Revisiting the ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction: a more critical look. Part 1 – The Majority’s Decision

On 6 September 2018, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) reached a decision on whether the ICC has jurisdiction over the alleged deportation of the Rohingya from Myanmar (non-State Party to the Rome Statute) to Bangladesh (a State Party). The PTC by Majority held that the ICC has jurisdiction “if at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on a territory of a State Party.” (para. 64) While the outcome of the decision seems correct, the partially dissenting opinion raises concerns, mainly whether the issue was ripe for the PTC to entertain. In this post, I will revisit the Majority’s reasoning on its finding that the ICC has jurisdiction, whereas in the next post I will focus on Judge Marc Perrin de Brichambaut’s opinion.

In my previous post, I noted that the Majority’s decision was well-crafted. This, in hindsight, may have been an overly generous and hasty assessment. Mea culpa. I am not suggesting that the Majority’s finding that the ICC may have jurisdiction for the alleged deportation as characterized by the OTP in its Request is incorrect. Rather, I find disquieting some of the Majority’s reasoning, and more importantly, some of the sources – or lack thereof – in making certain findings. How a judge or a chamber arrives at a decision, even if the outcome is correct, is an essential component of the legal process, especially for the decision to enjoy legitimacy and acceptance. A critically look at the quality of the authority relied on and how it is (mis)interpreted can, on occasion, reveal whether the outcome was preordained and whether the use of suspect legal authority was for mere cover. Also, I find peculiar in this decision that nearly one third of it (15 pages) deals with the ICC’s international legal personality. This was hardly a burning issue requiring an extensive exegesis in determining the OTP’s overarching Request.

One issue before the Majority was whether under Article 7(1)(d) of the Rome Statute, deportation and forcible transfer are two distinct crimes (as recognized by the jurisprudence of other international(ized) criminal tribunals and courts such as the International Criminal Tribunal for the former Yugoslavia).1   Stakić AJ, paras. 278; Prlić TJ, Vol. I, para. 47; Krajišnik AJ, para. 304; Prosecutor v. Dragan Nikolić, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995 (“Nikolić Rule 61 Decision”), para. 23; Simić TJ, paras. 122-123; Krnojelac TJ, paras. 474-476. See also, OTP’s Request, paras. 15-27.

Considering that Article 7(1)(d) of the Rome Statute and Elements of Crimes pertaining to this article use the disjunctive “or” (“[d]eportation or forcible transfer of population…”), it was predictable that the Majority would find these to be two separate crimes with distinct elements: for deportation the forced displacement would need to be to “another state,” whereas for forcible transfer it would merely be to a “location within the same state.” (para. 55)

From the plain reading of Article 7(1)(d) and the Elements of Crimes, for the deportation to be completed the forcible dislocation must be onto another state’s territory. Article 7(1)(d) does not support the OTP’s claim that “[a]s a matter of law, however, it is not necessary to prove entry to another State, but merely that the victim has been ejected from the originating State—as such, a victim may potentially be deported to the high seas. What is crucial is that the international border, de jure or de facto, of the originating State is crossed. Hence, customary international law has emphasised consideration of the kinds of borders that might suffice” (fn. 32).2   Citing Stakić AJ, para. 300; Đorđević AJ, paras. 533-536; Prlić TJ, Vol. I, para. 47; Popović TJ, para. 892. This may reflect customary international law, but not what the drafters of the Rome Statute and Elements of Crimes had intended. Also, were this to be a definition of deportation applied at the ICC, a colorable argument could be made that once the imaginary space line of the border was crossed, the crime of deportation has been completed in a non-State Party and thus outside the ICC’s jurisdiction; where the forcibly displaced eventually landed onto (a State Party or elsewhere) would be irrelevant.

It is rather curious that the OTP inserted this assertion into a footnote as opposed to the body of its Request. Presumably, the OTP was putting down a marker for future purposes – perhaps anticipating the possibility of having to argue at some point that deportation could occur even if the forcible dislocation was onto No Man’s Land or the high seas.

Regrettably, the Majority did not address this issue. Had it done so, it might have also tackled the conundrum of whether deportation is fully completed by the mere breaking of the imaginary plane of the border, thus finding that the actual place of landing is irrelevant. This would eliminate any issue concerning whether deportation can (or does) occur in No Man’s Land, or the high seas, or on an uninhabited rock in the middle of the Indian ocean, or even space. Granted, the Majority was not required to go for the OTP’s bait given the factual predicate of its Request. Also, the drafters of the Elements of Crimes seem to have made a calculated decision in expressing in Article 7(1)(d) that the forcibly displaced must cross over “to another State.” Since the ICC was not meant to have inherent and unrestrained universal jurisdiction over every state and recognized international waters or space, this makes sense. It logically follows (or we can presume) that the drafters envisioned that deportation could commence from a non-State Party and be completed upon the crossing over the border of a State Party. This is what the Majority found. As for all other instances of forcible dislocation over an international border from a non-State Party onto another non-State Party, or No Man’s Land, or the high seas, it would still amount to deportation under customary international law, but outside the ICC’s jurisdiction – unless jurisdiction was conferred to it by the UN Security Council.

