welcoming note from chairs/ introduction to icj - ismunhkismunhk.com/chair...

ISMUNHK

ISMUNHK 2020International Court of Justice

CHAIR REPORT

CASE: The Gambia v. Myanmar

By Harry Chan

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- Table of Content -

Welcoming note from chairs/ Introduction to ICJ 2

Background of the case 3

Memorandum submitted by the Applicants 5

Memorandum submitted by the Respondents 11

Questions submitted to the court 14

Current orders by the court (Fictional) 15

Further readings 15

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- Welcoming note from chairs/ Introduction to ICJ -

On behalf of ISMUNHK 2020, we would like to welcome everyone to the ICJ.

For starters, we want to remind everyone that all participants will not be delegates,

instead, you will all be judges of the ICJ. This means that you can refer to yourself in

the first person, however, it also means that you should not expressly advocate for

your country as judges should be impartial at all times. However, you may choose to

research into your country’s stance on the issue and come up with arguments that

are not explicitly biased.

At the conference, the cases will be heard before a “fictional” International

Court of Justice that sits, tentatively, from the 25 to 26 July 2020 at the Open

University of Hong Kong. All participants will be judges and no counsel will present

the cases for the applicant or the respondent. Judges should refer to the written

memorandums below for the respective cases of the parties. Therefore, judges will

begin deliberation immediately when the court is in session on 25 July.

The arrangements of the deliberations will be further explained in the future,

together with a revised version of the rules and procedure. Judges can expect that

the process will include opening speeches, a time for discussion of the case in

general, separate time allocated to debate the legal questions submitted, time to

deliberate and vote on the charges, and time to discuss and finalise the judgement

and orders (if any) the court should give.

Perhaps the silver lining to all these new rules is that prior MUN experience

may not be as helpful as in other councils. In the ICJ, you will be faced with legal

and factual questions that require logical deductions and less

policy-making/diplomacy. The questions you face will likely test your analytical

skills as much as your advocacy. Although this may not be your typical MUN

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council, we hope that this alternative experience proofs to be enlightening and

rewarding to everyone.

We look forward to seeing everyone soon!

- Background of the case -

On 11 November 2019, the Gambia (“The Applicant”) submitted an

Application instituting proceedings and Request for the indication of provisional

measures against Myanmar (“The Respondent”). The applicant alleges that the

respondent is in breach of the 1948 Convention on the Prevention and Punishment of

the Crime of Genocide (the “Genocide Convention”)1 by destroying the Rohingya

group in part or in whole.

The United Nations and other international human rights organisations have

been investigating this case since 2016, concluding that, amongst other things, the

Myanmar military (the “Tatmadaw”) and other Myanmar security forces have been

systematically discriminating against the Rohingya group who reside in Myanmar.

The defence from Myanmar is that those were counterterrorism missions, intending

to protect its people from terrorists.

Below, you will find two “memorandums”, one submitted by the Gambia and

the other by Myanmar. Memorandums are documents that detail the arguments

each country wants to make regarding the case, sometimes also known as pleadings.

You should treat the documents below as the full arguments presented by each

country, however, you should evaluate its factual accuracy during the hearing. Note

that the memorandums have been shortened significantly, hence, you are

encouraged to read through the documents listed in the “further readings” section.

1 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951), 78 UNTS 277 [hereinafter Genocide Convention].

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Although we will allow you to refer to your research done in addition to those

documents, your materials must be made accessible to us and all other judges before

the court is in session (we will very likely ask you to submit them at least 14 days

before the hearing).

Do note that you are not just trying to decide if the reports are true,

ultimately, you also have to decide whether they are acts of genocide. If a soldier

shot a villager purposefully, it is illegal but may not amount to genocide - the

questions to be considered are also detailed below in a separate section. The

questions are here to guide you to making your final verdict. Whilst you may choose

to add or delete questions, you should be aware of the threshold that has to be met

for a conviction of a genocide charge.

You may also suggest orders in addition to the ones suggested by the Gambia

to be made if the court convicts the respondent, Myanmar. These are similar to

resolutions as they will be submitted to the Security Council for further action. For

instance, it may be an order for a UN peacekeeping mission to be started in

Myanmar. Note that this will be done after the hearing of both cases and only if the

court convicts the respondents. Further, judges can vote to not add any additional

orders - just as how a typical council would reject all resolutions.

