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“We can always do more. We can always do better. And we should not rest as long as there is one perpetrator that did not answer for his crimes, or a victim whose suffering was not heard. Justice must prevail.”

Introduction

The alleged deportation of Rohingyas from Myanmar has raised concerns from the international community. On 9 April 2018, the Office of the Prosecutor of the ICC[1]filed a request, questioning whether or not the Court may exercise its jurisdiction on the alleged deportation of Rohingyas from Myanmar to Bangladesh.[2]Five months after the submission of the request, Pre-trial Chamber of the ICC issued its decision, declaring that the Court has jurisdiction over the case, pursuant to Article 12 (2) (a) of the Rome Statute and potential crime under Article 7.[3]This essay will first briefly explain the nature of the dispute and legal issues arising from the case, followed by the evaluation of the court decision based on three main grounds; territorial jurisdiction, alleged crime fall under one of the crimes listed in Article 5 of the Rome Statute, and the existence of jurisdiction based on the universal jurisdiction principle. The outcome of this evaluation aims to support Pre-trial Chamber decision in confirming the Court to have jurisdiction over the alleged deportation of Rohingyas from Myanmar to Bangladesh.

The Nature of the Dispute and Legal Issues arising from the case

Rohingyas is a Muslim ethnic group that was a minority in Myanmar. Myanmar government has long refused to recognise the existence of Rohingyas as a part of Myanmar population, the evidence of this could be seen in the domestic law of Myanmar which does not state Rohingyas as one of the national ethnic groups.[4]In August 2017, when Rohingyas militants attacked police posts in northern Rakhine, it triggered Myanmar government to act in a disproportionate manner by deporting and, arguably killing, hundreds of thousands of Rohingyas people. With the alleged deportation, the crime is potentially classified as crimes against humanity, fall under Article 7 of the Rome Statute. As the alleged crime that was committed by Myanmar is categorised as one of the most serious crimes that concern the international community, the ICC has taken the case into account and decided that jurisdiction may exist within the case. However, those who rejected the Court decision argued that the Court does not have jurisdiction over the case, because Myanmar did not sign the Rome Statute.

Jurisdiction and Territorial Jurisdiction

Jurisdiction is one of the most important aspects of the law. It is the power that state has to manage and regulate affairs in accordance to its laws.[5]In the broader scheme, jurisdiction is ‘the official power to make legal decisions and judgments’.[6]Without jurisdiction, an investigation could not take place and therefore judgments of any cases would unlikely to occur. Hence, whether or not the Court has official jurisdiction over the case of Rohingya is an important question needs to be answered in order to pursue the case further. Myanmar argued that the ICC does not have jurisdiction over the case because Myanmar did not sign the Rome Statute and is not a member of the ICC. In contrary with the government of Myanmar statement, the Prosecutor request suggested that the ICC has jurisdiction over the Rohingya case[7]and her suggestion has been confirmed by the Pre-Trial Chamber on its written statement.[8]Deportation is a removal from one state to another that requires an extraterritorial element, in this case Bangladesh which is part of the Rome Statute.

Based on the Rome Statute, the Court may exercise its jurisdiction under three circumstances; crimes committed by a member of a state party, crimes that were referred by the UN Security Council, and crimes committed in a territory of a state.[9]The first condition could not apply to the case because Myanmar is not a part of the Rome Statute. Meanwhile, the second condition is also unlikely to happen. China has long been a close ally to Myanmar and has clearly stated that ‘the international community should support the efforts of Myanmar in safeguarding the stability of its national development’.[10]It is highly possible that China, and possibly supported by Russia, would use its veto power to veto any referral of the case.[11]Hence, it is unlikely that the Court could exercise its jurisdiction based on the second condition, which left one last possible options, territorial jurisdiction.

According to Article 4 (2) of the Rome Statute ‘the Court may exercise its functions and powers, as provided in this Statute, on the territory of any State party’.[12]This territorial principle is supported by Article 12 (2) (a) of the Rome Statute, stated that the Court may exercise its jurisdiction in ‘the state on the territory of which the conduct in question occurred’.[13]The alleged crime that was committed by Myanmar is ‘deportation’, which according to the Pre-trial Chamber statement is strongly associated with the destination of another state.[14]As the crime of deportation force people to flee from one state to another, this kind of crime is necessary takes place in more than one state territory[15]and this is what occurs in the case of Rohingya, where the crime is accomplished in Bangladesh.

