1. Whether the ICC has jurisdiction or not?

1. The jurisdiction of the ICC is not on the basis of the principle of “Universal Jurisdiction”. 1
Instead, under the purview of Articles 5(1)2 and 11(1)3 of the ICC Statute, the ICC can exercise
jurisdiction in respect to the crime of genocide; crimes against humanity; war crimes; and the
crime of aggression committed after this Statute came into force.

2. The preconditions of exercising the ICC’s jurisdiction have been mentioned in Article 12 of
the ICC Statute. According to Article 12(1) and (3) of the ICC Statute, a State can accept its
jurisdiction either by becoming party of this Statute, or by making an ad hoc declaration lodged
with the Registrar concerning the crime in question. 4 Here, Article 12(3) of the ICC Statute is
concerned with the non-Party States only whose consent for accepting ICC’s jurisdiction is
granted on a case-by-case basis.5 However, the declaration of Article 12(3) 6 of the ICC Statute
and Rule 447 of the Rules of Procedure require that: (a) it ‘must be express, unequivocal, and

1
‘Situation in Palestine,’ The Office of the Prosecutor of the ICC, available at
<https://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/
SituationinPalestine030412ENG.pdf> accessed on 25 December 2016.
2
Article 5(1) of the ICC Statute reads as follows:
‘The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this Statute
with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.’
3
Article 11(1) of the ICC Statute reads as follows:
‘The Court has jurisdiction only with respect to crimes committed after the entry into force of this
Statute.’
4
Carsten Stahn et al., ‘The International Criminal Court’s Ad Hoc Jurisdiction Revisited,’ [2005] 99 America
Journal of International Law, pages 427–28; Stéphane Bourgon and Hans-Peter Kaul, in Antonio Cassese et al.
(Eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2002) page
611.
5
Ibid, Bourgon and Kaulp, page 563; William A. Schabas, An Introduction to the International Criminal Court
(Cambridge University Press, 4th ed., 2011) p. 88.
Article 34 of the Vienna Convention on the Law of Treaties, 1969 depicts that ‘[a] treaty does not create either
obligations or rights for a third State without its consent.’
6
Article 12(3) of the ICC Statute reads as follows:
‘If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that
State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the
Court with respect to the crime in question. The accepting State shall cooperate with the Court
without any delay or exception in accordance with Part 9.’
7
Rule 44(2) of the Rule of Procedure reads as follows:
precise as to the crime(s) or situation it applies to’; (b) it must be lodged with the Registrar of
the ICC over ‘the crime in question’; and (c) the accepting State must collaborate with the ICC
without any delay as if it is a State party.

3. As regards the ‘crime in question’, it must take place in the territory of the State which has
lodged a declaration under Article 12(3) of the ICC Statute, or a national of the concerned State
must have committed the offence.8 Moreover, the government or authority that accepts the
ICC’s jurisdiction on behalf of a State by such ad hoc declaration must have “effective control”
over the State in concern.9 As per the legal test of “effective control,” the “effective
government” of a State’s territory must enjoy the support from the majority people and must
have a reasonable expectancy of permanence.10 In case of occupying power, the defining
feature of occupation is “effective control” by such power. 11 In other words, the occupying
power must be the real power in the concerned country which will be responsible for
administering government as well as maintaining law and order of that particular State. 12

>>>>>>>>>>>>>>>

‘When a State lodges, or declares to the Registrar its intent to lodge, a declaration with the
Registrar pursuant to article 12, paragraph 3, or when the Registrar acts pursuant to sub-rule 1, the
Registrar shall inform the State concerned that the declaration under article 12, paragraph 3, has as
a consequence the acceptance of jurisdiction with respect to the crimes referred to in article 5 of
relevance to the situation and the provisions of Part 9, and any rules thereunder concerning States
Parties, shall apply.’
8
‘Situation in the Republic of Cote D'ivoire,’ Pre-Trial Chamber III of the ICC-02/11, 3 October 2011, para. 187,
available at <https://www.icc-cpi.int/pages/record.aspx?uri=1240553> accessed on 29 January 2017.
9
Eugene Kontorovich, ‘Palestine’s Egypt Problem at the ICC,’ The Washington Post, 5 August 2014, available at
<https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/05/palestines-egypt-problem-at-the icc/?
utm_term=.d5e22a99c969> accessed on 24 December 2016; Eugene Kontorovich, ‘Effective Control and Accepting
ICC Jurisdiction,’ The Opinio Juris, 4 August 2014, available at <http://opiniojuris.org/2014/08/04/guest-post-
effective-control-accepting-icc-jurisdiction/> accessed on 23 December 2016.
10 ‘The Determination of the Office of the Prosecutor on the Communication Received in Relation to Egypt,’ ICC-

OTP-20140508-PR1003, available at <https://www.icccpi.int/Pages/item.aspx?name=pr1003&ln=en#1a> accessed

on 10 January 2017.
11
Ibid.
12
Ibid.
2. “Crimes against Humanity”

4.8 During condemning the mass killings of Armenians in the Ottoman Empire, the Allied
governments (France, Great Britain and Russia) used the term “crimes against humanity” in
1915.13 Nonetheless, after almost 30 years, the International Military Tribunal (IMT) in
Nuremberg prosecuted “crimes against humanity” for the first time after the WWII in 1945. 14
With the passage of time, “crimes against humanity” makes its place in the international
customary law through its prosecution in many international courts e.g. ICC, ICTY, ICTR etc. 15
Some of the States recognized it as a crime in their national laws as well.16

4.9 At the present time, the definition of “crimes against humanity” articulated in the Rome
Statute of the International Criminal Court, 1998 (the Rome Statute) is considered as the mostly
accepted one. Therefore, the later discussion focuses on the said definition of this crime given
in the Rome Statute, 1998.

4.10 Under the purview of Article 7 of the Rome Statute, “crime against humanity” means
committing any of the acts which are regarded as “physical elements” of this crime such as: ‘(a)
Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental
rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in connection with any act referred to in

13
Crimes Against Humanity, available at <http://www.un.org/en/genocideprevention/crimes-against-
humanity.html> accessed on 25 April 2018.

14
Id; See also, Brian Dub, ‘Understanding the content of crimes against humanity: Tracing its historical evolution
from the Nuremberg Charter to the Rome Statute’ [2015] 9(5) African Journal of Political Science and International
Relations 181, 183.