You may also be aware that the International Criminal Court (ICC) is also

investigating the potential war crimes committed in Myanmar, in addition to a case

filed by other groups in Argentina, under the doctrine of universal jurisdiction,

against Myanmar. Whilst the decisions in the aforementioned cases do not bind us,

you may use them as part of your research. Lastly, note that this is a “fictional” ICJ,

hence, any orders that the actual ICJ makes do not bind us. However, the Statue of

the ICJ does apply to our court, so judges are encouraged to review the Statue before

the hearings.

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- Memorandum submitted by the Applicants -

The Gambia (Applicant) v. Myanmar (Respondent)

For hearing before the International Court of Justice (fictional) sitting at the Open

University of Hong Kong on 25 and 26 July 2020

Memorandum of the Applicant

1. As detailed in the Application instituting proceedings and Request for the

indication of provisional measures submitted on 11 November 2019, it is not

in dispute that the Rohingya group is attacked by the Myanmar military and

security forces. The dispute surrounds the intention of those attacks, whether

they amount to acts of genocide, and if so, whether the Myanmar government

is responsible.

2. We humbly seek that this court, through making orders, declares that

Myanmar:

● has breached and continues to breach its obligations under the

Genocide Convention;

● must cease forthwith any such ongoing internationally wrongful act

and fully respect its obligations under the Genocide Convention;

● must ensure that persons committing genocide are punished by a

competent tribunal, including before an international penal tribunal, as

required by Articles I and VI;

● must perform the obligations of reparation in the interest of the victims

of genocidal acts who are members of the Rohingya group.

3. By way of background, Article II of the convention defines genocide as:

“Acts committed with intent to destroy, in whole or in part, a national,

ethnical, racial or religious group”

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Examples given in the convention include:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

4. The UN Fact-Finding Mission (September 2018) found evidence of genocidal

intent in the “existence of discriminatory plans and policies,”2 including

Myanmar’s 1982 Citizenship Law, a statute that remains in force, which

makes citizenship and the legal rights associated therewith contingent upon

belonging to one of the country’s predetermined racial categories – known as

“national races.”3 Under this legal regime, the Rohingya are not a “national

race,” and therefore have no rights.

5. The UN Fact-Finding Mission found further evidence of genocidal intent in

the Myanmar authorities’ “tolerance for public rhetoric of hatred and

contempt for the Rohingya,” as well as in the “insulting, derogatory, racist

and exclusionary utterances of Myanmar officials and others.”4 Such

propaganda includes the Government of Myanmar’s incitement of anti-

Rohingya hatred that portrays the group as a “threat, not only to the local

Buddhist communities, but also to the nation and its Buddhist character as a

whole.”5

2 UN Fact-Finding Mission, Report of the Detailed Findings (2018), para. 1425. 3 See ibid., paras. 477-479. On 8 October 1982, Myanmar’s then Head of State, General Ne Win, declared that there should be “three classes of citizens,” with full citizenship reserved for “pure-blooded nationals,” and the remaining classes for those who “cannot [be] trust[ed] fully” and who therefore must be denied “full rights.” UN Fact-Finding Mission, Report of the Detailed Findings (2018), para. 476 (citing Online Burma/Myanmar Library, Translation of the speech by General Ne Win provided in The Working People’s Daily, 9 October 1982, available at http://www.burmalibrary.org/docs6/Ne_Win%27s_speech_Oct-1982-Citizenship_Law.pdf). The 1982 Citizenship Law also permits citizenship through means not relevant here, including through naturalisation.4 UN Fact-Finding Mission, Report of the Detailed Findings (2019), para. 224.5 Ibid., para. 606.

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6. In the early hours of 9 October 2016, a small number of Rohingya, armed

