Basis and Implications of the ICC’s ruling against Myanmar

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. 

November 2019

Rachel Grand - Junior Research Associate PILPG-NL

Monthly News Update: International Criminal Court (ICC) – November 2019

In the past month, the International Criminal Court (ICC) authorized the Office of the Prosecutor to investigate alleged crimes against the Rohingyas. It also issued the long-awaited sentencing decision in the Bosco Ntaganda case.

Africa

Libya | ‘Violence, Atrocities and Impunity’ reign throughout Libya, ICC Prosecutor tells UN Security Council

The ICC Prosecutor spoke to the UN Security Council about how even after nearly a decade of working in Libya, the Court still sees the country entangled in a “cycle of violence, atrocities and impunity.”   This statement serves as a plea to the international community to end the Libyan conflict.  [November 6, 2019]

Democratic Republic of Congo | Ntaganda handed 30-Year prison sentence

The ICC judges sentenced Bosco Ntaganda to 30 years in prison.  This is the highest penalty the Court has ever given.  [November 7, 2019]

Congo | ICC confirms one year jail sentence, fine for Congo’s Bemba

Appeals judges confirmed Bemba’s one-year prison sentence and 3000,000-euro fine for interfering with witnesses who testified in his crimes against humanity and war crimes trials.  [November 27, 2019]

Europe

United Kingdom | International Criminal Court may investigate UK ‘war crimes cover-up’

According to news reports, the UK covered up instances of their troops killing civilians in Iraq and Afghanistan.  If the ICC authorizes the Prosecutor to open an investigation into these alleged crimes, it would be its first investigation into crimes committed by nationals from the UK.  [November 18, 2019]

Asia

Bangladesh/Myanmar | International Criminal Court authorizes investigation into crimes against Rohingya 

Pre-Trial Chamber II ruled that the Prosecutor can proceed with an investigation into the alleged crimes against humanity perpetrated against Myanmar’s Rohingya Muslim minority causing them to flee to Bangladesh.  [November 14, 2019]

November 2019

Monthly News Updates: Domestic Prosecution of International Crimes (DPIC) - November 2019

By Raghavi Viswanath and Erez Roman Junior Research Associates PILPG-NL

November was an important month for universal jurisdiction. Notably, victim groups initiated proceedings for the prosecution of core crimes in Norway, Sweden, and Argentina. This post provides an overview of some of these developments, and compiles updates on other domestic prosecutions of international crimes.

EUROPE

France | France's Lafarge has charge of crimes against humanity lifted

A French appeal court rejected a preliminary charge of “complicity in crimes against humanity” brought against cement maker Lafarge, part of Lafarge Holcim, over its operations in Syria.  But the French company still faces investigation into charges of “financing terrorism”, endangerment of people’s lives and violation of sanctions. (Nov. 7, 2019).

Belgium | Rwanda official on trial in Belgium over 1994 genocide

The trial of Fabien Neretse, a former Rwandan official and alleged Hutu militia leader, has commenced in Belgium.  Neretse is accused of committing genocide in Rwanda in 1994.  This is the fifth trial in Belgium in relation to the conflict in Rwanda of 1994 but the first in which the accused has been charged with the crime of genocide.  (Nov. 4, 2019).

Sweden | Iranian citizen arrested for crimes against humanity 

An Iranian citizen has been jailed in Sweden on the suspicion of carrying out crimes against humanity and murder in Tehran between July 28, 1988, and August 31, 1988.  His alleged crimes correspond with the end of Iran’s long war with Iraq, which began when Saddam Hussein invaded Iran in 1980.  (Nov.13, 2019).

Bosnia-Herzegovina | Former Serb soldiers plead guilty to crimes against humanity

Former Bosnian Serb Army soldiers Radovan Paprica and Slavko Ognjenovic pleaded not guilty at the Bosnian state court to crimes against humanity including rape and sexual abuse in the Foca area during the war in 1992.  (Nov.13, 2019).

