WHERE DO THE ROHINGYA GO?

In a historically important decision, the Pre-Trial Chamber of the International Criminal Court has today decided that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The Prosecutor submitted her request to the Court under Article 19 (3) of the Rome Statute of the ICC submitting that even though most of the crimes against the Rohingya have taken place within the sovereign territory of a non-state party Myanmar, over which the ICC is unable to exercise jurisdiction, one discrete incident, that is the incident of border crossing into the territory of a member state Bangladesh, creates enough ground to attract the jurisdiction of the ICC over the crime of deportation associated with the border crossing. This is a step into unchartered waters for the ICC – never before has the principle of territoriality of a crime been reviewed independently of the “territorial integrity” of states. To venture into this area would be to bring the obligations of three states – Myanmar, Bangladesh and India (into which Rohingya populations have entered seeking asylum) under general principles of international law into question – for a group whose terrible suffering has been at the forefront of all human rights billboards this year.

Two provisions of the Rome Statute have been provocatively interpreted by the Prosecutor and the Pre Trial Chamber in its majority ruling on admissibility today. These are Articles 19 (3) and 119 (1). 19 (3) is the Prosecutor’s power to approach the Court in the matter of determining certain judicial questions before embarking on a course of action that may involve invoking the Court’s jurisdiction. The Chamber notes that at the heart of this request is question of invoking the jurisdiction of the Court under Article 12 (2) (a) in the context of an alleged forceful deportation of the Rohingya from the Rakhine region of Myanmar into Bangladesh. The Chamber then relies on old jurisprudence from the PCIJ in the Mavrommatis Palestine Concessions and the ICJ’s more recent East Timor (Portugal v. Australia) as well as a host of other cases from various other international courts and tribunals to hold that the definition of “dispute” is one that is open to judicial interpretation. It thus finds that its jurisdiction is subject to “dispute with Myanmar” and that it is competent to entertain this request under Article 119 (1). Further the Chamber relies on a general principle of international law – Kompetenz Kompetenz and cites a powerful battery of precedents to establish that as an international court of law, it has the power to determine its own jurisdiction under the Rome Statute and exercise its jurisdiction to admit the request made by the Prosecutor.

In the merits part of the majority decision, the Chamber finds that the ICC possesses objective international legal personality that goes well beyond the personality ascribed to the Court by such states as recognize and accept its jurisdiction. This has important repercussions in customary international law since it means that the effects of the Court’s jurisdiction may extend to non-states parties especially in the context of jus cogens violations of fundamental human rights states. The Chamber then moves to the definition of the crime of forcible transfer of population or deportation under Article 7 (1) (d) of the Rome Statute and its own jurisdiction under Article 12(2) (a). To satisfy the precondition for the exercise of jurisdiction under 12 (2) (a) the Chamber accepts the Prosecutor’s submission that “at least one element” of the crime under 7 (1) (d) takes place in the territory of a member state. By so accepting the interpretation submitted by the Prosecutor, the Chamber has for the first time, read a “cross border crime” into the definition of deportation. This interpretation respects the “conduct” element of the essentially transboundary crime of deportation and is an impressive and bold move by the majority opinion of the Pre Trial Chamber to read the Statute in an expansive manner that allows them to take into account the suffering of the victims of the crimes against the Rohingya.

I find two aspects of today’s ruling noteworthy – the first is the active voice in which the Chamber processes the request by the Prosecutor and creatively reads down the seemingly restrictive language of provisions in the Rome Statute to find that has jurisdiction to allow the request. The second is the peculiar geographical conundrum presented by the Rohingya crisis – originating in the hilly Rakhine region of Myanmar, they have been deported into Bangladesh and subsequently have trickled into India, seeking asylum. India, a supporter of the ICC idea but not a member state to the Rome Statute and Myanmar who is not a party to the Rome Statute either, sandwich Bangladesh – a state party to the Rome Statute. This creates a unique opportunity for future Chambers of the ICC to study the rules of territoriality in respect of crimes under the Statute.

Despite not being signatories to the 1951 Refugee Convention, India and Bangladesh have an obligation in international law to provide asylum to the Rohingya refugees under the customary international law principle of non refoulement. India is currently host to more than 200,000 refugees, who come from regions severely affected by conflict and/or repressive States such as Afghanistan, Myanmar, Sri Lanka, Tibet, Somalia, Iraq, and Syria etc. They comprise one of the world’s largest urban refugee populations, yet despite these numbers, the term “refugee” finds no mention in India’s domestic laws nor is the country a signatory to the 1951 Refugee Convention. Furthermore, unlike other jurisdictions which have a clearly-defined body of asylum laws, India’s refugee policy consists of several disparate, and often competing, ad hoc executive and judicial decisions that at times even fail to directly address the issue of asylum. Thus, upon their arrival in India, refugees discover that they do not even exist under the law and that they must face opaque, alien, and occasionally arbitrary procedures which do not meet the standards of rule of law and which leave them vulnerable to detention and deportation. Cases of violence against and exploitation of refugees abound, but because of the legal vacuum surrounding their status, it is unclear to refugees and their interlocutors how existing legal protection mechanisms would apply

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