ICC ratione loci Jurisdiction for Belarus: The Bangladesh/Myanmar Blueprint

[Vikrant Sharma works with the defence team of Mr. Kadri Veseli at the Kosovo Specialist Chambers in The Hague. He graduated cum laude from the advanced LL.M. in public international law, specialising in international criminal law, from Leiden University.]

The Chief Prosecutor of the International Criminal Court (‘the Court’ or ‘ICC’), Karim Khan, confirmed on 30 September 2024 that Lithuania had referred to the Court alleged crimes against humanity committed in the territory of Belarus, a non-State Party to the Rome Statute. Lithuania based this referral on the fact that certain elements of the alleged crimes had been committed in the territory of Lithuania itself, which is a State Party. It is well-established that the ICC has jurisdiction when a crime is committed in the territory of a State Party or when the perpetrator is a national of a State Party. But does the ICC have the territorial jurisdiction over crimes that are conducted on the territory of a non-State Party, and if so, what are the conditions required to establish said jurisdiction?

Establishing ratione loci jurisdiction of the ICC in such instances may have seemed an uphill task a decade ago, but the ICC’s jurisprudence in the Bangladesh/Myanmar investigation provides a well-defined blueprint to establish the territorial jurisdiction of the Court in situations such as the one Belarus finds itself in. This piece aims to establish that the jurisprudence developed in the Bangladesh/Myanmar investigation has a direct effect in establishing ICC’s territorial jurisdiction over Belarus.

Establishing Territorial Jurisdiction: The Bangladesh/Myanmar Way

Since 2017, the world has been a witness to the persecution of Rohingya Muslims – an ethnic group that the state of Myanmar does not recognize as its citizens – in the Rakhine state of Myanmar by the armed forces of the country. The violence that erupted in August 2017 and its aftermath was described by the United Nations High Commissioner for Human Rights as “a textbook example of ethnic cleansing”. Hundreds of thousands of Rohingyas fled across the border into Bangladesh over the next few months. While Myanmar is not a State Party to the Rome Statute, Bangladesh is.

On 9 April 2018, the Office of the Prosecutor (OTP) sought a ruling from the Pre-Trial Chamber on the question of territorial jurisdiction of the Court in the context of deportation of people from a non-State Party of the Rome Statute into a State Party, requiring in the process a clarification on the scope of Article 7(1)(d) which  deals with the crime of deportation and Article 12(2)(a) on preconditions to the exercise of jurisdiction. The OTP pointed to the fact that “more than 670,000 Rohingya, lawfully present in Myanmar, [had] been intentionally deported across the international border into Bangladesh”. Opining that the crime of deportation was complete when the victim was transferred from the territory of one state to the territory of another state, this element of the crime could only be completed when the victim was present in that second state. To fall within the jurisdiction of the Court under Article 12(2)(a), at least one element of an Article 5 crime must occur on the territory of a State Party. Therefore, it was the view of the OTP that the deportation of Rohingyas from Myanmar into Bangladesh did provide requisite territorial jurisdiction for the OTP to open an investigation.

The Decision of Pre-Trial Chamber I in this matter led to some debate on the legal basis of the Prosecution request and the scope of Article 19(3) of the Rome Statute, and whether the Court was competent to provide a decision on it (see, for example, the partially dissenting opinion of Judge Brichambaut).

Nevertheless, on the substantive question of ratione loci jurisdiction, the Chamber agreed with the Prosecution. It accepted the OTP’s argument that the scope of Article 7(1)(d) encompassed two distinct crimes, deportation and forcible transfer, with the former involving a victim crossing an international border. The Chamber acknowledged that the crime of deportation implies that “the conduct related to this crime necessarily takes place on the territories of at least two States”. Consequently, the Court can exercise jurisdiction over the crime of deportation when it is initiated in a non-State Party and completed upon the forcible transfer of victims to a State Party.

