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


Photo: Twitter

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.


Preliminary Examinations and the ICC: What hope for the Rohingya? (Part 2 of 3)


Photo: Reuters

During the 17th Assembly of State Parties (ASP) to the International Criminal Court (ICC), many of the discussions touched upon topical issues related to preliminary examinations (PEs). This matter was at the heart of the debates as early as the very first day of the ASP, as the Office of the Prosecutor (OTP) launched its Report on Preliminary Examination Activities for the year 2018. Nevertheless, it is remarkable how, at all times throughout the 17th ASP and despite clear opportunities to act otherwise, the OTP avoided discussing its most recent PE, which focuses on the alleged crimes perpetrated against the Rohingya. Such a deafening silence was arguably unexpected, considering the success encountered by the OTP when, after settling crucial and novel issues, the Court finally declared its competence over the alleged deportation of the Rohingya from Myanmar to Bangladesh and possible other crimes. Apart from the understandable desire of the Prosecutor not to highlight states’ divergences of opinions over that specific situation nor to disclose its eventual prosecution strategy, this silence may be explained by the fact that when one deepens the reflection on the possible implications of this PE, the picture might not be so encouraging. As the PEs’ legal framework was analyzed in an earlier post, this post will provide an overview of the Rohingya situation and the proceedings undertaken, before the implications of the PE are explored in a third and final blogpost.

The plight of the Rohingya: genesis of a (foreseeable?) crisis

The Rohingya constitute one of the 135 minorities in Myanmar, also called Burma. While Buddhism is the majority religion, the Rohingya represent the highest percentage of Muslims within this country, as their population was estimated at around one million in 2017 (thus constituting approximately 2% of the state’s total population). Predominantly living in Rakhine state, the Rohingya have experienced a very difficult coexistence with Buddhists for decades. Despite evidence establishing their presence in Myanmar for centuries, they are largely considered by the Burmese government as illegal migrants from Bangladesh. To be sure, the 20th century was marked by the adoption of a multiplicity of discriminatory measures to the detriment of the Rohingya, including restrictions on their freedom of movement as well as their access to medical assistance, education and other services. In 1982, the Burmese government went as far as enacting a law stripping the Rohingya of their citizenship, thus creating a whole population of stateless people. Social media have been instrumental in furthering the Rohingya’s marginalization in recent years, as the widespread use of Facebook in Burma has made the circulation of hate speech outstandingly easy (see Kyle Matthews’ intervention here and Mark Zuckerberg’s apology here). The oppression of the Rohingya is currently so institutionalized that Burmese authorities even refuse use the term “Rohingya” and rather use “Bengali” instead, a term openly linking their origins to Bangladesh rather than Myanmar.

The exact moment when the so-called Rohingya crisis sparked is debated: the June 2012 riots in Rakhine state are described by many as a turning point, while the October 2016 brutal military crackdown is also often considered. For the purposes of this post, what matters is that the extreme violence carried out by the Burmese military, including sexual and gender-based violence, torture, extrajudicial killings, infanticides, destruction of property and other violations of the most basic human rights, forced the exodus of the Rohingya. More than 727,000 of them have fled Rakhine state since August 2017. This situation has led UN representatives to readily affirm that the Rohingya are the “most persecuted minority in the world” and that their treatment constitutes a “textbook example of ethnic cleansing”. On the other hand, despite pressures from the international community, Myanmar has consistently refused access to UN investigators and humanitarian aid, denying all allegations of ethnic cleansing or genocide and allegedly intentionally erasing evidence of it.

Eyes riveted on the ICC: novel answers to novel issues

As the massive and widespread violations became impossible for the international community to ignore, calls for action by the ICC became more and pressing. In particular, since the end of 2017, the OTP received numerous communications and reports concerning crimes allegedly committed. However, with respect to the PE’s four phases mentioned in an earlier post, the OTP faced important and novel jurisdictional issues regarding the crime of deportation. These issues were rooted in the fact Myanmar is not a State Party to the ICC, while Bangladesh, to which the Rohingya were deported, is a State Party. Given the cross-border nature of the crime of deportation, which is completed upon the displacement of a person to another state or location (see the Elements of crimes, Article 7(1)(d), Element 1), the jurisdiction of the ICC over this situation was unclear. This uncertainty led the ICC Prosecutor to make use, for the very first time, of Article 19(3) of the Rome Statute to request a ruling on the jurisdiction of the Court over this particular situation. After taking into consideration many amici curiæ observations from different civil society members and organizations, the Court declared itself competent on 6 September 2018 over the alleged deportation of the Rohingya from Myanmar to Bangladesh. It also recognized that it could also exercise its jurisdiction “with regard to any other crime set out in article 5 of the Statute, such as the crimes against humanity of persecution and/or other inhumane acts” (here). The ICC OTP almost immediately opened a preliminary examination on the Rohingya situation, on 17 September the same year.

