Apart from anything else, the FFM was not a body that was equipped or qualified or had amandate to produce evidence suitable for use in judicial proceedings, and certainly not to makeultimate findings of fact in accordance with the standard of proof applicable in this case. And itcertainly did not apply the standard of proof that the Court is required to apply in this case.

Professor Sands and Mr Suleman describe the FFM reports as “authoritative”33 and confirm thatThe Gambia’s evidence is “underpinned” by the FFM reports34, and say that the value of othermaterial “also lies in its consistency with, and confirmation of, the findings of the FFM and theIIMM, which serves to underscore and enhance the reliability and weight of the FFM’s twocomprehensive reports”35. Mr Reichler says: “We place special emphasis on the reports by the FFMand the IIMM, including all of the underlying material on which the reports are based.

His background and his experience is described in his affidavit92 which is in the record andis included in our judges’ folder. I will skip the paragraph in which I go through that in the interestof time. There is no basis for questioning his credibility or his expertise, or his deep experience inproving international crimes before international criminal tribunals.50. Nor is there any reason to doubt Mr Koumjian’s testimony about why the Rohingyaexpress fear about giving their statement

The Court meets this morning to hear in closed session the third witness called by The Gambia,Witness MS. This pseudonym should be used when addressing and referring to this witness. I wouldremind everyone present today that they are under an obligation not to reveal any details that mightlead to the identification of the witness. I would also remind the Parties that all electronic devices,including mobile phones, computers and tablets, must remain outside the Great Hall of Justice, exceptwhere counsel or a member of the delegation requires a computer for the examination of the witness.The Court has been informed that Witness MS is unable to read.

WITNESS MN: They didn’t know themselves. They told me they came here because theyheard firing; they heard firing sounds in their village

Ta Man Thar was “an area with a strong ARSA presence”123. Uniformed men with petrolbombs identified as Al Yaqin were seen in the area on 25 August124 and “tried to kill” those whosought to dissuade their members125. Al Yaqin engaged in forcible recruitment, threatening todecapitate those who refused to join, decapitation being an apparent hallmark of ARSA retribution,as I have already mentioned

The two allegations of rape noted by the FFM are also the product of anonymoushearsay285. Even if this evidence were accepted without question, two isolated incidents in differentvillages clearly do not support The Gambia’s claim of “pervasive sexual violence”.50. In August 2017, this village tract had a population of 10,492 Bengalis286. The FFMsuggests an unverified figure of “more than 180” fatalities2

The Gambia seems quite keen that you not lookat the case in too much detail. It dismisses discussion of details as “micro-nits, or even nano-nits

an accusation of a violation of the GenocideConvention is a matter of the utmost gravity. Such a serious claim demands the most careful attention,and Myanmar trusts that this is what the Court will give to this case.

there have unfortunately been setbacksto the repatriation process. These have included the COVID-19 pandemic from 2020 to 2022,Cyclone Mocha which hit the northern Rakhine area in 2023, and instability in Rakhine State.Circumstances not of Myanmar’s making have so far prevented the actual commencement ofrepatriations.

In this context, it has continuously taken steps to addressthese issues in northern Rakhine State. Details are given in Myanmar’s regular reports pursuant tothe provisional measures Order.

The Gambia has additionally failed to present the evidence objectively. It has furthermorenurtured a dangerous mixing of roles, in which its representatives and its sources of evidence (theso-called independent NGOs and witnesses) are on the same bench

he Court meets this morning to hearthe first round of oral argument of Myanmar on the merits in the case concerning Application of theConvention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar:11 States intervening).

these, therefore, are the key substantive violations ofthe Convention which The Gambia pursues through this Application: first, that Myanmar committedgenocide; second, that it violated the duty to prevent genocide; third, that it violated the duty topunish, including the associated duties to try and to have in place domestic legislation giving effectto the Convention; fourth, that it entered a conspiracy to commit genocide; and fifth, that it directlyand publicly incited genocide

it had the opportunity to target even more members of the Rohingya community

he IIMM concluded that “[t]he ubiquity and consistency of these operations, usingbulldozers, excavators and dump trucks to systematically flatten villages across northern RakhineState, is consistent with an organized campaign aimed at permanently erasing Rohingya presence

As Germany,France, Canada, Denmark, the Netherlands and the United Kingdom observe in their jointDeclaration of intervention, “sexual and gender-based violence is not capable of advancing anymilitary objective”

“I found my six-month old son’s body lying next to my wife’s body. She hadbeen shot. My baby son was stabbed in his stomach and his intestine and liver werecoming out. When I took his small body into my lap, I was showered with his blood.”374

