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.

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What’s In a Name – “Istanbul” in the SS Lotus Case

In the weeks leading up to the 91st anniversary of the judgment, two students and I had an occasion to re-read the iconic case of the SS Lotus (France v. Turkey) PCIJ 1927. Our task was to see how one word – the name of the capital city of Turkey – one of the two parties to the case, was invoked by judges in the text of the 1927 Lotus decision. We write this small piece to bring out a non-essential, but nevertheless interesting aspect of this much-cited, much-studied decision.

The SS Lotus case was a legal dispute between France and Turkey, brought by France to the chief judicial organ of the League of Nations, the Permanent Court of International Justice – which is the precursor to the International Court of Justice, chief judicial organ of the United Nations. The facts of the case involved a collision upon the high seas, on August 2, 1926, between a French vessel the SS Lotus and a Turkish vessel the Boz Kourt. The victims were Turkish nationals and the alleged offender was a French lieutenant on the Lotus. The case was brought before the PCIJ to study whether Turkey could exercise its jurisdiction over the French lieutenant under international law.

Our starting point is that the political histories of Western and Eastern scholarship, use different names for the same city. And though Istanbul – the name, the city, and the symbol; is, at best, of tangential importance to the legal outcome of the Lotus; there is something to be said about the how the usage of different names for the same city, offer clues to the political imaginations of the judges.

The Turkish capital, originally referred to in texts by Pliny the Elder, as Lygos, was colonised by the Greek in 667 BC. The Romans named it Byzantium – Eastern Roman Empire. It was then renamed Nova Roma, and eventually become Constantinopolis, when the Roman Emperor Constantine made it his capital 330 AD. Given Emperor Constantine’s recent conversion to Christianity, the city of Constantinople became a thriving centre for religion and an important symbol of Christendom. In 1453 AD, Sultan Mehmed II “The Conqueror” laid siege to the city and captured it, and made it the capital of the Ottoman Empire. Mehmed sacked the legendary Hagia Sophia and turned it into a mosque. He proclaimed Islam as the State religion.

After World War I, the empire was split up and occupied by the Allied powers. The Turkish War of Independence saw the Allies being pushed out in 1923. Turkey signed the Treaty of Lausanne – giving it recognised international borders and exclusive jurisdiction over the territory of Turkey.

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