CCIL 2018: “The Role of International Criminal Law and the ICC in Responding to the Alleged Crimes Perpetrated Against the Rohingya”

On November 1 and 2, 2018, the Canadian Council on International Law (CCIL) held its annual conference in Ottawa, Canada. This conference is touted as one of the premier international law conferences in the world, bringing together scholars and practitioners from across Canada, the United States and Europe. This year’s topic was “International Law at the Boundaries,” which recognized the role of non-state actors and ideas that seek to push international law to its limits.

One particular panel discussed three important, and even novel, issues within international criminal law: (1) jurisdiction over crimes committed by a non-state party; (2) sexual and gender-based violence; and (3) the role of social media in contributing to these crimes. “The Role of International Criminal Law and the International Criminal Court (ICC) in Responding to the Alleged Crimes Perpetrated against the Rohingya,” examined the ongoing situation in Myanmar and the ICC’s role in holding perpetrators of international crimes accountable. Fannie Lafontaine of Laval University’s Faculty of Law and the Canadian Partnership for International Justice chaired the panel of three speakers: Payam Akhavan of McGill University’s Faculty of Law, Valerie Oosterveld of Western University’s Faculty of Law, and Kyle Matthews of the Montreal Institute for Genocide and Human Rights Studies.

Akhavan discussed the ICC’s jurisdiction over the crimes committed against the Rohingya. This has been an area that has required some thought because Myanmar is not a party to the Rome Statute of the ICC, and therefore the Court does not have jurisdiction over crimes committed on its territory unless a referral by the United Nations Security Council is made (which has not happened yet and has been suggested to be unlikely). Akhavan highlighted how the ICC’s jurisdiction is currently being established through the crime of forced deportation as an underlying act of the crime against humanity. Forced deportation involves the crossing of international borders, and because the act of deporting the Rohingya ended on the territory of a state that is a party to the Rome Statute—Bangladesh—the Court has jurisdiction to try those responsible for forcing the Rohingya into Bangladesh.

Oosterveld ended the panel with a discussion of sexual and gender-based violence in the context of the Rohingya. She discussed the many ways that Rohingya women and girls are targeted and then humiliated through public gang-rapes to promote terror, and even ‘branded’ by their perpetrators biting them. Men and boys suffered similar treatment in detention from their captors trying to gain information.

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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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