16 JANUARY 2026 FIRST SPEECH OF

MR CHRISTOPHER STAKER

LEAD COUNSEL AND ADVOCATE FOR MYANMAR

INTRODUCTION

Introduction

MR President, Madam Vice-President, Members of the Court,

1. It is an honour for me to appear before you again.

2. I present arguments for the Republic of the Union of Myanmar, together with my colleagues Mr Blom-Cooper, Ms Lawrie, Professor Talmon, Professor Miron, Mr Hooper and Ms Cordone, each of whom will address you as counsel in due course.

3. I also acknowledge the invaluable contribution to the work on Myanmar’s case of Ms Diana Ellis KC, a distinguished advocate at both domestic and international levels, who passed away after the closure of the written proceedings. Her wise counsel is sadly missed.

The importance of the Genocide Convention MR President, Members of the Court,

4. An accusation of a violation of the Genocide Convention 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.

5. Not all accusations are well-founded. Indeed, not all are even made in good faith. A court of law must begin without any preconceptions and maintain an open mind.

6. Myanmar’s written pleadings set out in full its response to the claim of The Gambia. Myanmar appreciates that the written pleadings are lengthy. However, the gravity of the allegations demands that they be given a comprehensive examination by the Court in all their meticulous detail. Guided by Article 60 of the Rules of Court, Myanmar will focus in these oral proceedings on the main points still dividing the Parties. However, in relation to both matters that are not addressed in oral argument, as well as those that are, Myanmar relies on the Court’s most careful attention being given to the written pleadings. I emphasize this because The Gambia seems quite keen that you not look at the case in too much detail. It dismisses discussion of details as “micro-nits, or even nano-nits”,1 or as something from a novel by Dickens.2

7. To lighten the Court’s task slightly, I can say immediately that one matter is not in dispute, namely, the importance of the Genocide Convention. It is no part of Myanmar’s case to seek to downplay its significance. It is precisely because of its importance that Myanmar has taken such care in responding to this case. It is precisely because of that importance that the response of Myanmar deserves such anxious consideration.

The Applicant’s duty of care and the need for rigour

8. Counsel for The Gambia has spoken eloquently of the background to the Convention and the values underlying it. Few would disagree with Professor Sands’s statement that the Genocide Convention is “emblematic of who we are, of who we wish to be, of how truth and law are to address matters of raw power”.3 However, statements such as this do not assist a court in applying the Convention to the circumstances of a particular case.

9. The present proceedings are not criminal proceedings. They are inter-State proceedings concerning a claim that Myanmar bears international responsibility for a breach of its obligations under an international convention. Nevertheless, these are not quotidian inter-State proceedings. They are extraordinary in at least two significant respects.

10. First, this is a case in which a significantly higher burden of proof applies than in the generality of cases before the Court. The Gambia accepts that – in principle. Although these are not criminal proceedings per se, the Applicant alleges that Myanmar is “internationally responsible for the crime of genocide”.5 According to settled case law, the standard of proof is effectively the same as the “beyond a reasonable doubt” standard that applies in criminal proceedings before international criminal courts and domestic courts.6 No higher standard could apply.

11. Secondly, this is the first case in which a State that has not itself been directly affected by the facts of a case brings proceedings on the basis of “the common interest of all States parties” in ensuring compliance with the Genocide Convention.7

12. An applicant acting in “the common interest of allStates parties” must be expected to exercise due care. The Gambia appears to accept this. Mr Reichler spoke of “a particular obligation on counsel 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”.8 Mr Jallow claims that The Gambia did exercise care before bringing this case.9

13. It may well be that any compromissory clause in any treaty brings with it the risk of proceedings being brought overzealously, 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. The need for due care is obvious.

14. Myanmar is one of the States parties to the Convention in whose shared common interest The Gambia is said to be acting. That common interest is, of course, an interest in ensuring compliance with the obligations under the Convention, not in the upholding of every accusation of genocide.

