Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO TUNE]

Janet: 00:21  Hi Steph, 

Stephanie: Hi Janet. 

Janet: So this is a TLDR pod. A ‘too long didn’t read’. If you really wanted to have spent the last three weeks watching Myanmar at the International Court of Justice in the Hague explain their alternative theory of why, what happened to the mainly Muslim population of the Rohingya who left en masse in 2017 was not genocide, as Gambia has said there, you could have spent your time doing that, but…

Stephanie: 00:52  …You decided that life is too short, the transcripts are too long, and instead, you turn to your favourite pod to give you the snapshot of the high points, a very broad brush strokes, the highs and lows of this case. 

Introducing the Case 

Janet: 01:04  So let’s summarize to start with how we got here. So why The Gambia? and we were kicked off on the first day by Dawda Jallow, who’s the Attorney General and Minister of Justice for the Republic of the Gambia.

Hon. Dawda A. Jallow: 01:20  As you will hear, over the next three weeks, and in particular over the next four days, in deciding to bring this case, The Gambia acted on the basis of most careful reflection and assessment of the facts. We did not bring this case lightly. We brought this case after reviewing credible reports of the most brutal and vicious violations imaginable inflicted upon vulnerable group that had been dehumanized and persecuted for many years. We received and carefully examined the meticulous reports of the United Nations fact finding mission dispatched by the UN Human Rights Council. We also examine reports issued by the repeatable international human rights organizations which sounded the alarm on the genocide of the Rohingya unfolding in northern Rakhine State. Those credible reports from diverse and independent sources left no doubt in our minds that Myanmar had to be held accountable for its violations of the Genocide Convention.

Stephanie: 03:30  And later that week, we had Myanmar’s response done by Myanmar’s agent, Ko Ko Hlaing. 

Ko Ko Hlaing: 02:37  Myanmar has complied with all procedural rules and orders of the court, including the provisional measures order. This demonstrates its commitment to the international rule of law and the rule of the court. Unfortunately, the same cannot be said of The Gambia. The Gambia’s inquiries into facts are rudimentary and partisan, based on reports of the fact finding mission from 2018 and 2019, which are neither reliable nor objective and were a contamination without trial of Myanmar. Gambia has additionally failed to present the evidence objectively. It has furthermore nurtured a dangerous mixing of roles in which its representatives and its sources of evidence, the so called independent NGOs and witnesses are on the same bench. This is in no way helpful to the integrity of the proceedings and cause serious doubt on the quality of the material put before you.

Stephanie: 04:01  So over this whole pod, what we’re going to do is we’re going to use large chunks of the presentations in both because everybody speaks very well and eloquently with huge sweeps of history and literary references and detailed legal arguments, but also because this is complicated stuff, and we don’t want to kind of condense it down too much. To prove legally that a state has committed genocide requires a really, really high bar, not only of the evidence, but also you have to prove this special intent, and we don’t want to unintentionally – pun intended there – sell you guys short with our summaries, rather than have some picks from the best of the three weeks. So we’re going to kick it off with Gambia and Janet explain which three clips you picked. 

Janet: 04:46  Okay, I picked three clips from Philippe Sands. And that’s not to say that there aren’t an enormous number of other members of the team as well. What was good on the first day was he kind of laid out the whole sort of element of Gambia’s arguments. And then they went into detail, each individual lawyer after and also, I mean Phillipe Sands is Phillipe Sands,  and he’s a lot of fun to listen to and he provided to start with this basic summary.

Phillipe Sands: 05:14  The Court’s jurisprudence on the convention, in particular with the Bosnia and Croatia judgments of 2007 and 2015 respectively, is the lodestar on which The Gambia’s application has been based. Other aids to interpretation, including the jurisprudence of the International Criminal Tribunals and national courts, and, it is worth mentioning, that in particular, it is the courts of Germany that have in recent years played the leading role in relation to findings, findings, rulings, judgments of genocide perpetrated in northern Iraq and Syria, including against the Yazidi population, as well as the findings of international commissions, which provide guidance on issues arising under the convention, as the intervenors have made clear. But it is the court’s own jurisprudence, your jurisprudence, that has played a central role in guiding The Gambia’s approach, and we’ve fully relied on that jurisprudence in the decision of The Gambia to bring the case, and in arguing the case in our written pleadings, and in the course of these oral hearings

Genocidal Intent 

Stephanie: 06:24  The Gambia then moved on to this very interesting set of presentations, specifically about genocidal intent, how to define it, how to infer it from patterns of behavior, and especially the age old defense that we get with genocide, that there’s not enough people, but here The Gambia is laying out that, you know, inferring genocidal intent and genocide doesn’t turn on the numbers. It doesn’t depend on the how many people were killed. 

