PTC I’s Problematic Closed, Ex Parte Hearing on the Myanmar Situation

by Kevin Jon Heller

Last Friday, Pre-Trial Chamber I issued an Order Convening a Status Conference to consider the OTP’s request for a ruling on whether the ICC has jurisdiction over Myanmar’s deportation of the Rohingya to Bangladesh — an issue I discussed here. According to the Order, the status conference will be held “on 20 June 2018… in closed session, only in the presence of the Prosecutor.”

I find a number of aspects of the short Order troubling. To begin with, I don’t understand why the PTC believes the status conference has to be held in closed session. Whether the ICC has jurisdiction over deportation from a non-member state to a member state is a pure issue of law, so what justifies the secrecy?

The answer seems to come in paragraph 4 of the Order, where the PTC says that, “[w]ith a view to adjudicating the Prosecutor’s Request, the Chamber orders the Prosecutor to consider the issues set out in the annex appended to the present order and to address them during the status conference.” The PTC thus clearly believes that there are other issues at stake concerning the OTP’s request in addition to the purely legal one. But the annex is also secret, so we have no idea what those other issues might be.

I am also troubled by the ex parte nature of the status conference. Why are counsel for Myanmar and Bangladesh not invited, given that the interests of those states are obviously affected by the jurisdictional issue — particularly Myanmar’s, given that the conference concerns the potential criminal responsibility of its officials? Even if the PTC is within its power to hold the status conference ex parte (which it probably is), doing so will only further alienate non-member states concerned with the ICC’s overreach and penchant for secrecy. So I hope the PTC has a very good reason for inviting only the OTP.

Finally — and perhaps most problematically — there is no doubt whatsoever that the PTC’s Order violates the Regulations of the Court, which the judges themselves wrote and adopted. Here is Regulation 20, concerning public hearings (emphasis mine):

1. All hearings shall be held in public, unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber.

2. When a Chamber orders that certain hearings be held in closed session, the Chamber shall make public the reasons for such an order.

Even if we assume that the PTC has the power to hold a closed hearing, the Order does not comply with Regulation 20(2). The Order makes no attempt to explain why the status conference cannot be held in public. Literally none.

The PTC’s failure to comply with the Regulations and its general lack of transparency is unacceptable given the stakes — legal and otherwise — in the Myanmar situation.

4 Responses

  1. Please note that the International Criminal Court has written to Bangladesh asking for its opinion on whether The Hague-based court has jurisdiction to run a case against Myanmar on Rohingya issue.
    The Pre-Trial Chamber 1 in the letter invited the competent authorities of Bangladesh to submit written observations, either publicly or confidentially, on the three specific matters.
    Those are:
    (i) the circumstances surrounding the presence of members of the Rohingya people from Myanmar on the territory of Bangladesh;
    (ii) the possibility of the Court’s exercise of territorial jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar into Bangladesh; and
    (iii) any other matter in connection with the prosecutor’s request that, in the opinion of the competent authorities of Bangladesh, would assist the Chamber in its determination of this Request.
    The court said the observations of the Bangladesh authorities would assist the chamber in its determinations of the request sub judice.
    Source: Rohingya crisis: ICC seeks Bangladesh’s opinion on running case against Myanmar,
    published: 2018-05-08,

  2. I noticed in a previous post that lawyers, in their discussion, spoke of deportation or transfer ‘to’ a state.
    Surely deportation occurs when the subject is ejected (deported) ‘from’ the state where he or she is entitled to be (whether de jure or de facto as may be disputed in the instant matter).

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  1. […] Prosecution on its jurisdiction request to be held next month, a move that has been questioned by Kevin Jon Heller. As Heller points out, it seems odd to have a closed hearing on what should be a purely legal […]

  2. […] Prosecution on its jurisdiction request to be held next month, a move that has been questioned by Kevin Jon Heller. As Heller points out, it seems odd to have a closed hearing on what should be a purely legal […]