ICC-OTP to Interveners on its Rohingya Request: thanks but you’re putting the cart before the horse

ICC Prosecutor Fatou Bensouda

Prompted by ongoing reports of mass-scale atrocities being committed against the Rohingya in Myanmar, resulting in at least 700,000 Rohingya fleeing across the border to Bangladesh (what UN High Commissioner for Human Rights characterized as “a textbook example of ethnic cleansing”), the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) filed a Request with the Pre-Trial Chamber (“PTC”) under Article 19(3) of the Rome Statute.  The Request seeks a binding decision on whether the ICC has jurisdiction over the alleged deportation of the Rohingya from Myanmar (a non-State Party) to Bangladesh (a State Party). The Request set out in detail the events in Myanmar as they have been reported over the past year or so (see my previous posts hereherehere, and here), that Myanmar security forces have directly and indirectly been involved in the killing, rape, torture, and enforced disappearances of the Rohingya, as well as destruction and looting of their villages.

Credible evidence of crimes committed against the Rohingya continues to emerge. For instance, a report by Physicians for Human Rights (PHR) published just a week ago, recounts a massacre that occurred last August in the Myanmar village of Chut Pyin, where some 400 Rohingya villagers, including 99 children, were killed or abducted by security forces and Rakhine Buddhist civilians. According to PHR, there is incontrovertible forensic medical evidence of human rights violations inflicted on the Rohingya, including gunshot wounds, beatings, stabbings, and other violence. The report is the result of interviews and forensic medical examinations of Rohingya survivors conducted in Bangladesh refugee camps by a team of PHR doctors led by PHR’s director of programs, Homer Venters, MD.

The Request

The Request is compelling, measured, and well-reasoned; an excellent illustration of well-crafted legal writing. The OTP advances three overarching arguments: (1) deportation and forcible transfer are two separate crimes; (2) the ICC has jurisdiction over crimes where only one legal element occurred on the territory of a State Party; and (3) based on the factual predicate of the Response, the OTP has jurisdiction over the crime of deportation concerning the Rohingya who were forced to flee (were deported) to Bangladesh.

Though it seems straightforward that – by using the disjunctive or – the plain reading of Article 7(1)(d) of the Rome Statute lists deportation and forcible transfer of a population as separate underlying acts of crimes against humanity, others see no distinction (see e.g. Roi Bachmutsky’s post here). Perhaps, recognizing the potential for such contra views, the OTP felt compelled to wax generously on this matter. The PTC’s decision settling whether deportation and forcible transfer are two separate crimes under Article 7(1)(d) should be welcoming.

What is really at play, however, is whether the ICC has jurisdiction over crimes where only one legal element occurred on the territory of a State Party – an issue of first impression and of wide-ranging consequences. Relying primarily on the principle of objective territoriality and interpreting Article 12(2)(a) of the Rome Statute, the OTP argued that a State can exercise jurisdiction over crimes that only partially occurred on its territory, including crimes completed on its territory but commenced in another.1   This is the opposite of subjective territoriality, where a State may exercise jurisdiction over a crime commenced on its territory but completed in another, and different from the ubiquity principle, which allows a State to exercise jurisdiction over crime if that State has a territorial connection to it.

In my previous post I commended the OTP for (finally) taking some action on the widely reported atrocities committed against the Rohingya, though I also expressed dismay for the limited scope of its Request. I argued that the OTP was needlessly timid. Why ask the PTC to limit its inquiry on whether the ICC has jurisdiction over deportation to the exclusion of any other crimes under Article 5 of the Rome Statute that may have been committed in part in Bangladesh?

If rapes, murders, and other crimes, were the basis of persecution, and assuming persecution is found to be a continuing crime that continues or ceases after crossing the border into Bangladesh (assumptions which may not necessarily pass legal scrutiny), would it not be possible for those underlying crimes to be investigated by the OTP under the rubric of persecution? If this is a bridge that is likely to be crossed at some point, why limit the Request to just deportation? From a practical point of view, in investigating deportation the OTP will in any event look into killings, torture, rapes and so on. Both deportation and persecution are open-conduct crimes that are constituted by other underlying crimes. So if deportation will be investigated, bringing an additional charge of persecution would not entail any further extensive investigative steps.