15. Prior to the institution of proceedings, there is no mechanism for determining whether an applicant State is genuinely acting in “the common interest of all States parties”, or whether it is acting in compliance with its duty of care. The only control is by the Court itself, after proceedings have been brought. The Court can exercise that control by maintaining the highest rigour in its evaluation of the claim, and by expecting rigour on the part of the applicant. Any Court must always be dispassionate, rigorous and objective. In proceedings of the present kind, the Court should also expect the same of the applicant.

The Gambia must prove that the legal elements of genocide are satisfied

Mr President, Members of the Court

16. In a court of law, genocide is a specific legal norm. There are particular elements that need to be proved to establish a breach by a State of its obligations under the Convention. Not every injustice, nor every violation of international law, is a violation of the Genocide Convention, and in a case such as the present, where the sole basis of the Court’s jurisdiction is Article IX of the Convention, the Court has no jurisdiction to determine whether the facts disclose any violation of any other norm of international law. For instance, in the Bosnia case, the Court found that certain killings10 were not genocide, adding that they “may amount to war crimes and crimes against humanity, but the Court has no jurisdiction to determine whether this is so”.11

17. One difference between the Genocide Convention and many other human rights and international humanitarian law conventions is that the Genocide Convention contains a compromissory clause allowing direct recourse to the Court for claims of alleged breaches. Some might hope to see judicial interpretations expand the definition of genocide under the Convention, thus bringing a wider range of matters within the scope of the Court’s jurisdiction under Article IX. Of course, that would not advance the international rule of law, which demands that faithful effect be given to what was negotiated and agreed when the Convention was adopted, and which demands that the Court’s previous case law applying the Convention be followed absent good reason to the contrary.12 The Gambia does not advocate for any different approach. It says that it is “here to present [its] case under the law as [the Court’s] jurisprudence has established it” and that it does “not question or challenge the legal standards [the Court has] set”.

18. Few will have found it easy to listen to the case presented by The Gambia. However, the Court has not yet established the facts. Nor has it yet determined whether any facts that may be established satisfy the legal elements of genocide. That is the only question that the Court is called upon to determine.

19. It is therefore to the facts that I turn.

Issues of fact.

Mr President, Members of the Court

20. 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”.14

21. 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 Defence Forces or “Tatmadaw”, the Border Guard Police and the police.

22. 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 “opération de nettoyage”, might 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.15 The French equivalent has the same meaning.16 The Gambia has never expressly 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.

23. However, despite this, The Gambia’s Memorial makes almost no mention of ARSA at all,17 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.18 This is not consistent with its duty to act rigorously and objectively.

24. The duty of objectivity should have required The Gambia, at the very least, to set out all the evidence relating to ARSA’s capabilities and activities. It was at the time a professional, well-organized and trained group, and had come to wield considerable control and influence in northern Rakhine State. It still exists, and is still active, and now also wields considerable control and influence in the camps in Bangladesh, as the Court will hear from Ms Lawrie this afternoon.

25. The Court has before it at present at least three different accounts of the facts.

26. The first account is that initially set out by The Gambia in its Memorial. This account is pure allegation. As will be seen, it is not supported by the evidence.

27. According to this first account, there was a “consistent pattern of conduct”, involving “mass executions” and sexual violence, and systematic burning of villages, that was repeated in hundreds of villages across northern Rakhine State.19 28. The second account is the picture of events that one would have if all of the documents relied on by The Gambia were treated as conclusive proof of what is stated in them. This picture is the following.

29. There was significant violence against persons uninvolved in the ARSA attacks in the three villages of Min Gyi, Chut Pyin and Maung Nu, which Myanmar refers to as the “three main locations”. Events in those three villages occurred in August 2017. There are four other locations, Gu Dar Pyin, Inn Din, Koe Tan Kauk and Chein Khar Li, in which there is evidence of violence against persons uninvolved in the ARSA attacks,20 but not on the same scale as in the three main locations. There is then evidence of violence against persons uninvolved in the ARSA attacks in a number of other locations. The Gambia claims that the UN Fact-Finding Mission identified 47 other such locations (such that the total is 54).21 However, in respect of these other locations, the evidence often does not even allege anything more than a single incident involving a single victim, or a very small number of victims, and often not even a single fatality. In August 2017, there were 509 locations in northern Rakhine State that were wholly or partly inhabited by Bengalis.22 In relation to the remaining several hundreds of Bengali villages across northern Rakhine State, The Gambia presents no evidence at all of physical mistreatment of the civilian population by Myanmar’s security forces.

