THE ICC-OTP’S REQUEST FOR A JURISDICTIONAL RULING: bold move or timid half-step?

Two weeks ago the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) filed a request to the Pre-Trial Chamber (PTC) seeking, for all intents and purposes, an advisory opinion on whether the ICC may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

Some of the commentaries on this have been interesting and insightful (see Kevin Jon Heller’s Three Cautionary Thoughts on the OTP’s Rohingya Request and Implications of the Rohingya Argument for Libya and Syria (and Jordan) in Opinio Juris, Andrea Raab’s and Siobhan Hobbs’s The Prosecutor’s Request for a Ruling on the ICC’s Jurisdiction over the Deportation of Rohingya from Myanmar to Bangladesh: A Gender Perspective in EJIL: Talk!, and Geoff Curfman’s ICC Jurisdiction and the Rohingya Crisis in Myanmar in Just Security). For the most part, I agree with these analyses.

The OTP’s submission is an enjoyable read: comprehensive, persuasive, measured. If I was a betting man, I would say it is right on the money. The introduction is particularly noteworthy for those involved in drafting submissions: the first three paragraphs (introduction) succinctly outline the legal issue at hand, relevant factual context, and the OTP’s request for declaratory relief. Short and to the point. Overall, however, I did find the submission a bit longwinded – either stating the obvious or waxing on well after making the intended point. Perhaps this was necessary given the novel jurisdictional issues raised in the request. Prudence occasionally dictates the use of both a belt and suspenders, or as the saying goes, it’s like chicken soup: it can’t hurt. No harm in submitting excessively edifying explications; an indulgence that is less tolerated in some national jurisdictions, where busy judges value cogency over prolixity.1   See Patricia M. Wald, The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-To-Day Dilemmas of an International Court, 5 Wash. U. J. L. & Pol’y 87, 93-94 (2001), criticizing the lengthiness of ICTY Judgements.

On making the submission

The OTP’s request is explicitly permitted under Article 19(3) of the Rome Statute: “the Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility.” So, no drama concerning the OTP’s authority to seek declaratory relief. A simple reference to the statutory provision would have sufficed, as opposed to going on about the potential benefits that would accrue from getting a PTC decision. Though again, perhaps it is just chicken soup.

The debate on the distinction between forcible transfer and deportation is also rather settled under existing international jurisprudence. That these are two distinct and not mutually exclusive crimes is rather obvious from a plain reading of Article 7(1)(d). So, was it that necessary to go on and on about whether these are interchangeable terms – i.e. whether deportation and forcible transfer are one crime – or whether, because of the disjunctive “or” in Article 7(1)(d), the two are separate crimes (as they have been recognized by other international(ized) criminal tribunals and courts).2   See e.g., ICTR Statute, Article 3(d); ICTY Statute, Article 5(d). See also Prosecutor v. Stakić, IT-97-24-A, Judgement, 22 March 2006, paras. 288-302, 317; Prosecutor v. Brđanin, IT-99-36-T, Judgement, 1 September 2004, para. 542; Prosecutor v. Krnojelac, IT-97-25-A, Judgement, 17 September 2003, paras. 217-23; Prosecutor v. Krstić, IT-98-33-T, Judgement, 2 August 2001, paras. 521, 531-532. Was it necessary to invoke the Vienna Convention on the Law of Treaties (VCLT) to interpret Article 7(1)(d)? Doubtful, though it is almost instinctive that any submission is just not complete or sophisticated or learned enough unless the VCLT is mentioned – even if only in passing. What commences as forcible transfer can evolve into deportation once those affected are compelled to cross over a State’s border. Granted, there is room for discourse where the transfer or exodus of victims is into a no-man’s land, such as the high seas (waters not claimed by any State), though logic would dictate that even were this to occur, the underlying elements of the crime can be assumed to have materialized in one State or another (on this issue, Kevin Jon Heller intrigues as if answering a law school exam where extra points are earned for pushing the limits of legal permutations and possibilities – however dubious).

