ICC advances towards investigating crimes committed against the Rohingya

Legal Adviser Jonathan O’Donohue, with the important contributions of International Criminal Justice Clinic students Andy Kuoch and Stuart Dixon, examines the majority of the Pre-Trial Chamber’s ruling on jurisdiction, considers the Prosecutor’s decision to proceed with the preliminary examination and emphasises the need for further international justice efforts to address impunity in Myanmar.

Last month’s announcement by the ICC Prosecutor that her Office has decided to carry out a ‘full-fledged preliminary examination’ into alleged deportations and possibly other crimes, is another positive sign of its commitment to pursue justice for the more than 725,000 Rohingya women, men and children who have been forced to flee Myanmar to Bangladesh.

A Compelling Basis to Exercise Jurisdiction

Although this situation was once thought to be beyond the reach of the ICC due to Myanmar’s refusal to accept the Court’s jurisdiction and the UN Security Council’s failure to refer the situation to the Prosecutor, the decision to launch the preliminary examination follows an important ruling by the Pre-Trial Chamber on 6 September. It confirmed the OTP’s argument that the Court may exercise jurisdiction over the crime against humanity of deportation where individuals are forcibly displaced across a border into a state that has ratified the ICC’s Statute (in this case Bangladesh).

The majority of the Pre-Trial Chamber confirmed that ‘the [forced] displacement of persons lawfully residing in an area to another State amounts to deportation’ and therefore crossing an international border is an element of the crime. It held, citing rules of international law and the object and purpose of the Statute, that if the crime of deportation is completed in a state party to the Rome Statute by virtue of victims crossing the border to that state, the ICC may exercise jurisdiction.

Deportation is, of course, only one crime under the Rome Statute and many other crimes under international law have been committed in Myanmar (see for example reports by the United Nations and Amnesty International). However, as the Pre-Trial Chamber notes, the requirement that victims must be deported by force through ‘expulsion or other coercive’ acts means that it is an ‘open-conduct crime’. Therefore the ICC may consider other crimes committed completely on the territory of Myanmar in determining whether victims were forced to cross the border. Although the Court cannot prosecute these crimes directly, the ICC can document them and either use such evidence in subsequent ICC cases if its jurisdiction is expanded (for example by a Security Council referral) or it may prompt and, where possible, assist other prosecuting authorities – including national authorities exercising universal jurisdiction – to step in to ensure justice for the crimes. The Prosecutor’s announcement states that:

the Preliminary examination may take into account a number of alleged coercive acts having resulted in the forced displacement of the Rohingya people, including deprivation of fundamental rights, killing, sexual violence, enforced disappearance, destruction and looting.

Moreover, the Pre-Trial Chamber went further than the scope of the Prosecutor’s question – which related solely to jurisdiction over alleged deportations – finding that the Court might also be able to exercise jurisdiction over other crimes:

if at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party.

This step by the Chamber to provide greater certainty on the scope of the ICC’s jurisdiction should be welcomed. It is potentially significant not only for this situation but also for victims in other situations seeking to access international justice. Unfortunately, the finding that jurisdiction could also be established if ‘part of such a crime is committed on the territory of a State Party’ (‘as distinct from one legal element of the crime’) is not adequately explained and needs to be clarified. The Chamber was however very specific in citing two examples of crimes that might apply in this situation – the crimes against humanity of persecution and of other inhumane acts associated with preventing persons from returning to their own country. The Prosecutor states that the OTP will consider these as part of the preliminary examination.

Although Judge de Brichambaut’s partially dissenting opinion questions the basis for the Pre-Trial Chamber providing a ruling on jurisdiction at the preliminary examination stage, this decision and the announcement of the Prosecutor to proceed with a preliminary examination as a result demonstrates that the Prosecutor should be able to refer complex questions of jurisdiction for a judicial determination at this stage. Indeed, without this option, the OTP may decide not to proceed and potentially deny victims’ legitimate efforts to access justice at the ICC. Conversely, continuing with a preliminary examination without certainty on questions of jurisdiction until a chamber considers the matter at a later stage would be inconsistent with the diligence required in conducting an examination. It may result in valuable resources being wasted, victim expectations being raised then dashed and damaging politicized attacks by opponents of the examination. Regrettably in this instance, the Pre-Trial Chamber avoided basing its decision on Article 19(3) of the Statute, which can and should be interpreted to provide for rulings on questions of jurisdiction during preliminary examinations.

The need for a prompt, thorough and transparent preliminary examination

Regardless of the basis for the decision, now that a conclusive ruling has been provided confirming that the ICC may exercise jurisdiction over deportation and possibly other crimes, the OTP has a solid basis to proceed with the next stages of its preliminary examination. The onus is now on the OTP to conduct this process effectively.

The Pre-Trial Chamber in its remarks about the preliminary examination makes a very strong case – including applying the rule in Article 21(3) – that the OTP must make a prompt determination on whether or not to open an investigation in order not to delay justice and reparation for victims. The Prosecutor makes no commitments on the timeliness of the process in her announcement. However, in light of the OTP’s repeated commitments to undertake preliminary examinations ‘with full independence and impartiality in accordance with its mandate and the applicable legal instruments of the Court’, it should take these important judicial remarks into account in conducting the preliminary examination. Indeed, given the extent of the documentation of crimes, the lack of any credible investigations by the Myanmar authorities and the on-going suffering of victims, the Office should complete its preliminary examination promptly in order to seek authorization to launch an investigation without delay.

Of course, the process must also be thorough. In light of the test established by the Pre-Trial Chamber that at least one element or part of a crime must be committed on the territory of Bangladesh, the OTP should (in accordance with its Policy on Preliminary Examinations) conduct a ‘thorough factual and legal assessment’ of all alleged crimes that might apply. The Prosecutor’s announcement states that that the OTP will consider ‘other crimes under article 7 of the Rome Statute’, which defines crimes against humanity. However, as other commentators have noted the test also allows the Prosecutor to examine allegations of genocide (defined in Article 6 of the ICC Statute), which should be addressed in the process.

Finally, the ICC should learn from previous experience, and commence outreach, especially to victims, as soon as possible. This is essential to inform them about the ICC, the preliminary examination process and the progress of its work so that they can follow the justice process. It is particularly important to counter misinformation.

The need for further international justice efforts

Although the progress that the OTP is making towards investigating some of the crimes committed against the Rohingya people is very welcome, it is important not to lose sight of the fact that this preliminary examination will only focus on a fraction of the crimes committed against minorities in Myanmar. The ICC will not be able to prosecute crimes committed completely in Myanmar, including war crimes and other grave violations in Kachin and Shan states in the north of the country. It will also face massive challenges in obtaining cooperation, in particular from the Myanmar authorities.

To ensure the possibility of justice for these victims and to establish a legally binding obligation for Myanmar to cooperate fully with the ICC, it is essential that the campaign for the Security Council to refer the situation in Myanmar to the ICC Prosecutor continue, regardless of the political obstacles.

Recognizing that the ICC will only ever have the capacity to prosecute a small number of cases, the recent decision by the United Nations Human Rights Council to establish an international mechanism to collect and preserve evidence of abuses across the country, and to prepare cases files for future prosecution is another important initiative. The mechanism can provide essential support to national authorities, including those that are willing to exercise universal jurisdiction, to investigate and prosecute crimes committed in Myanmar. It will be essential that the new mechanism cooperates with and receives cooperation from the ICC as well as other regional or international mechanisms that may be established in the future.

The new ICC’s preliminary examination into some of the crimes committed in Myanmar is an important first step towards delivering justice to victims, but there is still a long way to go.


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