Address to the United Nations International Court of Justice
December 2019, The Hague, Netherlands
[as prepared for delivery]
Thank you, Mr. President and
Members of the Court. It is an honor to appear as Agent of the Republic of the
Union of Myanmar in these proceedings, in my capacity as Union Minister for
For materially less resourceful countries like Myanmar, the
World Court is a vital refuge of international justice. We look to the Court to
establish conditions conducive to respect for obligations arising from treaties
and other sources of international law, one of the fundamental objectives of the
United Nations Charter.
In the present case, Mr. President,
the Court has been asked to apply the
1948 Genocide Convention, one of the most
fundamental multilateral treaties of our time. Invoking the 1948 Genocide
Convention is a matter of utmost gravity. This is the treaty that we made
following the systematic killing of more than six million European Jews, and
that my country whole-heartedly signed as early as 30 December 1949 and ratified
on 14 March 1956. Genocide is the crime that the
International Criminal Tribunal
for Rwanda applied in response to the mass-killing of perhaps 70% of the Tutsis
It is the crime that was not applied by the Tribunal for the former
Yugoslavia to the displacement of approximately one million residents of Kosovo
in 1999. Neither was it applied by that Tribunal nor by this Court when deciding
upon the exodus of the Serb population from Croatia in 1995.
In both situations
international justice resisted the temptation to use this strongest of legal
classifications because the requisite specific intent to physically destroy the
targeted group in whole or in part was not present.
Regrettably, The Gambia has placed
before the Court an incomplete and misleading factual picture of the situation
in Rakhine State in Myanmar. Yet, it is of the utmost importance that the Court
assess the situation obtaining on the ground in Rakhine dispassionately and
The situation in Rakhine is complex and not easy to fathom. But one thing
surely touches all of us equally: the sufferings of the many innocent people
whose lives were torn apart as a consequence of the armed conflicts of 2016 and
2017, in particular those who have had to flee their homes and are now living in
camps in Cox’s Bazar.
Mr. President and Members of the
Court, the troubles of Rakhine State and its population, whatever their
background, go back into past centuries and have been particularly severe over
the last few years. Currently, an internal armed conflict is going on there --
between the Arakan Army, an organised Buddhist armed group with more than 5,000
fighters, and the regular Myanmar Defence Services. None of the speakers
yesterday made any reference to this. The Arakan Army seeks autonomy or
independence for Rakhine -- or Arakan as it was called -- finding inspiration in
the memory of the historic Kingdom of Arakan. This conflict has led to the
displacement of thousands of civilians in Rakhine. Standard security
restrictions -- such as curfew and check-points -- are in place at present in the
conflict zone and affect the situation of civilians there, regardless of their
Mr. President, on 9 October 2016,
approximately 400 fighters of the ArakanRohingya Salvation Army -- known as ARSA
-- launched simultaneous attacks on three police posts in Maungdaw and Rathedaung
Townships in northern Rakhine, near the border with Bangladesh. ARSA claimed
responsibility for these attacks, which led to the death of nine police
officers, more than 100 dead or missing civilians, and the theft of 68 guns and
more than 10,000 rounds of ammunition. This was the start of an internal armed
conflict between ARSA and Myanmar’s Defence Services which lasted until late
2017. The selective factual propositions contained in The Gambia’s Application
actually concern this conflict.
In the months following the 9 October 2016 attacks, ARSA grew in strength in the
Maungdaw, Buthidaung and Rathedaung Townships in northern Rakhine. It resorted
to threats and intimidation against local villagers in order to gain support and
allegiance, executing suspected informers. According to, among others, the
International Crisis Group, ARSA received weapons-and explosives-training from
Afghan and Pakistani militants.
In the early morning of 25 August
2017, several thousand ARSA fighters launched coordinated attacks on more than
30 police posts and villages, and an army base in northern Rakhine. Most of the
attacks took place on the narrow Maungdaw plain, which is framed by densely
forested hills to the east, and the border with Bangladesh to the west.
Indications are that ARSA’s objective was to seize Maungdaw Township.
It may aid the Court to briefly consider the historical significance of Maungdaw.
When Britain made Burma a colonial entity separate from British India in 1937,
the border between Burma and India was drawn along the river Naf, where we find
today’s border between Bangladesh and Myanmar. The historical Kingdom of Arakan
had extended much further to the north than the river Naf, including most of
what is today Chittagong District in Bangladesh. Members of some Rakhine
communities therefore felt that the border drawn by the British was too far
south; others, that it was too far north. Myanmar has never challenged this
border since independence in 1948.