As for the debate on whether the ICC has jurisdiction if only a fraction of the elements of a crime were committed on the territory of a Member State (with the majority of the elements having been consummated in a non-Member State) though interesting, again, I think the Rome Statute and relevant and applicable jurisprudence provide sufficient clarity. The discussion on “objective territoriality” versus “subjective territoriality” confuses more than clarifies (see, for example, footnote 59 of the OTP’s request). If this issue was of such importance requiring distinction and elaboration to convince the PTC that the ICC indeed has jurisdiction under the given facts as presented by the OTP (largely from what it has learned from various reputable sources – which I have also relied on in my previous posts about the Rohingya crisis here, here, here, and here), it should have treated it more cogently – as Geoff Curfman has done in his post ICC Jurisdiction and the Rohingya Crisis in Myanmar in Just Security). My point: saying the same things in different ways using bookish language neither advances the argument nor makes it any more persuasive.

Image result for rohingyaSince over 700,000 Rohingya have fled to Bangladesh (there being no other bordering or nearby country of convenience to escape) – a fact that is virtually accepted the world over, and which assuredly tends to satisfy the “widespread or systematic” chapeau element of crimes against humanity (see Article 7(1) of the Rome Statute) – then isn’t it a virtual certainty that the ICC would have (or should have) jurisdiction? Possibly. Bangladesh is a State Party to the ICC. Here, the OTP makes a compelling case in asserting that the ICC has territorial jurisdiction over acts constituting the crime of deportation (see below). Also relevant to the question of jurisdiction is that the Myanmar government claims that Bangladesh is the Rohingya’s country of origin: the Rohingya are illegal aliens, squatting in the Northern Rakhine State. Hence the Myanmar government’s cleansing efforts. The Myanmar military may be behind these efforts, but let’s not be naïve. The Myanmar military is for all intents and purposes the de facto government, though this is not to say that other civilian government officials, such as Aung San Suu Kyi, are necessarily immune from or absolved of any responsibility and accountability.

Let’s give credit however to the OTP. It is moving cautiously, incrementally, and diligently. Intuitively, it is venturing into a delicate situation, so caution may be the better part of valor. But why not go for the full monty if getting clearance from the PTC is warranted?

The OTP claims that it should avail itself of Article 19(3) to “promote[] judicial economy—and, particularly, the apt use of the limited resources allocated to the Prosecutor—by allowing judicial consideration of certain fundamental questions, if the Prosecutor thinks appropriate, before embarking on a course of action which might be contentious.”3   See paragraph 54 of the OTP’s request (italics in original). Understandable. Why rush into action when what may be needed is further deliberation on what the OTP could (or be willing) to do? And, of course, isn’t it reasonable and sensible to consider the cost-efficiency resulting from not taking concrete action until all the proverbial ducks are in a row – at which point we can further deliberate?

Sound as these policy reasons seem, I find the OTP’s Article 19(3) request to be a timid half-step, not a bold move. And not the sort of move that should comfort the Rohingya victims. This half-step may generate feel-good notions of at least something is better than nothing, but is this the best the OTP can or should do? No.

The OTP makes a very convincing argument why the ICC has jurisdiction. By its own admission, it is not asking a theoretical question for the sake of clarity of where the jurisdictional contours of the ICC lie: “this is not an abstract question but a concrete one, affecting whether the Court may exercise jurisdiction under article 12(2)(a) to investigate and, if necessary, prosecute the alleged deportation of Rohingya from Myanmar to Bangladesh.”4   See paragraph 4 of the OTP’s request. So why cast caution to the wind and just go for it?

The OTP emphatically demonstrates – under its reading of the law – that the ICC has jurisdiction. And it is not as if the suffering endured by the Rohingya is a matter for debate. Whether the evidence exists to establish who is responsible for this existential humanitarian crisis (which, in my opinion, ventures on the cusps of a genocide in the becoming as I’ve noted here and here), is another issue – an issue that requires immediate action, not exploratory indulgence – which dare I say risks consuming time and may even result in the PTC taking a politically nuanced position as opposed to ruling in the affirmative.

