On August 27, 2018, the UN Independent International Fact-Finding Mission on Myanmar released its first report pursuant to Human Rights Council decision 36/115, requesting the Mission to submit its final report at its thirty-ninth session. The Mission focused on the situation in Kachin, Rakhine, and Shan States since 2011. In addition to non-international armed conflicts in Kachin and Shan States, the Mission considered that the violence in Rakhine State between the Arakan Rohingya Salvation Army (ARSA) and the Myanmar security forces constituted a non-international armed conflict, at least since August 25, 2017.
While the Mission was never granted access to Myanmar, the team amassed information from primary sources, including through 875 in-depth interviews with victims and eyewitnesses, satellite imagery and authenticated documents, photographs and videos. Specialist advice was sought on sexual and gender-based violence, psychology, military affairs and forensics. The findings contained in the report are based exclusively on verified and corroborated information. The Mission traveled to Bangladesh, Indonesia, Malaysia, Thailand and the United Kingdom.[1]
This is not the first report on the situation in Myanmar and the plight of the Rohingya people. The Human Rights Watch report, titled Massacre by the River: Burmese Army Crimes against Humanity in Tula Toli, was based on interviews with 18 survivors of the massacre which took place on August 30, 2017.[2] Human Rights Watch’s Asia director said: “The Burmese army’s atrocities at Tula Toli were not just brutal, they were systematic. Soldiers carried out killings and rapes of hundreds of Rohingya with a cruel efficiency that could only come with advance planning,”[3]
In October 2017, the UN released its High Commissioner’s report from his mission to Bangladesh. The document presents “[c]redible information . . . that the Myanmar security forces purposely destroyed the property of the Rohingyas, scorched their dwellings and entire villages in northern Rakhine State, not only to drive the population out in droves but also to prevent . . . [them] from returning to their homes.”[4]
The August 2018 report confirmed that the security forces’ response, called by the authorities “the clearance operations,” was “immediate, brutal and grossly disproportionate.” The operations targeted and terrorized the entire Rohingya population. It added that “the nature, scale and organization of the operations suggests a level of preplanning and design” authored by the Tatmadaw leadership headed by the Commander-in-Chief, Senior-General Min Aung Hlaing.[5]
The “clearance operations” constituted a human rights catastrophe. Information collected by the Mission suggests that the estimate of up to 10,000 deaths[6] is conservative. People were killed or injured by gunshot, targeted or indiscriminate, often while fleeing. Rape and other forms of sexual violence were perpetrated on a massive scale. Children were subjected to, and witnessed, serious human rights violations including killing, maiming and sexual violence. Satellite imagery and first-hand accounts corroborate widespread, systematic, deliberate and targeted destruction, mainly by fire, of Rohingya-populated areas across the three townships.[7]
The mass displacement and burning of Rohingya villages was followed by systematic appropriation of the emptied land. Bulldozers flattened burned, damaged and even surviving structures and vegetation, erasing every trace of the Rohingya communities – while destroying criminal evidence.[8]
The report has found that the military has consistently failed to respect international human rights law and the international humanitarian law principles of distinction, proportionality and precaution. The deliberate targeting of civilians has formed part of Tatmadaw policies, tactics and conduct for decades. “These policies and practices violate Myanmar’s obligations under international law and amount to criminal conduct. They are also unwarranted; military necessity would never justify killing indiscriminately, gang raping women, assaulting children, and burning entire villages. The Tatmadaw’s tactics are consistently and grossly disproportionate to actual security threats, especially in Rakhine State, but also in northern Myanmar.”[9]
Based on the body of information collected, the Mission concludes on reasonable grounds that serious crimes under international law have been committed that warrant criminal investigation and prosecution. They include: genocide, crimes against humanity and war crimes. The crimes against humanity committed in Kachin, Shan and Rakhine States include murder; imprisonment; enforced disappearance; torture; rape, sexual slavery and other forms of sexual violence; persecution and enslavement. In addition, in Rakhine State, the elements of the crimes against humanity of extermination and deportation are also present.
