Preliminary Examinations and the ICC: What hope for the Rohingya? (Part 3 of 3)

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As explained in two previous posts (here and here), the recent opening of a preliminary examination (PE) by the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) regarding the alleged deportation of the Rohingya from Myanmar to Bangladesh was widely welcomed by states and civil society around the globe. The recent decision of the ICC declaring its jurisdiction over this situation was saluted as an important step in the fight against impunity for international crimes. Nevertheless, the opening of this PE is also likely to make the Court experiences major setbacks. It can notably be expected that Myanmar will consistently refuse to cooperate with the Court, and that lengthy delays in the conduct of the PE are likely to be encountered, therefore giving rise to lashing critics of the ICC. The predictability of this PE’s negative implications on the ICC allows the conclusion that rather than criticizing the Court, the international community should review its perceptions and expectations of this institution as international criminal justice, despite its everlasting relevance, does not suffice to solve the complex Rohingya crisis.

A duty to cooperate?

As the ICC does not have an enforcement body, it relies on state cooperation to carry out its activities. To that end, Part 9 of the Rome Statute provide for a legal duty for State Parties to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court” (see Article 86). Nevertheless, as explained in an earlier post, a PE is a preliminary step which is distinct from the investigation and prosecution stages. Therefore, “at the preliminary examination stage, the Office [of the Prosecutor] […] cannot invoke the forms of cooperation specified in Part 9 of the Statute from States” (see the OTP’s 2013 Policy Paper on Preliminary Examinations, para. 85). Even if Bangladesh is a State Party to the ICC, the extend of its legal duty to cooperate with the Court in relation to PEs remains unclear. When it comes to Myanmar, which is not a State Party, cooperation with the Court thus takes on a very political rather than legal dimension, as this state cannot legally be compelled to cooperate with the Court.

Myanmar’s attitude towards the Court has been firm: in September 2018, it announced its categoric refusal to cooperate with the Court, and has consistently denied the ICC’s jurisdiction over the Rohingya situation. Keeping in mind the ICC’s past experiences in Sudan and Libya, which showed that State non Parties involved in ICC proceedings tend to have a very low level of cooperation with the Court, it would probably be utopian to expect a drastic shift in Myanmar attitude leading it to cooperate with this institution.

However, on a more positive note, two recent actions taken by Myanmar indicate what might be the beginning of a certain recognition of the Court’s legitimacy. First, even if this state failed to answer to the ICC’s invitation to submit written observations, it nevertheless delivered a press release that reads pretty much like a legal brief (listen to Payam Akhavan’s intervention here) to announce its non-cooperation to the Court. Second, for the very first time, Myanmar requested access to the ICC ASP, thus showing a desire to get involved in this institution’s decisional organ. Nevertheless, these behaviors do not preclude Myanmar to remain unyielding in its announced refusal of all sort of cooperation with the Court.

Structural flaws hampering efficiency?

There currently is no limitation to the duration of the PE, and this absence was at the heart of heated discussions in a few side-events during the 17thAssembly of State Parties (ASP) to the ICC. With respect to this issue, many experts expressed the point of view that these examinations should be limited in time: for instance, during a side-event on December 7th, Justice Richard Goldstone expressed the opinion that PEs should barely last more than one year. The example of Colombia, in which a PE has been ongoing for 14 years, was criticized as constituting a waste of the Court’s limited resources and illustrating the failure of the ICC to deliver tangible results within reasonable time. Nevertheless, during another side-event, Colombian civil society members declared that it was crucial that the PE continued in this country, as its deterrent effect has an important impact in limiting the further perpetration of crimes.

Despite the debates surrounding the necessity of a time limit for the ICC’s PEs, there still exists no such limitation. Given the complexity of the situation in Bangladesh and Myanmar and the foreseeable lack of cooperation of this last state with the Court, it can be expected that this PE will drag on and on, thus highlighting the difficulty of this institution to deliver results in a time-sensitive manner, especially when a conflictual situation is still ongoing.

A necessary shift in outlook

In the light of the above, the decision of the ICC declaring its jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh, which led to the opening of a PE by the OTP, is likely to entail negative implications with respect to the perceptions of the Court’s legitimacy and efficiency. At times when the ICC faces serious critics, the proceedings undertaken before the ICC can be seen as very questionable decisions which can entail major setbacks for the Court as an institution.

However, my personal view is that one of the major problems of the ICC lies not so much within its own framework, but rather in the perception the international community has of it. The ICC, as flawed as it can be, is still a necessary institution as it now turns 20 years of age: the world still needs a court of last resort to fight impunity for international crimes. Many of the difficulties faced by the Court are rooted in the fact that it is way too tempting to carry disproportionate hopes towards this genuine and innovative organ. One must refrain to turn his or her sentiment of powerlessness experienced while envisaging the appalling injustices facing humankind into a blind confidence towards this fragile institution. These naive hopes are doomed to be deceived, and the disillusion that follows tends to express itself through scathing criticism towards the Court, thus unfortunately hampering its legitimacy. On the contrary, the ICC should be strengthened, improved and promoted for what it can do well, keeping in mind its inherent limits, rather than criticized for what it cannot achieve.

The language of international criminal justice is an important but insufficient tool to address complex multi-faceted problematics such as the Rohingya situation. It cannot reasonably be expected that the ICC succeeds in solving alone this complex humanitarian crisis, and the international community should be careful in expressing its enthusiasm following the opening of a PE. Immediate political and humanitarian actions are required to address the needs of the Rohingya population that is still enduring atrocities in Rakhine state. If justice is an important step towards reconciliation in post-crisis areas, the crisis must first be stopped, and the deterrent effect of the opening of a PE by the ICC OTP is far from being enough to end this complex and deeply-rooted situation. The eyes of the world should not be so riveted at the ICC and should look for broader and comprehensive multidisciplinary solutions, in which international criminal justice has a role, but is not the only player.

This blogpost and Catherine Savard’s attendance at the 17th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

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