The Prosecutor’s Request Concerning the Rohingya Deportation to Bangladesh: Certain Procedural Questions

Abstract

On 9 April 2018, the Prosecutor of the International Criminal Court filed a request seeking the composition of a Pre-Trial Chamber, in order to decide whether the Court has territorial jurisdiction over the Rohingya deportation from Myanmar to Bangladesh as a crime against humanity. This filing is a first for the Court on at least two fronts; it is the first time the Prosecutor has asked the Court to interpret Article 12(2)(a) and apply qualified territoriality; it is also the first time the Prosecutor has asked for a ruling on jurisdiction under Article 19(3).This study explores certain procedural questions emerging from this request, such as the Court’s authority to decide while its jurisdiction is ‘dormant’; the function of Article 19(3) within the Rome Statute’s overall system concerning jurisdictional determinations; issuing a decision on jurisdiction, while avoiding prejudice to subsequent proceedings and without rendering meaningless the right to challenge jurisdiction under Article 19(2) of the Statute. The article accepts that the request is a step in the right direction, as it signals the Prosecutor’s determination to investigate the Rohingya crisis. However, the manner and timing of its presentation give rise to plausible claims of incompatibility with the Court’s procedural framework. Arguably, the Court may well instruct the Prosecutor to assume the risk of wasting precious resources and proceed with further investigations, pending the final determination of the jurisdictional question at a later stage.

Forced Displacement, Prevention from Returning and the Jurisdiction of the International Criminal Court

“…Determining whether forced displacement is an instantaneous or a continuing act is one of substance 129 which has an impact both on the temporal and territorial jurisdiction of the ICC as discussed above. 130 127 Investigation Decision, supra note 9, [132]. 128 Pauwelyn, supra note 80, at 435.…”

“…This was Myanmar's argument in relation to the proceedings concerning the Rohingya, 131 which must be seen in the context of the wave of criticism against the ICC over the potential expansion of its jurisdiction to conduct which is partially committed in the territory of a non-state party such as in this instance. 132 Such a narrow construction of forced displacement and deportation as an instantaneous act may be inferred from the initial request for a decision on jurisdiction which was restricted to the crime of deportation from a non-state party directly into the territory of a state party. 133 As pointed out in that request, 'if victims of cross-border deportation subsequently move to a third State, which is a State Party, their mere presence in that State will not ipso facto establish the Court's jurisdiction on the basis of objective territoriality.'…”