Christopher Staker Submits Rebuttal Arguments at ICJ

MR Christopher Staker, Lead Counsel and Advocate for Myan­mar, presented his submissions of rebuttal arguments on alleged discriminatory laws and policies for the case of The Gambia ver­sus Myanmar at the Internation­al Court of Justice in The Hague, the Netherlands, on 19 January.

He stated: The Gambia claims that Myanmar has adopt­ed various laws and policies that discriminate against Bengalis in Rakhine State. Myanmar’s response to these claims is set out in Chapter 10 of each of its written pleadings, and I address this subject matter now.

According to The Gambia, these discriminatory laws and policies establish the existence of a genocidal intent, or at least, contribute to establishing this. In the Application instituting proceedings and Memorial of The Gambia this allegation was described as “backdrop” or “broader context” to the events of 2016 and 2017.

In its Reply, The Gambia then went further, claiming that some of the alleged discrimina­tory policies are themselves also acts of genocide. Technically, this may be a new claim that does not arise directly out of the question that is the subject matter of the Application, namely, whether events in 2016 and 2017 are gen­ocide. However, that is perhaps an academic point because it is, in any event, quite impossible to see how the alleged discrimi­natory policies could have been acts of genocide.

The Gambia’s allegations in this respect are another example of its failure to take due care. It does not attempt to ascertain the facts and to present them objectively and fairly. It does the opposite. It makes allegations in extreme terms that have no basis in the evidence.

The first matter is the adop­tion by Myanmar in 1982 of a new Citizenship Law. In Chapters 2 and 10 of its written pleadings, Myanmar has provided a con­siderable amount of historical and other background detail of the citizenship law of Myanmar, supported by evidence. The Gambia has not provided any detailed response. In the circum­stances, the historical and legal background should be taken as undisputed.

This was the situation in 1982, when, pursuant to its 1974 Constitution, Myanmar adopted a new Citizenship Law which repealed the earlier law. The new law has created three types of citizenship, called “Citizen”, “As­sociate Citizen” and “Natural­ized Citizen”. For clarity, I refer to the first type as “full Citizen”, but that is not an official term.

First, in section 6, we see that anyone who was a citizen under the old law became a full Citizen under the new law. The new statuses of Associate Citizen and Naturalized Citizen were thus intended for those who were not already citizens under the old law. Pending citizenship applications under the old law were considered under the new law as applications for Associate Citizenship. Others meeting cer­tain criteria can apply to become Naturalized Citizens.

The Gambia refers to Asso­ciate and Naturalized Citizenship as “inferior” forms of citizenship, but does not specify how they are said to be materially inferior. For instance, an Associate Citizen or Naturalized Citizen is entitled to vote in elections, but cannot stand as a candidate. However, an Associate Citizen or Natural­ized Citizen can live and work anywhere in Myanmar, like any full Citizen, and is entitled to a Myanmar passport. The Gambia seems to complain that there are three different types of citizen­ship, and that not everyone is a full Citizen. However, Myanmar is not the only State having more than one form of citizenship or nationality. The existence of mul­tiple forms of citizenship is hardly an expression of genocidal intent.

The Gambia also seems to complain that the 1982 Law auto­matically confers full Citizenship on members of certain ethnic groups, while others must satisfy certain criteria to be entitled to citizenship. That is not disputed, but that was already the posi­tion under the pre-1982 Law, and there is no suggestion that there was anything objectionable about the previous law. Furthermore, other States also have, or have had, citizenship laws that limit citizenship by birth to those of certain ethnicities, or that give preferential treatment in their citizenship laws to certain ethnic­ities. This is hardly an expression of genocidal intent towards those given less preferential treatment.

The Gambia appears to seek to convey the impression that Bengalis are “denied” citizen­ship. That is not so. Some are full Citizens, some are Associate or Naturalized Citizens, and some would be entitled to a form of citizenship if they were to apply for it. The Gambia, in fact, ad­vances no coherent argument at all as to how this law is said to manifest an intent physically or biologically to destroy the Ben­gali population.

The Agent for Myanmar al­ready explained in his opening speech that, before the events of 2016 and 2017, there were two occasions on which large num­bers of Bengalis went across the border into Bangladesh, and were subsequently repatriated to Myanmar through agreements between Myanmar and Bangla­desh and UNHCR. The first oc­casion was in 1978. The Gambia does not allege that the events in 1978 were evidence of any geno­cidal intent in 2016 and 2017. The second occasion was in 1991-1992, and The Gambia claims that the events on this second occasion are evidence of such an intent. However, both occasions need to be considered together.

The following year, 1979, those who went to Bangladesh were repatriated to Myanmar, pursuant to agreements between Bangladesh, Myanmar and UN­HCR. On the second occasion, in 1991-92, Myanmar says that there was similarly an operation throughout the whole country for the scrutiny of illegal immi­grants. This time, some 190,000 people crossed the border into Bangladesh, and were again re­patriated to Myanmar through agreements between Bangla­desh, Myanmar and UNHCR. As in the case of 1978-79, there were, on this second occasion, again allegations that the exo­dus was caused by abuses by the military. However, The Gambia provides no evidence that these allegations are substantiated.

The third of the alleged dis­criminatory laws or policies con­cerns the citizenship verification process and National Verification Cards. The Gambia has not seri­ously disputed the following facts.

