Madam President, distinguished Members of the Court,
1. Counsels for Myanmar have dutifully presented their arguments to the court. As this stage of the proceedings is concerned only with matters of law concerning jurisdiction and the admissibility of the case, that has been our focus. We have refrained from entering into matters relevant to the merits.
2. Unfortunately, on Wednesday, counsel for The Gambia made many factual and political allegations that were not relevant to the preliminary objections. The tone of these statements was inappropriate to a court of law at this stage of the proceedings. Myanmar will not respond to these allegations as now is neither the right place nor time to do so. We will not waste the Court’s valuable time by making statements not really addressed to the Court but to an audience outside the Great Hall of Justice. In my understanding, these allegations were aimed at intimating to the Members of the Court and the public that the authorities in Myanmar should be considered perpetrators of genocide, even before there has been any decision on whether there will be a merits phase, let alone any decision by this Court. Counsel for The Gambia also appears to suggest that the preliminary objections should not be considered seriously as the Court has already rejected them in the previous Provisional Measures Order.
3. I must respond by emphasizing, first, that Myanmar is exercising its right as Respondent by submitting these preliminary objections, as clearly foreseen by paragraph 85 of the Provisional Measures Order. Secondly, a Respondent has the right not to be prejudged on the merits at the preliminary objections phase. At any merits phase, the burden of proof would be on The Gambia as an applicant to prove its claims. However, it cannot seek to discharge that burden now or speak as if that burden had already been discharged. As of today, The Gambia’s claims have neither been admitted to be heard nor have they been proved, and The Gambia should not act as if it were otherwise.
4. Nevertheless, given that The Gambia has used this hearing as a platform to make allegations about the merits, as Agent for Myanmar I cannot just sit here in silence without responding at all. In my closing remarks, I would like to take just a moment to say that Myanmar is committed to ensuring compliance with the Genocide Convention. For instance, on 25 August 2021, Myanmar amended its Penal Code and the Code of Criminal Procedure in order to insert additional articles criminalising genocide and providing for the trial and punishment of perpetrators. Myanmar, as a responsible party, is also implementing its obligations under the Provisional Measures Order.
5. There also are continuous efforts to improve the general situation on the ground. The region now is relatively calm and peaceful without any significant incidents of violence.
6. Before concluding with the reading of Myanmar’s final submissions, I would like to thank you all for your careful and patient attention to the arguments presented. I am very grateful to the Registrar and all the staff of the Registry who have enabled the smooth and efficient conduct of this hearing, including the interpreters.
7. It now falls to me, in accordance with Article 60, paragraph 2, of the Rules of Court to read the final submissions of the Republic of the Union of Myanmar. These are as follows:
For the reasons given in Myanmar’s written preliminary objections and in its oral arguments at the hearing of the preliminary objections, and for any other reasons the Court might deem appropriate, Myanmar respectfully requests the Court to adjudge and declare:
1. that the Court lacks jurisdiction to hear the case brought by The Gambia against Myanmar; and/or
2. that The Gambia’s Application is inadmissible.
Madam President, Mr Vice-President, distinguished Members of the Court,
8. That concludes the arguments of Myanmar at this hearing of the preliminary objections. I thank you.