Furthermore, the concept of territorial jurisdiction could also be seen from a domestic court. In the field of public international law, states may exercise its jurisdiction based on several different principles, one of those includes the principle of territoriality.[16]Fall under the territory principle, ‘States have the right to pass jurisdiction over all events on their territory’.[17]Accordingly with the Pre Trial Chamber statement, many states have adopted jurisdiction based on where the crime takes place[18]in other words, it is based on in which territory the crime takes place and not the nationality of those who committed the crime. In the case of Rohingya, the alleged deportation is accomplished in Bangladesh and hence it takes place in Bangladesh. As Bangladesh is a state party to the Rome Statute, the court may exercise its jurisdiction because one element or part of the crime is taking place in Bangladesh. Therefore, the decision of the Pre-trial Chamber to allow the existence of the jurisdiction based on Article 4 (2) and Article 12 (2) (a) is strongly appropriate.

Alleged Crime Fall under Article 5 of the Rome Statute

  • Crimes Against Humanity

It is important to note that, the Court jurisdiction under article 12 (2) (a) would only be justified if there is a crime under Article 5 is committed.[19]Under Article 5 of the Rome Statute, there are four crimes that classified as the most serious crimes. Those crimes are; (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; and (d) the crime of aggression.[20]The alleged deportation of Rohingyas from Myanmar to Bangladesh is classified as crimes against humanity. Distinguish from war crimes, crimes against humanity does not require to be in armed conflict situations.[21]Crimes against humanity involve various inhumane acts that execute in a widespread or systematic way, directed against civilian, and with knowledge of the attack.[22]‘The term ‘widespread’ required large-scale action involving a substantial number of victims, whereas the term ‘systematic’ requires a high degree of orchestration and methodological planning’.[23]The term ‘widespread’ could be seen from the fact that there have been around 670,000 people being deported from Myanmar since 25 August 2017, joining more than 160,000 refugees that were fled out of Myanmar from the previous years.[24]It shows that there is a large-scale number of people being alleged as a victim, and therefore it presents the characteristic of ‘widespread’.

To add more evidence to support the argument, the deportation of Rohingyas was not only executed in ‘widespread’ manner but also in a ‘systematic’ manner. According to the Prosecutor, the available information indicates that the acts were well organised and in a systematic way.[25]In 1982, the Myanmar government passed the Citizenship Law which categorised 135 ethnicities of Myanmar as national races, and Rohingyas is not included in one of those 135 national races.[26]As ‘systematic refers to the existence of a policy or plan’[27]the fact that Myanmar government has not included Rohingyas as one of their national races in the law and has as well adopted policies and plans designed to jeopardise and destruct Rohigyas in Western Myanmar since 1978[28], indicated that the crime is committed in a ‘systematic’ way. It shows that there is a deliberate attempt to target a civilian population[29]which in this case is Rohingya population. Hence, in line with Pre Trial Chamber statement, the alleged crime is appropriately categorised as crimes against humanity under article 7, with specifically 7 (1) (d), (h), and (k).

  • Alleged Crimes under Article 7 (1) (d), 7 (1) (h), and 7 (1) (k) of the Rome Statute

The alleged deportation of Rohingyas from Myanmar is a possible violation to the Rome Statute Article 7 (1) (d)[30]stated that ‘deportation or forcible transfer of population’ is one of the crimes under crimes against humanity.[31]Deportation and forcible transfer are two separate crimes, this was stated by the Prosecutor[32]and agreed by the Pre Trial Chamber.[33]However, because of the word ‘or’ provides two alternatives[34]only one crime committed, in this case is deportation, is sufficient to declare that it has potentially violated Article 7. Within this regard, there are certain amounts of evidence presents to show that the violation exists.[35]According to Article 7 (2) (d) deportation or forcible transfer of population means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’.[36]The deportation must be done by force, either physical or other forms of force such as psychological oppression and categorised as unlawful displacement under international law.[37]This is reflected in the case of Rohingya, where hundreds of thousands of Rohingyas were forced to be deported out of Myanmar in an indecorous manner. It is important to note that the definition of ‘lawfully’ present should be seen from not just domestic law but also international law.[38]For instance, although according to Myanmar domestic law, Rohingyas is not lawfully present in Myanmar[39], the international community would have to reassess the credibility of the statement based on customary international law. As there is evidence that Rohingyas have resided in Rakhine State before Myanmar independence and even before the colonial period[40]it could be a strong indication that Rohingyas are lawfully present in Myanmar, despite what is stated in Myanmar domestic law.