Reasonably, the OTP wishes to play it safe by going for ostensibly low hanging fruit. Myanmar is unlikely to cooperate, and the UN Security Council has proven to be all but useless – even with matters it refers to the ICC (Al Bashir being the perfect example: here, here, here, and here). Presumably, the OTP is disinclined to seek a decision on whether it could investigate and charge crimes that would require cooperation and access to Myanmar. And what if the PTC were to conclude that crimes other than deportation would fall under the ICC’s jurisdiction, would that not then put added pressure on the OTP to actively pursue investigations of those crimes?

Be that as it may, I  suggested that creative minds could make colorable arguments as to why the ICC may have jurisdiction over crimes committed in Myanmar that would have been the underlying basis for or associated with deportation. Justifiably, some may argue that such creativity invites the PTC to go beyond the intended jurisdictional restrictions of the ICC. But is it unlikely that this issue will ever come before the ICC? Hardly. So why not just deal with it in the Request?

My preference is for judges/chambers to be conservative (or at least start their analysis as strict constructionists) in interpreting and applying statutory provisions – irrespective of the venue (domestic or international). That said, I am also realistic; it is cavalier to blissfully be unappreciative of plausible legal interpretations that could come to pass. The shades of gray in legal issues of first impression can be perceptively elusive. And then there are extraneous considerations that influence the wielding of prosecutorial discretion or judicial decision-making. For instance, political considerations play a role in the statutory interpretation of certain provisions that touch on issues related to such matters as jurisdiction. Silly to think otherwise.

The ICC is a judicial institution created by a negotiated treaty of States that carefully ceded discrete limits of their sovereignty and jurisdiction to the ICC with the expectation that they, the States Parties, would collectively legislate. Judges may be independent, but they are not to legislate from the bench. Also, they do not operate in a vacuum; the decisions they take invariably reflect the reality in which the ICC operates (founded and funded by the States Parties). In other words, when it comes to issues of jurisdiction, Judges are likely to be more circumspect and unadventurous. Something that was likely on Madam Prosecutor’s mind when she green-lighted the Request.

The Interveners

Creative minds weighed in, as I suspected, offering interesting and innovative perspectives as to where the ICC’s jurisdictional contours may extend. Submissions were filed by five amici curiae (here, here, here, here, and here) and two victims’ groups (here and here) raising a number of overarching questions:

  • Can the ICC exercise its jurisdiction over crimes that only partially occur on the territory of a State Party?
  • Does the ICC have jurisdiction over conduct underpinning Article 5 crimes that continue to be perpetrated in Bangladesh?
  • Are deportation and forcible transfer separate offenses under the Rome Statute?
  • Is the crossing of an international border a fundamental constitutive element of the crime of deportation?
  • Does the ICC have jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh?
  • What other crimes might the ICC have jurisdiction over?
  • How can sexual and gender-based violence be appraised within the crime of deportation or forcible transfer?

Unsurprisingly, with some slight variations, the interveners support the OTP’s argument that deportation is a separate crime, and that based on the evidence as it has been reported, the ICC would have jurisdiction over the crime of deportation based on the objective territoriality principle. Expectedly, some also argue that the ICC would/should have jurisdiction over other crimes, namely, genocide, apartheid, persecution, murder and/or extermination, and forced pregnancy.

Without getting into what was argued by all of the interveners, here is a sampling of a couple of arguments on why the ICC has jurisdiction over crimes other than deportation, based on the concept of continuing crimes, allowing the ICC to exercise its jurisdiction over conduct underpinning Article 5 crimes that continue to be perpetrated in Bangladesh.

Global Rights Compliance (“GRC”) supports its position by first looking to the International Law Commission’s Draft Articles on State Responsibility for Internationally Wrongful Acts (“Draft Articles”), which define “instantaneous” crimes as those resolved immediately (although they can have lasting effects) and “continuing” crimes as those that result in a continuing illegal situation. Citing academics such as William Schabas and case law from the United States and Venezuela, GRC states that continuing crimes “are premised on the continuing operation of the cause or influence exerted by the precipitating conduct.” In turn, the continuing cause or influence gives rise to an unlawful state of affairs, which is then maintained by the perpetrator’s subsequent conduct: “[t]he actus reus of the crime continues as long as this unlawful state of affairs persists and once the perpetrator ceases the proscribed course of conduct.”

