Commentary: Proving Myanmar had genocidal intent is not straightforward

LONDON: In what is likely to be a remarkable moment for international justice, Aung San Suu Kyi, the political leader of Myanmar and a Nobel peace prize winner, is in The Hague this week to lead her countrys defence against allegations of genocide.

Gambia launched proceedings against Myanmar in November before the International Court of Justice (ICJ) for alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide.

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The case focuses on the clearance operations carried out by Myanmars military and security forces against the Rohingya Muslims, a distinct ethnic and religious group that resides primarily in Myanmars Rakhine state.

Gambia claims that those operations amounted to a genocidal campaign of violence that included mass murder, forcible displacement, rape, and other forms of sexual violence.

The UN says that 742,000 Rohingya have fled Myanmar for neighbouring Bangladesh since 2017 and many are still living in dire conditions in refugee camps.

WHAT GAMBIA IS ASKING OF THE ICJ

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During the public hearings that the ICJ will hold this week, Gambia will essentially ask the court to order Myanmar to prevent ongoing atrocities against the Rohingya so as to protect them from further, irreparable harm – something known as “provisional measures”.

Attorney William Schabas and Myanmar's leader Aung San Suu Kyi attend a hearing in a case filed by Gambia against Myamar at the ICJ in The Hague. (Photo: Reuters)

This is the third time that the worlds court has been called to establish whether a state is responsible under international law for breaches of the genocide convention.

In 2015, the ICJ ruled that neither Croatia nor Serbia had committed genocide during the hostilities that took place in Croatia between 1991 and 1995.

In a 2007 case brought by Bosnia-Herzegovina, the court also cleared Serbia of direct responsibility for genocide and complicity in genocide in relation to the 1995 massacre of Srebrenica.

This means that the ICJ has never held a state responsible for committing genocide. In this respect, the 2007 and 2015 verdicts reveal some of the obstacles that Gambia will face in persuading the court that Myanmar committed genocide against members of the Rohingya group.

PROVING INTENT: A HIGH BAR TO CLEAR

The genocide convention lists a number of acts, including killing or causing serious bodily or mental harm that may constitute genocide provided that they are committed with the “intent to destroy”, in whole or in part, a national, ethnic, racial or religious group.

It is precisely the existence of this special intent that distinguishes genocide from other heinous crimes. This is of special importance given the difficulty of proving genocidal intent in a courtroom.

In the absence of direct conclusive evidence, the ICJ will infer genocidal intent from particular circumstances – such as a pattern of acts committed against members of the targeted group – only if the circumstances point unequivocally to the existence of that intent.

Court hearings in case against Myanmar on alleged genocide of Rohingya, at the International Court of Justice in The Hague. (Photo: Reuters)

Adopting this strict approach in both the 2007 and 2015 judgements, the court determined – with the only exception of Srebrenica – that the atrocities committed during the conflicts in Croatia and Bosnia lacked the requisite intent to destroy the targeted groups, and so could not be qualified as genocide.

In the case of Srebrenica, the court ruled that the acts “were committed with the specific intent to destroy in part the group of the Muslims of Bosnia and Herzegovina” and were therefore genocide.

Still, it found that Serbia itself was not directly responsible for the massacre, which was committed by Bosnian Serbs. Serbia was nevertheless found responsible for failing to prevent genocide given that it was in a position of influence over those who devised and implemented it.

The rationale for setting such a high standard of proof is, in the ICJs words, that: “Claims against a state involving charges of exceptional gravity must be proved by evidence that is fully conclusive.”

Unsurprisingly, this stringent approach has been the object of much criticism. One of the current judges sitting at the ICJ, Cançado Trindade, noted in 2015 that imposing such a high threshold for proof of genocide runs the risk of reducing the genocide convention to a dead letter.

MUCH WILL DEPEND ON THE UN FACT-FINDING MISSION

To demonstrate the genocidal nature of the violence against the Rohingya, the Gambia – which is backed by the 57 members of the Organisation of Islamic Cooperation – will rely extensively on UN sources.

In March 2017 the UN Human Rights Council created an Independent International Fact-finding Mission on Myanmar and tasked it with establishing the facts and circumstances of the human rights violations committed by Myanmars military and security forces against the Rohingya.

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