30. Furthermore, The Gambia’s evidence shows that almost all of the operations of the security forces occurred in the three days from 10 to 12 October 2016, the three days from 11 to 13 November 2016, and the seven days from 25 to 31 August 2017; that is to say, in the few days immediately following each of the three main ARSA attacks. The operations took place in locations proximate to those where the ARSA attacks had taken place.

31. Additionally, there is no suggestion that the 126,000 Bengalis living in IDP camps in Rakhine State came to any harm in 2016 or 2017, or that they have come to any harm since, despite the fact that they would have been an easy target in any genocidal campaign.

32. What is more, hundreds of thousands of Bengalis who live in towns and villages in Rakhine State did not leave to go to Bangladesh, and continue to live in villages and towns in northern Rakhine State today.

33. The regular reports that have been filed by Myanmar pursuant to the provisional measures order give details, amongst other matters, of the medical, educational and food aid being provided to Bengalis in northern Rakhine State by United Nations agencies, international aid agencies and non-governmental organisations,23 as well as the medical, educational, financial and other assistance being provided to them by the Government of Myanmar and the Myanmar Defence Services.24

34. As to those who did leave northern Rakhine State for Bangladesh, there is evidence of people repeatedly passing and interacting with military and police personnel on the way, who made no effort to harm them.25 Moreover, The Gambia does not dispute that as early as November 2017, two months after the August 2017 operations, Myanmar entered into agreements with Bangladesh for their repatriation, and Myanmar has since been working actively with Bangladesh, UNHCR and others to begin the repatriation process.26

35. The third account of events is the one that the Court will decide for itself, after it has considered the evidence presented by both Parties, and has made its own assessment of the evidential weight of each item of evidence. The position of Myanmar is that the evidence presented by The Gambia is not of sufficient evidential weight to establish, to the high standard of proof applicable in the present case, that each of the specific alleged atrocities occurred. That is all the more so if the evidence relied on by The Gambia is considered with the evidence presented by Myanmar. There is no reason why the Court should, without more, give preference to the evidence presented by The Gambia, to the extent of any inconsistency with Myanmar’s evidence. Furthermore, even if the Court were to find that any of the alleged incidents occurred, the facts that would be found to be proved would fall far short of what is required to establish all of the elements of genocide.

36. Again, The Gambia has not observed its duty to act rigorously and objectively. It does not set out, fairly and objectively, all of the evidence as a whole. Nor does it do so in relation to its allegations of discriminatory laws and policies, and hate speech, which will be addressed in due course.

Issues of the evaluation of evidence Mr President, Members of the Court

37. Aside from the disputed facts, there are important differences between the Parties concerning the evaluation of evidence.

38. A very large amount of material has been annexed by the Parties to their pleadings, and further material was added to the case file after the written pleadings closed. Yet, despite the volume of this material, The Gambia’s case is ultimately founded on reports of the Independent International Fact-Finding Mission on Myanmar, the “FFM”. These reports were issued in 2018 and 2019, some six and seven years ago.

39. Other evidence is referred to by The Gambia in only a subsidiary way. Other evidence is said by The Gambia to be relevant because it is consistent with, or corroborates, aspects of the FFM reports. There is no suggestion that the remaining evidence would, on its own, be capable of establishing The Gambia’s claims of genocide, in the absence of the FFM reports.

