The ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction:  well-reasoned or a judicial overreach?

On 6 September 2018, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) held by Majority (Judge Marc Perrin de Brichambaut dissented in part) that the ICC has jurisdiction over some of the mass atrocity crimes allegedly committed (and, as some may argue, still being committed) in Myanmar against the Rohingya. This comes on the heels of the UN Human Rights Council’s conclusions that violations in Rakhine State (and elsewhere) in Myanmar amounted to the gravest crimes under international law, and, more alarmingly, that certain “clearance operations” conducted by the Myanmar Military (known as “Tatmadaw”) were not a response to a concrete threat from the Arakan Rohingya Salvation Army (ARSA), but  the “unfinished job” of “solv(ing) the long-standing Bengali problem” thus warranting an investigation and prosecution of the senior officials in the Tatmadaw chain of command “so that a competent court can determine their liability for genocide in relation to the situation in Rakhine State.” (See Report of the Independent International Fact-Finding Mission on Myanmar, Advance Unedited Version, A/HRC/39/64, 24 August 2018, paras. 86-87.)

The PTC’s decision is monumental and likely to have far-reaching consequences for non-States Parties other than Myanmar. Effectively, the Majority held that irrespective whether alleged Article 5 crimes (genocide, crimes against humanity, war crimes, and, arguably, the crime of aggression) originated or for the most part were committed on the territory of a non-State Party, the ICC has jurisdiction and thus may investigate and prosecute alleged perpetrators of those crimes if “at least one element” or “part of such a crime” occurred on the territory of a State Party (Decision, para. 64).

Judge Marc Perrin de Brichambaut did not weigh in on the merits of the jurisdictional issue, having concluded that the statutory provisions and legal principles relied upon by the Majority did not give the PTC the authority to provide what he surmised to be “tantamount to delivering a de facto advisory opinion” on a scenario framed by the Office of the Prosecutor (OTP) in its Article 19(3) Request based on widely reported information and before having initiated (or even committing itself to initiate) a preliminary examination, let alone having requested authorization to commence an investigation under Article 15(3) of the Rome Statute.

The Decision and the Dissent are interesting, well-crafted and, arguably, equally persuasive; at least I found them to be. I agree with the conclusion of the Majority, a position I have argued in my previous two posts (here and here). The manner in which the Majority procedurally arrived at its conclusion, however, is a debate worth having.  Specifically, whether relying on Articles 19(3), 119(1), and the principle of la compétence de la compétence (an established principle of international law that any international tribunal has the power to determine the extent of its own jurisdiction) permit the Majority to do so without having to resort to creative legal interpretation and reasoning (even if the cause may be righteous).  Do we risk finding ourselves willing to adopt and accept specious legal interpretations when it is to our advantage, while maintaining, hypocritically, a sense of righteous indignation in other instances when there is no interest in a desired result?

In the next post I will discuss the Decision followed by another post on the Dissent. I see no reason to rehash what has been argued by the OTP, the amici curiae, and victims’ groups, but for anyone not familiar with the background leading up to the PTC’s Decision, here is a brief overview. Suffice it to say, the submissions were exceptionally informative and insightful.

As the world knows by now, and this does not seem to be a fact in dispute, more than 700,000 Rohingya fled to Bangladesh, starting in August 2017. The reason for this exodus is seemingly not subject to dispute (other than by the Myanmar government) that – and without prejudging the facts – an overwhelming body of evidence supports allegations that the Myanmar security forces launched indiscriminate clearance operations, falsely claimed by the Myanmar government, according to observers, to be limited against the terrorists in Northern Rakhine State in Myanmar, namely, the ARSA. Credible evidence of the ongoing mass-scale atrocities challenging the Myanmar government’s narrative has been gathered by various NGOs and UN agencies over the past year and more (see my previous posts hereherehere, and here). According to the UN High Commissioner for Human Rights, the ongoing crimes are “a textbook example of ethnic cleansing”, with estimates of more than a million of the Rohingya people living in camps in southern Bangladesh.

Presumably, prompted by what was being widely and repeatedly reported about this humanitarian crisis (the Rohingya being named “the most persecuted minority in the world” by many reporters and institutions), on 9 April 2018 the OTP filed an Article 19(3) Request to the PTC, seeking a ruling on whether the ICC may exercise jurisdiction over the alleged deportation of the Rohingya from Myanmar. In its Request, the OTP argued, among other things, that although the underlying acts leading to deportation occurred on the territory of Myanmar (non-State Party), the ICC may nonetheless exercise jurisdiction because one element of the crime of deportation – the crossing of the border – occurred on the territory of Bangladesh (State Party).

Between May and June, two victims’ groups and a number of organizations and persons filed their observations on the OTP’s Request. The interveners, with slight variations, supported the OTP’s argument that the ICC would have jurisdiction over the crime of deportation based on the objective territoriality principle. Some further argued that the ICC also has jurisdiction over other crimes, namely, genocide, apartheid, persecution, murder and/or extermination, and forced pregnancy. These calls by the interveners to go beyond the narrow scope of the Request were followed by the OTP’s Response, where it objected to broadening the scope of its Request and argued that it was premature for the PTC to address issues of potential criminal liability going beyond those strictly necessary to verify the jurisdiction of the ICC in relation to the alleged deportation) (for more see here). As we will see, the Majority paid no mind to the OTP’s refrain; and rightly so. Claims made by the OTP that the expectations of the victims needed to be managed (also argued by one of the interveners) and that the PTC should only focus on the crime of deportation, was, in my view, myopic and nonsensical.

Next – the Majority’s Decision.  

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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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