Britain did not lose control over
what is today Maungdaw Town-ship during World War II. From September 1942, a
number of local Muslim families offered fighters to the British irregular
V-Force set up to collect intelligence and to initially absorb any Japanese
advance. Many Muslims gave their lives in combat against the Japanese in Rakhine.
The sacrifices made by Muslim fighters motivated a call for the creation of an
autonomous Muslim space in northern Rakhine, centred on Maungdaw. Whether or not
this was encouraged by British officers, Britain rejected this call as soon as
it had reoccupied Burma, before independence in 1948. The Muslim-Buddhist
inter-communal violence of 1942 recurred in 1948 and several times after that.
This cycle of violence has negatively affected life in northern Rakhine, making
it the second poorest state in Myanmar.
Mr. President and Members of the
Court, may I go back to the situation in Rakhine on the morning of 25 August
2017. More than thirty police stations and villages, and one military base, had
been attacked before sunrise in a highly coordinated fashion, by an organized
armed group operating along a densely forested hill-range that provides ample
opportunity to hide. Many of the ARSA fighters had been recruited from local
villages in the weeks and months preceding the attack. Myanmar’s Defence
Services responded to the attacks of ARSA fighters by the use of ground forces.
There were armed incidents in more than 60 locations. The main clashes occurred
in 12 places: In Min Gyi (TolaToli) village, Chut Pyin village, Maung Nu
village, Gutar Pyin village, Alai Than Kyaw village, Myin Lut village, Inn Din
village, Chein Kharli (KoetanKauk) village, MyoThugyi ward, Kyauk Pandu village,
wards of Maungdaw Town, and southern Maungdaw.
Mr. President, allow me to clarify
the use of the term ‘clearance operation’, naemyay shin linyeh in Myanmar. Its
meaning has been distorted. As early as the 1950s, this term has been used
during military operations against the Burma Communist Party in Bago Range.
Since then, the military has used this expression in counter-insurgency and
counter-terrorism operations after attacks by insurgents or terrorists. In the
Myanmar language, naemyay shin linyeh -- literally ‘clearing of locality’ --
simply means to clear an area of insurgents or terrorists.
It is still not easy to establish clear patterns of events in these 12
locations. Many ARSA fighters died. There may have been several hundred
casualties in some of the 12 locations. There was some inter-communal violence.
Buddhist and Hindu minority communities also feared for their security after the
original ARSA attacks and many fled from their homes.
It may be worth noting that the
use of air power in military operations was avoided as far as possible to
minimise the risk of collateral damage. However, in one incident, in order to be
able to extract a unit surrounded by hundreds of ARSA fighters, the use of a
helicopter was required. There was shooting from the helicopter which resulted
in fatalities, which may have included non-combatants.
Mr. President, it cannot be ruled
out that disproportionate force was used by members of the Defence Services in
some cases in disregard of international humanitarian law, or that they did not
distinguish clearly enough between ARSA fighters and civilians. There may also
have been failures to prevent civilians from looting or destroying property
after fighting or in abandoned villages. But these are determinations to be made
in the due course of the criminal justice process, not by any individual in the
Please bear in mind this complex
situation and the challenge to sovereignty and security in our country when you
are assessing the intent of those who attempted to deal with the rebellion.
Surely, under the circumstances, genocidal intent cannot be the only hypothesis.
Under its 2008 Constitution, Myanmar has a military justice system. Criminal
cases against soldiers or officers for possible war crimes committed in Rakhine
must be investigated and prosecuted by that system.
On 25 November 2019, the
Office of the Judge Advocate General announced the start of a court-martial for
allegations linked to the Gutar Pyin village incident, one of the 12 main
incidents referred to earlier. The Office also let it be known that there will
be additional courts-martial if further incriminating evidence is brought by the
Independent Commission of Enquiry. The ICOE is an independent
specialinvestigation procedure established for Rakhine allegations by the
President of Myanmar, chaired by a former Deputy Foreign Minister from the
Philippines, with three other members, including a former
Under-Secretary-General of the United Nations from Japan.