Phillipe Sands: 06:50  That approach of the court informs the views of all the intervenors and The Gambia in these proceedings, and both parties and all the intervenors agree on the basic and foundational principle, articulated with force by the court in the Bosnia judgment, that a state is prohibited from committing genocide and a state may be held internationally responsible for the crime of genocide, and we note and agree with the Democratic Republic of Congo’s very helpful summary of certain additional significant points of agreement. The DRC’s submissions include the following, first that a situation of armed conflict does not preclude the crime of genocide. Second, the Convention does not require that a genocidal intent be the sole motive pursued by a respondent state or its agents, but it permits of multiple and overlapping motives. Third, a genocidal intent does not have to be expressly stated, and may be established or inferred, either from particular circumstances or a pattern of behavior or conduct. And fourth, the requirement that a substantial part of the protected group is targeted does not refer to a purely quantitative criterion, but is to be interpreted in the light of quantitative, qualitative and geographic factors. These are very important points of consensus on the basis of which we say the court can proceed

Sexual and Gender Based Violence as an Act of Genocide 

Janet: 08:37  And much of Gambia’s case was the detail about sexual and gender based crimes. Much of that evidence came originally from the United Nations fact finding mission, and then also, we had some witnesses behind closed doors. We don’t know exactly what they said, but we assume that those witnesses may also have been on that particular subject. And we’re not going to play the detailed, really horrendous, horrendous descriptions that were laid out in the in the court. But instead, here’s Philippe Sands again, just explaining how Gambia is positioning what happened, particularly to women, particularly to children, but also to others as that this kind of violence was an act of genocide. 

Phillipe Sands: 09:33  There is no hierarchy among the underlying acts of genocide and the legal relevance of all acts targeting a protected group must be emphasized. End of quote. Thus, although terrible killings undoubtedly have occurred in this appalling case, it has to be underscored that the other modalities of the actus reus are just as central to The Gambia’s case as acts of killing. Prominent in this case are acts falling within the scope of Article Two, paragraph B, causing serious bodily or mental harm to members of the group. The kinds of acts falling within this category are sadly, diverse in this case. They include acts of sexual and gender based violence, acts causing physical and psychological harm and acts of forced displacement. And you’ll hear a lot more from this, from the witnesses next week. I make two particular points in this regard. First, Myanmar’s campaign against the Rohingya is appallingly characterized by widespread sexual and gender based violence, as the joint intervenors have submitted, and as The Gambia has also affirmed, the cause, the harm caused by such act is, by its very nature and effect, almost universally serious. This has been recognized by this court in the Bosnia judgment, which endorsed the vital findings of the Rwanda Tribunal in the Akayesu case, and, that case made clear that the effect of rape and sexual violence are one of the worst ways of inflicting harm on the victim, as he or she suffers both bodily and mental harm. End of quote. The are genocidal acts. They fall within the scope of Article two paragraph B, all the more so where, as in the present case, children are involved a point that is made with force by the intervenors. They may also constitute actus reus under Article 2(c) and 2(d). Very frankly, the evidence you’re going to hear about this week is dreadful, and it’s going to be very tough to listen to some of it, but listen to it, we all must, and draw the necessary conclusions from it, we say you must. Second, forced displacement, the permanent expulsion of a people from their homeland is plainly capable of causing serious mental harm to members of the group, alongside any physical harm suffered in the course of their expulsion or which contributed to their fleeing their homes. In this case, it affects not only hundreds of thousands and upwards of a million human beings, but it’s recognized expulsion is recognized by the ICTY as capable of being a genocidal act. 

The Strengths of The Gambia’s Case 

Janet: 13:02  So I spoke to Michael Becker, who is somebody that is a friend of the pod, he’s been on before. He’s at Trinity College Dublin. He’s also previously worked at the International Court of Justice, and he spoke to me earlier this week, and he wanted to stress as he was chatting to me that these are really just preliminary assessments from him, because even as we record now, the hearings are still just starting to complete, they’re still ongoing, and the detailed written arguments from the parties are only now online for the scholars to peruse. So to start with, I asked him about what his thoughts were on the strength of Gambia’s case. So here he is.

