The Prosecutor’s Move on Myanmar

By Jefferi Hamzah Sendut

The Prosecutor of the International Criminal Court (ICC) Fatou Bensouda has submitted an application to the Court’s Pre-Trial Division to seek a ruling that the ICC has jurisdiction to try crimes arising out of the crisis in Myanmar’s Rakhine state.1 This is the first time the mechanism set out in Article 19(3) of the ICC’s founding Rome Statute to request a ruling has been used,2 and is aimed at ‘assist[ing] in [the Prosecutor’s] further deliberations concerning any preliminary examination she may independently undertake’.3

The basis on which the Prosecutor submits the Court has territorial jurisdiction

Myanmar’s Rohingya Muslim minority population has since August 2017 been subjected to a campaign of barbaric violence by the Myanmarese military, which a UN Special Rapporteur has described as possessing the ‘hallmarks of genocide’.4 The Prosecutor’s submissions to the Pre-Trial Division centre around the potential pursuit of perpetrators of the crime of deportation (classified as a crime against humanity)5 against the Rohingya population. In doing so, she ingeniously seeks to circumvent barriers to a more straightforward assertion of the ICC’s jurisdiction.

The ICC may obtain jurisdiction to try genocide, crimes against humanity, war crimes and the crime of aggression through State referrals, UN Security Council referrals, or via the Prosecutor’s independent initiation of preliminary examinations proprio motu.6 Myanmar referring the Rakhine situation to the ICC itself is out of the question. Myanmar is also not a State party to the Rome Statute, meaning that the Prosecutor’s power to independently assert jurisdiction through a proprio motu examination cannot be used with regard to crimes committed on Myanmarese territory.7 Moreover, a rerferal of the situation to the Court by the UN Security Council appears highly unlikely, given the close ties held between the Myanmarese authorities and veto-holder China.

Facing these obstacles, the Prosecutor has argued that jurisdiction can be obtained because Bangladesh, which neighbours Myanmar and has received the flow of Rohingya refugees fleeing the latest persecution, is a party to the Rome Statute. This reliance on territorial jurisdiction obtained through Bangladesh is why a focus on the crime of deportation is critical to the Prosecutor’s case; the forcible deportation of the Rohingya into Bangladesh has seen ‘an essential legal element of the crime — crossing an international border — [occur] on the territory of a State which is a party to the Rome Statute’.8

The Pre-Trial Division’s decision and beyond

It is to be hoped that the Pre-Trial Division of the ICC accepts the Prosecutor’s submissions as outlined above. Should the Court be found to have territorial jurisdiction, there is little doubt that a preliminary examination would follow. Indeed, the blatant nature of the atrocities which the world has borne witness suggest that indictments would surely be the eventual result of the clearing of the jurisdictional hurdle, evidence for a viable prosecution being readily available. If the scope of the ICC’s territorial jurisdiction and the crime of deportation are construed appropriately, the Court’s ability to deter would-be international criminals would be greatly enhanced. A precedent would be set establishing that the ICC is not necessarily constrained by a lack of treaty-based consent on behalf of States to its jurisdiction, and that its fate is not bound up with UN Security Council disfunction.

However, perhaps even more crucial would be the subsequent response of the international community. The severity of the abuses which have, and continue to take place in Rakhine state mean that States must not revert to a ‘business as usual’ response. It is vital that all States, and especially those belonging to the Association of South East Asian Nations (ASEAN), along with China, support the ICC’s work up to and post-indictment. Assistance in the evidence gathering process may be provided, and States should arrest any visiting individuals indicted by the Court, whatever their political standing. In the long term, criminal accountability should be complemented by the Rohingya being granted full legal status in Myanmar, together with ASEAN States affirming a commitment to international criminal justice by signing and ratifying the Rome Statute. This will go some way towards redressing the consequences of ASEAN’s shameful inaction9 in relation to a ‘textbook example of ethnic cleansing’10 in its midst.

Conclusion

Ms Bensouda is to be commended for keeping the Rakhine crisis high on the ICC’s agenda, and for attempting to creatively take advantage of any legal routes available to assert jurisdiction over the Myanmarese military’s atrocities. But her efforts are likely to be in vain unless regional players cease their feigned ignorance and face up to the manifest injustices which are on display in the country, as well as to their complicity in them. We cannot permit impunity any longer.

 

  1. International Criminal Court Office of the Prosecutor, ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’ (2018); available here: https://www.icc-cpi.int/CourtRecords/CR2018_02057.PDF.
  2. Ibid., 4.
  3. Ibid., 3.
  4. Report of the Special Rapporteur on the situation of human rights in Myanmar, A/HRC/37/70, 9 March 2018, [65].
  5. Article 7(1)(d), Rome Statute 1998.
  6. Article 13, Ibid.
  7. Article 12(2)(a), Ibid.
  8. International Criminal Court Office of the Prosecutor, ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’ (2018); available here: https://www.icc-cpi.int/CourtRecords/CR2018_02057.PDF, 3.
  9. See e.g. Jefferi Hamzah Sendut, ‘ASEAN must not stand silent amid a campaign of ethnic cleansing’ (Varsity, 22 September 2017) <https://www.varsity.co.uk/comment/13499> accessed 10 April 2018.
  10. UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein, ‘Statement at the UN Human Rights Council 36th session’, (UN Office of the High Commissioner for Human Rights, 11 September 2017) <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22041&LangID=E> accessed 10 April 2017.