On 26 November 2019, this
Commission announced that it had taken about 1,500 witness statements from all
affected groups in Rakhine, and that it has interviewed 29 military personnel
who were deployed to the affected townships in northern Rakhine during the
military operations from 25 August 2017 to 5 September 2017, as well as 20
police personnel who were stationed at the police posts that were attacked on 25
August 2017. There is currently no other fact-finding body in the world that has
garnered relevant first-hand information on what occurred in Rakhine in 2017 to
the same extent as the Independent Commission of Enquiry and the Office of the
Judge Advocate General in Myanmar.
This fact reinforces my sense that
I should refrain from any action or statement that could undermine the integrity
of these ongoing criminal justice processes in Myanmar. They must be allowed to
run their course. It is never easy for armed forces to recognize self-interest
in accountability for their members, and to implement a will to accountability
through actual investigations and prosecutions. I respectfully invite the
Members of the Court to consider for a moment the record of other countries.
This is a common challenge, even in resource-rich countries.
Recent cases in the news headlines illustrate that even when military justice
works, there can be reversals. This can also happen in Myanmar. As part of the
overall efforts of the Myanmar Government to provide justice, a court-martial
found that ten Muslim men had been summarily executed in Inn Din village, one of
the 12 locations of serious incidents referred to earlier. It sentenced four
officers and three soldiers each to ten years in prison with hard labor. After
serving a part of their sentences, they were given a military pardon. Many of us
in Myanmar were unhappy with this pardon.
Other cases are undertaken without
controversy. In the Mansi case, for example, a court-martial sat close to the
location in Kachin State where three internally displaced civilians were killed.
It sentenced six soldiers, each to ten years in prison, in January 2018.
Relatives of the victims and local civil society representatives were invited to
22. The Office of the Judge Advocate General in Myanmar is by our standards
well-resourced, with more than 90 staff and a presence in all regional commands
throughout the country. I am encouraged by the Gutar Pyin court-martial, and I
expect the Office to continue its investigations and prosecutions based on
reliable evidence collected in Rakhine and from persons who witnessed what
Can there be genocidal intent on the part of a state that actively investigates,
prosecutes and punishes soldiers and officers who are accused of wrongdoing?
Although the focus here is on members of the military, I can assure you that
appropriate action will also be taken against civilian offenders, in line with
due process. There will be no tolerance of human rights violations in the
Rakhine, or elsewhere in Myanmar.
Mr. President, there are those who
wish to externalize accountability for alleged war crimes committed in Rakhine,
almost automatically, without proper reflection. Some of the United Nations
human rights mandates relied upon in the Application presented by The Gambia
have even suggested that there cannot be accountability through Myanmar’s
military justice system. This not only contradicts Article 20(b) of the
Constitution of Myanmar, it undercuts painstaking domestic efforts relevant to
the establishing of co-operation between the military and the civilian
government in Myanmar, in the context of a Constitution that needs to be amended
to complete the process of democratization. That process is now underway at the
Pyidaungsu Hluttaw, the Union Parliament.
The emerging system of
international criminal justice rests on the principle of complementarity.
Accountability through domestic criminal justice is the norm. Only if domestic
accountability fails, may international justice come into play. It would be
inconsistent with complementarity to require that domestic criminal justice
should proceed much faster than international criminal justice. A rush to
externalize accountability may undermine professionals in domestic criminal
justice agencies. What does the appearance of competition between domestic and
international accountability do to the public’s trust in the intentions of
impatient international actors?
No stone should be left unturned
to make domestic accountability work. It would not be helpful for the
international legal order if the impression takes hold that only resource-rich
countries can conduct adequate domestic investigations and prosecutions, and
that the domestic justice of countries still striving to cope with the burden of
un-happy legacies and present challenges is not good enough. The Gambia will
also understand this challenge with which they too are confronted.
Mr. President and Members of the
Court, these reflections are relevant to the present hearing because the
Applicant has brought a case based on the Genocide Convention. We are, however,
dealing with an internal armed conflict, started by coordinated and
comprehensive attacks by the Arakan Rohingya Salvation Army (ARSA), to which
Myanmar’s Defence Services responded. Tragically, this armed conflict led to the
exodus of several hundred thousand Muslims from the three northernmost townships
of Rakhine into Bangladesh -- just as the armed conflict in Croatia with which
the Court had to deal led to the massive exodus of, first, ethnic Croats and
later, ethnic Serbs.
