By: Tanushree Nigam, JUNIOR RESEARCH ASSOCIATE, PILPG-NL
In a major decision, the International Criminal Court ruled on September 6, 2018 that the Court may exercise jurisdiction over the crime of alleged deportation of the Rohingyas from Myanmar to Bangladesh. The Pre-Trial Chamber accepted the OTP’s argument that the Court may exercise jurisdiction over the crime of cross border deportation of Rohingyas even though the alleged crime had been committed in Myanmar which is not a State Party. The Pre-Trial Chamber stated that this could be done as some “elements of the crime” had taken place in the territory of Bangladesh, which is a State Party. This judgment makes a towering statement that ICC’s jurisdiction is objective rather than subjective in nature. In this post, I discuss the basis and implications of the Chamber’s findings.
The Pre-Trial Chamber deemed that it had jurisdiction as at least one element of the crime of deportation took place on the territory of Bangladesh which is a State party. Article 12(2)a of the Rome Statute confers jurisdiction on the ICC if “one or more (of the following) States are parties to the Statute…a) The State on the territory of which the conduct in question occurred.” The Chamber relied on the textual interpretation of the word ‘conduct’ declaring that it is a broad term that encompasses the consequences of the act. The crime of deportation, in particular, is trans-boundary in nature. In the absence of the element of crossing of State boundaries, the crime is one of forcible transfer and not deportation. Hence the expulsion of Rohingya refugees to the territory of Bangladesh, which is a State party, constituted an important element of the crime of deportation, and the Court has jurisdiction over the dispute.
The jurisdiction of the Court was also invoked by reliance on the “effects doctrine”. Even though this was not stated in explicit terms, the Chamber referred to the case United States v. ALCOA in which a US Federal Appellate Court first enunciated this doctrine. Till 2018, over 1 million Rohingya refugees had sought refuge in Bangladesh, which is already one of the most densely populated regions of the world. The Court implied that even if the elements of the crime were not present in its territory, the effects of the crime of deportation did manifest in Bangladesh, which is a State party. This aspect allowed the Court to conclude that it has jurisdiction over the dispute.
The Pre-Trial Chamber also relied on the penal legislations of various States, (including the interpretation offered by the Supreme Court of Bangladesh in Abdus Sattar v. State). These legislations declare that the exercise of criminal jurisdiction by a State requires the commission of one of the legal elements/parts of the crime on its territory. It also relied on the penal code of Myanmar that grants authority to the Burmese Parliament to create laws that may try persons for crimes committed beyond its territory. The judges supplemented this argument by stating that the object and purpose of the Rome Statute grants to it the power “to assert jurisdiction over the most serious crimes of concern to the international community”…“on the basis of approaches to criminal jurisdiction that are firmly anchored in international law and domestic legal systems.”
The Case of the Republic of Korea (paragraph 38) had presented a similar proposition. In that case also the Office of the Prosecutor had relied on the doctrine of objective territoriality to establish jurisdiction of the Court. The case concerned cross-border firings by unidentified persons from North Korea, which is not a State party to the territory of South Korea, which is a State party. South Korea submitted that the Court had jurisdiction over the dispute because the crime culminated on the territory of a State party. The case was subsequently closed as the shootings had been directed at legitimate military targets. Nevertheless, the case reveals that the argument of objective territorial jurisdiction of the Court is not novel and has been long accepted.
This ruling may have a significant impact on the course that the ICC may adopt in other similar situations. Countries in Asia and Africa that are not signatories to the Rome Statute are witnessing movement of persons on a large scale to State Party territories. Would the ICC also have jurisdiction over these cases? What about movement from these countries onto the high seas? Critics of the Court have also raised questions about undermining State sovereignty and consent, which in the opinion of many forms the basis of the Rome Statute regime. This ruling is unlikely to be the final point of this developing area of international law.