Three Cautionary Thoughts on the OTP’s Rohingya Request

Three Cautionary Thoughts on the OTP’s Rohingya Request

Major news out of the ICC today: the OTP has formally asked the Pre-Trial Division to determine whether the Court has jurisdiction over the deportation of the Rohingya from Myanmar to Bangladesh. Here is the introduction of the OTP’s brief:

1. The Prosecution seeks a ruling on a question of jurisdiction: whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

2. Consistent and credible public reports reviewed by the Prosecution indicate that since August 2017 more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh. The UN High Commissioner for Human Rights has described the Rohingya crisis as “a textbook example of ethnic cleansing”, and according to the UN Special Envoy for human rights in Myanmar, it potentially bears the “hallmarks of a genocide”. The coercive acts relevant to the deportations occurred on the territory of a State which is not a party to the Rome Statute (Myanmar). However, the Prosecution considers that the Court may nonetheless exercise jurisdiction under article 12(2)(a) of the Statute because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).

3. Given these exceptional circumstances and the nature of this legal issue, the Prosecutor has exercised her independent discretion under articles 19(3) and 42 to seek a ruling on the question from the Pre-Trial Chamber. This will assist in her further deliberations concerning any preliminary examination she may independently undertake, including in the event an ICC State Party decides to refer the matter to the Court under articles 13(a) and 14.

This is one of the best OTP briefs I have ever read. It is rigorous, learned, and exceptionally sophisticated in its use of comparative materials. It is also far more persuasive than I expected it to be, particularly concerning the idea that the ICC has jurisdiction over a crime as long as one of its elements took place on the territory of a state party. I don’t know who wrote the brief — it names only Fatou Bensouda and James Stewart, the Deputy Prosecutor — but he or she needs to be promoted immediately.

I do, however, want to raise three concerns about the brief.

First, it is very important to understand how limited any ICC investigation into the Rohingya situation would be. There is a reason that the OTP is asking the Pre-Trial Division to offer its opinion only on deportation: no other war crime or crime against humanity necessarily involves conduct that crosses an international border. So even if the Pre-Trial Division agrees with the OTP about deportation, the Court will still not have jurisdiction over the many other crimes committed against the Rohingya. Not genocide. Not murder. Not sexual violence. Those acts have taken place solely on the territory of Myanmar.

Second, and relatedly, there is the question of situational gravity. Should the OTP investigate the Rohingya situation if it can only charge perpetrators with deportation as a crime against humanity and/or as a war crime? There is no legal reason it cannot, but imagine if the Commander-in-Chief of the Myanmar Army ended up in the dock at the ICC. Would the Rohingya be satisfied if he was not charged with genocide or murder or sexual violence? Would Human Rights Watch or the International Commission of Jurists? Deportation is a serious crime, but it doesn’t inherently involve physical violence. And it’s unquestionably not the most serious crime committed by the Myanmar military and government. So I genuinely wonder whether an OPT investigation into deportation and deportation alone would be worth it.

Third, although I find much of the brief convincing, I am not completely sold on the OTP’s argument that “an essential legal element of the crime — crossing an international border — occurred on the territory of a State which is a party to the Rome Statute.” The argument assumes that it is not possible to distinguish between crossing an international border and being on the territory of the state on the other side. But is that correct? Can we really not view crossing an international border and being on the territory of the state on the other side as two spatially distinct acts?

Although it does not directly answer the question, there is at least one situation in which civilians can cross an international border without being on the territory of another state — when they are deported to the high seas. The OTP acknowledges as much in its brief. Here is footnote 32:

As a matter of law, however, it is not necessary to prove entry to another State, but merely that the victim has been ejected from the originating State—as such, a victim may potentially be deported to the high seas. What is crucial is that the international border, de jure or de facto, of the originating State is crossed. Hence, customary international law has emphasised consideration of the kinds of borders that might suffice: see e.g. Stakić AJ, para. 300; Đorđević AJ, paras. 533-536; Prlić TJ, Vol. I, para. 47; Popović TJ, para. 892.

The first sentence of the footnote seems important — and complicating. If deportation does not actually require proof of “entry to another State,” only the crossing of an international border, how can we say that an “essential element” of deportation was committed in State Y simply because civilians happened to enter there after crossing an international border? Either entry to another state is an essential element of deportation or it is not — and the high seas example seems to point toward “not.”

This argument does not hold, of course, if an international border is somehow dual territory: the territory of State X and the territory of State Y; the territory of State X and the high seas. An international border cannot be the territory of just the State into which the civilians enter, because that would mean, irrationally, that the border’s spatial location would change depending on which State — X or Y — was doing the deporting. But if an international border is dual territory, the OTP’s theory works: crossing an international border “between” the two states would take place on the territory of both State X and State Y.

There are, in short, two possibilities. The first is to assume that an international border is part of the territory of both of the states it divides. The second is to assume that an international border is part of the territory of neither of the states it divides. The first possibility means that the OTP is correct: the ICC has jurisdiction over the deportation of the Rohingya, because at least one “essential element” of deportation — crossing an international border — took place on the territory of a state party, Bangladesh. The second possibility means that the OTP is wrong: the ICC does not have jurisdiction over the deportation of the Rohingya, because no “essential element” of deportation took place on the territory of a state party, Bangladesh. The essential elements took place either in Myanmar or somewhere that does not qualify as either Myanmar’s territory or Bangladesh’s territory.

To be honest, I have no idea which possibility is correct. I simply do not know enough about the legal status of international borders. I just think the OTP’s assumption that the Rohingya crossing the border into Bangladesh necessarily means that an essential element of deportation took place in Bangladesh is less obvious than it might first appear.

