The Rohingya Crisis in Myanmar and Possible ICC Jurisdiction

Since August 2017, Myanmar’s security forces have driven more than 670,000 Rohingyas to flee to neighboring Bangladesh, creating an enormous refugee crisis in the region. The forces allegedly committed “killings, rape, torture, enforced disappearance, … and the destruction and looting of hundreds of villages … intended to drive the Rohingya population out of Myanmar.” [1] The international community has documented and criticized the magnitude of the atrocities as well as the well-organized, systematic nature of the attacks. The UN High Commissioner for Human Rights described the attacks as “a textbook example of ethnic cleansing.”[2] In addition, the UN Special Rapporteur for human rights in Myanmar stated that the attacks “bear the hallmarks of a genocide.”[3] International non-governmental organizations such as Human Rights Watch, Amnesty International, and Médecins Sans Frontières have published credible and consistent reports on the atrocities. Media outlets such as Reuters, Al Jazeera, BBC, and the New York Times have widely covered the atrocities as well.

At first glance, the International Criminal Court seems to lack jurisdiction over the alleged crimes because Myanmar is not a State Party to the Rome Statute. However, the ICC Prosecutor, Ms. Fatou Bensouda, argues that the Court may exercise jurisdiction over Myanmar’s alleged commission of the crime of deportation because “an essential legal element of the crime – crossing an international border – occurred on the territory of a state which is a party to the Rome Statute (Bangladesh).”[4]

Specifically, Prosecutor Bensouda argues that both the nature of the crime of deportation and of the territorial jurisdiction provided in the Court’s Rome Statute allow it to exercise jurisdiction in this situation. First, the crime of deportation inherently requires a victim to cross an international border and enter a second, receiving country. Thus, she says an essential legal element of this cross-border crime is completed in that second state (Bangladesh). The Prosecutor compares the nature of the crime of deportation to that of cross-border shooting in that “the crime … is not completed until the bullet (fired in one State) strikes and kills the victim (standing in another State).”[5]

Second, the Prosecutor argues that the Court may exercise jurisdiction because the Statute requires “at least one legal element of the crime to have occurred on the territory of a State Party.”[6] Thus, the Court may exercise jurisdiction on the crime of deportation either if the originating State is a State Party to the Court or if the receiving, second State is a State Party. Therefore, although Myanmar, the originating State, is not a State Party to the Court, Bangladesh, the receiving state, is, thus bringing the crime within the Court’s territorial jurisdiction. Based on this line of reasoning, the Prosecutor filed a request for a ruling on the question of territorial jurisdiction to the Court’s President of the Pre-Trial Division.

A favorable ruling by the Pre-Trial Chamber would either allow the Prosecutor to initiate an independent preliminary examination or allow Bangladesh to refer the case to the Court. An unprecedented favorable ruling may have broader, resonating implications for future ICC cases. For example, as in the case of Myanmar and Bangladesh, Syria is not a State Party to the Court, but Jordan is, and the atrocities that have occurred in Syria has caused hundreds of thousands of Syrians to flee to Jordan. The Pre-Trial Court’s decision on the question of territorial jurisdiction in cross-border situations may open a door to investigating and prosecuting crimes allegedly committed by non-State Parties when an essential element of the crime is committed in the territory of a State Party.

Written by Amy Gina Kim
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[1] Office of the Prosecutor, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, April 9, 2018, ICC-RoC46(3)-01/18-1, 6, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-RoC46(3)-01/18-1
[2] High Commissioner for Human Rights, Opening Statement to the 36th session of the Human Rights Council, September 11, 2011, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22044&LangID=E
[3] Special Rapporteur on the situation of human rights in Myanmar, Report of the Special Rapporteur on the situation of human rights in Myanmar, March 9, 2018, http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session37/Documents/A-HRC-37-70.docx
[4] Office of the Prosecutor, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, 3.
[5] Office of the Prosecutor, 14.
[6] Ibid.