To go into depth of the matter, this facts leads to other crime such as ‘persecution’, fall under Article 7 (1) (h) of the Rome Statute. According to Article 7 (2) (g) of the Rome Statute, ‘persecution means the intentional and severe deprivation of fundamental rights contrary to international law by reasons of the identity of the group or collectivity’.[41]Although at glance persecution seems like a crime under human rights law and not criminal law, the ‘extreme forms amounting to deliberate persecution clearly are criminal’[42]and therefore the inclusion of persecution under Article 7 is appropriate. In the case of Rohingya, there is an intention from Myanmar government to not wanting the Rohingyas in Myanmar, which evidently written on its law.[43]This intention for not wanting the population, is possibly developing into something else, in which in the end did develop to something else, from not wanting the population to end up intentionally destructing the population, which is proved by its policies in 1978.[44]This has created severe deprivation of the Rohingyas fundamental rights, including the right to equality, right to property, right to freedom, and right to freedom of religion. The act of deportation itself has forced them to become[45]refugees and prevent those to return back to its country. This has caused ‘great suffering and serious injury to mental health’ and the nature of it force the Rohingyas to live in deplorable conditions[46]. Within this, it could also be classified as ‘other inhumane acts’. Therefore, the alleged crime is not just potentially violated Article 7 (1) (d) related to deportation, but also Article 7 (1) (h) related to persecution and 7 (1) (k) related to other inhumane acts.

  • Possible other Crimes under Article 5 to Emerge

It is important to see that deportation in itself is a unique case, it is a continuous act, potentially has no end and could lead to other crimes. With the explanation in Article 7 of the Rome Statute, it appears that the person accused of crimes committed under crimes against humanity, which include deportation, has the knowledge and, because of its execution in a systematic way, indicate that there is an intention to commit the crime. In other words, if the act of deportation is to remove one specific ethnic out of the state, there is an intention, whether it is directly or indirectly, to not wanting the specific ethnic to exist within the state. The question arises is what would happen if the deportation fail? What would happen if the international community send those who were deported back to the state? The people of this one specific group would have no choice other than to go back to the state that deported them. When deportation fails, the intention for not wanting this specific group to be inside the state would high likely become ‘destroying’ the group, because it is the only option to eradicate the group from the state, other than deportation. This theory applies to the case of Rohingya.

Even when deportation still on-going and has not failed, there have been attacks directed against the civilian population of Rohingyas, that was well coordinated.[47]‘These attacks allegedly included killings, rape, torture, and enforced disappearance, affecting thousands of victims’.[48]If deportation fails, there is a high possibility that the crime will shift from crimes against humanity to genocide. According to the ICJ[49], genocide is committed where there is an intent to destroy a group within a specific geographical area.[50]In this case, it could be implemented as destroying the Rohingyas in Rakhine State. One could argue that because there is evidence of Myanmar armed forces killed members of the Rohingyas community with the intention to destroy them, the crime could fall under Article 6 of the Rome Statute which is genocide.[51]Regardless of how and where the crime takes place, what is important to be classified as a crime under genocide is the intent to destroy a specific group.[52]Therefore, as the intention appears quite clear, the crime could shift to genocide. Nevertheless, whether the alleged crime committed is categorised as genocide under Article 6 of the Rome Statute or not, it is classified as crimes against humanity under Article 7 of the Statute, and it is important for the international community to take this case into account. Otherwise, there is a high possibility that the crime could shift to genocide.

Universal Jurisdiction

Another important element to support the existence of the Court jurisdiction in the case of Rohingya is the concept of universal jurisdiction. In its brief definition, universal jurisdiction claimed that any states or international organisations are able to exercise criminal jurisdiction wherever the crime is located, regardless of the nationality of the suspect or the victim of the crime.[53]This is linked to the purpose of universal jurisdiction based on the idea of international crimes affect the international legal order as a whole.[54]The establishment of universal jurisdiction will rely on the universal principle[55], and hence universal jurisdiction may exist to deal with the appropriate crime. With the alleged crime in the case of Rohingya is classified under Article 5 of the Rome Statute as ‘one of the most serious crimes of concern to the international community as a whole’, and with the human rights violations is one of the main concerns of the international legal system and not just particular state or individual[56], it is appropriate to say that this crime is a matter of international community, and therefore universal jurisdiction may exist to deal with the crime.

