On 6 September 2018, in a majority decision, the International Criminal Court handed down its ruling on the issue of jurisdiction under Article 19(3) of the Rome Statute, following an application by the Office of the Prosecutor (OTP) regarding its applicability to the Rohingya and their deportation into Bangladesh. The decision can quite appropriately be seen as one of the most significant jurisprudential decisions in recent years given its potential wider effect..
The application of the OTP was bolstered by a small number of Amicus Curiae briefs submitted by various groups internationally, of which, Guernica 37 was one, having been granted permission by the Pre-Trial Chamber, and therefore invited to file submissions on the question and scope of jurisdiction.
The Pre-Trial Chamber found that the Court has jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh, on the basis that although Myanmar is not a State Party to the Rome Statute, Bangladesh is, and therefore, given the finding that an element of the alleged offences occurred within the territory of a State Party, jurisdiction is conferred.
The Pre-Trial Chamber found that given the transboundary nature of deportation, the drafters of the Rome Statute clearly intended for the Court’s jurisdiction to be exercised when one element of the crime is committed on the territory of a State Party. Applying this finding to the forcible transfer of the Rohingya, the Court therefore has jurisdiction given that whilst they were initially removed from Myanmar, a Non-State Party, their eventual destination was Bangladesh, a signatory State Party to the Rome Statute. The act of the Rohingya crossing the border into a State Party has been found to be sufficient for the elements of Article 12(2)(a) of the Statute to be applied.
The Chamber further found that the Court’s rationale with regards to deportation can also be applied to other crimes that fall within the jurisdiction of the Court, thus giving the OTP jurisdiction to consider other crimes against humanity that may have been committed against the Rohingya. The Court may well therefore look to consider the crime against humanity of persecution as well as any other inhumane acts, reference being made by the Chamber to the appalling conditions the Rohingya were forced to live in on arriving in Bangladesh as well as the fact that their return home was prevented by Myanmar and its associated security and military forces.
The decision although not to be underestimated in its importance, is not the ‘cure all’ that is required for the Rohingya, as it does not guarantee that any prosecutions will be brought, nor does it guarantee the accountability that they so crave and also deserve. However, the decision is an essential first step, and offers hope that justice can be achieved.
In its Amicus Brief, Guernica 37 argued that the Court has jurisdiction for the Crime of Genocide, as the policy of deportation was an essential element of the genocidal intent.
Further, the wider implications of this decision ought not to be underestimated. There is potential (and it is put no higher than that at this stage), as argued in our submissions, that Syrian refugees escaping persecution and associated Crimes Against Humanity committed by the Assad regime, by fleeing to Jordan, may now have a route to a degree of accountability given that Jordan, like Bangladesh, is a State Party to the Rome Statute.
In the immediacy however, it is now for the OTP and the international supporters of the ICC to ensure that appropriate funding and resources are provided to enable a full and credible investigation to take place, and thus offer the Rohingya no less than they deserve.