The UN Fact-Finding Mission determined that: “A large number of women and childrenwere victims of the attacks. Children, including infants and babies, were specifically targeted; somewere wrenched from their mothers’ arms and thrown to the ground, others were thrown into fires andburned alive.

bout one third of the households faced extremeexperiences of food insecurity, such as no food of any kind in the household (28 percent), wentto bed hungry (34 percent) or went for the whole day and night without eating (28 percent).”11 “Nearly 90 percent of the households were worried about not having enough food (89percent)”12. “None of the [82] children from 6 to 23 months met” the requirements for a “minimum adequatediet, only 2.5 percent reached minimum dietary diversity and [only] 8.5 percent met the minimummeal frequency” requirements

. For its 2018 report alone, the FFM “conducted 875 in-depth interviews with victims andeyewitnesses”, in Bangladesh, Indonesia, Malaysia, Thailand and the United Kingdom  taking careto “diversify its sources of information” by interviewing “individuals from different ethnic andreligious backgrounds” and “a number of members of non-State armed groups, as well as someformer officials of Myanmar State institutions”27. For its 2019 report, “the mission conducted morethan 400 interviews with victims and eyewitnesses

Mr President, Members of the Court, it is an honour to appear before you again and torepresent The Gambia in this significant case.2. This case is about Myanmar’s acts of genocide against the Rohingya group. As I willexplain, there can be no doubt that the Rohingya are a protected group within the meaning ofArticle II of the Genocide Convention. Myanmar’s refusal to recognize them as such, or to even usethe term Rohingya, is entirely without effect or relevance.

In sum, there is no decision by an international court, tribunal or body that is directlyrelevant to the question on remedies in the present case.

When presenting arguments about whether themens rea is satisfied in this case, counsel for The Gambia refers to a criterion of “substantiality” in away that is unclear

it is not necessary to examineevery single incident reported by the Applicant, nor is it necessary to make an exhaustive list of theallegations

In otherwords, the mere fact that certain crimes are war crimes or crimes against humanity does not precludea finding that the same acts constitute genocide

Genocideoccurs with the commission of any one of the acts set out in paragraphs (a)-(e), provided it isperpetrated with the subsidiary and specific intent to that act, and with the dolus specialis ofgenocidal intent.

However, this provision is not reflective of customary internationallaw, as shown in detail in Myanmar’s Counter-Memorial

hese generalrules on State responsibility do not provide for reparation to individual victims of violations ofinternational law but for reparation to their States.

his is absolutely clear from the Bosnia and Croatia cases. In both cases, there weremultiple instances where the Court found that genocide had not been committed, notwithstandingthat acts, satisfying the actus reus of the various paragraphs of Article II, had been established

ncitement to commit genocide requires more than incitement to hatred or violence; itrequires genocidal intent on the part of the instigator32

Amnesty International expressed confidence in a figure of well over 20058. Myanmar’s militarypersonnel record that approximately 108 were killed5

Thisview overlooks that the “only reasonable inference” standard is a general standard for inferencesfrom circumstantial evidence whenever the heightened “fully conclusive” or “beyond reasonabledoubt” standard of proof applies

The heightened standard of fully conclusive evidence or evidence beyond reasonable doubtcan be met either by direct evidence, which directly proves a fact, or by indirect or circumstantialevidence

a finding of genocide requires evidencethat is “fully conclusive”. The Court must be “fully convinced” that it has been clearly establishedthat the crime of genocide or the other acts enumerated in Article III of the Genocide Conventionhave been committed1

If The Gambia says that all of these submissions claim rightsunder the Genocide Convention, then it seeks to extend radically the concept of genocide to includea right to citizenship, a right to work and the right to be referred to by a particular name.

If all of the evidence that was before the FFM was before this Court, then the Court couldhave considered that evidence itself and made its own findings based on it.

the Court found that certain killings13 were not genocide, adding that they “may amount to war crimesand crimes against humanity, but the Court has no jurisdiction to determine whether this is so”

As the ICTR found in Akayesu, evidence that “even newborn babies were not spared”reflected an “intention to wipe out the Tutsi group in its entirety

(i) “the scale and allegedly systematicnature of the attacks”  check; (ii) the attacks “are said to have caused casualties and damage far inexcess of what was justified by military necessity”  check; (iii) “the specific targeting of Croats” in this case, the targeting of Rohingya Muslims, check; and (iv) “the nature, extent and degree of theinjuries caused to the Croat population