Since 2015, the process re­quires an initial application for a document called a National Ver­ification Card, or “NVC”. Once a person has an NVC, their eligi­bility for the relevant citizenship status is scrutinized, and if they are eligible, they are issued a Citizenship Scrutiny Card or a Naturalized Citizenship Scrutiny Card. Those who are not eligible for a form of citizenship are not issued a citizenship card, but can continue to live in Myanmar and hold an NVC. The Gambia pre­sents no evidence that anyone who could prove their entitle­ment to a form of citizenship under the 1982 Law was found not to be so entitled.

Myanmar says that anyone wanting to apply for an NVC, including any Bengali in north­ern Rakhine State, would not have any practical difficulty in obtaining one. The Gambia has not sought to argue or prove oth­erwise. The holder of an NVC can move freely within their town­ship. Since 2018, NVC holders in Maungdaw and Buthidaung townships have been able to move freely within both of those townships. NVC holders can access employment and higher education. For some activities, like attending school or receiving healthcare, not even an NVC is necessary.

NVC holders require permis­sion to travel outside their town­ship, or in the case of Maungdaw and Buthidaung townships, to move outside those two town­ships.

A particular objection of The Gambia appears to be that a Bengali applying for an NVC is not permitted to state on their application that their ethnicity is “Rohingya”, and must state that they are “Bengali”.

It may well be that, for po­litical reasons, large numbers of Bengalis have declined to apply for an NVC, or have come under pressure from activists not to do so. However, the refusal of a large number of people to engage with administrative requirements is hardly evidence of a genocidal intent on the part of Myanmar. Myanmar’s refusal to accede to such political demands is irrel­evant for establishing an intent physically or biologically to de­stroy the population in question.

The Gambia contends that authorities in Myanmar have been seeking to compel people to apply for and accept an NVC. Myanmar does not accept this, but even if this were true, it is also difficult to see how this is a manifestation of an intent phys­ically or biologically to destroy the Bengali population.

The Gambia has provided evidence that the local authori­ties, when approving marriages, required couples to agree to have no more than two children. There is no evidence that a two-child limit was ever strictly enforced.

There is no evidence that this Regional Order led to any reduction in the size of the Mus­lim population in Maungdaw Township or was intended to. I proceed next to the fifth category of alleged discriminatory laws or policies. This is labelled in The Gambia’s Memorial as “segre­gation, confinement and denial of access to sustenance”. The general allegation is that many Bengali Muslims in northern Ra­khine State are required to live in separate areas removed from the general population, and are denied freedom of movement and access to food, healthcare and other necessities.

Those who have one of the three forms of citizenship have freedom of movement through­out Myanmar. Those who do not have such a form of citizenship can obtain a National Verifica­tion Card, an NVC. Those with an NVC can travel freely within their township, or in the case of Maungdaw and Buthidaung Townships, can travel freely with­in those two townships. Those with an NVC can also travel elsewhere in Myanmar after ap­plying for and obtaining travel permission. They can carry out fishing, trading and agricultural activities for their livelihoods. As I have explained earlier, an NVC is easy for anyone to obtain, and The Gambia does not claim otherwise.

Those who refuse to have an NVC, for political or other rea­sons, may face some practical difficulties, as I have explained. In particular, they will have no identification card to produce if asked for one by the police when travelling. However, even then, The Gambia presents no evi­dence that anyone’s physical or biological existence has been im­perilled through lack of an NVC.

The greatest number of Ben­galis in northern Rakhine State is living in towns and villages. Hundreds of thousands did not leave for Bangladesh at the time of the events of 2016 and 2017. They largely continue to live in their homes, as they did before.

Those living in IDP camps are not compelled to stay there and are free to leave, temporarily or permanently. Those living in IDP camps can come and go, interact with the outside world, receive visitors and take up em­ployment.

Myanmar has presented evidence that conditions in IDP camps in Rakhine State are generally acceptable by inter­national standards. Myanmar has also presented evidence of the humanitarian assistance, including food rations and non-food items, medical services and basic education, that have been continuously provided to those still residing in these IDP camps. There is no evidence that the population of the camps is declining due to a lack of such provision. It remains the long-term intention of the government to close the IDP camps and to resettle their inhabitants, and steps are being taken to achieve this. The fact that this has not been achieved to date does not mean that the population living in the IDP camps in the meantime is being physically or biologically destroyed.

The Gambia also claims that those living in Aung Mingalar are “trapped” or “confined” in a “ghetto”. This is emotive rhet­oric. Aung Mingalar is simply a ward of Sittway, the capital city of Rakhine State, and has a pop­ulation of only some 4,000 people. Myanmar says that healthcare services, education, livelihoods, and social and religious activities are freely accessible to them like others in the city.

I have already explained why Myanmar does not use the name “Rohingya” and why it uses the name “Bengali”. The Gambia has not challenged the histori­cal background facts set out in Chapter 2 of Myanmar’s written pleadings. Failure to use a par­ticular name to refer to a popu­lation is hardly evidence of an intent physically or biologically to destroy that population. For these reasons, and the further reasons in Myanmar’s written pleadings, The Gambia has not established that any of what it alleges to be discriminatory laws and policies are acts of genocide or evidence of a genocidal intent.