The ICC Has Jurisdiction over One Form of Genocide in the Rohingya Situation

A number of commentators — including me — have questioned whether the OTP should open an investigation into Myanmar’s treatment of the Rohingya if that investigation would be limited to the crime against humanity of deportation. Here, for example, is what I wrote in April:

[T]here 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.

The PTC’s decision yesterday fundamentally changes that calculus. The OTP will no longer be limited to investigating “deportation and deportation alone.” On the contrary, the PTC did everything but order the OTP to also investigate the crimes against humanity of persecution and “other inhumane acts.”

Nor is that all. I think it is now clear that the OTP can investigate genocide, as well — at least the form in Art. 6(c) of the Rome Statute, “deliberately inflicting conditions of life calculated to bring about physical destruction.”

Recall the central principle of the PTC’s analysis:

74. The Chamber considers it appropriate to emphasise that the rationale of its determination as to the Court’s jurisdiction in relation to the crime of deportation may apply to other crimes within the jurisdiction of the Court as well. If it were established that at least an element of another crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party, the Court might assert jurisdiction pursuant to article 12(2)(a) of the Statute.

As Kip Hale and I discussed today on Twitter, the PTC notably did not limit the Court’s territorial jurisdiction to crimes whose essential elements necessarily take place in two states. If that was the case, the Court’s jurisdiction might indeed be limited to deportation as a war crime and as a crime against humanity. (I’d have to think about other possibilities.) Instead, the PTC adopted a much broader approach, holding that the Court has jurisdiction over any crime committed primarily on the territory of a non-state party as long as, as a factual matter, either an essential element or part of the crime is committed on the territory of a state party. That is why the PTC implies that the Court “might” — nudge, nudge; wink, wink — also have territorial jurisdiction over the crimes against humanity of persecution and other inhumane acts. Neither crime necessarily takes place in more than one state, but in fact both did take place in two states in the context of Myanmar’s violence toward the Rohingya: their persecution took place in part in Bangladesh because the crime of persecution was connected to a deportation that was only complete once they were driven out of Myanmar; their inhumane treatment took place in part in Bangladesh because the prohibited act –causing the Rohingya great suffering — was not permitting them to re-enter Myanmar.

And here’s the rub: under this approach, the Court also has jurisdiction over “conditions of life” genocide. That form of genocide has the following elements:

1. The perpetrator inflicted certain conditions of life upon one or more persons.

2. Such person or persons belonged to a particular national, ethnical, racial or religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

4. The conditions of life were calculated to bring about the physical destruction of that group, in whole or in part.

5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

Let’s assume that these elements are satisfied not only within Myanmar — as the Independent International Fact-finding Mission on Myanmar has found — but in Bangladesh, as well. In other words, let’s assume that the Myanmar military drove the Rohingya into Bangladesh not just to ethnically cleanse Mynamar, but also — echoing the Armenian genocide — to subject the Rohingya to conditions of life that would naturally (without outside intervention) lead to their destruction. That assumption seems sound, given the horrific conditions in the refugee camps in Bangladesh. Here, for example, is a snippet of a report by UNICEF:

As of 27 January 2018, the Inter-Sector Coordination Group (ISCG) reported that almost 688,0001 Rohingya refugees have entered Bangladesh since the attacks. Per ISCG’s rapid needs assessment, 58 per cent of new arrivals are children and 60 per cent are girls and women including a high number of pregnant (3 per cent) and lactating women (7 per cent). The estimated total affected population of existing refugees, new arrivals and host communities is 1.2 million people. 2 This includes 720,000 affected children in need of urgent humanitarian assistance including critical life-saving interventions.

Existing basic services for refugees and host communities have been overwhelmed due to the sudden and massive increase in population. The high population density in the settlements has increased the risk of disease outbreaks and 1.2 million people urgently require water and sanitation services. More than 17 million litres of clean water per day are needed and approximately 50,000 latrines with semi-permanent structures need to be constructed or maintained. Vaccination coverage amongst new arrivals is very low and deadly outbreaks of communicable diseases (measles and diphtheria) have already occurred. In the densely-populated settlements, with poor sanitation and hygiene conditions, an outbreak of cholera or acute watery diarrhoea (AWD) is a risk that is being addressed in the rainy/cyclone season preparation plan. Urgent nutrition needs have been prioritized for children under five (including infants), pregnant and lactating women (PLW) and adolescent girls, with 3 per cent of children suffering from life-threatening severe acute malnutrition (SAM) in the biggest settlement (Kutupalong). An estimated 400,000 Rohingya children are also in need of psychosocial support and other protection and education services.

If these conditions amount to “conditions of life… calculated to bring about the physical destruction” of the Rohingya, at least one of the essential elements of that form of genocide is taking place on the territory of a state party, Bangladesh. And that means, pursuant to the PTC’s decision yesterday, that the Court has jurisdiction over conditions of life genocide in the Rohingya situation.

I am somewhat surprised that the PTC did not discuss genocide in its decision, given (1) the structural similarities between genocide and the crime against humanity of persecution, and (2) the similar argument made by Global Rights Compliance, under the able leadership of my friend Wayne Jordash QC, in its excellent brief on behalf of Rohingya victims. The PTC’s silence likely reflects its belief that the factual predicates for conditions of life genocide are less clearly established than for the crimes against humanity of persecution and “other inhumane acts.”

The point of an OTP investigation, however, is to establish the facts necessary to bring charges against individuals responsible for international crimes. So there is no reason why the OTP shouldn’t investigate whether Myanmar officials have committed conditions of life genocide against the Rohingya in Bangladesh. If the necessary factual predicates can be established, the Court clearly has territorial jurisdiction over that crime.

NOTE: I want to acknowledge Toby Sterling of Reuters, whose email this morning started me thinking about this issue. He anticipated many of the points I make above.