But even if the PTC agrees with the OTP, then what? Is the OTP committed to move ahead with alacrity and resolve, or will it dither in further analysis-paralysis? Will it be able to investigate in Myanmar considering the Myanmar government’s blocking of access to Rakhine State? And what of the underlying crimes that undeniably are the causes of this mass forcible exodus of the Rohingya to Bangladesh and elsewhere (recently it has been reported that Rohingya were rescued in the open seas near Indonesia)? Presumably, the OTP has gamed its further moves and has a strategy – not just tactical moves – as its request seems to be.

If the OTP was innovative and audacious enough to make this request, why not seek guidance from the PTC on whether the ICC has jurisdiction over the underlying crimes of murder, rape, persecution, etc. that are intrinsic to the alleged deportation efforts by the Myanmar military?

Some may argue that this is a bridge too far: that those alleged crimes were fully completed in Myanmar – a non-State Party – and therefore are beyond the ICC’s reach. A seemingly persuasive argument that would give pause to the timid and risk averse, or to the politically shrewd.

But why not at least think outside the box? Surely creative minds could make a colorable argument that even though it may seem to be a stretch, the alleged deportation did not occur in the abstract: the murdering, raping, terrorizing, burning villages and so on, occurred as a pretext to driving the Rohingya out of their ancestral lands, forcing them to flee for their lives at great risk to another State, which, irrespective of any claims they may have had to that State decades or centuries ago, is not theirs.

Granted, this might be too bold for ICC Prosecutor Fatou Bensouda who, though independent, is a political appointee and subject to pressures from the Assembly of States Parties (their ultimate trump card being their control over the Court’s budget). But if all she is asking from the PTC is a declaratory ruling on whether the ICC has jurisdiction, the financial implications and political costs are virtually zero. Unless she is hedging her bets: why act at any cost or criticism when it can be left to others? And then there is the be-careful-what-you-wish-for (you just may get it) to consider.

Again, I can understand the prudence of moving cautiously on seeking an advisory opinion on the limited jurisdictional issue concerning the crime of deportation as perhaps the first step. If the PTC’s answer is in the affirmative, the OTP still could argue, as part of the contextual background, that other underlying uncharged crimes occurred, even if it is only pursuing the crime of deportation. Aside from the fact that this would require more than just relying on third-party reports by the likes of Amnesty International, Human Rights Watch, journalists, etc. (“evidence” which comes with a host of admissibility and weight problems – reliability, authenticity, chain of custody, etc.), but also, query whether the OTP would be allowed to introduce evidence of uncharged conduct and crimes – a lesson that the OTP should have learned from Lubanga. In Lubanga, the OTP decided to simply go for what it thought was a low-hanging fruit, charging six counts of recruiting and using child soldiers in the civil war in the Democratic Republic of Congo, and then scrambled to no avail to find ways to introduce evidence of sexual violence (see my review of A Conviction In Question: The First Trial at the International Criminal Court by Jim Freedman). In any event, gathering evidence to support any alleged (un)charged crimes requires the OTP to conduct investigations in Myanmar – not just in Cox’s Bazar, Bangladesh or elsewhere where the dispossessed, displaced, and deported Rohingya are being hosted. This is an unlikely possibility – unless and until the Myanmar government decides to cooperate.

My point

If the OTP prudently decided that it can only pursue deportation as a crime against humanity against those responsible, then wouldn’t it have been bolder to commence a preliminary investigation, having asserted the ICC’s territorial jurisdiction – as it persuasively argued in its request to the PTC.

Were the PTC to eventually decide otherwise, at least the OTP would have demonstrated its resolve and placed the onus on the PTC for punting – circumscribing the ICC’s jurisdiction and allowing this ongoing humanitarian crisis to continue unabated. Put differently (and perhaps less charitably), after nearly a year of being on the sidelines bearing witness to the mass atrocities committed against the Rohingya, it is the OTP that is punting.

Rather than exercising the full arsenal at its disposal by starting a preliminary investigation, the OTP is ostensibly passing the buck to the PTC to give it the green light and to decide what it already claims is within its bailiwick.

Meanwhile the Rohingya suffer what they must.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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