40. This is clear in The Gambia’s written pleadings,27 and has been made clear again by The Gambia in oral argument. When identifying The Gambia’s evidence in the case, Mr Jallow referred to FFM reports multiple times28 and went on to clarify that the significance of the NGO reports from The Gambia’s point of view is that they are said to corroborate the FFM reports.29 Professor Sands and Mr Suleman describe the FFM reports as “authoritative”,30 and confirm that The Gambia’s evidence is “underpinned” by the FFM reports,31 and says that the value of other material “also lies in its consistency with, and confirmation of, the findings of the FFM and the IIMM, which serves to underscore and enhance the reliability and weight of the FFM’s two comprehensive reports”.32 Mr Reichler says, “We place special emphasis on the reports by the FFM and the IIMM, including all of the underlying material on which the reports are based”.33

41. Although Mr Reichler says that The Gambia places special emphasis on reports by both the FFM and the IIMM, there is, however, no suggestion that the IIMM material itself could be sufficient to prove genocide. Mr Reichler furthermore only speaks of emphasis being placed on IIMM reports, rather than IIMM witness statements. The IIMM reports do not deal directly with the events on the ground in 2016 and 2017, but rather with ancillary matters such as ARSA weapons possession, hate speech, detentions in prison, and efforts to prosecute sexual violence.34 As to the witness statements produced by the IIMM, it is a striking fact that the IIMM has provided some 42 witness statements to The Gambia, and that The Gambia has put only 12 of them into evidence in this case.35

42. Pause and think about this. The very institution set up to gather evidence and produce evidence specifically for use in judicial proceedings, and with access to the accounts and identities of all of the FFM witnesses, provides just 40 signed witness statements relevant to the allegations after over seven years of work. Even then, The Gambia only files 12 of them.

43. The fact is that unless the FFM reports are given sufficient evidential weight to enable The Gambia to discharge its burden of proof to the requisite high standard, The Gambia simply has no case. Its entire case rests on reports of a fact-finding mission that are six or seven years old and were drafted during a short period of time, without proper investigation backing them. In the intervening years, no further evidence has emerged that would be capable of proving a claim of genocide without central reliance on the FFM reports.

44. However, the FFM reports cannot be given evidential weight in relation to the events on the ground in northern Rakhine State in 2016 and 2017. The reasons will be fully addressed in due course. Apart from anything else, it 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. It certainly did not apply the standard of proof that this Court is required to apply in this case.

45. 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 a 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.

46. The Gambia suggests that the Court can rely on the FFM report “to assist it in its own determination of the facts”.36 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 cite to unidentified persons as the source of that information or state conclusions of the FFM based on those findings of fact. How can the Court make its own determination of the facts based on such material? It either accepts the material and rubber-stamps it or 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 a 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?

47. This 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. Neither of the Parties knows who the overwhelming majority of these people are. Not only is the Court incapable of making any genuine determination of its own on the basis of these reports, but the Respondent is also incapable in any way of challenging or testing the credibility of the evidence. The fact thatthe FFM reports are accompanied by a sprinkling of other evidence changes nothing. That other evidence, collectively, is incapable of proving genocide, so that any finding of genocide would still rest on the untestable FFM reports in any event. Furthermore, while that other evidence may be consistent with aspects of the FFM reports, the body of evidence does not corroborate the FFM reports as a whole. That evidence also has similar deficiencies to the FFM reports. It includes, for instance, reports of other official bodies or NGOs that also contain bare statements of fact attributed to anonymous persons.

48. Effectively, The Gambia seeks to shift the burden of proof. It seeks to put Myanmar in a position where it has the burden of disproving what is stated in the FFM reports. This is, of course, contrary to the established jurisprudence, according to which it is for the applicant “to demonstrate the existence of the facts put forward in support of its claims”.37 The Court “cannot demand of [the Respondent] that it provide explanations of the facts alleged by the Applicant”.38

49. A further objection to reliance on the FFM reports is that Myanmar was under no obligation to cooperate with the FFM, and it did not do so. This means that the FFM reports in any event reflect only one side of the story. The Gambia seeks to ridicule this argument.39 This may be a sign that it has no answer to it. The effect of The Gambia’s argument would be to force States to cooperate with bodies that they are under no obligation to cooperate with, and have no desire to cooperate with. The FFM has no power to say to Myanmar: “You have no duty to cooperate, but if you do not, you may be prejudiced in any future proceedings before the ICJ”.