Michael Becker: 13:48  If you accept that the main source of The Gambia’s evidence, the UN fact finding reports, are credible and deserve weight, then The Gambia has made a strong case. So I would highlight, in particular, the material relating to pervasive anti Rohingya hate speech and propaganda, combined with the detailed accounts given over several days of the hearing, these detailed, disturbing accounts of atrocities alleged to have taken place across various sites in 2016 and 2017, could not but have made a powerful impression upon the court, especially, and anyone who listened to this will understand this, especially the allegations relating to horrific crimes perpetrated against women and children. So The Gambia, I think, has made a compelling case that what the Tatmadaw is alleged to have done far exceeds any possible counter terrorism explanation, and The Gambia has effectively portrayed that campaign as a pretext or a  convenient facade for the Tatmadaw to opportunistically carry out what amounts to an extermination campaign against the Rohingya people, at least in the parts of Rakhine state where there is also a threat by insurgent groups, by the by ARSA, the Arakan Rohingya Salvation Army. And that’s important because it’s maybe less clear to the court that that extermination campaign extends to every place where the Rohingya might be found in Myanmar, but I think The Gambia has effectively shown that that was what was happening in those areas where you could make the argument ARSA had some some kind of presence. Now, Myanmar spends a lot of energy making the case that The Gambia throughout this case has inaccurately minimized or downplayed ARSA, and the strength of ARSA and what its capabilities were back in 2016 and 2017, and that remains, it seems to me, a major point of factual disagreement in the case. But I don’t actually think it helps Myanmar that much, because even if you accept that okay, ARSA is what was much stronger and was a much more significant threat than has been popularly understood. Oh and and, that arses activities, in fact, justified a strong, forceful response by Myanmar. That still can’t explain these horrific acts attributed to the Tatmadaw in the campaign, especially when you then view those things against the backdrop of anti-Rohingya hate speech propagating out of discriminatory government policies and all the rest. So with all of that in mind, I would say The Gambia has made an effective case that those facts can satisfy the court’s established approach. The court doesn’t need to reduce its standards in any way. It doesn’t need to change its standards of proof. The Gambia has shown that the court’s established approach to genocidal intent can be met in this case. 

Stephanie: 17:00  Well, thanks for that very interesting assessment from Mike. We again will stress here, because we know that, as an academic, he will like to have that stressed again, that this is a part way assessment from Mike Becker. What he brings forward are some interesting things a lot hinges on, a lot of the discussion is about this reliability of the fact finding mission for Myanmar, and how much weight judges should give to that. And also, Myanmar’s main defense against these accusations of genocide was to say, no, it’s not a genocide, it’s a genuine counter insurgency action against these the ARSA, the Rohingya Salvation Army, I think, is the official term militant, and that is kind of, those actions are what sparked these accusations of genocide. 

Janet: 17:50  Yeah, my sense of the Gambian argument was that it was very well constructed. It had essentially based on what the United Nations had investigated, so what’s in the fact-finding mission reports. But that was bolstered by what’s happened with the further UN body, the Investigative Mechanism, and what’s come from NGOs.

Stephanie: 18:18  I listened. I’m going to jump in, but I listened to the kind of second round of oral arguments, and a lot of Myanmar’s time was divided to trying to rip apart the fact finding commission and say that it’s not reliable, but and kind of undermine the reliability of the victim statements that The Gambia kept presenting. But in, in the kind of redirect, I found it very interesting that they doubled down on that and also introduced all these statements from the Independent Investigative Mechanism, essentially backing up what they said. So in the first pleadings, there weren’t so many direct quotes from people who had given evidence to the independent fact finding mechanism, but in Gambia’s response to what Myanmar was saying, a lot more got introduced to that, and I thought it was particularly funny, because there was a point where apparently Myanmar had referred to a statement that the head of the triple I, no the double, I double M, they are all named – so many I names – the head of the double I double M had given a statement to the court, and I guess it wasn’t referred to before, but now, because Myanmar picked something out, and now they were giving the whole context and recalling all of that statement again. So they kind of, Myanmar left the door open for them to have, to double down on, on that statement. So I thought that was very obvious in the in the comments. 