Norway | Syrian torture survivors file complaint against the Syrian military

Five torture survivors from Syria have filed a criminal complaint in Norway against officials from the Syrian intelligence services and military.  The victims, supported by several human rights groups, have requested Norwegian prosecutors to investigate the allegations of torture and crimes against humanity.  17 officials have been identified as being involved in the alleged crimes committed in 14 different detention facilities.  (Nov.12, 2019).

Netherlands | Dutch state not obliged to take back Islamic State children

The Hague appeals court ruled that the Dutch state is not obliged to actively help repatriate the young children of women who left the Netherlands and joined Islamic State in Syria.

A lower court earlier this month had said the government must actively help repatriate 56 children living in poor conditions in camps in Syria.  (Nov. 22, 2019).

SOUTH AMERICA

Guatemala | Former Guatemalan army chief accused of crimes against humanity and genocide

Guatemala’s Attorney General’s Office presented its indictments against two of the three senior military officials charged in a new grave crimes case regarding the Maya Ixil genocide, which occurred during the military government of Romeo Lucas García (1978-1982). The indictments of Benedicto Lucas García, the former chief of the General Staff of the Guatemalan Army (and brother of the president), and retired General Manuel Callejas y Callejas, the former chief of military intelligence, occurred as part of a first declaration hearing that had previously been postponed.  (Nov.12, 2019)

Argentina | Complaint filed in Argentina over ethnic cleansing of Rohingya Muslims

Former democracy icon Aung San Suu Kyi is among several top Myanmar officials named on Wednesday (Nov 13) in a case filed in Argentina for crimes against Rohingya Muslims, the first time the Nobel Laureate has been legally targeted over the crisis.  Rohingya and Latin American human rights groups submitted the lawsuit in Argentina under the principle of universal jurisdiction, a legal concept enshrined in many countries' laws.  (Nov.13, 2019).

ASIA

Bangladesh | Crimes Against Humanity: SC upholds Azhar’s death penalty

The Supreme Court of Bangladesh upheld the death sentence of top Jamaat-e-Islami leader ATM Azharul Islam for his involvement in genocide and crimes against humanity during the 1971 Liberation War.  A four-member bench of the SC’s Appellate Division, headed by Chief Justice Syed Mahmud Hossain, delivered the verdict around five years after the International Crimes Tribunal-1 handed down capital punishment to Azhar for the crimes committed in Rangpur.  (Nov. 01, 2019).

NORTH AMERICA

United States | Trump clears three service members in war crimes cases

US President Donald Trump has cleared three service members who were involved in war crimes in Afghanistan and Iraq.  With the presidential executive order, Trump issued pardons for two soldiers, First Lt. Clint Lorance and Army Major Mathew Golsteyn, and reversed disciplinary action against Navy SEAL Edward R. Gallagher.  (Nov.15, 2019).

AFRICA

Democratic Republic of Congo | Congo court sentences warlord to life for crimes against humanity

A military court in the Democratic Republic of Congo (DRC) sentenced Frederic Masudi Alimasi to life in prison on Tuesday after a two-month trial.  Alimasi, also known as Kokodikoko, is head of the Raia Mutomboki, one of the most powerful militia groups operating in the Eastern DRC.  He and four others were arrested in April on multiple charges including murder, rape and enslavement committed against the civilian populations of two villages from February to August 2018.  Two of the other militiamen were sentenced to 15 and 20 years in prison, respectively, and the remaining two were acquitted because none of the victims mentioned them.  (Nov. 21, 2019).

ASP18 Side Event: The Hague Principles on Sexual Violence – Translating the lived experience of sexual violence survivors into law and policy

18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE

Day 1 (2 December 2019)

Name of the Event: Side Event, The Hague Principles on Sexual Violence – Translating the lived experience of sexual violence survivors into law and policy

Overview by: Francisca De Castro, Junior Research Associate PILPG-NL

Main Highlights:

• Call It What It Is campaign launched during the 17th ASP which developed The Hague Principles with help from the input of survivors. 