15
Id.

16
Id; See also, David Luban, ‘A Theory of Crimes Against Humanity’ [2004] 29 Yale Journal International Law 85,
167.
this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of
persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally
causing great suffering, or serious injury to body or to mental or physical health’. 17 It must be
mentioned that the listed act(s) has to be committed as a part of a “widespread or systematic
attack” and it must be directed against any civilian population which are certainly the
“contextual elements” of this crime.18 Finally, the mental element required for this crime is that
the perpetrators must have knowledge of the act(s) or attack(s).19

4.11 The above-mentioned definition requires explanations and interpretations of some

terminologies as depicted in the following discussion: -

4.11.1 Firstly, “civilian population” is defined in Article 50 of the Additional Protocol I20 as any
person who does not belong to one of the categories mentioned in Article 4(A)(1),(2),(3) and (6)
of the Third Geneva Convention.21 It is further mentioned that in case of doubt, a person would
be considered as a civilian.22 It is stated that Article 51(3) of the Additional Protocol I provides
that civilians shall enjoy protection against the dangers arising from military operations ‘unless
and for such time as they take a direct part in hostilities’.23 The direct participation in hostilities,

17
The Rome Statute of the International Criminal Court, 1998, Article 7(1).

18
Id.

19
Id.
20

?
Additional Protocol I, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts, 8 June 1977.
21

?
Article 4(A) of the Third Geneva Convention reads as: ‘... (1) Members of the armed forces of a Party to the
conflict, as well as members of militias or volunteer crops forming part of such armed forces. (2) Members of other
militias and members of other volunteer corps, including those of organized resistance movements, belonging to a
party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that
such militias or volunteer corps, including such organised resistance movements, fulfil the following conditions: (a)
That of being commanded by a person responsible for his subordinates;(b) That of having a fixed distinctive sign
recognizable at a distance;(c) That of carrying arms openly;(d) That of conducting their operations in accordance
with the laws and customs of war. 3. Members of regular armed forces who profess allegiance to a government or
an authority not recognized by the Detaining Power. (6) Inhabitants of a non-occupied territory, who on the
approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form
themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.’
22
Article 50 of the Additional Protocol I.

23
Ibid, Article 51(3).
as defined by the International Committee of the Red Cross (ICRC), refers to ‘acts which by their
nature and purpose are intended to cause actual harm to the personnel and equipment of the
24
armed forces.’ This legal provision was also applied by the ICTR (Trial Chamber) in The
Prosecutor v. Ignace Bagilishema in 2001.25

4.11.2 In the case of The Prosecutor v. Fatmir Limaj, the ICTY (Trial Chamber) observed that,
‘the term civilian should be interpreted broadly and it refers to population even if non-civilians
are within it as long as it is predominantly civilian’. 26 Further, in the case of The Prosecutor v.
Stanislav Galic, the ICTY (Trial Chamber) stated that ‘A population may qualify as ‘civilian’ even
if non-civilians are among it, as long as the population is predominantly civilian.’27

4.11.3 Secondly, in the case of The Prosecutor v. Miroslav Deronjic, it was stated that, ‘In order
to constitute a crime against humanity, the act of accused must be part of a widespread or
systematic attack directed against a civilian population...’28 ‘Further, it was stated, in the case of
The Prosecutor v. Vidoje Blagojevic and Dragan Jokic that ‘Attack in the context of crime against
humanity can be defined as a course of conduct involving the commission of acts of violence.’ 29

4.11.4 The terms ‘widespread’ has been defined in the case of The Prosecutor v. Dario Kordic &
Mario Cerkez as: ‘... the phrase ‘widespread’ refers to large-scale nature of attack and the
number of the targeted persons’30 Alternatively, in the case of The Prosecutor v. Dario Kordic &
Mario Cerkez it is stated that the phrase ‘systematic’ refers to the organized nature of the
24

?
Conduct of Military Operations in Urban Areas, A project of the International Humanitarian Law Research
Initiative, May 2004, p. 2, available at <http://reliefweb.int/sites/reliefweb.int/files/reliefweb_pdf/node-
22157.pdf.> accessed on 25 April 2018.
25

?
The Prosecutor v. Ignace Bagilishema, ICTR (Trial Chamber), 7 June 2001, para. 104.

26
The Prosecutor v. Fatmir Limaj, ICTY (Trial Chamber), 30 November 2005.
27

?
The Prosecutor v. Stanislav Galic, ICTY (Trial Chamber), 5 December 2003, para. 143; Article 50(3) of the Protocol I
of the Geneva Conventions 1949.
28
The Prosecutor v. Miroslav Deronjic, ICTY (Appeals Chamber), 20 July 2005, para.109. See, also, The Prosecutor v.
Fatmir Limaj, ICTY (Trial Chamber), 30 November 2005.
29

?
The Prosecutor v. Vidoje Blagojevic and Dragan Jokic, ICTY (Trial Chamber), 17 January 2005, para. 543.
30

?
The Prosecutor v. Dario Kordic & Mario Cerkez, ICTY (Appeals Chamber), 17 December 2004. See, also, The
Prosecutor v. Fatmir Limaj, ICTY (Trial Chamber), 30 November 2005.
attack.31 Further, in the case of The Prosecutor v. Tihomir Blaskic, the ICTY (Trial Chamber)
stated that ‘The systematic character refers to four elements ... [1] the existence of a political
objective, a plan pursuant to which the attack is perpetrated or an ideology, ... to destroy,
persecute or weaken a community; [2] the perpetration of a criminal act on a very large scale
against a group of civilians or the repeated and continuous commission of inhumane acts linked
to one another; [3] the preparation and use of significant public or private resources, whether
military or other; [4] The implication of high-level political and/or military authorities in the
definition and establishment of the methodical plan.’32

4.11.5 Finally, in the case of The Prosecutor v. Dragoljub Kunarac, Radomir Kovac & Zoran
Vokovic, the ICTY (Appeals Chamber) stated that, ‘there must be knowledge of the accused that
there is an attack on the civilian population and that his act is a part thereof’.33 Further, the
concept of knowledge is defined as awareness of existence of such a fact or circumstances,
which prescribes the existence for the crime to materialize. 34 The case of The Prosecutor v.
Dario Kordic & Mario Cerkez goes on to elaborate on the requirement of the knowledge stating
that the knowledge can be actual or constructive meaning, that the accused knew or should
have known that his acts were part of a widespread or systematic attack on a civilian population
and pursuant to some sort of policy or plan.35

>>>>>>>>>>>>>>

31

?
The Prosecutor v. Dario Kordic & Mario Cerkez
32
The Prosecutor v. Tihomir Blaskic, ICTY (Trial Chamber), 3 March 2000, para. 203.