Janet: 19:44  Yeah, one of the points that Mike Becker made to me, that I haven’t played, was that there is an interesting job for the court to do, to decide how it regards these kinds of UN semi-investigative or investigative mechanisms, whether they’re commissions of inquiry, whether they’re fact finding missions. So this is going to be a really interesting judgment on that level. But the other building blocks I thought that Gambia was very good at putting together were not only about the evidence, but also about the inference of genocidal intent and and how the patterns of behavior show that, and in particular, we’re not going to be playing the elements from the expert witness, but the idea that he came forward with as a military expert, that what the Myanmar Armed Forces, the Tatmadaw, were doing, the kinds of behavior that they had, could not be interpreted as a normal counter insurgency operation, which would be completely legitimate because of all this detail, assuming that the judges accept the detail, but all this detail showed the kinds of killings, the kinds of sexual violence, the kinds of, just the way that they dealt with the civilian population, could all be seen as as as genocidal in intent. So I thought it was a very strong case, depending on whether the building blocks are good building blocks, but, but, you know, look like a strong, strong set of blocks put together to me. 

Myanmar’s Defense

Stephanie: 21:23  Yeah, jumping ahead, it’s going to be interesting to see if the court feels that it could, by itself, determine genocide and genocidal intent. Because we know that the only other case that they have decided that something was genocide was in Srebrenica, and they leaned very heavily on the on the ICTY verdict for that. And so this would be a very kind of landmark decision if they decide this by themselves. But we also wanted to show you the Myanmar side of things. So we picked some clips from one of their lawyers, Christopher Staker, and he also points out how different this case is because it is The Gambia that is bringing this complaint and not a state involved in genocide itself. 

Christopher Staker: 22:10  This is the first case in which a state that is not itself been directly affected by the facts of the case brings proceedings on the basis of the common interest of all states parties in ensuring compliance with the Genocide Convention. An applicant acting in the common interests of all states parties must be expected to exercise due care. The Gambia appears to accept this. Mr. Reichler spoke of a particular obligation on council to be as careful as possible in dealing with the law and the facts accurately and objectively and to be as helpful as possible to the court in its effort to provide the right answers on the important issues that have been raised. Mr. Jallow claims that The Gambia did exercise due care before bringing this case. It may well be that any compromissory clause in any treaty brings with it the risk of proceedings being brought over zealously or in bad faith or to pursue agendas unrelated to the treaty. However, that risk is multiplied many times when any state party can bring proceedings against any other without having to be specially affected by the subject matter of the claim. That is all the more so in the case of a treaty with as many participants as the Genocide Convention. 

Janet: 24:00  And he went on as Myanmar’s lawyer, went on to say that the details of what is, yeah, I suppose, essentially the center point of Myanmar’s argument that the actions that were taken against the different communities, that the Rohingya community, were counter terrorist activities, that they were not genocidal. 

Christopher Staker: 24:22  Two things that are not in dispute are the existence of the Arakan Rohingya Salvation Army ARSA, and its attacks against the Myanmar security forces in 2016 and 2017. Mr. Reichler concedes that we do not suggest that Myanmar should have ignored ARSA. As a sovereign state it had the right to defend itself against such an outfit. Myanmar, for its part, does not dispute that its security forces conducted operations in northern Rakhine State in response to those ARSA attacks. By security forces, I mean the Myanmar defense services, also known as the Tatmadaw – its official name – the border guard police and the police. The military operations were of a kind known in the Myanmar language as ‘nae myay shin lin yeh’, which means area clearance operation. To anyone unfamiliar with military terminology, the expression area clearance operation, or clearance operation, or its French equivalent, ‘operation de netoyage’. The expression may sound shocking. To an uninformed listener, it seems to carry connotations of ridding an area of all of its inhabitants. In fact, it will be seen that the expression is military terminology used in many countries, including the United States and the United Kingdom, to mean a counter terrorist or counter insurgency operation. The French equivalent has the same meaning. The Gambia has never disputed this or explained why it consistently puts the expression in quotation marks. To avoid any confusion, Myanmar uses the term counter terrorism operations in this case, however, despite this, The Gambia’s memorial makes almost no reference to ARSA at all, and extracts of documents annexed to its memorial, including, significantly, the FFM report on which The Gambia places so very much reliance, omit the pages of those documents dealing with ARSA, thereby giving a distorted picture of events. This is not consistent with its duty to act rigorously and objectively.

