention.
The fact that certain crimes may have gone unpunished or concealed does not mean that they constituted genocide. In order to hold Myanmar accountable for its obligation to punish, The Gambia must demonstrate that genocide was likely committed. These minimum details are necessary to determine whether the facts and conduct in question are likely to fall within the scope of the Convention. However, as my colleagues have shown, The Gambia’s allegations are singularly lacking in precision.
It is still by denying the discretionary power of the territorial State that The Gambia can assert that the absence of prosecution constitutes in itself proof of a clear violation of the obligation to punish, when in fact it is a matter of exercising the power to assess evidence and qualify the facts. Here too, the Gambia is positing as a premise what it must prove. In this case, it must prove that the absence of prosecution is a manifest violation of the obligation to prosecute – in this case, this implies reasonable grounds to believe that genocide was committed by the persons whom Myanmar should have prosecuted. In the absence of such evidence, and given that the obligation to punish is a duty of diligence, The Gambia cannot suggest that the absence of prosecution or conviction constitutes ipso facto a breach of the obligation to punish.
To an excessive degree – Myanmar has prosecuted certain members of its armed forces for acts committed during anti-terrorist operations and some have been sentenced to prison terms. Moreover, The Gambia acknowledges this, while downplaying these examples – because it considers the sentences unsatisfactory.
Finally, there are the allegations of systematic destruction of Rohingya villages by fire or bulldozers, which The Gambia considers to be evidence of dolus specialis on two counts: as an indicator of genocide and as a practice of destroying evidence to conceal the crime. In reality, The Gambia’s allegations regarding the destruction of evidence suffer from the same deficiencies in narrative and evidence as the allegations of genocidal acts. My colleagues have analysed them at length, and I will be brief. Here, too, many questions arise about the relevance of the lengthy discussions our opponents have devoted to this issue.
How could these facts constitute evidence of genocide? In themselves, they do not constitute either actus reus or dolus specialis. The Gambia does not even dispute this.
The Gambia conflates allegations relating to events during the 2016 and 2017 counter-terrorism operations with those relating to subsequent events. Myanmar accepts that destruction of homes took place during the counter-terrorism operations, but these were aimed at legitimate military targets. Other destruction was caused by the ARSA.
Contrary to what Gambia claims, the destruction is far from widespread. I would nevertheless point out that, despite the tendency to generalize geographically, which is also present in the allegations concerning the destruction of evidence, hundreds of Bengali Muslim villages in northern Rakhine State were not affected.
I finally come to the allegations concerning Myanmar’s lack of cooperation with certain United Nations bodies, in particular the investigative mechanism and the Special Rapporteur on the situation of human rights.
Myanmar has explained, in its communications with the United Nations and in its submissions in the present case, that its refusal to recognize the mandate of the fact-finding mission was motivated by its doubts about its impartiality. The same applies to the investigative mechanism established after the fact-finding commission. It is not surprising that The Gambia, whose case relies heavily on the reports of these bodies, does not give credence to Myanmar’s concerns about the investigative methods on which the work of these bodies is based. I would emphasize that Myanmar has the right to challenge them and their conclusions without this constituting evidence of dolus specialis or a violation of the obligation to punish.
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