Transparency is essential if the ICC is to convincingly resolve the question of its jurisdiction over forced deportations from Myanmar

Over the next weeks, Amnesty International will issue opinion pieces examining the Office of the Prosecutor’s use of Article 19(3) and the substance of the question of jurisdiction it has posed to the Pre-Trial Chamber. In this first piece, Legal Adviser Jonathan O’Donohue joins others in expressing concern about the closed process so far and calls for greater transparency and consultation.

This morning at 9.30am the Office of the Prosecutor appeared before Pre-Trial Chamber I in a hearing that considers one of the most important questions ever posed to the Court – can the ICC exercise jurisdiction over the forced deportation of Rohingya people from Myanmar (which has not ratified the ICC Statute or accepted the jurisdiction of the ICC) to Bangladesh (a state that has)? Why then did the Pre-Trial Chamber shut the door precluding any public scrutiny of the hearing?

We are not the first to ask this question. Following the order convening the closed ex parte status conference, Kevin Jon Heller wrote:

I don’t understand why the PTC believes the status conference has to be held in closed session. Whether the ICC has jurisdiction over deportation from a non-member state to a member state is a pure issue of law, so what justifies the secrecy?

In this instance the Pre-Trial Chamber failed to provide any public reason for ordering the closed hearing. As Heller points out this violates Regulation 20(2) of the Regulations of the Court.

Indeed, it is difficult to imagine any convincing reason why the Pre-Trial Chamber’s consideration of this legal issue would require a closed hearing.

As a result, no one outside that Courtroom, including the victims, the states involved, NGOs, academics and concerned members of the public, has any idea what this hearing is even about.

Although the order convening the hearing labels it as a ‘status conference’ (indicating that it may focus on procedural issues), it also states that the Office of the Prosecutor is required to address ‘issues’ set out in a confidential annex. This indicates that the hearing involves at least some consideration of the substance of the question on jurisdiction.

This is further supported by the fact that the Pre-Trial Chamber has granted requests by a number of academics and NGOs to submit amicus curiae briefs on legal and factual issues that are central to the question of jurisdiction, setting the deadline two days ago. Presumably the judges wanted to read them before the hearing. Incidentally, at the time of writing, none of the amicus curiae submissions have been posted on the Court Records database – hopefully that is only an administrative delay that will be addressed soon.

The lack of transparency applied by Pre-Trial Chamber I so far in considering this matter of vital public importance is deeply concerning. Given the complex and inherently controversial nature of the request and its outcome –whether it determines that the ICC has jurisdiction or not – the ICC must be seen to address this question in a considered and convincing manner. Rather than closing its hearings, it should be actively inviting public scrutiny and amicus curiae submissions from a range of experts and stakeholders to inform its decision making – such as the Appeals Chamber has recently done on questions of immunities.

Regrettably today’s hearing was closed, but it is not too late for the Court to establish confidence in the process by issuing public versions of the transcripts of the hearing and ensuring that future hearings are made public, or at least to explain why they have to be closed.


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