Stephanie: 27:16  Another main point that Myanmar kept hammering home, or the attorneys for Myanmar kept hammering home, is that the fact finding missions work was not of the needed legal standard high enough to satisfy and it is proof as genocide, they had a different evidentiary standard.

Christopher Staker: 27:37  Apart from anything else, the FFM was not a body that was equipped or qualified or had a mandate to produce evidence suitable for use in judicial proceedings, and certainly not to make ultimate findings of fact in accordance with the standard of proof applicable in this case, and it certainly did not apply the standard of proof that the court is required to apply in this case. However, there are also more fundamental reasons why the FFM reports are not capable of enabling The Gambia to discharge its burden of proof to the requisite high standard. The court is a judicial body. It cannot find a state responsible for so grave a matter as genocide, which requires proof to a high standard without proper judicial process. A state defending itself against such a grave accusation must be capable of contradicting and testing the evidence against it. Given the seriousness of the allegations and the fact that proceedings are brought in the common interest of all States Parties to the Convention, proceedings of the present kind must be a genuine search for the truth, which requires a proper adversarial process. The Gambia says that the court can rely on the FFM reports, quote, to assist in its own determination of the facts. Yet, how is the court assisted by the FFM reports in making its own determination of the facts? The FFM reports simply state bare findings of fact and then cite to unidentified persons as the source of that information, or state conclusions of the FFM itself based on those findings of fact. How can the court make its own determination of facts based on such material? It either accepts the material and rubber stamps it, or it rejects it. But how can the court rubber stamp it? The court must be satisfied of facts to a standard of proof comparable to the beyond reasonable doubt standard of criminal proceedings. How could the court be so satisfied on the basis of bare statements of fact attributed to anonymous persons? This case is an absolutely extraordinary case, where the evidence relied upon by the applicant consists of findings by a third party based on hundreds of anonymous people. 

Janet: 30:59  So now here’s Michael Becker’s summary, again, with the caveat of this being a part way assessment of what Myanmar was arguing. 

Michael Becker: 31:09  I think anyone who reads the transcripts or watched the first round will think they came back to this over and over again. The main thrust of their defense is that you cannot rely on The Gambia’s evidence and Myanmar in doing so raises a number of issues about the fact finding reports and how that evidence was gathered and interpreted that I think will be of considerable interest and potentially considerable concern to a number of the judges. So this includes points like the idea that or the risk that witnesses made false statements because they are acting under duress. They are saying what serves the political interests of ARSA, and ARSA is alleged to have a very significant role in the camps. There’s the risk that the same person is interviewed multiple times by multiple different investigators, and that that information then comes across and provides a false impression of corroboration. There was also the basic point that, how can anonymous witness statements on which so many of these reports rely be tested or verified? So how can you rely on that? And there were some other lines of argument to the effect that The Gambia has presented some of its material in ways that could be described as selective and tend to obscure some of the less compelling evidence, or even exculpatory evidence. And then this more general concern that some of The Gambia’s allegations, the number of villages that were attacked or burned, the scope of the alleged widespread gender based sexual violence, that these allegations based on the fact finding mission reports suffer from being made at a level of generality and therefore potential overstatement that can’t be trusted, and that the court – Myanmar is saying – should be demanding much, much more detail from The Gambia. And you see those concerns also reflected in some of the questions, like the questions from Judge Tomka, some of Judge Charlesworth’s questions.

Judge’s Questions 

Janet: 33:18  Finally, as a way of wrapping all of this up, I thought we could maybe show what kind of detectives, which I’m sure we’re not the only ones who are playing detective in this, because the judges, at the end of the first lot of presentations, they got to ask questions. And Mike did a rough summary. He said that nine judges asked something like 20 questions overall, which may be more than than have come up in some other cases. I’m not an ICJ expert, so I don’t know. But looking at some of those, were you looking to see what it looked like that the judges were thinking Steph? 

Stephanie: 33:56  Yeah, this is always a really good way to see what kind of way judges are leaning and what they’re thinking of I thought it was, for example, remarkable that the Mexican Judge asked about what inference should be drawn from Myanmar not cooperating with the fact finding mission or any other UN body. And he seemed kind of combative, seemed kind of anti-Myanmar in that comment. And I also felt it was interesting that they asked again, the judges also came down on those kind of central points of, how should you assess the fact finding mission, what is the role of the ARSA militants that Myanmar keeps hammering on about and you selected some questions from Judge Hilary Charlesworth.

