Crimes against the Rohingya: ICC Jurisdiction, Universal Jurisdiction in Argentina, and the Principle of Complementarity

[Marta Bo is a Researcher at the Graduate Institute, Geneva and at the T.M.C. Asser Institute in The Hague.]

On 14 November 2019, Pre-Trial Chamber III (PTC III) authorized the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) to investigate crimes allegedly committed against the Rohingya population (Article 15 Decision). This decision was unsurprising in light of the Jurisdiction Decision delivered by Pre Trial Chamber I (PTC I) in September 2018. More surprising was that only one day earlier Argentinian courts were seized of a criminal complaint concerning crimes against the Rohingya filed on the basis of universal jurisdiction by Burmese Rohingya Organization UK (Brouk). If Argentinian courts take up this case, it would mark the first time that an investigation of international crimes based on universal jurisdiction begins in parallel with ICC investigations.

These developments give us the opportunity to examine the relationship between the ICC’s jurisdiction and states’ universal jurisdiction. In a short article published in the first issue of the Journal of International Criminal Justice, Louise Arbour hoped that “[t]he express preference for domestic prosecutions in the Rome Statute may lead to an increase in the exercise of universal jurisdiction by states” (p. 587). In brief, she considered that the principle of complementarity in the ICC system could be operationalized by policy decisions and actions aimed at encouraging the exercise of national jurisdiction, including universal jurisdiction. With regard to states with links with crimes, complementarity can translate in direct support on the part of the ICC to local institutions and judiciaries. The effect of complementarity with regard to universal jurisdiction is, however, different. ICC intervention can be rather seen as generating an opportunity and offering implicit support for universal jurisdiction cases to arise. This might hold true for the ICC and Argentinian actions in relation to crimes against the Rohingya. More specifically, as will be discussed in this blog post, it seems that the ICC’s limited territorial jurisdiction over these crimes has encouraged reliance on universal jurisdiction and will arguably have a decisive weight on these courts’ future decision to take up the case.

Should the two investigations begin in parallel it is important to explore the relationship between the potential cases in Argentina and before the ICC. The principle of complementarity requires deference to national prosecutions not limited to states with links to the crimes. The principle of complementarity could also entail a “division of labor” between the ICC and national jurisdictions acting on the basis of universality.

For the purposes of assessing the role of universal jurisdiction with regard to the ICC’s jurisdiction and the relationship between the two investigations over crimes against the Rohingya, we must first discuss the findings of the Article 15 Decision with regard to ratione loci jurisdiction as a precondition to the exercise of jurisdiction by the ICC, which will ultimately delimit the scope of potential cases before the ICC.

The Scope of the ICC Investigations over Crimes Against the Rohingya

When investigations are initiated proprio motu, RS Article 12 conditions the exercise of jurisdiction by the ICC on either territorial (RS Article 12(2)(a)) or active nationality (RS Article 12(2)(b) jurisdiction being fulfilled. That Myanmar is not party to the Rome Statute precludes the ICC from relying on strict territoriality and active nationality in relation to crimes committed on Myanmar’s territory by nationals of Myanmar.

With regard to territoriality, RS Article 12(2)(a) provides that the ICC has jurisdiction if the conduct in question occurred on a State Party’s territory. The Article 15 Decision confirms PTC I’s Jurisdiction Decision finding that the partial commission of a crime on the territory of a State Party is considered sufficient for the ICC to fulfill the territorial jurisdiction precondition.

More specifically, in the Article 15 Decision PTC III held that in order for the ICC to exercise ratione loci jurisdiction at least “part of the criminal conduct (i.e. the actus reus of the crime” must occur on State Party’s territory (para 61). As such, the first relevant point is that the Article 15 Decision interprets “conduct” in RS Article 12(2)(a) as “actus reus”, thus specifying PTC I’s finding that the ICC exercises ratione loci jurisdiction if “one legal element of a crime” or “part of such a crime” is committed on the territory of a State Party (Jurisdiction Decision, para. 72).

