Rohingya Situation (Myanmar/Bangladesh)

In August 2017, the historic persecution of the Rohingya minority group in Myanmar reached a new level of violence when security forces began a ‘clearance operation’ aimed at removing all Rohingya to Bangladesh. Security forces attacked and destroyed hundreds of villages in Rakhine State, and carried out crimes against humanity including extrajudicial killings, rape, and torture against thousands of Rohingya. The UN High Commissioner for Human Rights described the violence as a “textbook example of ethnic cleansing.” The operation resulted in a mass exodus of Rohingya into neighbouring Bangladesh.

CCIJ, as part of the Canadian Partnership for International Justice, intervened in a preliminary proceeding at the International Criminal Court (ICC) to support the position that the Court has jurisdiction over the deportation of the Rohingya people from Myanmar to Bangladesh despite the fact that Myanmar is not a party to Rome Statute and therefore outside of the jurisdiction of the ICC.

The Rohingya are an ethnic minority group, the majority of whom are Muslim, who have been seeking independence from Myanmar since the State achieved independence from British rule in 1948. The start of military rule in 1962 in Myanmar initiated a period of progressive violence and persecution; the army tortured, killed, and raped thousands of Rohingya men and women in an effort to forcibly relocate or remove the population. By 1982, the Rohingya were formally stripped of their citizenship and denied legal protections from the government. This persecution has continued, and the most recent atrocities against the Rohingya in Myanmar have led to the largest forced migration in history: over 400,000 Rohingya have fled to refugee camps in Bangladesh since August 2017 to escape persecution.

Deportation and forcible displacement have been recognized as both war crimes and crimes against humanity in international criminal law since 1945. Although deportation is an important facet of State sovereignty, for instance in the context of immigration or extradition, States must still comply with international rights norms. Following the mass deportations of civilians by Nazi Germany during World War II, the international community recognized the need for a legal framework criminalizing unlawful deportation. The Rome Statute of the International Criminal Court, adopted in July 1998, provides this legal framework for prosecuting deportation as a serious war crime, or as a crime against humanity, in its own right. Under the Statute, deportation becomes unlawful when the displacement is forcible, the deportees are lawfully present in the country, and the deportation is carried out without grounds permitted in international law.

Prosecution’s Request for a Ruling

In April 2018, the Office of the Prosecutor (OTP) applied to the Pre-Trial Chamber of the ICC to request a ruling on whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The question at issue is whether the Court has jurisdiction when persons are deported from the territory of a State that is not a party to the Rome Statute (Myanmar) directly to the territory of a State which is a party (Bangladesh).

Because Myanmar is not a party to the Rome Statute, the treaty which created the ICC, the Court can only exercise jurisdiction over crimes committed inside its territory in limited circumstances. Such circumstances include cases that have been referred to the OTP by the United Nations Security Council, self-referrals by a State, or cases where individuals of the non-State party commit crimes on the territory of a State party. In its request, the OTP argued that the Court could exercise its jurisdiction since a material element of the crime of deportation, which has an inherently transnational character, occurred in Bangladesh.

The Pre-Trial Chamber granted individual members of the Canadian Partnership for International Justice, including CCIJ’s Legal Director, Amici Curiae status. As such, CCIJ and its partners were able to provide additional arguments in support of the OTP’s position.

CCIJ & CPIJ’s Intervention

The Canadian Partnership for International Justice’s arguments were threefold. First, we maintained that the OTP had the power to seek a preliminary ruling on jurisdiction before a formal investigation was initiated, and that the Pre-Trial Chamber’s ruling on the question should be considered a legally binding ruling, thereby triggering the OTP’s investigative duties. Second, the Partnership argued that under the principle of objective territoriality, the Court has jurisdiction when a constituent element of a crime is committed on the territory of a member State. The Partnership’s third argument was that transfer to another State is a material element of the crime of deportation under art. 7(1)(d) of the Rome Statute. Thus, an essential element of the crime occurred in Bangladesh, a State which is a party to the Rome Statute, bringing it under the jurisdiction of the Court.

A number of other organizations and individuals were also granted Amicus Curiae status to intervene in the proceedings. The Court also invited observations from the States of Bangladesh and Myanmar. Bangladesh submitted their confidential observations on 11 June 2018, while Myanmar has yet to respond. The Court has not yet ruled on this matter.

Prosecution’s Request for a Ruling Under Article 19(3): https://www.icc-cpi.int/CourtRecords/CR2018_02057.PDF

Order Convening a Status Conference: https://www.icc-cpi.int/CourtRecords/CR2018_02522.PDF

Request for Leave to Submit Amicus Curiae Observations: https://www.icc-cpi.int/CourtRecords/CR2018_02719.PDF

Decision Inviting the Canadian Partnership for International Justice to submit Observations: https://www.icc-cpi.int/CourtRecords/CR2018_02744.PDF

Canadian Partnership for International Justice Amicus Observations: https://www.icc-cpi.int/CourtRecords/CR2018_03127.PDF

Decision Inviting the Competent Authorities of the People’s Republic of Bangladesh to Submit Observations: https://www.icc-cpi.int/CourtRecords/CR2018_02487.PDF

Decision Inviting the Competent Authorities of the Republic of the Union of Myanmar to Submit Observations: https://www.icc-cpi.int/CourtRecords/CR2018_03206.PDF

Submissions on Behalf of the Victims Pursuant to Article 19(3): https://www.icc-cpi.int/CourtRecords/CR2018_02824.PDF

Prosecutor’s Response to the Amici Curiae: http://jamesgstewart.com/wp-content/uploads/2018/07/Prosecution-Response-to-Observations-by-Intervening-Participants.pdf

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