33
The Prosecutor v. Dragoljub Kunarac, Radomir Kovac & Zoran Vokovic, ICTY (Appeals Chamber), 12 June 2002,
para.99.

34
M E Badar, ‘Mens Rea – Mistake of Law and Mistake of Fact in German Criminal Law: A Survey for International
Criminal Tribunals’ [2005] 5(2) International Criminal Law Review 203.
35

?
The Prosecutor v. Dario Kordic & Mario Cerkez, ICTY (Appeals Chamber), 17 December 2004. See, also, The
Prosecutor v. Fatmir Limaj, ICTY (Trial Chamber), 30 November 2005.
3. Whether the alleged actions taken by the accused against the third-gender people in
Valaria could qualify as genocide?

1. A consideration of the four elements of the crime of genocide by “killing members of the
group,” as provided in the International Criminal Court, Elements of Crimes Document,36 would
establish beyond reasonable doubt that a crime of genocide by killing in the State of Valaria did
occur between 4 December 2015 and 25 January 2016.

2. The elements of the crime of genocide by killing members of the group include: (1) the
perpetrator killed one or more persons; (2) such person or persons belong to a particular
national, ethnical, racial or religious group, as such; (3) the perpetrator intend to destroy, in
whole or in part, that national, ethnical, racial or religious group, as such; (4) the conduct took
place in the context of a manifest pattern of similar conduct directed against that group or the
conduct could itself result in such destruction. 37 By proving the above mentioned elements of
the crime of genocide by killing members of the group, it can be established that Tarion
Bannister is responsible for committing the alleged crime.

3. Element No. 1: The perpetrator killed one or more persons.

3.1 The first element of the crime of genocide by killing members of the group requires proving
that the perpetrator intentionally killed one or more members of a particular group. In the
cases of Bagosora,38 Ntagerura,39 Simba,40 Muvunyi,41 Seromba,42 Gacumbitsi,43 Kamuhanda44
and Semanza45 the ICTR held that in cases of genocide the prosecution bears the burden of
proof to show that the perpetrator participated in the killing of one or more members of the
36
U.N. Doc. PCNICC/2000/1/Add.2 (2000).
37
Ibid.
38
The Prosecutor v. Theoneste Bagosora et al, Case No. ICTR-98-41-T (Trial Chamber), 18 December 2008, para.
2117.
39
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki & Samuel Imanishimwe, Case No. ICTR-99-46-T
(Trial Chamber), 25 February 2004, para. 664.
40
The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T (Trial Chamber), 13 December 2005, para. 414.
41
The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55 A-T (Trial Chamber), 12 September 2006, para.
486.
42
The Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-I (Trial Chamber), 13 December 2006, para. 317.
43
The Prosecutor v. Sylvestre Gacumbitsi, Case No: ICTR-2001-64-T (Trial Chamber), 17 June 2004, para. 255.
44
The Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-95-54A-T (Trial Chamber), 22 January 2004, para.
632.
45
The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T (Trial Chamber), 15 May 2003, para. 319.
protected group. In the case of Blagojevic & Jokic46 the ICTY held that the term ‘killing’ can be
equated with murder.

3.2 In this present case, the Dothrocky raiding party led by Tarion Bannister killed hundreds of
the Verdache of the State of Valaria between 4 December 2015 and 25 January 2016. 47 This can
be evidenced by the report of the IRW. 48 On the basis of inspection of hospital and morgue
records, and forensic examination of mass grave sites, the IRW determined that a series of
attacks planned and coordinated by John Sleet, leader of the Dothrocky Riders, took place in
the State of Valaria during this period of time. 49 These attacks caused killing of almost 5000
Verdache across the State of Valaria.50 Based on the interviews with eye witnesses, the IRW
determined that one of the Dothrocky raiding parties led by Tarion Bannister committed dozens
of massacres which resulted in hundreds of deaths of the Verdache. 51 Hence, the first element
of the crime of genocide by killing members of the group is proved beyond reasonable doubt.

4. Element No. 2: Such person or persons belonged to a particular national, ethnical, racial or
religious group.

4.1 The second element of the crime of genocide by killing requires proving that the victims of
the crime must be targeted because of their membership in a particular national, ethnical,
racial or religious group.

4.2 There is no generally or internationally accepted definition of the term “group”. Earlier, the
term “group” would refer to mean only a “stable and permanent group”. 52 However, the ICTY in
the cases of Blagojovic & Jokic,53 Brdjanin,54 Jelisic55 and Stakic56 and the ICTR in the cases of

46
The Prosecutor v. Vidoje Blagojevic & Dragan Jokic, Case No. IT-02-60 (Trial Chamber), 17 January 2005, para.
642.
47
Fact dossier 3, page 4, para. 7.
48
Ibid.
49
Ibid.
50
Ibid.
51
Ibid.
52
The Prosecutor v. Jean-Paul Akayesu, Case no. ICTR-96-4-T (Trial Chamber), 2 September 1998, paras. 511, 516
and 701-702.
53
Blagojevic & Jokic, op. cit. no. 62, para. 667.
54
The Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-T (Trial Chamber), 1 September 2004, para. 683.
55
The Prosecutor v. Goran Jelisić, Case No. IT-95-10 (Trial Chamber), 14 December 1999, para. 70.
56
The Prosecutor v. Milomir Stakic, Case No. IT-97-24-T (Trial Chamber), 31 July 2003, para. 512.
Muvunyi,57 Gacumbitsi,58 Semanza,59 Rutaganda,60 Musema,61 Kamuhanda,62 Seromba,63
Ndindabahizi64 and Kajelijeli65 established that the determination of a group is to be made on a
case-by-case basis, consulting both objective and subjective criteria.

4.3 As far as “ethnic group” is in concern, the ICTR defined “ethnic group” in the case of
Akayesu,66 as a group whose members share a common bond, common language and culture.
In other words, an “ethnic group” is generally understood as one whose members share a
common language and culture.67 Further, in the case of Nahimana68 the ICTR held that the
association of the target group with a political agenda, effectively merging ethnic and political
identity, does not negate the genocidal animus that motivated the perpetrator. Likewise, the
ICTR categorically stated in the case of Kayishema and Ruzinadana69 that “ethnic group’ means
a group which distinguishes itself as a distinct group i.e. self-identification, or a group identified
by others including the perpetrators of the alleged crimes i.e. identification by others.

