Experts say submission to international court of justice on Myanmar six weeks ago makes stance ‘wholly disingenuous’
The UK is facing accusations of double standards after formally submitting detailed legal arguments to the international court of justice in The Hague six weeks ago to support claims that Myanmar committed genocide against the Rohingya ethnic group through its mass mistreatment of children and systematically depriving people of their homes and food.
The UK made its 21-page “declaration of intervention” jointly with five other countries, but it is not supporting South Africa as it prepares to try to convince the ICJ on Thursday that Israel is at risk of committing genocide against the Palestinian people.
The UK submission on Myanmar argues there is a lower threshold for determining genocide if the damage has been inflicted on children as opposed to adults. The submission said other actions that could be defined as genocidal, if systematic, include forced displacement from homes, deprivation of medical services and the imposition of subsistence diets.
It argues that given declarations of intent to commit genocide are rare, the court’s test should not solely be explicit statements or numbers killed, but reasonable inference drawn from a pattern of conduct and factual evidence.
Israel will defend itself at the UN-derived ICJ insisting it has been seeking to protect its civilian population in an attempt to destroy Hamas but not the Palestinian people. It says its post-war plans for Gaza involving Palestinian-led governance is proof of a lack of genocidal intent.
Tayab Ali, the head of international law at Bindmans, said the significance of the UK’s submission on Myanmar “lay in showing the importance the UK attaches to adherence to the [UN] Genocide Convention and in showing the UK took a wide, and not a narrow, definition of acts of genocide, and the intent to commit genocide. It also made clear that the court should take into account risks to life after a ceasefire caused by disabilities, inability to reside in their homes and wider injustices.
“It would be wholly disingenuous if the UK, six week after advancing such a significant and broad definition of genocide in the case of Myanmar, now adopts a narrow one in the case of Israel.”
South Africa is likely to highlight the UK’s arguments about Myanmar, submitted in conjunction with Canada, Germany, Denmark, France and the Netherlands, when it makes its high-stakes accusation of genocide against Israel.
The November joint submission was in support of an original application made to the ICJ by The Gambia in November 2019 that genocidal acts occurred during a 2017 military campaign by Myanmar that drove 730,000 Rohingya into neighbouring Bangladesh.
Myanmar has always denied genocide, rejecting the UN findings as “biased and flawed”. It says its crackdown was aimed at Rohingya rebels who had carried out terrorist attacks in Rakhine state.
The ICJ unanimously accepted The Gambia’s request for provisional measures in December 2020, and issued a legally binding order to Myanmar to ends its genocidal acts and report to the court on the steps it was taking to comply.
The ICJ also threw out Myanmar’s assertion that The Gambia had no right to bring the claim in December 2022, and it is now making a determination of the case on its merits, allowing nation states such as the UK to intervene with supporting legal arguments. Human rights groups widely welcomed the UK’s intervention.
Some of the key principals on the meaning of genocide contained in the joint submission and their potential relevance to Gaza have also been extracted in the US by Robert Howse, the Lloyd C Nelson professor of international law at New York University.
Passages he highlights include: “A narrow construction of underlying acts of genocide obscures how killings and other underlying acts can be waged together in a coordinated strategy aimed at destroying a protected group.
“Given their ordinary meaning, the words ‘physical destruction’ in Article 11(c) are not limited to cases where members of the group immediately die as a result of the ‘conditions of life’ inflicted on the group.”
The submission also highlights the importance of children in assessing a genocide. Nearly 10,000 children and babies have been killed in Gaza, according to the territory’s health authority, about 40% of the fatalities.
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The Myanmar submission states: “There is a lower threshold for ‘serious bodily or mental harm’ when the victim is a child … acts which … may not be regarded as contributing to the physical or biological destruction of the group when done to adults, might be regarded as meeting those thresholds when done to children.
“It is important to adopt a construction which recognises that what it means for a child to suffer ‘grave and long-term disadvantage to [their] ability to lead a normal and constructive life’ may be different than for an adult.”
The submission also reminds the ICJ that it has already recognised that “Article 11(c) of the Convention, covers methods of physical destruction, other than killing, whereby the perpetrator ultimately seeks the death of the members of the group.”
It points out that examples of such conduct recognised by the International Criminal Tribunal for Rwanda include “subjecting a group of people to a subsistence diet, systematic expulsion from homes and the induction of essential medical services below minimum requirement.”
It states: “When considering the deprivation of food or the imposition of a subsistence diet, it would be relevant to consider that the amount of food that would ultimately lead to the death of an adult is different than that which would lead to the death of a child. Similarly, the medical needs of children are different than those of adults, and account needs to be taken of those differences in considering whether the absence of particular medical services amounts to the imposition of conditions of life that would bring about the destruction of specific members of the group.”
According to a leak to the US news website Axios, Israel has already ordered its diplomats to build international opposition to the South African case, pointing out that an adverse ruling “could have significant potential implications that are not only in the legal world but have practical bilateral, multilateral, economic and security ramifications”.
The Israeli government is also taking steps to disassociate itself from some of the more extreme remarks about displacing Palestinians from Gaza made by ministers and other elected politicians.
The Foreign Office has been contacted for comment.