Janet: 34:45  Yeah, she had her own three questions, which we’re going to hear from, and I kept on hearing her as joining in other judges’ questions as well. So here’s Judge Charlesworth. 

Judge Hilary Charlesworth: 34:57  (I now give the floor to Judge  Judge Charlesworth)…Thank you, President. My first question is addressed to The Gambia. The independent international fact finding mission applied a reasonable grounds standard of proof in making factual determinations, which the mission itself described as, and I quote, lower than that required in criminal proceedings. Given that the court has previously applied a so called fully conclusive standard of proof in cases involving allegations of genocide. In The Gambia’s opinion, what consequences does the fact finding mission’s application of its standard of proof have for how the court should approach the fact finding mission’s evidence?

President, my second question is addressed to Myanmar. According to The Gambia and I’m quoting from its oral pleadings, as of 18 October, 2018 at least 178 Rohingya villages had been totally destroyed by fire, with an additional 214 partially destroyed. What total numbers of destroyed and partially destroyed villages has Myanmar recorded? And what is the nature of Myanmar’s evidence? Second part to the question is, according to Myanmar’s evidence, how many of these villages were destroyed by ARSA? How many were destroyed by the Tatmadaw during the clearance operations, and how many were destroyed by the Myanmar government after the clearance operations and again, what is the nature of Myanmar’s evidence?

I have a third question, which is addressed to The Gambia. The Gambia points to the occurrence of what it terms widespread sexual violence. Is The Gambia able to identify the locations where what it calls the hundreds of instances of sexual violence are alleged to have occurred?

And my fourth question, which I has been drafted jointly I, on behalf also of Judge ad Pillay, is addressed to Myanmar, and our question is, Myanmar has conceded that it’s not possible for it to and I quote, discount the possibility of incidents of serious sexual assault, end of quote, having taken place during the clearance operations. Our question is, what measures have been taken by Myanmar to investigate whether such incidents took place, and what were the results of any such investigations?

Janet: 37:46  Okay, what did you make, Steph, of Myanmar’s defense, or, let’s say, attack on Gambia and, and rebuttal, or refutal, of what Gambia had to argue? 

Stephanie: 38:00  I think it really is going to hinge on how much weight judges will give to this fact finding commission, or even how they would rate these independent investigative mechanisms, because, of course, the fact finding mission does kind of put a flavor on what they think it is, and the investigative mechanisms won’t, they will put out reports, but they keep saying it is for a judge to decide what this means. And so these are judges that aren’t very often asked to kind of qualify that kind of evidence, and we haven’t seen that many evidence. There’s a lot of written statements, but this is very unlike what we see at the ICC or what we see in international criminal courts with a lot of victims, and where judges can assess a lot of evidence from the people who are giving it to them directly. And so I have no idea, actually how that will play, and I think that’s going to be one of the difficult things. Are they going to accept what these UN bodies found as truth, and then will they accept that this standard of proof can be kind of commuted in what is needed for genocide? I think there’s a lot of, I think it’s a very strong case from The Gambia. I just wonder if the court is willing to go there.

Janet: 39:20  When you kind of draw on your experience, particularly covering the Srebrenica genocide, and I’m thinking back to, you know, what I was aware of, looking at what the Rwanda Tribunal was covering with genocide. I mean, these are very different kinds of cases from what we heard over the last couple of weeks, and I found it quite difficult myself to work out, I mean, apart from the quality of the evidence, which is one thing, but what exactly will enable the judges to rule that a state is behind a genocide? 

Stephanie: 39:58  In that respect, maybe the evidence from the kind of counter terrorism expert was interesting because that was a lot about military organization. And he made the point that for this to happen the way it happened, and for this to be described in village after village after village in the same way, with the same pattern, meant that there had to be some coordination from higher up that you don’t get that kind of operation carried out the way it is, without it, without somebody telling you that we’re going to do it like this. And I thought that was an interesting thing that I picked up on the kind of, if you just send 100 armed men into a village, and you don’t have the kind of the meeting beforehand of, how are we going to do this then, then, how does it turn out the same way every time? And I thought that was, that was interesting. You know, that is just one expert looking at it, and what we don’t have, what we tend to see in the other kinds of trials we’ve covered when it’s genocide, is some insider witnesses from within the military or the government, or intercepted radio communications or orders, things like that, that show this real government involvement. So I think that’s going to be another, another problem. 