GRC also notes that the international(ized) criminal courts and tribunals provide examples of continuing crimes. For instance, in Lubanga at the ICC, both the PTC and the Trial Chamber held that the crime of enlisting and conscripting continues as long as the children remain in the armed groups or forces and are under the age of 15. Arguing that the ICC’s jurisdiction to investigate must entail an assessment of the conduct as a whole, encompassing the totality of the conduct, namely, the “instantaneous element of the acts of the perpetrator and the State-sponsored and systematic nature of the harm that genocide, apartheid and persecution seek to address.” GRC goes on to state that the principles governing State responsibility clearly establish that genocide, apartheid, and persecution are “composite” crimes (they all require both a system of abuse and the individual acts of the perpetrator(s)) that create continuing liability. It cites the commentary to the Draft Articles which refers to “genocide, apartheid or crimes against humanity, systematic acts of racial discrimination” as examples of such “composite” crimes. Lastly, GRC explains that the Draft Articles did not envisage a conflict between this notion of collective responsibility and principles of individual criminal responsibility.

The Bangladeshi Non-Governmental Representatives (“BNGR”) takes a slightly different and less detailed approach. BNGR starts by recalling that the ICC can exercise jurisdiction over crimes when part of the conduct occurred on the territory of a State Party. It then takes the position that the term “conduct” includes both the action and the result. BNGR argues that this would be in line with the purpose of the Rome Statute, which is to end impunity for international crimes. It would also be in accordance with the principles set out in the Draft Articles, namely that a State’s act of a continuing nature that breaches an obligation, extends as long as the act continues in breach of the relevant obligation. BNGR also refers to Black’s Law Dictionary and examples of “continuing” crimes at the international(ized) criminal courts and tribunals to support its conclusion that “where the harm resulting from the perpetuation of the crime accumulates as a result of its continued perpetuation,” that crime will be a “continuing” one.

The Response

Appreciative of the interveners, the OTP responded (“Response”), stressing its objections to expanding the scope of its Request beyond deportation. Overall, the Response covers little if any new ground. Aside from highlighting the arguments that support its original position, the OTP takes issue with arguments that differ from those it advanced, finding them either incorrect, outside the scope of the Request, or irrelevant to the narrow question of the Request. Unsurprisingly, the OTP offered no analysis as to whether the ICC had jurisdiction over any of the continuing crimes referenced by the interveners. Clever. Why get dragged into this debate, if the objective is to convince the PTC to limit its inquiry to the Request?

The OTP plays its cards close to its vest, not letting on what it thinks the ICC’s jurisdiction may be concerning any potential crimes that go beyond deportation. We do get some hints, however, as to why it argues against the PTC going beyond the limited scope of its Request. One reason it notes, as recommended by one of the interveners, is that the OTP does not wish to raise expectations. An admirable policy that frankly, all things considered, rings hollow.

Would it not be part of this expectations-management game to be clear with the victims? Were the PTC to find that the ICC has jurisdiction over deportation regarding the Rohingya that were deported by whomever from Myanmar and were the OTP to conduct a thorough investigation resulting in charges, the likelihood of securing an arrest and a transfer of the charged individuals would be virtually zilch. But so what? Should this preclude the OTP from investigating and charging responsible individuals?

Another consideration may be that as things stand, the OTP is unlikely to gain access to the crime sites in Myanmar to investigate. This is not a hypothetical; the Myanmar authorities, including Aung San Suu Kyi, have refused to accommodate the thought that the events (atrocities) which led to the exodus of some 700,000 Rohingya have occurred, let alone have been allegedly instigated, carried out, and facilitated by Myanmar security forces and military personnel (see here, here, and here).

With deportation, presumably, there is little or no need to investigate in Myanmar. The deported surviving Rohingya are in Bangladesh, making them accessible to OTP investigators. It is conceivable that due to geopolitical reasons, including repatriation initiatives (a non-starter until safety and nationality issues are resolved – see here and here), Bangladesh may refuse OTP’s investigations on its territory, a hypothetical that merits no consideration. As a State Party, Bangladesh must comply with its treaty obligations and cooperate with the ICC. Also, if groups of victims can be represented by counsel, as seen by two of the interveners, there is no reason to think that the OTP would be less welcomed or less able to investigate.

