(18th December 2019, Nay Pyi Taw)
At the public sitting of the International Court of Justice held on Wednesday 11 December 2019, I said that it was an honour to appear as agent of the Republic of the Union of Myanmar. It was indeed an honour for my delegation and myself to represent our country at the ICJ, but it was also a grave responsibility as the case submitted by The Gambia accused Myanmar of the most serious of crimes, genocide. Our delegation discharged this responsibility to the best of our ability, constantly keeping in mind the honour of our nation, the aspirations of our people, the future of our Union, and our obligations as a member of the international community.
We built our defence firmly on a foundation of honesty and respect for the rule of law, never losing sight of our ultimate goal, which is sustainable peace and harmony among all the communities in our country. Our legal team understood our concerns as well as our aspirations and I would like to take this opportunity to express our deep appreciation for the outstanding legal expertise, dedication to justice and good will that they brought to our case. Acting as our Counsel and Advocates were:
Mr. Christopher Staker, member of the Bar of England and Wales,
Mr. William Schabas, OC, MRIA, Professor of International Law, Middlesex University and Professor of International Criminal Law and Human Rights, Leiden University,
Miss Phoebe Okowa, Professor of Public International Law, Queen Mary University of London, Advocate of the High Court of Kenya, member of the Permanent Court of Arbitration.
Every country passes through difficult times and Myanmar is no exception. Such trials provide us with an opportunity to assess our strengths and weaknesses, to reinforce one and rectify the other. To grow and develop, we need the courage and wisdom to face challenges honestly and constructively. The challenge that we are now facing at the ICJ stems back not just to the events of the last few years but to the missed opportunities in decades past to address the social, economic and political ills of Rakhine squarely. The past cannot be changed but we can make the best of the present to enable us to build a happy future.
I have often said that no national enterprise of any note can be successfully accomplished without the willing cooperation of the people. And such cooperation, to be truly effective, must be based on a sound understanding of the issues involved. The support of our people, given generously and unquestioningly, not just in Myanmar and The Hague but all over the world, was a great source of strength to us when we presented our case at the ICJ. However, I believe there are many who would like to acquire a more detailed knowledge of the proceedings in court and the possible legal and political consequences. And I would like to make this knowledge available to you as fully as possible, for not only is it your right, it is an asset to our country if our people are with us, not just with their hearts but also with their minds, solidly and steadfastly.
We are making arrangements for the full court proceedings to be translated into the Myanmar language and made available to the public. Moreover, tomorrow, members of the team who came with us to the The Hague will be taking part in a discussion on the proceedings and the legal, political and diplomatic aspects of International Criminal Justice. I hope that our people will take a keen interest in these discussions to learn not just about the possible implications of the case for Myanmar, but also to acquire a broad understanding of international justice as it stands today.
It fell to me, as Myanmar’s Agent, to present to the Court relevant facts pertaining to the situation on the ground in Rakhine today, as well as the historical context of the roots of conflict, economic, social and military, in the region. This was particularly important as the Agent, Counsel and Advocates for The Gambia had neglected to address those issues and barely touched on the ARSA attacks that had triggered off the conflicts of 2016 and 2017. Neither was there any mention of the present armed conflict between the AA and the Tatmadaw, which has added to the complexity of the challenges in Rakhine. I did not dispute that in situations of armed conflict there could have been violations of human rights and infringement of universally accepted norms of justice and rule of law. However, these do not amount to genocide or intent of genocide and we are willing and able to prosecute wrongdoers. Myanmar is committed to defend the lawful rights of all peoples in our country through our own justice system, military as well as civil, in accordance with our Constitution. I also apprised the Court of the concrete steps we have been taking to address what the Kofi Annan Commission described as complex challenges of low development and poverty rooted in enduring social conflict between the communities.
The Gambia had applied for the Court to impose provisional measures on Myanmar, measures that could have a negative impact on efforts aimed at reconciliation and sustainable peace and development. In their presentations, our legal team confined their arguments to whether the Court should indicate provisional measures. Professor Schabas pointed out that the case as presented by the Gambia did not meet the plausibility requirement for provisional measures. Mr. Staker then spoke on the requirement of prima facie jurisdiction and standing, followed by Ms Okowa who addressed the lack of real and imminent risk of irreparable prejudice to the rights in dispute should provisional measures not be imposed. The presentation of The Gambia was based on allegations made in the report of the Fact Finding Mission. We have rejected the FFM since its establishment by the Human Rights Council. The detailed legal arguments will be discussed tomorrow (19 December) night on MRTV.
In my closing statement, I expressed my hope that the Court would make, “with the wisdom and vision of justice” a decision that would “help us to create unity out of our diversity, to develop the potential of our people, and to meet the challenges of a nation in quest of sustainable peace and development.”
I concluded with the formal presentation of the final submissions of Myanmar:
“In accordance with Article 60, paragraph 2, of the Rules of Court, for the reasons given during the hearing from 10 to 12 December 2019 and any other reasons the Court might deem appropriate, Myanmar requests the Court:
(1) to remove the case from its List;
(2) in the alternative, to reject the request for the indication of provisional measures submitted by The Gambia.”
We now wait for the Court to make known its decision, very likely next month. Our case was presented honestly and fully, and I believe the arguments of our Counsel and Advocates were sound and in accordance with the highest norms of justice. Once again I would like to thank all the members of our legal team and the members of our delegation, and their counterparts at home, for their dedication and excellent work.
I can only conclude by thanking our people who rallied to us in our country’s time of need. They gathered at The Hague from different countries in Europe, as well as from such faraway places as the United States, Japan, Australia. And, of course, from Myamar. Not all of them were affluent but they had not hesitated to come to infuse us with the strength of their trust and love. Our people with homes in The Hague opened their doors to strangers, providing them with shelter, meals, warmth, making them members of our Union family, Some who had come have become citizens of other countries but that in no way detracted from the value of their support. Citizenship is a provision under the law, the solidarity of hearts and minds is the solid foundation of unity.
I am heartened that our people who rallied to us had expressed their support in an orderly and civilized manner.
In solidarity, we will overcome all the challenges that we may have to meet. Together.