Too Clever by Half: Why the ICC Will Probably Find No Jurisdiction Over the Deportation of the Rohingya

[Roi Bachmutsky is a human rights lawyer, recent graduate of Harvard Law School, and a Public Service Venture Fund and Sinclair Kennedy Traveling Fellow.]

The International Criminal Court (“ICC”) made headlines in April upon Prosecutor Fatou Bensouda’s filing of an Article 19(3) request for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh. This is a big deal, but not for the reason you may think. As grave crimes appear to have been committed in Myanmar’s Rakhine State, the prospect of the ICC side-stepping a deadlocked UN Security Council to bring some modicum of justice to the Rohingya has excited many. Yet it is imperative that we remain sober because there is a thorny issue that was previously, and nearly universally, thought to bar ICC intervention—the lack of personal and territorial jurisdiction.

An affirmative ruling on the Prosecutor’s request would be a Grotian moment of jurisdictional expansion for the ICC with consequences that will reach far beyond crimes in Myanmar. When the Rome Statute was drafted, States could never have imagined the Court extending the long arm of justice to capture crimes committed by the nationals of States not party to the Rome Statute in their own territory. That is why human rights advocates have called for universal ratification of the Rome Statute and why there is so much concern about African States, and recently also the Philippines, threatening to withdraw. But if the Pre-Trial Chamber finds there to be jurisdiction over deportation from a non-State Party (Myanmar) to a State Party (Bangladesh) as a result of conduct that solely occurred in the non-State Party, the Court would be taking a step toward establishing universal jurisdiction over international crimes. This would, in effect, be a re-writing of the Rome Statute to grant itself power over non-States Parties.

The Prosecutor’s request draws on some clever lawyering in arguing that a re-writing of the Rome Statute is merely a matter of interpretation, but it is ultimately too clever by half. Upon a closer look, its arguments are found to rest on a flimsy legal foundation and are thus likely to be rejected by the Pre-Trial Chamber.

The Prosecutor’s brief rests on a single legal premise: that Article 7(1)(d) of the Rome Statute prohibiting “[d]eportation or forcible transfer of population” ought to be read as two, distinct crimes. Once that is established, the brief may argue that an “essential legal element” of the crime against humanity of deportation is the “crossing of an international border.” Since the Prosecutor has taken the position that at least one element of a crime must occur on the territory of a State Party for territorial jurisdiction to attach, the brief concludes that the ICC has jurisdiction in Bangladesh because the border crossing element occurred there. Whatever the case may be as a matter of customary international law, neither the texts of the Rome Statute and the Elements of Crimes nor ICC jurisprudence permit such an interpretation.

Let us begin with the text of the Rome Statute. The first problem with the claim that “deportation or forcible transfer of population” reflects two, distinct crimes is that they are structured under a single provision in the treaty, Article 7(1)(d). The brief seeks to brush this issue aside by noting that there are other provisions of the Rome Statute that “likewise encompass several legally distinct crimes.” In a footnote, however, it acknowledges that half of the provisions it cites in support of this claim are expressly divided into distinct crimes by the Elements of Crimes, e.g. the crimes against humanity of rape and other forms of sexual violence found in Article 7(1)(g)-1 to 7(1)(g)-6, while Article 7(1)(d) is not so divided. Meanwhile, the other provisions cited—Article 8(2)(b)(iv) and 8(2)(b)(viii)—have not been litigated before the ICC and thus have not been held to encompass multiple, distinct crimes. It is notable that the corresponding war crimes prohibition of “[u]nlawful deportation or transfer or unlawful confinement” in Article 8(2)(a)(vii) was split by the Elements of Crimes into the crimes of “unlawful confinement” and “deportation and transfer”—keeping deportation and transfer intact.

The only available precedent for a single provision of the Rome Statute being divided without explicit distinction in the Elements of Crimes is Article 8(2)(e)(vii) prohibiting “conscripting or enlisting” child soldiers “or using them to participate actively in hostilities,” which the Lubanga Trial Chamber held to encompass “separate offenses.” However, even this precedent falls short because the Chamber’s citation to two Judgments and a Dissenting Opinion before the Special Court for Sierra Leone makes clear that by “separate offenses” it did not mean that these were three, distinct crimes but merely that different conduct could constitute a single crime (i.e. an “open-conduct crime”).

The text of the elements for Article 7(1)(d) is even more revealing. The “crime against humanity of deportation or forcible transfer of population” is presented in the singular form with a single set of elements. This is reinforced by footnote 13, which provides that “[d]eported or forcibly transferred” is interchangeable with “forcibly displaced” such that the disjunctive formulation becomes immaterial. Again, the brief sweeps this text under the rug by arguing that it cannot be taken to mean that “deportation” and “forcible transfer” are “the same as one another” as that would contradict the first element which provides that a person be displaced to “another State or location.”