By strategically going after what it believes it can realistically get the PTC to entertain and what it may be able achieve were the PTC to rule in its favor, the OTP seems to be deliberately setting its sights low without much risk. The Request, as limited as it may appear, can nonetheless settle two vital issues:

  1. whether and to what extent the principle of objective territoriality is applicable at the ICC – an issue that concerns other incidents unrelated to Myanmar, presently looming on the horizon (see here); and
  2. assuming this jurisdictional issue is resolved as the OTP expects, whether the ICC, in these circumstances, would have jurisdiction over other crimes beyond deportation.

Soothingly, the OTP promises to conduct all-encompassing investigations were the PTC to decide that the ICC has jurisdiction over the crime of deportation, and were the OTP during its investigation on crimes of deportation were to find that other crimes falling under ICC jurisdiction should be charged. In the words of the OTP, “[t]o go further is to put the cart before the horse.”

My take

The OTP is the sole (independent) captain of its ship. For whatever stated or unstated reasons it can decide how narrowly or broadly it wishes to frame its Request. Nonetheless, since the OTP opted to seek an Article 19(3) ruling, it should have pressed ahead for a jurisdictional decision on the other alleged crimes. Reading between the lines, the OTP seems to imply that some of the crimes raised by the interveners may also fall under the ICC’s jurisdiction based on the evidence it relies on in support of the allegations of crimes triggering its Article 19(3) Request. So why not just go for it?

As defense counsel and someone who argues against interpreting statutory provisions expansively, especially when doing so risks opening the floodgates to judicial activism and result-determinative bench-legislating, I find the OTP’s approach sound, yet unsatisfying. Taking a half-step in the face of what appears to be credible evidence and a justifiable cause for putting an end to ongoing atrocities, I am willing, on occasion (and this may be one of them) to yield, and to accept for the sake of clarity and judicial economy, circumstances warranting, for the OTP to be more assertive – especially when seeking PTC’s guidance and judicial certainty under Article 19(3).

Also, while the OTP was not prepared to expand the scope of its Request, it could have been more accommodating to the interveners by taking a neutral position in its Response – leaving it to the discretion of the PTC to determine whether it wishes to expand its determination on this unique opportunity to settle, to the extent possible, the jurisdictional issues raised by the interveners.

Admittedly, after reviewing the submissions and upon further reflection, I find the OTP’s strategy less troubling than I had previously expressed. Whether the ICC has jurisdiction over some of the continuing crimes as some of the interveners assert, is debatable. Claims that some of crimes are of a continuing nature and were consummated in Bangladesh are unpersuasive. It may suit the interveners (especially those representing victims) for the PTC to be generous in its interpretation of the ICC’s jurisdiction considering the ongoing events in Myanmar, but that is exceptionally shortsighted. Interpreting statutory provisions based on situation-determinative approach risks eroding the integrity of the judicial institution.

Frankly, I am not persuaded by some of the arguments (some I find fanciful), though I commend the interveners for thinking boldly and pushing the legal-reasoning envelope. I seriously doubt that the PTC will take anything but baby-steps on this jurisdictional conundrum, lest it be seen to be legislating from the bench and expanding the ICC’s jurisdictional contours beyond what was agreed to by the States Parties. Also, domestic and international practice seems to reflect that judges prefer to decide novel issues incrementally – going only so far as it is absolutely needed to resolve the legal issue within the context of the presented factual matrix.

As I am wrapping up, I am less certain that the PTC will find the OTP’s jurisdictional arguments convincing. Not because the arguments are unsound, but because of the likely consequences of expanding the ICC’s jurisdiction. Not only would it put considerable strain on the ICC, but a decision of this kind could be viewed by some States Parties as a form of judicial activism and adventurism. Here I am reminded of Bachmutsky’s insightful refrain from his post cited earlier:

As a reminder, the ICC is currently operating in a relatively hostile, nationalist environment. It is staring down the barrel of confrontations with powerful non-State Parties to the Rome Statute—including the United States, Russia, and Israel among others—which may not appreciate an illegitimate expansion of the Court’s jurisdiction. The Court is also deeply concerned about a wave of withdrawals akin to those pursued by Burundi, South Africa, and the Philippines. Judicial overreach would most likely accelerate these withdrawals.

No matter how the PTC ends up ruling, at a minimum, it should give a judicial hint as to where it believes the ICC’s jurisdictional contours lie based on all of the submissions before it. This would lend some clarity, especially were it to find in favor of the OTP.

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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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