4.4 In the present case, the Verdache, the third gender people of the State of Valaria, qualify
themselves as a distinct group. The Verdache have been socially recognized as a unique gender
for hundreds of years which upheld their identity as an ethnic group. 70 This particular group is
self-identified or identified by society whose members belong to neither male nor female
genders.71 Moreover, through their traits and characteristics as well as identity, they created a
social recognition for themselves by developing a heavily accented dialect of Valarian

57
Muvunyi, op. cit. no. 57, para. 484.
58
Gacumbitsi, op. cit. no. 59, para. 254.
59
Semanza, op. cit. no. 61, para. 317.
60
Georges Anderson Nderubumwe Rutaganda v.The Prosecutor, Case No. ICTR-96-3-A (Appeals Chamber), 26
May 2003, para. 524.
61
The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A (Appeals Chamber), 27 January 2000, para. 161.
62
Kamuhanda, op. cit. no. 60, para. 630.
63
Seromba, op. cit. no. 58, para. 318.
64
The Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I (Trial Chamber), 15 July 2004, para. 468.
65
The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR- 98-44A-T (Trial Chamber), 1 December 2003, para. 811.
66
Akayesu, op. cit. no. 68, para. ???
67
The Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T (Trial Chamber), 21 May
1999, para. 98; Akayesu, op. cit. no. 68, para. 513.
68
The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza & Hassan Ngeze, Case No. ICTR-99-52-T
(Trial Chamber), 3 December 2003, para. 969.
69
Ruzindana, op. cit. no. 83, para. 98.
70
Fact dossier 3, page 3, para. 4.
71
Fact dossier 3, page 3, para. 3.
language.72 They had their own unique customs and own distinctive clothing as an ethnical
group.73 Besides, when a child is determined to be third gender, their tradition is to send such
children to live with the local Verdache community 74 which further represents them as a
different ethnic group. Therefore, it is submitted that the Verdache were regarded and treated
as a unique group in the society.

4.5 Hence, it is proved beyond reasonable doubt that the Verdache were killed by the
perpetrators for their distinctive identity because they belong to an ethnical group. Thus, the
second element is proved beyond reasonable doubt.

5. Element No. 5: The perpetrator intended to destroy in whole or in part, that national,
ethnical, racial or religious group.

5.1 The third element of the crime of genocide by killing requires proving that the perpetrator
intended to destroy in whole or in part a national, ethnical, racial or religious group, as such.

5.2 Killing with intent to destroy a national, ethnical, religious or racial group either wholly or
partially constitutes the crime of genocide.75 Even though members of a group are killed, the
ultimate victim of genocide should be the group. 76 In other words, the goal of genocide must be
the destruction of the target group, wholly or partially, “as a separate and distinct entity”. 77 In
the cases of Seromba,78 Simba,79 Gacumbitsi,80 Bagosora,81 Ndindabahizi,82 Nahimana,83
72
Fact dossier 3, page 3, para. 4.
73
Ibid.
74
Ibid.
75
Ferdinand Nahimana, Jean-Bosco Barayagwiza & Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-A
(Appeals Chamber), 28 November 2007, para. 492; Seromba, op. cit. no. 58, para. 316; Kamuhanda, op. cit. no. 60,
para. 622; Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-T (Appeals Chamber), 7 July 2006,
para. 39; Muvunyi, op. cit. no. 57, para. 478; The Prosecutor v. Mikaeli Muhimana, Case No. ICTR- 95-1B-T (Trial
Chamber), 28 April 2005, para. 495; Kajelijeli, op. cit. no. 81, para. 803; Akayesu, op. cit. no. 68, paras. 498 and
520.
76
Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A (Appeals Chamber), 9 July 2004, paras. 51-53;
Jokic, op. cit. no. 62, para. 670; The Prosecutor v. Sikirica et al., Case No. IT-95-8 (Trial Chamber), 13 November
2001, para. 92.
77
Jokic, op. cit. no. 62, para. 670.
78
Seromba, op. cit. no. 58, para. 176.
79
Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A (Appeals Chamber), 27 November 2007, para. 264.
80
Gacumbitsi, op. cit. no. 59, para. 40.
81
Bagosora, op. cit. no. 54, para. 2116.
82
Ndindabahizi, op. cit. no. 80, para. 454.
83
Nahimana, op. cit. no. 84, para. 524.
Nchamihigo,84 Rutaganda,85 Muvunyi,86 Kamuhanda,87 Kajelijeli,88 Kayishema & Ruzindana,89
Mpambara90 and Muhimana91 of the ICTR and in the cases of Krstic,92 Brdjanin93 and Jelisic94 of
the ICTY, it was decided that the intent of the perpetrator to destroy such group(s), wholly or
partially, can be inferred from the facts and circumstances of the case.

5.3 As per Brdjanin95 case of the ICTY, the existence of destructive intent gives the crime
particular character. Moreover, in order to commit the crime of genocide the perpetrator seeks
to achieve the destruction96or must have had the goal to destroy the group. 97 In this present
case, the perpetrator had the intention to destroy the Verdache people. It is thus sufficient for
the mental element that the perpetrator knew that those acts were destroying, in whole or in
part, the group,98 and their activities of implementation of measures against Verdache people
upheld the ultimate intent or goal to destroy the Verdache people in the State of Valaria.

5.4 It is evident from the fact that Steelborn people had shown strong enmity towards the
Verdache and the incidents of killing Verdache had been taking place periodically for a
prolonged period of time.99 Not only that, when the world price of iron ore had decreased
rapidly in value, the Verdache were marked for bringing bad fortune to the country’s economy
by the Steelborn-dominated political party which shows their deep antipathy towards the
Verdache people.100 In this spirit, the newly elected Steelborn government executed a series of
measures to eliminate their existence from the society. 101 Since the Verdache opposed such

84
The Prosecutor v. Siméon Nchamihigo, Case No. ICTR-01-63-T (Trial Chamber), 12 November 2008, para. 331.
85
Rutaganda, op. cit. no. 76, para. 525.
86
Muvunyi, op. cit. no. 57, para. 480.
87
Kamuhanda, op. cit. no. 60, para. 625.
88
Kajelijeli, op. cit. no. 81, para. 806.
89
Ruzindana, op. cit. no. 58, para. 93.
90
The Prosecutor v. Jean Mpambara, Case No. ICTR-01-65-T (Trial Chamber), 11 September 2006, para. 8.
91
Muhimana, op. cit. no. 91, para. 496.
92
The Prosecutor v. Radislav Krstic, Case No. IT-98-33-A (Appeals Chamber), 19 April 2004, para. 34.
93
Brdjanin, op. cit. no. 70, para. 704.
94
Jelisic, op. cit. no. 71, para. 78.
95
Brdjanin, op. cit. no. 70, para. 699.
96
The Prosecutor v. Goran Jelisic, Case No. IT-95-10-A (Appeal Chamber), 5 July 2001, paras. 45 and 46.
97
The Prosecutor v. Krstic, Case No. IT-98-33-T (Trial Chamber), 2 August 2001, paras. 571-572.
98
Jelisic, op.cit. no. 112, para. 42.
99
Fact dossier 3, page 3, para 4.
100
Fact dossier 3, page 3, para 6.
101
Ibid.
executive measures, the newly elected government ordered 1500 national police to squash
them and thereby killed dozens of them. 102 They have been actually targeted as a separate and
distinct entity.103 Furthermore, the IRW has claimed that between 4 December 2015 and 25
January 2016, nearly five thousands Verdache were killed in a series of planned and
coordinated attack.104 In this present case, the Verdache were killed because of their
membership of that particular group.105 Therefore, in pursuant to Article 30 of the ICC Statute,
the perpetrator had the intention to kill those Verdache.