I’m really glad I’m not a member of the Pre-Trial Division right now.

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Matt Brown

Hi Kevin,

Many thanks for the prompt post, and for raising some initial points. I have two thoughts in mind:

1. With respect to your second point, you initially frame it as one of ‘situational gravity’, but go on to critique gravity from the perspective of NGOs. To me, it seems we have two different issues here a) situation gravity from a legal perspective b) the wishes of the NGO community and Victims to see Myanmar genocide convictions. The point therefore seems a little conflated between the two. Any thoughts on gravity from the perspective of a) appreciated as the Brief skimps over it on page 28.

2. As more of a thought, and mentioned within the state practice evidence section of the Brief for Italian prosecutions, do you feel this has potential Pandora’s box implications for a Libyan (+ other refugee situations) migrants deportation investigation at the ICC? Libya Non-State Party > Italy State-Party, following a similar line of deportation reasoning and then would your point 3 here, come into play at all in this example?

Thanks,

Matt

Matt Brown

Many thanks for clarifying, although it may well be a case of “something is better than nothing” to play devils advocate on the point.

And I look forward to reading it.

Guy
Guy

Thank you, Kevin, very interesting development indeed. Another question might be: what if the Pre-Trial Chamber rules that for the ICC, deportation is the same as forcible transfer, i.e., the crossing of an international border is NOT an essential element of deportation? After all, the Rome Statute is not so clear on this, and considering the determination of some ICC Chambers not to follow ICTY precedents in the past, it is possible that Judges in this case will say that the clause in question refers to just one crime, which can be called both forcible transfer and deportation. In the circumstances of this case, the crossing into Bangladesh – even if not considered an essential legal element of the crime of deportation – is arguably nonetheless an essential feature of how deportation was carried out in practice: the authorities of the non-State Party can be alleged to have intended deportation across a border to ensure getting rid once and for all of the persons in question. Wouldn’t this suffice to establish ICC jurisdiction? After all, it seems important to assess not just the legal elements in the abstract, but also how in practice this appears to have been carried out.… Read more »

Talita de Souza Dias

Dear Kevin,

This is an extremely insightful post. Thank you for that.

My question is: Could it be that not only the ‘crossing of an international border’ but also the ‘transfer from one location to another’ (which could be either a state, the high seas, or another location other than the territory of the original state) are essential elements of the crime of deportation? (see Elements of Crimes, Article 7(1)(d), Element 1) Significantly, in that case, if the element ‘(transfer) to another state or location’ takes place or is completed in the territory of a state party, then the ICC could have jurisdiction over it. In sum, is it the case that deportation requires entry somewhere other than the territory of the same state, and if that somewhere is the territory of state party the ICC would have jurisdiction over it?

Thanks!

Guy
Guy

Thank you, Kevin, much appreciated. I am still not sure about this “essential element” issue – as long as (a substantial?) part of the crime is committed in a State Party, and that State Party would have jurisdiction on the basis of its own domestic laws (does anybody know if Bangladesh would be able to prosecute deportation/forcible transfer in this situation?), one could argue that it would be fair to assume “delegation” of jurisdiction to the ICC. While you are right that States drafted the jurisdictional parameters of the Rome Statute carefully, I am not sure they ever considered the Elements of the Crimes as such to be so important for jurisdictional purposes. Again, I am just not sure – the OTP position makes sense, and is extremely solid, so they played safe in this respect; we shall see what the Judges make of it….

Talita de Souza Dias

Thank you, Kevin!

I agree with you that there are two separate crimes in Article 7(1)(d) of the Statute (deportation and forcible transfer), and this reflects customary international law.

However, my point is that, for both crimes, there seems to be an essential element of (unlawful) transfer from one place to another (with the additional element of ‘crossing an international border’ for deportation, as you mentioned). In other words, both crimes seem not only to require the mere forcible removal or expulsion from the place of origin, but also the transfer to another location (in the Elements’ wording: ‘the perpetrator deported or transferred one or more persons to another State or to another location’). So, if deportation requires a transfer from one place to another, through an international border, and the place of destination is the territory of a state party, I don’t see why the ICC wouldn’t have jurisdiction over it, without the need to inquire into whether or not an international border is a dual territory or not.

Does that make sense?

Talita de Souza Dias

Thanks, Kevin!

But having ‘transfer to another location’ (together with ‘across an international border’) as an element of deportation doesn’t mean that the other location, i.e. the destination is necessarily a state (it could well be the high seas or another location as long as an international border is crossed). In that sense, I don’t think that the Elements go beyond custom, at least not if you interpret them in that way…

Talita de Souza Dias

True: it’s about how one reads the Elements. But I don’t think that my interpretation is idiosyncratic. It’s actually quite textual and not essentially different from your view and the OTP’s. I think that the key issue here is whether one conceives a forcible transfer or a removal (in both deportation and forcible transfer) as either 1) being completed when the victim reaches another destination, or 2) at the moment when the victim crosses the border (for deportation) or is expelled from its original location (for forcible transfer). I’d go for the first option, mainly because, to me, an expulsion, removal or forced transfer seems to logically imply that the destination is different from the origin. But, as you said, it’s all a matter of interpretation.

Talita de Souza Dias

Well, if the crime of deportation is only completed once the final destination is reached, then not only the ‘crossing of a border’ is an essential element of the crime, but also the (transfer to the) final destination (i.e. a state or another location). Accordingly, if this essential element happens to take place in the territory of a state party, the ICC has jurisdiction over it.

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