mainly with sticks, knives and a few firearms, reacting to Myanmar’s

persecution of the group, attacked three Border Guard Police posts in

northern Rakhine State.6 Just hours later, the Tatmadaw, operating in

coordination with the Myanmar Police Force and Border Guard Police,

commenced what they called “clearance operations” targeted at Rohingya

villages in a designated “lockdown zone” in central Maungdaw Township.7

During these operations, Myanmar forces systematically shot, killed, forcibly

disappeared, raped, gang raped, sexually assaulted, detained, beat and

tortured Rohingya civilians, and burned down and destroyed Rohingya

homes, mosques, madrassas, shops and Qur’ans.8 As they committed these

crimes, the perpetrators called their victims “people from Bangladesh,”9

“Bengali,”10 and “Kalar.”11

7. The UN Fact-Finding Mission concluded: “the widespread sexual violence

and the manner in which it was perpetrated was an intended effort, at least in

part, to weaken the social cohesion of the Rohingya community and

contribute to the destruction of the Rohingya as a group and the breakdown

of the Rohingya way of life.12 The use of rape and sexual violence as an

instrument of genocide – to destroy a group in whole or in part – is well-

established in international law.13

6 UNGA, Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Myanmar, UN Doc. A/HRC/34/67 (14 March 2017), para. 64. At the time, the group of Rohingya attackers did not have a name. After the attack, the group called itself the Faith Movement (Harakah Al-Yaqin). In March 2017, the group rebranded itself as the Arakan Rohingya Salvation Army (ARSA). See UN Fact-Finding Mission, Report of the Detailed Findings (2018), paras. 1010-10127 UN Fact-Finding Mission, Report of the Detailed Findings (2018), paras. 1069, 1072; UN OHCHR, Report of OHCHR mission to Bangladesh: Interviews with Rohingyas fleeing from Myanmar since 9 October 2016: FLASH REPORT (3 February 2017), p. 7.8 Ibid., paras. 1069-10959 UN OHCHR, Flash Report (2017), p. 15.10 UN Fact-Finding Mission, Report of Detailed Findings (2018), para. 107511 Ibid.12 Ibid., para 1069-107013 Ibid., para. 1071.

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8. During these operations, the military carried out mass executions of Rohingya

men and boys. The women and children were taken to a house where they

“heard repeated gunfire and the screams of the men and boys outside.”14

When they emerged from the house after the soldiers had left, the women

saw “[t]he bodies of the men and boys had been put in a pile, or series of

piles, and burned using hay, harvested rice, and the removed shirts.”15

9. On 16 February 2017, the Myanmar Government declared an end to the

“clearance operations.”16 Thereafter, a Government Investigation

Commission, led by Myanmar’s Vice President, absolved the security forces

of any wrongdoing and endorsed the “lawfulness and appropriateness of the

response.”17 To date, Myanmar has taken no steps to hold those responsible

for these atrocities accountable.18

10. Six months after the official end of the Myanmar State’s “clearance

operations” against members of the Rohingya group, they were formally

resumed. On 10 August 2017, Myanmar airlifted to Rakhine State more than

1,600 members of the Tatmadaw. National media in Myanmar

contemporaneously reported that these military forces were “going to

northern Rakhine to carry out area clearance.”19 Other military units were also

re-deployed to northern Rakhine State, and stationed in areas normally only

guarded by Border Guard Police units.20 These forces were accompanied by

tanks, armoured personnel carriers, heavy artillery, helicopters and naval

vessels.21

14 Ibid., para. 1564 15 Ibid., para. 1151. 16 Ibid., para. 115317 Ibid., paras. 1152, 1156.18 Ibid., para. 753.19 Ibid., para. 1157.20 Ibid., paras. 972-973.21 Ibid., para. 920.

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11. During these renewed “clearance operations,” the Commander-in-Chief of

Myanmar’s armed forces, Senior-General Min Aung Hlaing, confirmed the

objective of the operations: “The Bengali problem was a long-standing one

which has become an unfinished job despite the efforts of the previous

governments to solve it. The government in office is taking great care in

solving the problem.”22

12. The UN Fact-Finding Mission concluded that the level of coordination of the

attacks against members of the Rohingya group evidenced that it had been

pre-planned by senior Government officials: “This level of build-up, both in

quantity and nature, would have required significant logistical planning over

a considerable period. It would have required decisions at the most senior

levels of the Tatmadaw. The Mission has concluded that this preparation, the

joint nature of the operations, and the deployment of the [Light Infantry

Divisions] indicate that the ‘clearance operations,’ or at least the ability to

carry out a large and widespread operation, was planned and ordered well in

advance of 25 August 2017.”23

13. Tellingly, satellite imagery reveals that wherever the Tatmadaw carried out a

“clearance operation” on a mixed ethnicity village or village tract, only the

Rohingya settlements were targeted. Ethnic Rakhine people and habitations

remained untouched.24 The UN Fact-Finding Mission also concluded that “the

‘main perpetrators’ were the Tatmadaw, although other security forces, and

sometimes ethnic Rakhine men, were also involved.”25

22 Ibid., para. 94123 ICTR, Trial Chamber I, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement (2 September 1998), paras. 732-734.24 UN Fact-Finding Mission, Report of Detailed Findings (2018), para. 1086.25 Ibid., para. 1087.