Conclusion

The Pre-trial Chamber decision to exercise jurisdiction over the alleged deportation of Rohingyas from Myanmar to Bangladesh is justified. There are three main reasons for this justification. Firstly, according to Article 12 (2) (a), the Court may exercise its jurisdiction on cases where one or more of the crime takes place in one of the member’s territory.[57]In this case, although Myanmar did not sign the Rome Statute, the act of deportation take place in at least more than one state. The alleged crime that was committed, not just take place in Myanmar, but also in Bangladesh, which is a state party to the Rome Statute. Thus, jurisdiction may exist within this reason. However, jurisdiction only can exist if one of the crimes under Article 5 is committed[58], which lead to the second point. The alleged crime fall under Article 7 which is crimes against humanity, specifically under Article 7 (1) (d) related to deportation, 7 (1) (h) related to persecution, and 7 (1) (k) related to possible other inhumane acts. Furthermore, with the crime of deportation classify as a continuous act, there is a possibility for this crime to lead to another crime, such as genocide. Although it has not been proven yet, it is very possible for the crime to shift to genocide, if no action is taken into account to cease the deportation. Regardless, the alleged crime is classified under one of the crimes listed in Article 5, and therefore jurisdiction may exist within the case. Thirdly, under the term of universal jurisdiction, international court like the ICC is allowed to prosecute individuals for any serious crime against international law. This serious crime is written in Article 5 of the Rome Statute, and because according to the second point the crime of deportation is fall under crimes against humanity, hence the court may exercise its jurisdiction based on the term of universal jurisdiction. The first and second point, supported by the third point has conducted a strong argument to support the Pre-trial Chamber decision to exercise jurisdiction over the alleged deportation of Rohingyas from Myanmar to Bangladesh.


[1]International Criminal Court.

[2]International Criminal Court, ‘Preliminary Examination: Bangladesh/Myanmar’ (International Criminal Law, 2018) <https://www.icc-cpi.int/rohingya-myanmar> accessed 17 November 2018.

[3]Ibid.

[4]Elliot Higgins, ‘Transitional Justice for the Persecution of the Rohingya .’ (2018) 42(1) Fordham International Law Journal.

[5]Robert Cryer et al., An Introduction to International Criminal Law and Procedure(3rd edn, Cambridge University Press 2014).

[6]Oxford Dictionaries, ‘Jurisdiction’ (Oxford University Press, 2019) <https://en.oxforddictionaries.com/definition/jurisdiction> accessed 12 December 2018.

[7]Preliminary Examination Bangladesh/Myanmar (Prosecutor Request) ICC-RoC46(3)-01/18-1 (09 April 2018).

[8]Preliminary Examination Bangladesh/Myanmar (Pre-trial Chamber I Decision) ICC-RoC46(3)-01/18-37 (06 September 2018).

[9]Higgins (n 4).

[10]Ibid 119.

[11]Ibid.

[12]Rome Statute 1998, art 4 (2).

[13]Rome Statute 1998, art 12 (2) (a).

[14]Pre-trial Chamber I Decision (n 8).

[15]Ibid.

[16]Prosecutor Request (n 7).

[17]Cryer et al (n 5) 52.

[18]Pre-trial Chamber I Decision (n 8).

[19]Rome Statute 1998, art 12 (1).

[20]Rome Statute 1998, art 5.

[21]Cryer et al (n 5).

[22]Ibid.

[23]Darryl Robinson, ‘Defining ‘Crimes Against Humanity’ at the Rome Conference’ (1999) 93 (1) The American Journal of International Law.

[24]Prosecutor Request (n 7).

[25]Ibid.

[26]Higgins (n 4).

[27]Simon Chesterman, ‘An Altogether Different Order: Defining the Elements of Crimes Against Humanity’ (2000) 10 (307) Duke Journal of Comparative and International Law, 314.

[28]Maung Zarni and Alice Cowley, ‘The Slow-Burning Genocide of Myanmar’s Rohingya.’ (2014) 23(3) Pacific Rim Law and Policy Journal.

[29]Chesterman (n 27).

[30]Pre-trial Chamber I Decision (n 8).

[31]Rome Statute, art 7 (1) (d).

[32]Prosecutor Request (n 7).

[33]Pre-trial Chamber I Decision (n 8).

[34]Ibid.

[35]Higgins (n 4).

[36]Rome Statute 1998, art 7 (2) (d).

[37]Cryer et al (n 5).

[38]Ibid.

[39]Higgins (n 4).

[40]Zarni and Cowley (n 29).

[41]Rome Statute 1998, art 7 (2) (g).

[42]Robinson (n 24) 54.

[43]Higgins (n 4).

[44]Zarni and Cowley (n 29).

[45]Prosecutor Request (n 7).

[46]Pre-trial Chamber I Decision (n 8) 44.

[47]Prosecutor Request (n 7).

[48]Ibid 6.

[49]International Court of Justice.

[50]Cryer et al (n 5).

[51]Higgins (n 4).

[52]Cryer et al (n 5).

[53]Ibid.

[54]Ibid.

[55]Kenneth Randall, ‘Universal Jurisdiction under International Law’ (1988) 66 (785) Texas Law Review.

[56]Ibid.

[57]Rome Statute 1998.

[58]Ibid.

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“To be called refugee is the opposite of an insult; it is a badge of strength, courage, and victory.”

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