5.5 Thus, it is submitted that the Verdache people, members of a permanent ethnic group,
were killed by the Dothrocky Riders with the intention to destroy the same, in whole or part.
Hence, the third element is proved beyond reasonable doubt.

6. Element No. 4: The conduct took place in the context of a manifest pattern of similar
conduct directed against that group or was conduct that could itself effect such destruction.

6.1 The fourth element of the crime of genocide by killing members of the group requires
proving that the alleged killing of a group forms part of similar pattern of killings directed
against the same group; alternatively, the alleged killing should itself effect such destruction.

6.2 In Al Bashir106case, as regards the requirement of a “manifest pattern of similar conduct”,

the ICC held that the ‘the crime of genocide is only completed when the relevant conduct
represents a concrete threat to the existence of the targeted group, or a part of thereof.’ The
ICTR in Rutaganda107 held that evidence of genocide can be demonstrated from the consistent
pattern of similar conduct by the accused. Alternatively, the ICTY in Krstic108 and the ICTR in
Muvunyi109 and Seromba110 cases held that there is no “numeric threshold” of victims necessary

102
Ibid.
103
The Prosecutor v. Popovic, Case No. IT-05-88-T (Trial Chamber), 10 June 2010, paras. 821 and 1177.
104
Fact dossier 3, page 4, para 7.
105
Akayesu, op. cit. no. 68, para. 521.
106
The Prosecutor v. Al Bashir, ICC-02/05-01/09 (Pre-Trial Chamber), para. 124.
107
Rutaganda, op. cit. no. 76, para. 63.
108
Krstic, op. cit. no. 108, para. 584.
109
Muvunyi, op. cit. no. 57, para. 479.
110
Seromba, op. cit. no. 58, para. 319.
to establish genocide. The ICTR cases of Ndindabahizi111 and Gacumbitsi112 further held that
killing of only one person may amount to genocide in appropriate cases.

6.3 In the present case, it has been already established that the Verdache belong to an ethnic
group and they were killed because of their membership in this particular group. The Steelborn
dominated political party had animosity towards them and therefore, the newly elected
Steelborn government implemented a series of executive measures against the Verdache
‘including disenfranchising them, confiscating their property, and banning them from access to
public services.’113

6.4 Furthermore, when the Verdache peacefully protested against execution of such policies,
the newly elected President ordered 1500 police to suppress them which ultimately caused
death of many Verdache throughout Valaria.114 Besides, when the Dothrocky riders started
killing the Verdache by launching attacks along with the Steelborn government, the government
neither stopped them nor took action against them. 115 Therefore, it is clear that the conduct
took place in the context of a manifest of similar conduct for a long period of time. Hence, the
fourth element of the crime of genocide by killing is proved beyond reasonable doubt.

6.5 From the factual circumstances discussed, arguments made, and authorities cited, it is,
therefore, submitted that all the elements of the crime of genocide are proved beyond
reasonable doubt.

>>>>>>>>>>>>>>>>>>

[iv] Legal Understanding of “Genocide”

4.14 Under the purview of Article 2 of this Genocide Convention, the definition of genocide can
be characterized by two constitutive elements namely: (i) the actus reus of the concerned

111
Ndindabahizi, op. cit. no. 80, para. 471; Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-2001-71-A
(Appeals Chamber), 16 January 2007, paras. 116-117.
112
Gacumbitsi op. cit. no. 59, para. 285.
113
Fact dossier 3, page 3, para 6.
114
Fact dossier 3, page 3, para 6.
115
Fact dossier 3, page 3, paras 7 and 8.
crime; and (ii) the mens rea of the crime that is specifically “intent to destroy” wholly or partly a
protected group i.e. national, ethnical, racial or religious group.116

4.15 Both Article 2 of the Convention on the Prevention and Punishment of the Crime of
Genocide, 1948 and Article 6 of the Rome Statute of the International Criminal Court, 1998,
define ‘genocide’ as: ‘any of the following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group’. 117

4.16 Now, if it can be categorically proved that the Myanmar militias are persecuting the
Rohingyas to destroy, partially or totally, a specific group of people, it will come under the
internationally accepted definition of ‘genocide’ as contained in the Genocide Convention of
1948 and the Rome Statute of 1998.118

116
Ibid, Article II reads as follows:‘In the present Convention, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such :

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction
in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.’

See also William A. Schabas, Genocide in International Law: The Crime of Crimes (Cambridge, UK: Cambridge
University Press (Online Publication), 2nd ed., 2009) p. 291.

117
Article 2, the Convention on the Prevention and Punishment of the Crime of Genocide, 1948; Article 6, the Rome
Statute of the International Criminal Court, 1998.

118
S R Khan, ‘To the Victor Go the Spoils: Wartime Rape on Trial’ in T Afroz (ed) Genocide, War Crimes & Crimes
Against Humanity in Bangladesh: Trial under International Crimes (Tribunals) Act, 1973 (Dhaka: Forum for
Secular Bangladesh and Trial of War Criminals of 1971, 2010).
4.17 Do the Rohingyas Belong to an Indelible Group?

4.17.1 The Rohingyas who used to live in Myanmar, the Buddhist-majority nation of
approximately 50 million people, are known as the indigenous people to the Burmese State of
Rakhine.119 They purportedly trace their origin to Arabs, Bangalees, Moors, Moghuls, Persians,
Patthans and Turks.120 Most of the Rohingya people practice Islam as their religion albeit there
are a few Rohingya language speaking Baruas and Hindus. 121 They speak Rohingya, an Indo-
European language nearly linked with the Chittagonian language, and have common cultural
trials.122

4.17.2 As regards the protected group(s), there is no generally or internationally accepted

definition of the term “group”. Earlier the term “group” would refer to mean only a stable and
permanent group.123 However, the International Crimes Tribunal for the Former Yugoslavia
(ICTY) in the cases of Blagojovic & Jokic,124 Brdjanin,125 Jelisic126 and Stakic127 and the
International Crimes Tribunal for Rwanda (ICTR) in the cases of Muvunyi,128 Gacumbitsi,129
Semanza,130 Rutaganda,131 Musema,132 Kamuhanda,133 Seromba,134 Ndindabahizi135 and
Kajelijeli136 established that the determination of a group is to be made on a case-by-case basis,
119
Report of the International Crisis Group, ‘Myanmar: A New Muslim Insurgency in Rakhine State’ [15 December
2016, available at <https://www.crisisgroup.org/asia/south-east-asia/myanmar/283-myanmar-new-muslim-
insurgency-rakhine-state> accessed on 26 January 2018.