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14. Myanmar’s continuing attacks on the Rohingya group and ongoing

destruction of Rohingya villages are accompanied by other efforts to make life

for the Rohingya impossible. These include denying access to food. According

to the UN Fact-Finding Mission, “[s]ince the ‘clearance operations’ began on

25 August 2017, the Government has severely restricted access to food for

Rohingya in Rakhine State.”26

15. We ask this court to find that Myanmar, through its government and agents:

(1) has shown genocidal intent through systematically discriminating

against the Rohingya people;

(2) has used disproportionate force to respond to “threats” from the

Arakan Rohingya Salvation Army (ARSA), nullifying any argument of

self-defence;

(3) has systematically targeted the Rohingya people, regardless of whether

they pose a “threat”;

(4) coordinated attacks not to specifically target terrorists, but the

Rohingya people; and

(5) systematically denies the Rohingya people any access to food to make

life unsustainable.

26 Ibid., para. 156.

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- Memorandum submitted by the Respondents -

The Gambia (Applicant) v. Myanmar (Respondent)

For hearing before the International Court of Justice (fictional) sitting at the Open

University of Hong Kong on 25 and 26 July 2020

Memorandum of the Respondent

1. In response to the Memorandum submitted by the Gambia, we accept that

there have been attacks in areas within our borders. However, it is important

to note immediately that these acts do not constitute genocide. We accept that

some members of the military may have used a disproportionate amount of

force against people, however, these are at best war crimes and are not

regulated by the Genocide Convention.

2. First, the allegation that Myanmar discriminates against any ethnic groups is

unfounded. Varying the type of treatment for different ethnic groups is not an

illegal act, it is a typical and necessary policy decision. The Myanmar

government has taken into account the interests of different stakeholders in

the country and has made the best decision that aligns with the interest of the

nation.

3. Even if these acts are deemed to be discriminatory (not the position of the

Respondent), it is not a matter for this court to decide. The Gambia has not

cited any relevant international treaties related to discrimination. We submit

that acts of discrimination are not sufficient to prove an intent to commit

genocide.

4. Second, we deny that the “clearance operations” used to target certain ethnic

groups. The operations are part of a campaign to root out insurgents or

terrorists within the area. The court has given out various judgements

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regarding the use of force. In general, the use of force is allowed if there is a

threat to the country or its national interest. Whilst the Applicant has tried to

downplay the violence incited by the Arakan Rohingya Salvation Army

(ARSA), we stress that they have been attacking our military bases and

threatening the lives of our soldiers and other members of the security forces.

5. Further, proportionality should be judged subjectively, meaning that the

context of the conflict as well as the amount of pressure the soldiers are under

should be considered. Hence, even if some members of the military may have

used a disproportionate amount of force, we have established the

Independent Commission of Enquiry (ICOE)27 and firmly believes that it is

more than capable of investigating the facts of the case.

6. We maintain that this court does not have the jurisdiction to decide whether

war crimes have been committed - that is the job of the ICOE and, at best, the

International Criminal Court (ICC). We would like to remind the court that

there is a difference between murder, a war crime, and genocide. We accept

that the charges or murder and/or war crime may apply to certain members

of the military, which we shall investigate as a matter of internal affairs.

However, the differentiation between murder and war crime with genocide is

whether it is supported by the state to destroy certain ethnic groups.

Myanmar did not, does not, and will not support any form of genocide.

7. Third, the Myanmar government has never ordered or coordinated, in any

form, attacks that target specific ethnic groups.28 The UN Fact-Finding

Mission (2018) only found that the “clearance operation” must have been

coordinated by the Myanmar government, but it did not find that the

Myanmar government coordinated the alleged acts of genocide. The report

merely points out that “this level of build-up, both in quantity and nature,

27 §9 of the Applicant’s Memorandum.28 §12 of the Applicant’s Memorandum.

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would have required significant logistical planning over a considerable

period. It would have required decisions at the most senior levels of the

Tatmadaw. The Mission has concluded that this preparation, the joint nature

of the operations, and the deployment of the [Light Infantry Divisions]

indicate that the ‘clearance operations,’ or at least the ability to carry out a

large and widespread operation, was planned and ordered well in advance of

25 August 2017.”29

8. We fully accept that we have planned the clearance operations to remove

terrorist groups and any of its remaining roots in the area. The government at

no time authorized or coordinated attacks that target ethnic groups. The

Gambia claims that “only the Rohingya settlements were targeted [while]

ethnic Rakhine people and habitations remained untouched.”30 In reality, all

attacks were targeted at terrorist groups, in particular, the Arakan Rohingya

Salvation Army (ARSA), hence the location of the attacks.