• The Hague Principles consist of three documents: 

  • Civil Society Declaration on Sexual Violence 

  • International Criminal Law Guidelines on Sexual Violence 

  • Key Principles for Policy Makers on Sexual Violence 

• Important developments with regards to the prosecution of sexual crime, notably the Bosco Ntaganda Case.

• The treatment of Sexual Violence must remain victim based 

Summary of the Event:

The panel, moderated by Ms. Melinda Reed from the Women’s Initiatives for Gender Justice, the hosts of the event touched upon the importance of a survivor-centric approach to sexual violence, as well as the importance of accountability and prosecution of sexual crimes.

Opening remarks were made by the Swedish Director-General for Legal Affairs H.E. Mr. Carl Magnus Nesser. He discussed Sweden’s feminist foreign policy launched in 2014 in response to the perceived systematic discrimination. This perspective has focused on ensuring that women can reach their rights through representation and resources based on their reality. In his view, perpetrators must be held accountable as impunity for sexual violence has important consequences for victims and their relatives. He addressed the importance of involving men and boys to combat gender related sexual violence. He emphasized the importance of strengthening the capacity of countries to bring perpetrators to justice, as well as facilitating the experience exchange when investigating and prosecuting crimes.

The Prosecutor of the ICC, Fatou Bensouda spoke about her office’s efforts in prosecuting sexual violence offenders, and the historic sentence delivered by ICC trial judges in the Bosco Ntaganda Case. 

The Special Advisor on Gender to the Office of the Prosecution, Patricia Sellers highlighted the importance of jurisprudence in understanding sexual violence, as it means outlawing crimes that were previously taboo. 

Furthermore, Toufah Jallow from the Toufah Foundation gave a poignant retelling of her experience as a survivor of sexual violence by an authoritarian leader. After having testified in the national truth commission, she has advocated for the usage of explicit language as to uncover the taboo surrounding sexual violence. She also urges to create a system of justice that is victim-centered and creating a safe space for victims, but also to consider these survivors as activists. 

The panel continued with Mr. Wayne Jordash from Global Rights Compliance who set forward a series of questions that were to be posed when talking about sexual violence, and defining more effective measures. Some of these questions where touched upon in the Civil Society Declaration. He tackled some of the difficulties that have been encountered in the international prosecution of sexual violence, like the failure to prosecute Lubanga for sexual crimes. 

ICC Judge Howard Morrisson then took the floor to make a statement on the challenges of judging cases of sexual violence. For one thing, the cultural consequences of these crimes have prevented victims from speaking out. But also, the cultural differences make it so that evidence is hard to obtain. 

Finally, the panel was closed by remarks from the Ambassador of Australia to The Netherlands H.E. Mr. Matthew Neuhaus concluded by urging present delegations to support the accountability for gender based violence, particularly during the general debate. 

 The Hague Principles on Sexual Violence can be found here.

ASP18 Side Event: Launch of the AFLA quarterly: Lessons from Gbagbo & Blé Goudé case and ICC Review

18th Session of the Assembly of States Parties to the Rome Statute

Day 1 (2 December 2019)

Name of the Event: Launch of the AFLA quarterly: Lessons from Gbagbo & Blé Goudé case and ICC Review (Side Event co-hosted by Uganda and Africa Legal Aid)

Overview by: Raghavi Viswanath, Junior Research Associate PILPG-NL

Main Highlights:

The Gbagbo and Blé acquittal calls for a more nuanced review of prosecutorial strategies and the sentencing practices of the Court. Importantly, the Court should steer clear of the risk of politicization. Instead, the Court should focus on the need to preserve the right to family life of the accused, encourage positive complementarity through domestic prosecutions and incentivize States to accept released/acquitted defendants.

Summary of the Event:

Ambassador Blaak-Sow (Ambassador of Uganda to the Benelux and European Union) and Ambassador van den Ijsel (Netherlands Ambassador to the ICC and OPCW) welcomed all participants to the launch of the AFLA quarterly, and spoke about how the 18th session of the Assembly of States Parties was expected to serve as a crucial signpost for the review of the Court’s performance. The first panelist was Dr. Namira Negm (Legal Counsel of the African Union). Dr. Negm first commented on the timeliness of the AFLA quarterly which exposes the Court’s prioritization of the situations in the African continent. In her view, Gbagbo was a tipping point in this trend. Notably, she discussed how Gbagbo prompted many allies of the Court to call for reforms in prosecutorial strategies. The case also warns of the damage that unsubstantiated indictments cause both to the reputation and the resources of the Court.