120
Saito Ayako, ‘The Formation of the Concept of Myanmar Muslims as Indigenous Citizens: Their History and
Current Situation,’ [2014] 32 The Journal of Sophia Asian Studies 25, 26-7.
121
Ibid, 27-28.
122
Please note that a very few Rohingya use Rakhine or Burmese languages; See Su-Ann Oh, ‘Rohingya or Bengali?
Revisiting the Politics of Labeling’ [2013] The Network (News from Asia), available at
<http://www.iias.asia/sites/default/files/IIAS_NL66_36.pdf> accessed on 5 February 2018.
123
Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, (2 September 1998), paras. 511, 516 & 701-702.
124
Blagojevic & Dragan Jokic, op. cit. no. 104, para. 667.
125
Prosecutor vs Radoslav Brdjanin, ICTY-99-36-T, (1 September 2004), para. 683.
126
Prosecutor v. Goran Jelisić Case No. IT-95-10, (14 December 1999), para. 70.
127
Prosecutor v. Milomir Stakic, ICTY-97-24-T, (31 July 2003), para. 512.
128
Prosecutor v. Tharcisse Muvunyi, ICTR-2000-55-A-T, (12 September 2006), para. 484.
129
Prosecutor v. Sylvestre Gacumbitsi, ICTR-2001-64-T, (17 June 2004), para. 254.
130
Prosecutor v. Laurent Semanza, ICTR-97-20-T, (15 May 2003), para. 317.
131
Georges Anderson Nderubumwe Rutaganda v. Prosecutor, ICTR-96-3-A, (26 May 2003), para. 524.
132
Prosecutor v. Alfred Musema, ICTR-96-13-A, (27 January 2000), para. 161.
133
Prosecutor v. Jean de Dieu Kamuhanda, ICTR-95-54A-T, (22 January 2004), para. 630.
134
Prosecutor v. Athanase Seromba, ICTR-2001-66-T, (13 December 2006), para. 318.
135
Prosecutor v. Emmanuel Ndindabahizi, ICTR-2001-71-I, (15 July 2004), para. 468.
136
Prosecutor v. Juvénal Kajelijeli, ICTR- 98-44A-T, (1 December 2003), para. 811.
consulting both objective and subjective criteria. As far as ethnic group is concerned, the ICTR
defined ethnic in the cases of Akayesu,137 Kayishema and Ruzinadana,138 and Nahimana139 as a
group whose member shares a common bond, common language and culture. In other words,
an ethnic group is generally understood as one whose members share a “common language
and culture” and a group identified by others including the perpetrators of the alleged
crimes.140

4.17.3 Hence, in view of the use of common language and share of common culture, it is
categorically contemplated that the Rohingya population primarily belong to the “ethnic group”
for their distinctive culture and language, and substantially to the “religious group” which is
Islam.

4.18 Are the Actus Reus Elements of Genocide Committed against the Rohingyas Present in
Myanmar?

4.18.1 Based on the incidents of the persecutions committed against the Rohingyas, apparently
the first three methods of committing genocide discussed in the following are relevant to
explore the presence of actus reus of genocide in this regard141:-

(i) Killings of the Rohingyas

4.18.1.1 The legal perspective of committing genocide by “killing” requires proving that the
perpetrator intentionally killed one or more members of a particular group. In the cases of

137
Akayesu, op. cit. no. 159.
138
Prosecutor v. Clement Kayishema and Obed Ruzindana, ICTR-95-1-T, (21 May 1999), para. 98.
139
Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza & Hassan Ngeze, ICTR-99-52-T, (3 December 2003),
para. 969.
140
Kayishema, op. cit. no. 174; Akayesu, op. cit. no. 159, para. 513.
141
Maung Zarnit and Alice Cow, ‘The Slow-Burning Genocide of Myanmar's Rohingya’ [2014] 23 Pacific Rim Law &
Policy Journal 683, 684; Jay Milbrandt,’ Tracking Genocide: Persecution of the Karen in Burma’ [2012-13] 48 Texas
International Law Journal 63, 76; Amie Bauer, ‘The Hidden Genocide: Humanizing the Struggle of the Muslim
Rohingya of Myanmar’ [2015] 35 Children's Legal Rights Journal 79, 87.
Bagosora,142 Ntagerura,143 Simba,144 Muvunyi,145 Seromba,146 Gacumbitsi,147 Kamuhanda148 and
Semanza149 the ICTR held that in cases of genocide the prosecution bears the burden of proof to
show that the perpetrator participated in the killing of one or more members of the protected
group. In the case of Blagojevic & Jokic150 the ICTY held that the term “killing” can be equated
with murder.

4.18.1.2 From the UNOHCHR Report, it has been brought into being that the Myanmar military
forces have been committing ‘mass gang-rape, killings including of babies and young children,
brutal beatings, disappearances and other serious human rights violations’ against the
Rohingyas in the northern Rakhine State to a greater magnitude. 151 Most of the respondents
reported witnessing killings of their family members.152 Many reported that some of their family
members were still missing.153 They also expressed that many children ‘including an eight-
month old, a five-year-old and a six-year-old’ were ‘slaughtered with knives’. 154 Hence, it can
certainly be depicted that the “killing” element is present in the first place to cause genocide
against the Rohingyas by the Myanmar army.