Following this, on 4 July 2019, the OTP submitted a request to open an investigation into the situation in Bangladesh/Myanmar. This was approved by Pre-Trial Chamber III on 14 November 2019. It concurred with the conclusions of Pre-Trial Chamber I, since part of the actus reus of the crime of deportation occurred on the territory of a State Party. It noted that Article 12(2)(a) of the Rome Statute did not specifically address instances where the Court could exercise jurisdiction over transboundary crime with respect to the territoriality principle. Nevertheless, it adjudged that it would be wrong to assume that the States intended for the Court’s jurisdiction to be limited to crimes exclusively occurring on the territory of a State Party.

The Case for a Belarus Investigation 

Belarus announced in August 2020 that the incumbent President Alexander Lukashenko had won the Presidential election with 80% of the vote. When this was contested by opposition leaders and protests erupted in Minsk, the government led a crackdown. Since October 2020, the European Union has imposed sanctions on Belarusian officials and entities in response to the ‘misconduct of the electoral process’ and the ‘repression and intimidation against peaceful demonstrators, opposition members and journalists’. 

Following this, a significantly greater number of migrants began arriving at the borders of a number of EU states with Belarus, specifically Lithuania, Latvia, and Poland. Thousands of people, mostly from Iraq and other areas of the Middle East and Africa, were shepherded by Belarus to its border with Lithuania. According to the transnational project National Integration Evaluation Mechanism, the number of people crossing the border from Belarus to Lithuania in 2021 increased thirtyfold compared to 2020, with 4,150 irregular migrants de facto detained in Lithuania, in stark contrast to 81 detained in 2020.

Lithuania, Latvia, and Poland have accused President Lukashenko of working in cohort with the Russian President Putin to artificially manufacture a migrant crisis at their border, in an attempt to destabilize the European Union. The crisis led to Lithuania erecting a barbed wire fence along some parts of its 679 kilometer long border with Belarus, and demanding 120 million euros in compensation. 

In addition, the UN human rights office has estimated that  300,000 Belarussians have been forced to leave the country since 2020 and has noted that there are reasonable grounds to believe that “the crime against humanity of persecution may have been committed”.

In this factual context Lithuania, which is a State Party to the Rome Statute, has referred the situation in Belarus to the ICC Prosecutor for crimes against humanity beginning in April 2020 and partly continuing to the present day. This includes deportation, persecution and other inhumane acts against the civilian population of Belarus, committed in part on the territory of Lithuania which brings these acts within the jurisdiction of the ICC. 

As this article has explored, the crime of deportation involves the forcible transfer of victims across an international border, by expulsion or coercive acts. Pre-Trial Chamber III had clarified that the perpetrator may either physically remove the deportees or engage in coercive acts that cause them to leave the area where they were lawfully present. Based on this, if it can be established that the irregular migrants were arriving in Lithuania from Belarus due to expulsion or coercive actions on part of Belarus, then the ratione loci jurisdiction of the ICC would be established since the crime of deportation was completed only when the victims went across the border into Lithuania, which is a State Party.

Conclusion

The ruling in the Bangladesh/Myanmar case on the fundamental question of whether the ICC has territorial jurisdiction over the crimes committed on the territory of a non-State Party when an element of such crimes is completed in the territory of a State Party was bound to have far-reaching consequences. Five years later, the ICC is presented with a similar scenario where this approach might prove fundamental.

It must be noted that the legal position espoused by the Pre-Trial Chamber in the Bangladesh/Myanmar situation is not without its critics and challenges. In the instance of the referral of Belarus, however, it provides straightforward answers to a critical jurisdictional question.

Admittedly, establishing ratione loci jurisdiction is by long shot not the only task that the OTP will have to undertake. Receiving a referral from a State Party and starting a preliminary examination is only the first step in a long process, and we will have to wait to see if the Prosecutor does decide to seek permission to open an investigation and prosecute any cases in this context. In the meantime, however, the crisis continues to unfold.