The fact that the ICC actually took action regarding the Rohingya crisis was immediately perceived as a major victory by international justice defenders. Nevertheless, the possible implications of such proceedings might not be strictly positive and need to be reflected upon, as detailed in a third and final post.

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.partnership_logo1


Preliminary Examinations and the ICC: What hope for the Rohingya? (Part 1 of 3)

On this last day of the 17th Assembly of State Parties (ASP) to the International Criminal Court (ICC), which took place in The Hague (Netherlands) from 5 to 12 December 2018, it is fair to affirm that the 20th anniversary of the ICC witnessed a generally uncontroversial ASP. Contrary to the effervescent negotiations that took place during the 16th ASP, ultimately leading to the activation of the Court’s jurisdiction over the crime of aggression, those of the 17th edition showcased global placidity and flexibility from states, thus creating an illusion of calm after the storm. Nevertheless, one important aspect of the Court’s work was at the core of many discussions, both within the Assembly and during the various side-events that took place: the preliminary examinations (PEs), carried out by the Office of the Prosecutor (OTP).

On the first day of the ASP, the launch of the Prosecutor’s Report on Preliminary Examination Activities for the year 2018 allowed members and organizations of civil society to express various concerns regarding the PEs currently carried out by the OTP. Then, various side-events through the seven-day long ASP allowed further suggestions to be made concerning ways to improve the PEs. Interestingly, the most recent PE opened by the OTP, which concerns the alleged deportation of the Rohingya from Myanmar to Bangladesh, was barely mentioned. This silence is even more surprising given the fact that international community has been widely calling for the ICC to act in relation to what has been qualified by many as a genocide.

This three-part blogpost aims at filling this silence by exploring the possible outcomes of this PE in the light of the recent discussions that took place at the 17th ICC ASP. The first post will detail the legal framework of PEs before the ICC, while the second will analyze the situation in Myanmar and Bangladesh, including the legal procedures that led to the opening of the PE. Finally, the third post will provide an overview of the most salient debates pertaining to PEs before the ICC in order to feed the discussions related to the fight against impunity with respect to the Rohingya situation.

Preliminary examination and the ICC: an innovative legal framework

The preliminary examination process is idiosyncratic to the ICC. While the International Military Tribunals of Nuremberg and Tokyo as well as ad hoc and hybrid tribunals were given jurisdiction over specific situations (see here, p. 6), the Rome Statute does not provide for any specific situation to be considered by the ICC. The OTP holds the important power to determine whether a situation meets the legal criteria established by the Rome Statute to warrant an investigation, which could later lead to the opening of a case. This assessment is at the core of the preliminary examination process (see here, pp. 6-7).

In 2013, the OTP produced a Policy Paper on Preliminary Examinations. This Policy Paper highlights that the PEs must respect the core principles of independence, impartiality and objectivity, pursuant to Articles 42, 21(3) and 54(1) of the Statute (see pp. 7-8). To be sure, it laid down that the innovative process provided for in the Rome Statute shall be divided in four phases. First, pursuant to Article 15(2) of the Rome Statute, the OTP receives “information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate”. It may also receive written or oral testimony at the seat of the Court. The OTP analyses the seriousness of the information received (see here, p. 8). The second phase marks the proper beginning of the PE: the OTP proceeds to a thorough factual and legal assessment to determine if the alleged crimes fall within the jurisdiction of the Court (see here). Phase 3 questions the admissibility of the case with respect to complementarity and gravity (see here and here, p. 8). The fourth and last phase addresses the question of the interests of justice: the OTP will not initiate an investigation if it considers that it would not serve the interests of justice, taking into account the gravity of the crimes and the interests of the victims (here).