[ii] Causing Serious Bodily or Mental Harm to the Muslim Rohingyas

4.18.1.3 As per the incidents of rape of Rohingya women, another method of committing
genocide which entails an intentional act or omission causing serious bodily or mental suffering

142
Prosecutor v. Theoneste Bagosora et al, ICTR-98-41-T, (18 December 2008), para. 2117.
143
Prosecutor v. André Ntagerura, Emmanuel Bagambiki & Samuel Imanishimwe, ICTR-99-46-T, (25 February 2004),
para. 664.
144
Prosecutor v. Aloys Simba, ICTR-01-76-T, (13 December 2005), para. 414.
145
Muvunyi, op. cit. no. 164, para. 486.
146
Seromba, op. cit. no. 170, para. 317.
147
Gacumbitsi, op. cit. no. 165, para. 255.
148
Kamuhanda, op. cit. no. 169, para. 632.
149
Semanza, op. cit. no. 166, para. 319.
150
Blagojevic & Jokic, op. cit. no. 104, para. 642.
151
Report of the UNOHCHR (hereinafter referred as UNOHCHR Report), ‘Cox’s Bazar: UN Special Rapporteur on
Myanmar to Visit Bangladesh – 20 to 23 February’ [3 February 2017], available at <http://www.ohchr.
/NewsEvents/x?NewsID=21197&LangID=E> accessed on 25 January 2018.
152
Id.
153
Id.
154
Id.
can be taken into account.155 The “harm” inflicted needs to be serious only; however, it does
not require being permanent and irremediable in nature 156 that would necessarily cause death
of the victim.157 Concerning “bodily harm”, it is well-established that causing serious injury to
the health or disfigurement or any other serious injury to the external, or internal organs or
senses would amount to bodily harm.158

In contrast, the terms “mental harm” means causing hurt on the mental aptitudes which leads
to create strong fear or terror, intimidation or threat among the population of a particular
group.159 For illustration, it has been settled that the serious bodily or mental harm may include:
the ‘acts of torture, inhuman or degrading treatment, sexual violence comprising rape,’ 160
‘interrogations combined with beatings, threats of death,’ 161 ‘forcible transfer’162 and
‘deportation.’163

4.18.1.4 Taking into account the UNOHCHR Report, it is noted that ‘of the 101 women
interviewed, more than half reported having suffered rape or other forms of sexual violence.’ 164
Specifically, a respondent testified that her five-year-old daughter was trying to protect her
from rape when a man killed her by slitting her throat using a long knife. 165 Likewise, another

155
Kamuhanda, op. cit. no. 169, para. 633; Kajelijeli, op. cit. no. 172, para. 814; Prosecutor v. Radislav Krstic, Case
No. ICTY-98-33-A, (19 April 2004), para. 513.
156
Brdjanin, op. cit. no. 161, para. 690; Stakic, op. cit. no. 163, para. 516.
157
Muvunyi, op. cit. no. 164, para. 487.
158
Blagojevic & Jokic, op. cit. no. 104, para. 645; Muvunyi, op. cit. no. 164, para. 487; Gacumbitsi, op. cit. no.
165, para. 291; Prosecutor v. Mikaeli Muhimana, ICTR- 95-1B-T, (28 April 2005), para. 502; Ntagerura, Bagambiki &
Imanishimwe, op. cit. no. 179, para. 664; Seromba, op. cit. no. 170, para. 317; Kayishema, op. cit. no. 174, para.
109.
159
Seromba, op. cit. no. 170, para. 46; Kamuhanda, op. cit. no. 169, para. 634; Kajelijeli, op. cit. no. 172, para. 815;
Semanza, op. cit. no. 166, para. 321; Muvunyi, op. cit. no. 164, para. 487; Muhimana, op. cit. no. 194, para. 502;
Gacumbitsi, op. cit. no. 165, para. 291.
160
Seromba, op. cit. no. 170, para. 46; Akayesu, op. cit. no. 159, para. 688.
161
Akayesu, op. cit. no. 159, paras. 711-12.
162
Krstic, op. cit. no. 191, para. 31; Blagojevic & Jokic, op. cit. no. 104, paras. 663, 665-666.
163
Blagojevic & Jokic, op. cit. no. 104, para. 646; Brdjanin, op. cit. no. 161, para. 690; Stakic, op. cit. no. 163, para.
516; Krstic, op. cit. no. 191, para. 513; Kamuhanda, op. cit. no. 169, para. 634; Kajelijeli, op. cit. no. 172, para. 815;
Kayishema, op. cit. no. 174, para. 108; Rutaganda, op. cit. no. 167, para. 51; Seromba, op. cit. no. 170, para. 317;
Musema, op. cit. no. 168, para. 156; Akayesu, op. cit. no. 159, para. 504.
164
The UNOHCHR Report, op. cit. no. 187.
165
Ibid.
respondent reported that when she was gang-raped by five security officers, her eight-month-
old baby was killed.166

4.18.1.5 Thus, the happenings of rape of Rohingya women indeed cause both “physical and
mental harm” to the members of the Rohingyas which would ultimately lead to the destruction
of the group.

[iii] Deliberately Inflictions of the Conditions of Life of the Rohingyas’ to Destroy the Group

4.18.1.6 From the legal point of view, concerning the above-mentioned circumstances, it can be
argued that the Myanmar army deliberately inflicted the conditions of life to destroy the group.
In the case of Stakic167 the ICTY held that the expression i.e. “calculated to bring about its
physical destruction” does not necessarily mean that the perpetrators would directly kill the
members of a group. Rather, the ICTY in the Brdjanin168 case and the ICTR in the Kayishema and
Ruzindana169 cases held that the creation of a situation that would lead to slow death due to
‘lack of proper housing, clothing and hygiene, or excessive work or physical exertion’ suffices to
establish this method.

4.18.1.7 At this instant, according to the UNOHCHR Report, the Myanmar army, police and the
civilian mobs burned hundreds of Rohingya houses, schools, markets, shops, madrasas and
mosques in different times.170 They also confiscated the livestock and ruined the foods as well
as the sources of foods containing paddy fields.171

4.18.1.8 Therefore, the destruction of the properties of the Rohingyas which are necessary to
meet their basic requirements leads to conclude that the said element of genocide committed
against the Rohingyas in Myanmar is present.

166
Ibid.
167
Stakic, op. cit. no. 163, para. 518.
168
Brdjanin, op. cit. no. 161, para. 691.
169
Kayishema, op. cit. no. 174, paras. 115-16; Akayesu, op. cit. no. 159, paras. 505-06; Musema, op. cit. no. 168,
para. 157; Rutaganda, op. cit. no. 167, para. 52
170
The UNOHCHR Report, op. cit. no. 187.
171
Ibid.
4.19 Are the Elements of Mens Rea of Genocide Committed against the Rohingyas Present in
Myanmar?