Second, on the basis of this interpretation of RS Article 12(2)(a), PTC III (para. 62) found that:

the alleged deportation of civilians across the Myanmar-Bangladesh border, which involved victims crossing that border, clearly establishes a territorial link on the basis of the actus reus of this crime (i.e. the crossing into Bangladesh by the victims’.

Read together with para. 50, where PTC III endorsed that the actus reus encompasses the consequences of criminal conduct, this finding could be construed as establishing that the “crossing of borders” by victims of the crime of deportation is a consequence forming part of the actus reus of the crime of deportation. This interpretation would accord with the Elements of the Crimes and the interpretation in the Decision on the Confirmation of Charges in Ruto (paras. 244 and 245) where forcing the victim to leave the area to another State or location” (i.e. the crossing of borders by the victims) was interpreted as the effect of the conducts of expulsion or other coercive acts.

With regard to the scope of the investigations, PTC III went beyond the crime of deportation and authorized “the commencement of the investigation for any crime committed at least in part on the territory of Bangladesh or other state party” (para 124).

In light of the above finding, investigations will therefore include any crime where the actus reus (including consequences) occurred at least in part on the territory of a State Party. This cross-boundary element will thus limit the selection of incidents that will form the basis for the charges before the ICC.

Nonetheless, one can raise doubts about the scope of investigations authorized by PTC III. The expansive reading of the word ‘conduct’ seems indeed unwarranted.

PTC III dismissed the relevance of the distinction between the word ‘conduct’ in relation to territorial jurisdiction as distinct from the word ‘crime’ used in relation to jurisdiction on a vessel/aircraft in RS Article 12(2)(a) to describe the ratione loci preconditions to the exercise of jurisdiction (Article 15 Decision, paras. 48 and 49). There are persuasive arguments countering the conflation of ‘conduct’ and ‘crime’ (see Ardy, pp. 195-199).

In addition, there are further arguments against interpreting ‘conduct’ as equating to actus reus and as including the consequences of the criminal act within the Rome Statute.It is true that in common law systems the actus reus encompasses the consequences of the physical criminal act. However, the Rome Statute rejected the use of the paired terms actus reus/mens rea, instead opting for material elements/mental element. The Rome Statute characterizes crimes in terms of differing types of material elements (‘conduct’, ‘consequences’ and ‘circumstances’), with RS Article 30 assigning different corresponding mental elements to each. ‘Conduct’ refers to the ‘act or omission’ prohibited by the crime in question and does not include the consequence/result of the act or omission (see Heller, p. 602).

In sum, the choice of wording in RS Article 12(2)(a) and its context support a strict interpretation of ‘conduct’ in Article 12(2)(a). Moreover, both the silence of the Rome Statute and the preparatory works with regard to jurisdiction over cross-boundary crimes, as well as the principle of legal certainty, weigh against departing from a strict reading of the Rome Statute and call for caution in adopting broad interpretations extending the territorial reach of the ICC (see also Schabas, p. 68).

In any event, the ICC’s territorial jurisdiction places constraints on the scope of investigations and cases before the ICC. Moreover, the ICC’s extensive interpretation of RS Article 12(2)(a) could give rise to challenges to the ICC’s jurisdiction under RS Article 19 by, for example, the accused or by Myanmar, which could derail the entire proceedings.

Complementarity: ICC Investigations and Universal Jurisdiction in Argentina

It is well known that complementarity embodies the notion that the ICC was designed to supplement rather than supplant domestic prosecutions of international crimes. Embedded in the Rome Statute is a presumption in favor of domestic proceedings, and under RS Article 17 a case is inadmissible and the ICC is barred from exercising its jurisdiction, if ‘a state with jurisdiction over the case’ is investigating or prosecuting the same case as is before the ICC, unless the state is ‘unwilling’ or ‘unable’ to genuinely conduct investigations or prosecutions. Under RS Article 17 ‘a state with jurisdiction over the case’ includes a state exercising universal jurisdiction.