It has to be mentioned that PEs serve additional purposes. According to the OTP, more than simply assessing whether there is sufficient basis to open an investigation, PEs also contribute to two overarching goals of the Statute (see here, p. 8). First, they contribute to ending impunity since they encourage national proceedings. Past experiences have shown that states often seek to avoid the exercise of the Court’s jurisdiction by initiating judicial prosecutions at a national level. When they do so, pursuant to Article 17(1)(a), the situation becomes inadmissible before the ICC, since the Court is complementary to national jurisdictions. Second, PEs also deter the prevention of future crimes, thus limiting the need for the Court’s intervention. The openings of PEs are very public and widely publicized, including through international and national media. Further, the annual publication of the OTP’s Report on Preliminary Examinations, which is made public and available on the Internet, contributes to share the outcomes of the ongoing PEs. Even if the dissuasive effect of the PEs is difficult to assess, as it would require measuring the prevalence of crimes that have not been committed, there is little doubt that it is real and strong in most of the examined countries.

Given the specific legal framework pertaining to PEs before the ICC, how has it been applied with respect to the situation of the Rohingya in Myanmar and Bangladesh? The second post will explain the novel jurisdictional issues that were faced by the ICC in this regard before it declared itself competent in a decision warmly saluted by civil society. However, the international community should not be too hasty with its rejoicing, as will be discussed in the third and final post.

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.



The role of the Coalition for the International Criminal Court in the Assembly of State Parties to the International Criminal Court

image1.jpegToday, Day 2 of the Assembly of the States Parties (ASP) to the International Criminal Court (ICC), the first NGO Advocacy Strategy Meeting was held, led by the Coalition for the International Criminal Court (CICC). The CICC also organized a question and answer session with the Prosecutor and Deputy Prosecutor of the ICC – Fatou Bensouda and James Stewart – and members of civil society. The significant presence of the CICC in the ASP was therefore evident throughout the day. This post will discuss the role of the CICC, which has always been an important actor in relation to the ICC.

At its creation in 1995, the Coalition only comprised a small number of NGOs supportive of the establishment of an International Criminal Court. After the Court was established, the CICC continued to work at every stage of its development, and strives now towards the larger goal of fighting against impunity by improving the ICC’s effectiveness, independence, and accessibility. It also addresses the most urgent issues faced by the international justice system and seeks to improve it. Now consisting of more than 2,500 civil society members from 150 countries, the CICC is the world’s largest civil society partnership advancing international justice.

The important role of the CICC in relation to the ICC was recognized as early as the ASP’s second session, in September 2003, when the Resolution on the Recognition of the coordinating and facilitating role of the NGO Coalition for the International Criminal Court (ICC-ASP/2/Res.8) was adopted by consensus. In that resolution, States Parties recognized that the CICC performs a coordinating and facilitating role between the community of NGOs and the ASP, and between that community and the ICC.

Concretely, before each ASP, the CICC engages in making knowledge accessible to all by producing information documents explaining the Assembly and the ICC, as well as issuing recommendations. During the ASP, the Coalition organizes daily NGOs advocacy strategy meetings, where NGOs can meet, collaborate, exchange information and develop a common strategy.

For instance, in this morning’s strategy meeting, the CICC and few other NGOs delegates underlined the reluctance of many States Parties to discuss issues pertaining to the ICC budget because of the complexity and political sensitivity of this topic. They highlighted that this situation creates a void that gives States Parties who advocate for budgetary cuts a free hand to frame and lead the negotiations on this agenda item. The CICC thus encouraged civil society members to reach out to the silent States, raise questions and encourage them to speak out and counter the current restrictive budgetary narrative. During the ASP, the CICC also relays information on the various outcomes of each event, notably on its website, and issues press releases.

Furthermore, the CICC organizes side-events in order to allow civil society members to express their views, such as today’s civil society-only meeting with Prosecutor Fatou Bensouda and Deputy Prosecutor James Stewart. This meeting gave the opportunity to NGO delegates – including my delegation, the Canadian Partnership for International Justice – to ask questions directly of the Prosecutor and Deputy Prosecutor and get answers that would inform the civil society’s understanding of OTP’s needs and strategies, notably on the situation in Libya, the implementation of the 2014 Policy Paper on Sexual and Gender Based Crimes, and Burundi’s withdrawal from the Rome Statute.

The CICC has proven to be a key interlocutor within the ASP, bringing a careful focus on topics rather than politics. While CICC is funded by States, it only takes action on the basis of common principles to which there is a widespread consensus among the Coalition’s members. In sum, it is hard to imagine the ICC and the ASP without the CICC, given its size, breadth of focus and impact – as today’s meeting demonstrate.

This blog post and Catherine Savard’s attendance at the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice are supported by the Social Sciences and Humanities Research Council of Canada.