This point is worth dwelling on because this argument is relied upon throughout the brief—deportation and forcible transfer are different. But different what? The brief conflates deportation and forcible transfer being different “things” with them also being different “crimes.” This is a false equivalence. Of course, the drafting history of the Rome Statute and Elements of Crimes makes clear that deportation and forcible transfer are different “things”; deportation refers to the displacement of persons to the territory of another State while “forcible transfer” is the displacement of persons to another location within the same State.

But footnote 13 clarifies that Article 7(1)(d) is a single crime—forcible displacement. Since only deportation across State borders was codified prior to the Rome Statute, its drafters described this crime in the disjunctive formulation (“deported or forcibly transferred”) to ensure that it receives a broad interpretation that encapsulates displacements within a State’s territory. The same drafting technique was used in Article 7(1)(e) with respect to the crime of “[i]mprisonment or other severe deprivation of physical liberty.” So while deportation and forcible transfer are different things, they remain one and the same crime. Therefore, the “crossing of an international border” is not an element of the crime, let alone an “essential” one.

This is why the brief’s analogy to a cross-border shooting is mistaken. In a cross-border shooting, an element of the war crime of attacking civilians, for instance, is that the object of the attack (presumably across the border) must be civilian in character. The war crime is only completed once the element involving the object of the attack is established on the other side of the border. The present case is distinct from a cross-border shooting because, as the crime is completed upon the forcible displacement of the Rohingya in Myanmar, their travel across the border to Bangladesh is not legally required. The same crime, involving the same conduct performed by the same perpetrators, was committed against displaced Rohingya who did not manage to escape across the border and remain trapped in Myanmar to this day.

This conclusion has been cemented by the Pre-Trial Chamber’s confirmation of charges decision in Ruto. In that decision, the Chamber was faced with a challenge by the Defense that the disjunctive formulation in the Prosecutor’s charges (“deportation or forcible transfer of population”) was prejudicial to the accused because it compelled a defense against two crimes in the alternative. The Chamber rejected this argument in finding that the evidence presented provided substantial grounds to believe that the victims were “forcibly displaced.” It held that Article 7(1)(d) is a “unique crime” (read: singular) with “two labels” that depend on whether the “effect” of the displacement results in relocation within or outside the State. The Chamber was satisfied that these “labels” would be resolved by the Trial Chamber after charges are confirmed.

The brief takes issue with this holding in questioning the “legal significance” of the different “labels.” But that is precisely the point. The legal significance of the two “labels” exists to ensure a broad interpretation of the crime by articulating its two forms. After all, if the brief is correct that the crossing of an international border is an essential element of the crime, how could the Chamber have confirmed the charge of deportation while holding that “the evidence presented before the Chamber does not and should not indicate with any sort of certainty where the victims ultimately relocated”? It couldn’t, and therefore didn’t. In fact, Ruto stands for precisely the opposite proposition. Under the Rome Statute, Article 7(1)(d) is a single crime and, therefore, the destination of the victims is not an element of the crime but merely an “effect” used to “label” it after the charge is confirmed.

Upon refuting the Prosecutor’s claim that deportation and forcible transfer are really two, distinct crimes, the rest of the argument cannot stand. If this is a single crime with two forms, the crossing of an international border is not an element of the crime but merely a collateral effect. Therefore, according to the Prosecutor’s own standard for establishing territorial jurisdiction, there is no basis for jurisdiction in Bangladesh because “the conduct in question,” within the meaning of Article 12(2)(a), did not occur there. As such, the Pre-Trial Chamber is likely to hold that the Rome Statute does not provide jurisdiction over the deportation of the Rohingya.

Admittedly, I am disheartened that the ICC is unlikely to have jurisdiction over atrocity crimes committed against the Rohingya absent a UN Security Council referral. Yet that is all the more reason to place pressure on the P5 to permit referral and, critically, broader Security Council reform. To seek to bypass this reform by asking ICC judges to re-write the Rome Statute would be self-defeating, for it would have devastating consequences for the legitimacy of the Court. Like it or not, international law is still created by States and, if the Court strays from this fundamental principle, then States will surely reject the Court. States rightly expect the Court to apply lex lata (the law as it exists), rather than lex ferenda (the law as it should be).

As a reminder, the ICC is currently operating in a relatively hostile, nationalist environment. It is staring down the barrel of confrontations with powerful non-State Parties to the Rome Statute—including the United States, Russia, and Israel among others—which may not appreciate an illegitimate expansion of the Court’s jurisdiction. The Court is also deeply concerned about a wave of withdrawals akin to those pursued by Burundi, South Africa, and the Philippines. Judicial overreach would most likely accelerate these withdrawals.

The ICC faces difficult days ahead in building cases against perpetrators of international crimes around the world, particularly outside of Africa. In these trying times, it may be tempting to expand the Court’s jurisdiction over less powerful States not party to the Rome Statute that are engaged in brutal atrocities. However, such a short cut may in effect short circuit international criminal justice. Let us remain sober and committed to enforcing the law as it stands—the ICC’s future is at stake.