At the commencement of and during an ICC investigation, the existence of concurrent investigations or prosecutions at the national level must be taken into consideration by the OTP in its admissibility assessments with respect to potential cases subject to an investigation by the ICC. Under RS Article 53 1(b) in deciding whether to initiate an investigation, the OTP shall consider whether the case is or would be admissible under RS Article 17. In its Request for authorization of an investigation, the OTP stated that no relevant investigation or prosecutions covering the same potential cases was taking place in Myanmar (para. 228) or in any third state (paras. 228 and 276).  The Article 15 Decision accepted that “on the basis of the currently available information, there is no indication that any potential future case would be inadmissible” (para 117).

The ‘same potential case’ test is fulfilled if national investigative steps or prosecutions cover the same groups of persons and the same crimes allegedly committed during those incidents, which together would likely form the object of the Court’s investigations (OTP’s Article 15 Request para 225).

As to the persons subject to investigation, for obvious confidentiality reasons we do not know who the subjects of the ICC investigations are. One cannot exclude the possibility of overlap with the universal jurisdiction case(s) before Argentinian courts which seem to include current State Counsellor Aung San Suu Kyi, senior generals, including former Presidents Thein Sein and Htin Kyaw, current President Win Myint, and top military commanders, including Senior General Min Aung Hlaing, the commander-in-chief of Myanmar’s armed forces.

As for the crimes and incidents object to the ICC’s investigations, these will only concern crimes and incidents with a cross-boundary element. By contrast, the universal jurisdiction complaint filed in Argentina concerns genocide and crimes against humanity committed in Myanmar. The complaint seems to put great emphasis on the crime of genocide, which cannot be the object of an investigation by the ICC because of the ICC’s limited territorial jurisdiction in this case (i.e. limited to cross-boundary crimes). Unlike the ICC investigations, the reach of universal jurisdiction enables the investigation and prosecution of crimes that occurred exclusively within Myanmar, and most importantly genocide. If Argentina will only investigate and prosecute the alleged genocide against the Rohingya and crimes within Myanmar, universal jurisdiction will assume a key role in complementing the ICC.

Conversely, let us assume that the Argentinian investigations and prosecutions will also cover cross-boundary crimes and incidents investigated by the ICC. In this scenario, universal jurisdiction, in light of its broader ratione loci scope, could supplant the ICC proceedings. Whether the ICC proceedings will be displaced will depend on the fulfillment of the ‘ability’ threshold on the part of Argentina and, mostly, on Argentina’s ability to obtain the accused (under RS Article 17(3)).

Conclusion

Recent developments before the ICC and in Argentina regarding crimes against the Rohingya constitute an opportunity to think about the interaction between the principle of complementarity and universal jurisdiction. From the above analysis one can conclude that the Argentinian case was likely encouraged by the ICC proceedings on crimes against the Rohingya. In particular, it seems that limitations in the ICC’s territorial jurisdiction incentivized reliance on universality. In this context, the principle of complementarity may lead to a ‘division of labor’ between the ICC and Argentina. Universal jurisdiction could complement the limited scope of the ICC’s jurisdiction by focusing on crimes and incidents committed entirely on Myanmar’s territory, including genocide.

While this seems the most likely scenario, complementarity might, however, require deference on the part of the ICC towards universal jurisdiction if (potential) cases before the ICC are considered inadmissible. This will depend on whether Argentina will also investigate and prosecute cross-boundary crimes and incidents and on Argentina’s ‘ability’ to obtain the accused.

A final scenario which could arise is that universal jurisdiction would fill the gap left behind by the ICC’s lack of jurisdiction. Should the extension of the ratione loci jurisdiction of the ICC be challenged under RS Article 19 by, for example, Myanmar or the accused, universal jurisdiction could assume a key role in prosecuting crimes against the Rohingya and be the only avenue for prosecution.

In any event, at present there is momentum for universal jurisdiction and the ICC to play their intended roles under the Rome Statute and in the broader international legal framework of prosecution of international crimes.