Janet: 41:12  When would we expect any kind of result out of this Steph, based on your experience. I’m sure it’s the kind of thing your editors at Reuters are asking you always.

Stephanie: 41:24  Yeah, I think I’ve put tentatively in the Reuters copy that it’s not expected before the end of the year. And one person I spoke to is very optimistic, and was like, well, maybe in three months or maybe after the summer holidays, but I just don’t think that that would be, maybe they could speed through it. I don’t think this is the kind of case that the that the ICJ will speed run through, just because of all the other implications, and mainly because of the, you know, the kind of one on one translation on whatever happens in this case, going to South Africa, Israel and the Gaza genocide case. So I think they will really, really need a lot of deliberation and a lot of time to ingest the immense volume, also of the legal arguments. So I expect maybe end of the year, maybe.

Rohingya Survivors  

Janet: 42:16  So finally, let’s pull out from the detail that we had there from the court case, and maybe just remind ourselves about what this is really all about. So, Steph, do you want to describe meeting the small group of survivors who came over to watch the case, Rohingya, I think, from Cox’s Bazar, mainly, and, and say what they had as their expectations. Then we’ll leave that as kind of the last word on the podcast, and we’ll just wrap it there. 

Stephanie: 42:46  So before the hearing started, I sat down with three Rohingya refugees now, all living in Cox Bazar, brought over by legal action worldwide, to talk about what happened to them, but also what they expect from the court. And the thing that stuck with me most is that, yes, everybody has horrific stories, and a lot of times when we see these kind of court cases, they either get oversold, or victims expect a lot from a court. And that wasn’t the case. They were all quite well informed that there’s just not, probably not that much that the court can do, but just the fact of being heard, that somebody was listening to them, that they got to sit in the court and tell the world what happened to them was incredibly important to them. Also. They all, I asked them like, you are not those, none of the people that I spoke to were testifying to the court, but I asked them if you could testify, you know, if you were chosen, what would you tell them? And all of them kind of hammered home the idea that this is not just that one episode in 2016, 2017 that everybody talks about, but this is decades of suffering at the hands of the Myanmar military. And also, they continue to suffer, even though they’ve kind of escaped from Rakhine State, and they’re no longer at the hands of the Myanmar military. They are in Cox Bazar, which is relatively safe, but conditions aren’t great, and also they cannot return. And Myanmar made a great thing also in its legal submissions that they’re not, this is not a genocide, because if we were genocidal, we wouldn’t have all these talks about the refugees returning, and we have all these bilateral talks. But even with all the bilateral talks, nobody has actually returned yet, so, you know, there’s maybe, that’s maybe not the strongest argument. But I also felt that, yes, I can summarize what everybody says. And closing this podcast out, instead of having yet another European woman explain what is happening, I thought it would be best to have the victims themselves say something. So here is a bit that we’ve recorded from also a very marginalized group of victims. I spoke to a transgender woman who has the victim of the Myanmar military, and she’s speaking to us via translator, so you will hear the translator, but I asked her how the Tatmadaw, which is the Myanmar military, went about their crimes, and also why the Tatmadaw went after women and transgender women. 

Rohingya Survivor: 45:27 …They targeted women, women’s group and also the transgender, different gender, because when they come, the men try to scare, try to be safe, and then what they find is the women at home, and they targets. They did gang rape, and also gender like myself, they were being targeted, and I was even taken several times. And other transgender people were forced labor. If they don’t agree to do, they were raped, they were even killed. So I have witnessed all these. So it’s a systematic violence. It’s a long term violence that has happened for decades. So how many times a person can take all these violence? So lastly, they force us to flee the country – we didn’t want to leave. The systematic violence actually made us to flee. They burned the house, they killed, they started killing children, so we couldn’t take it anymore. So lastly, we just save our life, and we are a survivor.

[OUTRO MUSIC]

This was asymmetrical haircuts, your international justice podcast, created and presented by Janet Anderson and Stephanie van den Berg. This episode was created in partnership with Justiceinfo.net,  an independent site covering justice efforts for mass violence, and with the Hague Humanity Hub. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating and spread the word.