As I have already stated, if war
crimes have been committed by members of Myanmar’s Defence Services, they will
be prosecuted through our military justice system, in accordance with Myanmar’s
Constitution. It is a matter for the competent criminal justice authorities to
assess whether, for example, there has been inadequate distinction between
civilians and ARSA fighters, disproportionate use of force, violations of human
rights, failure to prevent plundering or property destruction, or acts of
forcible displacement of civilians. Such conduct, if proven, could be relevant
under international humanitarian law or human rights conventions, but not under
the 1948 Genocide Convention for reasons Professor William Schabas will
elaborate in a moment.
Mr. President, allow me to share
one further reflection in this Great Hall of Justice. International law may well
be our only global value system, and international justice a practice that
affirms our common values. Leaders of States and relevant inter-governmental and
non-governmental organizations should also be cognizant of their responsibility
to express and affirm fundamental values. Feeding the flames of an extreme
polarization in the context of Rakhine, for example, can harm the values of
peace and harmony in Myanmar. Aggravating the wounds of conflict can undermine
unity in Rakhine. Hate narratives are not simply confined to hate speech --
language that contributes to extreme polarization also amounts to hate
Several international actors
face a challenge here. But Myanmar could also have done more since the 1980s to
emphasize the shared heritage and deeper layers of unity among the diverse
peoples of our country. Cycles of inter-communal violence in Rakhine going back
to the 1940s should be countered not just by practical measures aimed at
sustainable development and rule of law, but also by nourishing a spiritual
mindset of unity. It is a moral responsibility of leaders to guard the
aspirations of people for harmony and peace.
U Thant, the third United Nations
Secretary-General, had understood this. He wrote in his memoirs View From the UN
published in 1974: “I even believe that the mark of the truly educated and
imaginative person facing the twenty-first century is that he feels himself to
be a planetary citizen” (p. 454). Encouraging this added layer of identity -- a
sense of planetary citizenship -- is of fundamental importance for peaceful
relations between nations as well as ethnic and religious groups.
A commitment to broadening the
mindset must go hand in hand with practical steps to improve lives. Even before
the events of 2016-2017, Muslim, Buddhist and other communities in Rakhine faced
what the Kofi Annan Advisory Commission described as complex challenges of low
development and poverty rooted in enduring social conflict between the
communities. The Myanmar government is committed to addressing these challenges.
Together with our partners, we are now striving to ensure that all communities
enjoy the same fundamental rights. To expedite citizenship verification and
application, a mobile team is already in operation. All children born in Rakhine,
regardless of religious background, are issued with birth certificates.
Arrangements have been made to enable more Muslim youth to attend classes at
universities across Myanmar.
With the support of international
and local partners, scholarships will also be made available to students from
all communities living in Rakhine. The government has started a social cohesion
model project in Maungdaw Township, to promote social harmony among all
communities. Inter-faith fora have been encouraged. These are some of the steps
taken to improve livelihoods, security, access to education and health,
citizenship, and social cohesion for all communities in Rakhine. Three IDP-camps
have al-ready been closed, and an IDP-camp closure strategy has been adopt-ed.
Myanmar is also committed to voluntary, safe and dignified repatriation of
displaced persons from Rakhine under the framework agreement reached between
Bangladesh and Myanmar.
Mr. President, how can there be an
ongoing genocide or genocidal intent when these concrete steps are being taken
To conclude, Mr. President and
Members of the Court, Rakhine today suffers an internal armed conflict between
the Buddhist Arakan Army and Myanmar’s Defence Services. Muslims are not a party
to this conflict, but may, like other civilians in the conflict area, be
affected by security measures that are in place. We pray the Court to refrain
from taking any action that might aggravate the ongoing armed conflict and peace
and security in Rakhine. Right now, in Northern Rakhine an army base near
Paletwa is under attack by a group of more than 400 Arakan Army fighters, and
some 200 insurgents have surrounded a military column near Ann City in Rakhine.
Since Myanmar gained independence
in 1948, our people have not known the security of sustainable development that
is the fruit of peace and prosperity. Our greatest challenge is to address the
roots of distrust and fear, prejudice and hate, that undermine the foundations
of our Union. We shall adhere steadfastly to our commitment to non-violence,
human rights, national reconciliation and rule of law, as we go forward to build
the Democratic Federal Union to which our people have aspired for generations
past. We look to justice as a champion of the reconciliation and harmony that
will assure the security and rights of all peoples.
Mr. President and Members of the Court, I thank you for your kind attention
and ask that you now call upon Professor William Schabas to continue the Myanmar
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