4.19.1 As regards the “mens rea” of genocide, two elements have to be satisfied as discussed
below i.e. whether the perpetrator intended to destroy any of the protected group(s) wholly or
partly; and whether the conducts are being committed in the context of a manifest pattern of
similar conduct directed against that group172:-

[i] Intention to Destroy the Rohingyas

4.19.1.1 In relation to the goal of committing genocide to destroy the target group, wholly or
partially, in the ICTR cases of Seromba,173 Simba,174 Gacumbitsi,175 Bagosora,176 Ndindabahizi,177
Nahimana,178 Nchamihigo,179 Rutaganda,180 Muvunyi,181 Kamuhanda,182 Kajelijeli,183 Kayishema &
Ruzindana,184 Mpambara185 and Muhimana186 and in the ICTY cases of Krstic,187 Brdjanin188 and
Jelisic189 it was decided that the intent of the perpetrators to destroy such group(s), wholly or
partially, can be inferred from the facts and circumstances of the case. As per Brdjanin190 case of
the ICTY, the existence of “destructive intent” gives the crime of genocide particular character.
172
Zarni, Maung and Alice Cowley, ‘The Slow-burning Genocide of Myanmar's Rohingya’ [2014] 23(3) Pacific Rim
Law & Policy Journal 683., 705; Report of the Simon-Skjodt Center for the Prevention of Genocide, ‘“They Want us
all to Go Away”: Early Warning Signs of Genocide in Burma’ [2015] 1, 5, available at
<http://reliefweb.int/report/myanmar/they-want-us-all-go-away-early-warning-signs-genocide-burma> accessed
on 27 January 2018; See also, Zarnit and Cow, op. cit. no. 177, 684-5.
173
Seromba, op. cit. no. 170, para. 176.
174
Aloys Simba v. Prosecutor, ICTR-01-76-A, (27 November 2007), para. 264.
175
Gacumbitsi, op. cit. no. 165, para. 40.
176
Bagosora, op. cit. no. 178, para. 2116.
177
Ndindabahizi, op. cit. no. 171, para. 454.
178
Nahimana, op. cit. no. 175, para. 524.
179
Prosecutor v. Siméon Nchamihigo, ICTR-01-63-T, (12 November 2008), para. 331.
180
Rutaganda, op. cit. no. 167, para. 525.
181
Muvunyi, op. cit. no. 164, para. 480.
182
Kamuhanda, op. cit. no. 169, para. 625.
183
Kajelijeli, op. cit. no. 172, para. 806.
184
Ruzindana, op. cit. no. 174, para. 93.
185
Prosecutor v. Jean Mpambara, ICTR-01-65-T, (11 September 2006), para. 8.
186
Muhimana, op. cit. no. 194, para. 496.
187
Krstic, op. cit. no. 191, para 34.
188
Brdjanin, op. cit. no. 161, para. 704.
189
Jelisić, op. cit. no. 162, para. 78.
190
Brdjanin, op. cit. no. 161, para. 699.
4.19.1.2 Now, insofar as the intention of the Myanmar military is concerned, it is stipulated in
the UNOHCHR Report that the UN Human Rights officers visited Bangladeshi border with
Myanmar where approximately 0.066 million Rohingyas have fled since 9 October 2016 after
the intense military operations.191 The military indicated the operations as “area clearance
operations” with the purpose of substantially destroying the Muslim “religious group” as well as
Rohingya “ethnic group” of Myanmar in the name of upholding “national security (!)”. 192

[ii] Manifest Pattern of Similar Conducts

4.19.1.3 Regarding the requirement of “manifest pattern of similar conduct”, in Al Bashir193

case, the ICC held that the ‘the crime of genocide is completed when the relevant conduct
represents a concrete threat to the existence of the targeted group, or a part of thereof.’ The
ICTR in Rutaganda194 case held that the evidence of genocide can be demonstrated from the
consistent pattern of similar conduct by the accused. Alternatively, the ICTY in Krstic195 case and
the ICTR in Muvunyi196 and Seromba197 cases held that there is no numeric threshold of victims
necessary to establish genocide. The ICTR cases Ndindabahizi198 and Gacumbitsi199 further held
that killing of only one person may amount to genocide in appropriate cases.

4.19.1.4 Now, it has been quoted in the UNOHCHR Report that:

191
The UNOHCHR Report, op. cit. no. 187; Report of the United Nations High Commissioner for Human Rights,
‘Situation of Human Rights of Rohingya Muslims and Other Minorities in Myanmar’ [20 June 2016] Human Rights
Council (32th Session) A/HRC/32/18, available at < http://www.refworld.org/docid/5768f0e94.html> accessed on
10 February 2018.
192
Id; Ninette, Kelley, ‘International Refugee Protection Challenges and Opportunities’ [2007] 19 International
Journal of Refugee Law 401, 404-5; Penny Green, Thomas MacManus, and Alicia de la Cour Venning, ‘Countdown
to Annihilation: Genocide in Myanmar’ [2015] International State Crime Initiative (Online), available at
<http://statecrime.org/data/2015/10/ISCI-Rohingya-Report-PUBLISHED-VERSION.pdf> accessed on 12 February
2018.
193
Prosecutor v. Al Bashir, ICC-02/05-01/09 (Pre-Trial Chamber I), para. 124.
194
Rutaganda, op. cit. no. 167, para. 63.
195
Krstic, op. cit. no. 191, para. 584.
196
Muvunyi, op. cit. no. 164, para. 479.
197
Seromba, op. cit. no. 170, para. 319.
198
Ndindabahizi, op. cit. no. 171, para. 116-117.
199
Gacumbitsi, op. cit. no. 165, para. 285.
 ‘[m]any witnesses and victims also described being taunted while they were
being beaten, raped or rounded up, such as being told “you are Bangladeshis and
you should go back” or “What can your Allah do for you? See what we can do?”’

In view of this, such respondents’ testimonies can be pointed out that the operations of 9
October 2016 follows a continuing “pattern of violations and abuses”, “systematic and systemic
discrimination”; and various policies of “exclusion and marginalization” executed against the
Rohingyas for decades in the northern Rakhine State. 200 Hence, it is also irrefutable that the
Myanmar military have been committing the concerned crimes against the Rohingyas following
a manifest pattern of similar conducts.

4.19.1.5 The presence of both mens rea (i.e. intention to destroy the Rohingya “ethnic group”
and/or “religious group”), and actus reus (i.e. killings, causing serious bodily and mental harm,
and inflicting the conditions of life of the Rohingyas) makes it clear that the Myanmar military
and other security forces committed genocide against the Rohingyas. However, it is yet to be
concretely established based on the testimonies of the Rohingya victims as to whether the
persecutions can be concluded as ‘genocide’ or ‘ethnic cleansing’.

200
The UNOHCHR Report, op. cit. no. 187; See also Report of OHCHR Mission to Bangladesh, ‘Interviews with
Rohingyas Fleeing from Myanmar since 9 October 2016’ [3 February 2017], available at
<http://reliefweb.int/report/myanmar/interviews-rohingyas-fleeing-myanmar-9-october-2016-flash-report>
accessed on 27 January 2018.