This was followed by a short presentation by Evelyn Ankumah (Executive Director, Africa Legal Aid). She emphasized on the need for nuance in criticism. The ‘beyond reasonable doubt’ and ‘presumption of innocence’ standards are not new to criminal trials. However, the application of these standards in Gbagbo was unique – because of the heinousness and scale of the crimes, the interests of the victims, and the interests of States that often wish to see particular persons prosecuted. Therefore, the key question should be how to minimize the risk of politicization – both on the OTP and the judges. The political background of the case should not be the basis for reduced evidentiary standards. To this end, she warned against measuring the success of the Court by the number of convictions. In the long run, the Court will only have legitimacy if it gives due regard to the interests of fairness. 

Chief Taku (Immediate Past President, ICC Bar Association; Defence Counsel before the ICTR, SCSL and the ICC) and Mariana Pena (Senior Legal Officer, Open Society Justice Initiative) then called for a reconsideration of the arrest and detention policies of the Court. Gbagbo’s continued detention even after the acquittal would inevitably lead to double victimization. In her presentation, Mariana Pena highlighted how the calls for a review of the ICC were not triggered merely by the recent string of acquittals. These calls are grounded in broader systemic failures of the Court’s detention policies, its limited understanding of the limitations on the ground, and the strained relationship between the Court and the States Parties. These problems are further compounded by the uncertainty in the standards applicable to ‘no case to answer’ motions. In particular, she discussed the implications of the draft resolution of the creation of an expert panel to review the Court’s performance. In her view, it was important that the panel be encouraged to direct recommendations both at States Parties and the Court. In order to ensure independence and credibility, the review process must engage with the civil society.

Melinda Taylor (Defence Counsel at the ICC) then made a short presentation on the due process lessons learned in the wake of the Gbagbo and Ble acquittal. Significantly, the practice of acquittals is not unique to the ICC. Both the ICTY and the ICTR have famously acquitted many senior leaders involved in the Yugoslav conflict. Therefore, it would not be incorrect to infer that the heightened criticism directed at the ICC is in fact linked to the defendants being African nationals. She then spoke of how States could assist in undoing the trust deficit. In her view, releasing defendants should be considered as important as arresting and detaining them. However, releasing defendants/acquitting defendants does not serve the rehabilitative ends of justice if the defendant is already made to serve de facto punishment and denied the right to family life. Notably, Gbagbo was one of many cases where the accused was acquitted after having served nearly eight years in detention.  Therefore, more States should be encouraged to host the defendants released or acquitted by the Court. As of today, only two states have signed agreements with the Court to evince their interest in accepting released prisoners. In conclusion, she spoke of how the permanence of the Court should be used to its advantage. The Court, unlike its predecessors, had the opportunity to learn from the practices of the ad hoc tribunals and revise its working policies to keep up with the constantly evolving interests of justice.

The panelist presentations were followed by a brief floor discussion. Dr. Negm, in particular, was asked about the pushback from the African Union, and the futility of reform if African States choose to withdraw from the Statute. Dr. Negm acknowledged that withdrawal may be an extreme measure. However, reforms in the prosecutorial strategies could contain/undo this trend. The root of the problem was the target-based approach of the OTP – which has repeatedly failed, as seen in the Kenyatta and Ruto cases. Instead, the Court should draw on the success of the ad hoc tribunals and encourage domestic prosecutions at first instance. In so doing, the Court could also avoid creating unrealistic expectations for the victims and local communities. The event ended with comments from the counsel in the Gbagbo case, who discussed how the case prompted constructive exchanges between the Defence and the OTP, and internal policy reviews across all divisions. She voiced the agreement of the room that there was an urgent need to raise, and not lower, the bar for prosecutions.