50. Members of the Court, would any municipal court that observes the rule of law convict a person of the gravest crime, or find against a defendant in the highest stakes civil case, on the basis of a report prepared by a third party that simply states facts attributed to anonymous persons? If any municipal court did that, would it be called “a legitimate exercise of its fact-finding responsibility”, or would it be called an abnegation of its judicial function?40 The Gambia may disagree, but the answer must obviously be the latter.41

51. Myanmar does not take the extreme position that reports of United Nations bodies can never have evidential weight.42 Obviously, such reports have been given evidential weight for certain purposes in certain cases. However, there is no precedent for making findings of the core facts in a case where the heightened standard of proof applies on the basis of a report such as this. Contrary to what The Gambia seems to suggest, this is not the Court’s “long-standing practice”.43 In previous cases, the Court has exercised due care when relying on reports of United Nations bodies, and has rejected claims evidenced by such reports.44 It has not treated them all as “authoritative”. The Court has affirmed multiple times that the probative value of reports from official or independent bodies: … depends, among other things, on (1) the source of the item of evidence (for instance partisan, or neutral), (2) the process by which it has been generated (for instance an anonymous press report or the product of a careful court or court-like process), and (3) the quality or character of the item (such as statements against interest, and agreed or uncontested facts).45

52. The FFM reports were certainly not produced by a court or court-like process, and there would have been no such process even if Myanmar had cooperated with it. The sources of evidence in the reports, that is to say, claimed eyewitnesses to events, cannot be considered neutral. Furthermore, the information in them is not agreed or uncontested, and does not fall in the category of “statements against interest”.

53. The Gambia suggests that Myanmar’s position would make it all but impossible for a State to be held accountable under the Genocide Convention.46 In fact, in some cases it may well be impossible to hold a State accountable, for instance, because it is not a party to the Convention, or because it has made a reservation to Article IX. However, in the case of a State party that has made no such reservation, the way of holding a State accountable is to bring proceedings before this Court. Contrary to what The Gambia appears to assume,47 Myanmar’s position would not create a need for a prior determination by a third body such as the ICTY before proceedings are brought before this Court.

54. If all of the evidence that was before the FFM was before this Court, then the Court could have considered that evidence itself and made its own findings based on it. This would not involve importing the rules of the International Criminal Court or other rules of procedure into proceedings before this Court, and would not necessarily involve the hearing of oral testimony from every witness.48 This Court is always subject to its own Statute and Rules of Court. There might be challenges in managing such litigation, but not insurmountable challenges. No other court in the world would shy away from hearing the largest, most complex and most serious cases on the grounds that it is hard to do.

55. It is a hypothetical question precisely what evidence would be sufficient to prove genocide in a case before the Court. For present purposes, it suffices to confirm that the reports of the FFM are insufficient.

Disputed issues of law Mr President, Members of the Court

56. In addition to the disputed issues of fact and the disputed issues of the evaluation of evidence, there are also certain disputed issues of law in this case. These are most conveniently dealt with as they arise in the course of presentations. I will therefore not identify them all now, other than to mention three.

57. First, The Gambia appears to suggest that if a genocidal intent is one possible inference to be drawn from the circumstances, it will be proved unless the respondent proffers, and presumably proves, some other explanation for the conduct.49 That is incorrect. According to the Court’s settled jurisprudence, The Gambia bears the burden of proving all legal elements of the claimed breaches of the Convention, in accordance with the very high standard of proof that applies in cases of this kind. In the Bosnia and Croatia cases, the Court did not require the respondent State to plead, let alone prove, an alternative explanation of the evidence. As long as there is a reasonable alternative inference, a genocidal intent will not be the only reasonable inference.

