Article 12(2) of the Rome Statute of the International Criminal Court (Rome Statute) states that the International Criminal Court (ICC) may exercise its jurisdiction if an alleged international crime has been committed on the territory of a State or by a national of a State which is a party to the Rome Statute or has explicitly accepted the Court’s jurisdiction over the alleged conduct.
Myanmar is not a party to the Rome Statute and it is unlikely that it will in the foreseeable future accept the Court’s jurisdiction over the situation in Rakhine. Therefore, ipso facto, the Court does not have jurisdiction to investigate and try the alleged crimes that may have been committed in the Rakhine. Now, in order for the Court to exercise jurisdiction over the situation in Rakhine the situation must be referred to the Prosecutor by the UN Security Council acting under Chapter VII of the Charter of the United Nations as per Article 13(b) of the Rome Statute. In recent times, even though, a majority of the Security Council has displayed considerable sympathy for the Rohingyas nonetheless there is a stalemate on the question of referral of the matter to the Court.
On 9 April 2018, in an attempt to work around the impasse in the Security Council and the fact that Myanmar is not a State party to the Rome Statute of the International Criminal Court (Rome Statute), the Prosecutor of the Court, as per Article 19(3) of the Rome Statute, submitted a Request to the President of the Pre-Trial Division for a ruling on whether it has jurisdiction over the alleged crime of deportation of the Rohingyas from Myanmar to Bangladesh since August 2017. Article 19(3) of the Rome Statute states that the Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility and Article 7(1)(d) of the Rome Statute enunciates that deportation of a population is a ‘crime against humanity’.
In the Request, the Prosecution stated that ‘consistent and credible public reports’ indicate that since August 2017 more than 670,000 Rohingyas who were lawfully residing in Myanmar have been intentionally deported into Bangladesh. To that end, the Prosecutor has sought the Court’s opinion on the question of whether it has jurisdiction over the aforementioned alleged conduct. The Prosecution has argued that, even though the coercive acts that caused the deportation occurred on the territory of Myanmar the Court may nonetheless exercise jurisdiction over the alleged crime under article 12(2)(a) of the Rome Statute because an ‘essential element’ of the crime, i.e. the enforced crossing of an international border, occurred on the territory of Bangladesh; a State party to the Rome Statute.
Subsequently, on 7 May 2018, the Pre-Trial Chamber I of the Court issued a decision inviting Bangladesh to submit written observations, either publicly or confidentially, pursuant to Rule 103(1) of the Rules of Procedure and Evidence of the Court on the aforementioned Request by the Prosecutor. Rule 103(1) of the Rules of Procedure and Evidence states that the Court may at any stage of the proceedings, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to submit, in writing or orally, any observation on any issue that it deems appropriate. The Court has sought Bangladesh’s observations on the following matters: (i) the circumstances surrounding the presence of the Rohingyas from Myanmar on the territory of Bangladesh; (ii) the prospect of the Court’s exercise of territorial jurisdiction over the alleged deportation of the Rohingyas; and (iii) any other matter that may assist the Court in issuing its decision on the Request.
At the outset, it must be noted that such a Request by the Prosecutor for a ruling on jurisdiction is a first of its kind, and it also involves a contentious issue. Hence, the procedure followed by the Court in this instance and its final ruling on the matter will set a precedent for similar requests in the future, and by inviting observations from a State party the Court may be shaping an inclusive process with the aim of rendering a decision that is buttressed by a State party’s contributions. It must also be understood that the scope of the matter at hand is limited only to the crime of deportation of the Rohingyas. Therefore, neither the current proceedings at the Court nor Bangladesh’s observations will inquire into the crimes of genocide, murder, or sexual violence since they were allegedly committed only on the territory of Myanmar and is therefore beyond the jurisdiction of the Court exclusive of a referral by the Security Council. Therefore, an affirmative ruling by the Court would only mean that the Prosecutor would be able to investigate and charge Myanmar officials for only the crime of deportation.
Bangladesh’s observations should include significant legal analysis of the crime of deportation, territorial jurisdiction, and evidence to demonstrate that the Rohingyas were lawfully residing in Myanmar and were coerced into leaving Myanmar. The Prosecutor’s Request cited multiple reports by various credible sources including multiple UN agencies, and international organisations and NGOs all of which underlined the consistent and intentional acts of coercion that caused the Rohingyas to leave Myanmar. Hence, there is not much more substance that Bangladesh can add to the facts and evidence already listed in the cited reports. Nonetheless, Bangladesh should provide first-hand accounts of the victims, casualty statistics, relevant intelligence and reconnaissance information, and any other corroborative information that may help the Court to comprehend the relevant circumstances.
Essentially, the most contentious question before the Court is whether it has territorial jurisdiction when persons are deported from the territory of a State which is not a party to the Rome Statute directly into the territory of a State which is a party to the Rome Statute? Fundamentally, this is a legal question. The Prosecutor’s arguments on this question is an excellent exposition of the law and practice on deportation and territorial jurisdiction.
According to the Prosecutor’s Request, the crime of deportation is defined as the enforced displacement of individuals across an international border. This definition is supported by decisions of numerous other international crimes tribunals. By comparing the situation to ‘cross-border shooting’, the Prosecution has argued that deportation has two legal elements: (i) coercion – which forces the victim to – (ii) cross an international border. The first element occurs in one State and the second in another. The second element requires that the coercion cause the victim to cross an international border into the territory of another State. Therefore, the Prosecution has argued that an ‘essential element’ of the crime actually took place in a State party to the Rome Statute, i.e. Bangladesh.
As convincing as the aforementioned argument may seem, it hinges on the notion that crossing an international border into another State is an ‘essential element’ of the crime of deportation. However, people can be deported to high seas (international waters) where the victim is not forced across the border into the territory of another State but rather simply across an international border. Therefore, deportation occurs as soon as the victim is forced to cross an international border, it is irrelevant whether they cross into the territory of another State or the high seas. This is where Bangladesh can make a significant contribution to the proceedings. Bangladesh could provide extensive legal analysis on the nature and status of international borders and argue that even if mere crossing of an international border is required for deportation, that too may occur on the territory of another State. In case of the Bangladesh-Myanmar border, factors such as the ‘no man’s land’ and the nature of bilateral administration of the border should be explored in the observations.
Bangladesh could argue that the border between two States (including the ‘no man’s land’ and the physical border itself) are territories over which both States exercise shared sovereignty, i.e. the territory belongs to both States. This view is supported by the fact that borders are generally defined and administered jointly by the two neighbouring States and that their administration are generally outcomes of various bilateral arrangements; thus, not all international borders are administered in the same way. Therefore, it could be argued that the ‘crossing of an international border’ element of the crime of deportation occurred on a territory which belongs to both Bangladesh and Myanmar. This is not a notion that is new in international law, the international law on condominium territories has existed for over a century. In other words, the international border between Myanmar and Bangladesh is technically Bangladeshi territory. Therefore, the act of crossing of the Myanmar-Bangladesh border occurs in part on Bangladeshi territory, thus establishing the Court’s territorial jurisdiction over the alleged crime.
Having said that, the Court’s final ruling has the potential to make significant contributions to the law on deportation, territorial jurisdiction, and the nature of international borders. Regardless of the direction of the Court’s ruling, Bangladesh and the international community must continue to push the Security Council to refer the situation in Myanmar to the Court so as to allow a complete investigation and subsequent trial of the perpetrators of not only deportation but all the relevant international crimes.
A shorter version of this article was originally published in The Daily Star on 30th May 2018. It is available at: https://www.thedailystar.net/opinion/human-rights/bangladeshs-observations-rohingya-deportation-1583473