This brings us to the next issue – how much of the crime must occur on the territory of the State Party for the ICC to have jurisdiction? The OTP asserted that “conduct” as found in Article 12(2)(a) of the Rome Statute (“the Court may exercise its jurisdiction if … [t]he state on the territory of which the conduct in question occurred [is a State Party]”) means that “at least one legal element of an Article 5 crime” occurred on the territory of a State Party. Does, for instance, – as it relates to deportation – the mere stepping onto a State Party’s territory constitutes enough of an element or a part of a crime to confer jurisdiction?

Though eight pages are devoted to this issue (paras. 62-73), I am not convinced that the Majority offered much clarity or guidance on how much of a part is a “part.” Perhaps it felt that it did not need to address this question since the final and indispensable element of deportation under Article 7(1)(d) is the crossing onto a State. Hence, there was no real need to address this peskier question, since the answer may fall into the category  of we know it when we see it.

Nonetheless, the authority cited by the Majority in this section of its decision seems wanting. For example, resorting to a “contextual interpretation” of Article 12(2)(a), the Majority explained that a number of states (including Myanmar and Bangladesh) have adopted legislation to the effect that a state’s criminal jurisdiction can be triggered when at least one element or part of the crime were committed on a territory of that state (paras. 65-66). It cited Otto Triffterer’s and Antonio Cassese’s commentaries to the Rome Statute (fn. 117) as authority for its finding that the drafters “intended to allow the Court to exercise its jurisdiction … in the same circumstances in which States Parties would be allowed to assert jurisdiction over such crimes under their legal systems, within confines imposed by international law and the Statute,” and that to interpret otherwise would be contrary to the object and purpose of the Rome Statute (para. 70). Referring to “the inherently transboundary nature of the crime of deportation” and the fact that the drafters did not limit this crime to take place on the territory of two States Parties, the Majority found that this fact reflected the drafters’ intentions to give the ICC jurisdiction over a crime, one element or part of which was committed on a territory of a State Party (para. 71) – citing as authority a submission by one of the interveners for victims – Global Rights Compliance (fn. 118).

On such an important issue, one would expect more from the Majority. What constitutes a “part” is never defined. No guidance is provided – other than to point to domestic codes. The reasoning is as strained as the legal authority is suspect. Considering the far-reaching consequences its decision may have in other situations and cases down the road, the Majority could and should have explained and provided some criteria as to what constitutes a “part of a crime.” Presumably, “part of” is less than “an element;” if it’s more than an element, than this phrase serves no purpose since it’s already included in “at least one element.” At what point “part of a crime” is sufficient to trigger the ICC’s jurisdiction? Simply, the Majority missed an opportunity to address the issue directly relevant to the question raised by the OTP.

Lastly, a few words on the Majority’s exegesis about the ICC’s international legal personality. As I’ve noted, it is perplexing that the Majority spent approximately one third of its decision (section V) on an issue, which, considering the OTP’s Request, was not an issue. Seemingly, the Majority is responding to two press releases on the Myanmar State Counsellor’s web page from 13 April and 9 August reiterating that Myanmar is not a State Party and thus has no obligations towards the ICC. However, was it reasonable and necessary for the Majority to respond, or were the two press releases an opportune pretext for the Majority to opine on a matter?

Myanmar was well within its rights to disregard an invitation to respond to this “pre-preliminary” matter, as even a State Party is not obliged to cooperate with the ICC at the preliminary examination stage. Why after 20 years of the ICC’s existence, the Majority felt compelled to go into a lengthy discussion of the ICC’s international legal personality when no one was challenging it? I suspect that the two press releases were used by the Majority as a hook in sending a message to another audience. Maybe the Majority wanted to stake out its position on this matter, which other chambers may be seized of in one way or another. Maybe it was a message related to other situations and cases originating from non-States Parties that may come under consideration in future.

Whatever the Majority’s ulterior motives may be, if any, remain to be seen. Then again, I just may be reading too much into this and that the Majority merely took the opportunity to recall its international legal personality, lest non-States Parties think otherwise.

Next – the Dissent.



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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