58. Second, The Gambia has said that “The victim of a genocide must be part of a recognizable and definable group”,50 suggesting that a single individual can be a “part” of a group for purposes of Article II of the Convention. That is incorrect. The words “in part” in Article II of the Genocide Convention mean a distinct and identifiable part of a protected group, normally but not necessarily, a part of a group living in a particular geographic region. Thus, in the Bosnia case, the Court found that the Bosnian Muslims of Srebrenica were a “part” of the protected group of Bosnian Muslims. Targeting large numbers of members of a group because they belong to that group does not of itself amount to targeting a “part” of a group.51 The Court has held that a “part” must represent a substantial part of the overall protected group, since it could “distort the definition of genocide” if too small a section of the protected group is considered to be a “part” of the group for purposes of Article II. The Bosnian Muslims of Srebrenica were only a small part of the overall group, but in that case, they were held to be a “part” because of the immense strategic importance of the area. Such a small portion of a group would normally be insufficiently substantial to be a “part” of the group for Convention purposes.52

59. In the present case, The Gambia has said that “there were numerous ‘Srebrenicas’”,53 suggesting that the inhabitants of every location where operations took place in 2016 and 2017 are a “part” of a protected group for purposes of Article II. That simply cannot be asserted or assumed. No basis has been established by The Gambia for the suggestion that individual small villages satisfy that definition.

60. Thirdly, the remedies that can be requested for violations of the Genocide Convention must be confined by the norm that is said to be breached. Claims cannot be brought under the Convention as a vehicle for advancing demands that are unrelated to genocide.

61. A breach of this principle can be found in the submissions at the end of The Gambia’s written pleadings. It seeks orders from the Court requiring Myanmar to “ensure the protection of the Rohingya against discrimination and persecution”, to “ensure the right of the Rohingya to identify as such”, to “ensure the liberty and freedom of movement of the Rohingya within Myanmar”, to “remove any restriction or discrimination on the employment or access to livelihoods of the Rohingya”, and to grant “full and equal citizenship to all members of the Rohingya group”.1

62. This is a sweeping agenda. If The Gambia says that all of these submissions claim rights under the Genocide Convention, then it seeks to extend the concept of genocide radically to include a right to citizenship, a right to work, and the right to be referred to by a particular name. On the other hand, if The Gambia says that its submissions claim rights under norms of international law other than the Genocide Convention, then it seeks to use this Convention, and its Article IX, to enforce claimed rights under international law other than those under the Convention.

63. In fact, The Gambia seems to be going much further than this. It seems to ask the Court to order Myanmar to confer these rights on the Bengali population, whether or not these rights even exist under international law, on the basis that these are remedies for claimed violations of the Genocide Convention. If so, The Gambia seeks to use the Genocide Convention to achieve goals that are political rather than legal.

64. None of these three possibilities is consistent with what was intended at the time of adoption of the Genocide Convention.

Matters not in issue

Mr President, Members of the Court

65. Before moving on, I wish to note two matters that should not occupy the Court’s time.

66. The first is the question of the existence of a protected group. In light of what the Agent for Myanmar has said, it is accepted that acts aimed at the destruction of the Bengali or Bengali Muslim population in northern Rakhine State as such would fall within the scope of the Convention, irrespective of whether that population is a part of a protected group or a protected group in its own right.

67. The second is the question of whether genocide can be committed in an armed conflict. Myanmar has never suggested otherwise. The massacre at Srebrenica, which the Court in the Bosnia case found to be genocide, was also committed in an armed conflict. Myanmar also accepts that genocide can be committed during a counter-terrorism or counter-insurgency operation. However, that does not mean that the existence of an armed conflict or counter-terrorism operation is irrelevant to the question of what inferences of fact can be drawn from the circumstances as a whole. The existence of an armed conflict may provide a basis allowing for reasonable inferences that do not involve genocide.

Structure of Myanmar’s arguments Mr President, Members of the Court

68. That concludes my introduction. To assist the Court, Myanmar’s oral arguments will broadly follow the same structure as both of its written pleadings. In each of Myanmar’s written pleadings, each chapter has the same title and deals with the same subject matter as the corresponding chapter bearing the same number in the other written pleading.

69. I have just dealt with introductory matters, the subject of Chapter 1 of both written pleadings.

70. If this would be a convenient time for the customary coffee break, I could resume after the break with the subject matter of Chapter 2, regarding certain background facts.

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