9. Four and lastly, the Myanmar government never intentionally denies any

ethnic group their access to food. The allocation of agricultural goods and

food items are evaluated by the government constantly as a matter of internal

policymaking. We humbly submit that internal policies relating to the

distribution of food items are not reviewable under the jurisdiction of this

court.

10. In conclusion, we ask the court to dismiss the claims and rule in favour of

Myanmar.

- Questions submitted to the court -Discrimination:

29 UN Fact-Finding Mission, Report of Detailed Findings (2018), para. 1157.30 §13 of the Applicant’s Memorandum.

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1. Is discrimination against an ethnic group sufficient to proof genocidal intent?

If not, can genocidal intent be inferred31 from acts of discrimination?

2. Are the policies implemented by Myanmar, such as the 1982 Citizenship Law,

discriminating against the Rohingya people? If so, is it relevant to genocidal

intent?

The use of force:

3. Does the threat have to be imminent for a state to use force? If not, can a state

take pre-emptive action to eliminate potential threats?

4. Is the use of a disproportionate amount of force sufficient to proof genocide?

If not, can it show, directly or through making an inference, genocidal intent?

5. Was it legal for Myanmar to use force against certain Rohingya people who

pose a potential threat? If so, was the amount of force used by Myanmar

disproportionate? If so, is it relevant to genocidal intent and/or acts of

genocide?

Targeting of the Rohingya people

6. If only one group of people suffers from the policy of a state, disregarding the

legality of the use of force, can genocidal intent against the said group be

inferred?

7. Are the actions/inactions of the Myanmar government harming only the

Rohingya people? If so, is it relevant to genocidal intent?

Denial of basic resources

8. If a state refuses to provide basic resources to only one group of people, is it

sufficient to prove genocidal intent? If not, can genocidal intent against the

said group be inferred?

9. Is the Myanmar government’s policy that led to a food shortage to the

Rohingya people sufficient to prove genocidal intent? If not, can genocidal

intent against the said group be inferred?

31 Note that in international law, any valid inference made has to be the only inference one can draw from the evidence. If you can draw other inferences from the evidence, the inference is invalid.

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N.B. The definition of Genocide can be found at §3 of the Applicant’s

Memorandum. The 2 elements in dispute are: (1) Did Myanmar intentionally target

the Rohingya people? (genocidal intention) (2) Was the use of force against them

legal? (an act of genocide)

- Current orders by the court (Fictional) -1. The Court rules that it has jurisdiction to hear the case;

2. The Court orders parties not to make any oral arguments and shall adopt

their written memorandums;

3. The Court orders that this case be heard in the same session with a separate

case (Ukraine v. Russia);

4. The court rules that all documents cited in the memorandums and in the

"further readings" are admissible as evidence.

5. The court rules that, under the discretion of the President and Vice President

of the court, judges may submit documents relevant to the case 14 clear days

before the hearing for the full court to consider.

- Further readings -Becker, Michael A. “The Challenges for the ICJ in the Reliance on UN Fact-Finding Reports in the Case against Myanmar.” Blog of the European Journal of International Law, 14 Dec. 2019, www.ejiltalk.org/the-challenges-for-the-icj-in-the-reliance-on-un-fact-finding-reports-in-the-case-against-myanmar/#more-17743.

Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951), 78 UNTS 277.

“Independent International Fact-Finding Mission on Myanmar.” United Nations Human Right Council , www.ohchr.org/en/hrbodies/hrc/myanmarffm/pages/index.aspx.

Kirby, Jen. “The Top UN Court Ordered Myanmar to Protect the Rohingya. An Expert Explains What It Means.” Vox, Vox, 24 Jan. 2020, www.vox.com/world/2020/1/24/21078774/icj-myanmar-roghingya-genocide-gambia.

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“Latest Developments: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar): International Court of Justice.” Latest Developments | Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) | International Court of Justice, International Court of Justice , www.icj-cij.org/en/case/178.

“Myanmar Finds War Crimes but No Genocide in Rohingya Crackdown.” Myanmar News | Al Jazeera, Al Jazeera, 21 Jan. 2020, www.aljazeera.com/news/2020/01/myanmar-finds-war-crimes-genocide-rohingya-crackdown-200121012116763.html.

UN Fact-Finding Mission, Report of the Detailed Findings (2018).

UNGA, Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Myanmar, UN Doc. A/HRC/34/67 (14 March 2017).

UN OHCHR, Report of OHCHR mission to Bangladesh: Interviews with Rohingyas fleeing from Myanmar since 9 October 2016: FLASH REPORT (3 February 2017)

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