The Mission also concluded “there is sufficient information to warrant the investigation and prosecution of senior officials in the Tatmadaw chain of command, so that a competent court can determine their liability for genocide in relation to the situation in Rakhine State.”[10]
The Mission has drawn up a list of alleged perpetrators as priority subjects for investigation and prosecution, whom it believes had effective control and bear the greatest responsibility. “The State Counsellor, Daw Aung San Suu Kyi, has not used her de facto position as Head of Government, nor her moral authority, to stem or prevent the unfolding events in Rakhine State,” the report states.[11]
On April 9, 2018, the Prosecutor of the International Criminal Court (ICC or the Court), Fatou Bensouda, filed her request with the President of the Pre-Trial Chamber (PTC), Judge Antoine Kesia-Mbe Mindua, seeking a ruling on a question of jurisdiction: whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.[12]
Her request is the first of its kind filed at the Court. She asked the Court to call a hearing to consider her arguments, as well as those of other interested parties. She noted that the assigned Pre-Trial Chamber may invite the Office of Public Counsel for Defence and the Office of Public Counsel for Victims to file observations, and States, organizations and other persons to request leave under rule 103 to file observations as amicus curiae.[13]
Article 12(2)(a) and the ICC’s Jurisdiction
Ms. Bensouda admits that the coercive acts relevant to the deportations occurred on the territory of a State which is not a party to the Rome Statute (Myanmar). However, the Prosecution considers that the Court may nonetheless exercise jurisdiction under Article 12(2)(a) of the Rome Statute because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).
The Prosecution seeks a ruling on the Court’s jurisdiction under Article 12(2)(a)— specifically, to verify that the Court has territorial jurisdiction when persons are deported from the territory of a State which is not a party to the Statute directly into the territory of a State which is a party to the Statute. As explained below, this is not an abstract question but a concrete one, affecting whether the Court may exercise jurisdiction under Article 12(2)(a) to investigate and, if necessary, prosecute the alleged deportation of Rohingya from Myanmar to Bangladesh. This requires a determination both on the nature of the crime of deportation under Article 7(1)(d), and the nature of the territorial jurisdiction granted to the Court under Article 12(2)(a).
The Prosecutor’s request begins with describing the situation of Rohingya in Myanmar. This section is based on a number of reports and other public information which appear credible and consistent, and emanate from prima facie reliable sources.
The Rohingya are a Muslim ethnic group living in the predominantly Buddhist nation of Myanmar (or Burma). There are approximately 1.1 million Rohingya living in the Rakhine State on the country’s western coast. They have been residing in Arakan (now Rakhine State) since as early as the 12th century.[14]
Many Buddhists in Myanmar consider the Ronhingya to be Bengali, or people from Bangladesh. The discriminatory 1982 Citizenship Law officially prevented them from obtaining citizenship. And according to a Human Rights Watch report from 2000, this is the basis the Myanmar government uses to deny Rohingya citizenship in the country.[15]
Clashes in Rakhine broke out in August 2017, after a militant group known as the Arakan Rohingya Salvation Army (ARSA) claimed responsibility for attacks on police and army posts. The government declared ARSA a terrorist organization and the military mounted a brutal campaign that destroyed hundreds of Rohingya villages and forced more than 650,000 Rohingya to leave Myanmar. At least 6,700 Rohingya were killed in the first month of attacks, between August 25 and September 24, according to the international medical charity Doctors Without Borders.[16] Myanmar’s security forces also allegedly opened fire on fleeing civilians and planted land mines near border crossings used by Rohingya to flee to Bangladesh.[17]
The ICC Prosecutor believes the Court has jurisdiction in this situation. She argues that, consistent with customary international law, Article 7(1)(d) of the Statute contains two related but distinct crimes: deportation and forcible transfer. Forcible transfer consists of two essential elements: (1) lawful presence in a location within a state, and (2) forcible removal from that location. Deportation is distinguished from forcible transfer by and additional legal requirement that the victim is forced to cross an international border, whether de jure or de facto. In circumstances where the enforced border crossing takes the victim directly into the territory of another state, this legal element is completed in that second state.[18]
The Prosecutor explains that the crime of deportation is analogous to a cross-border shooting: the crime, is not completed until the bullet (fired in one State) strikes and kills the victim (standing in another State). In both scenarios, the occurrence on the territory of the second State is not, in legal terms, the mere remote effect of a completed criminal conduct on the territory of the first State—rather, it is a legally required element of the crime, and thus part of the “conduct in question” for the purpose of article 12(2)(a).[19]
Even if the circumstances of the victims in the originating State may have been less than ideal, they will still generally be better than those available to them in a State to which they are unlawfully deported. They will be forced to live in a foreign State, subjected to foreign laws and authorities, and with no role in the political decision-making process.[20]
The key and, presumably, the most persuasive argument developed the ICC Prosecutor is that the “territorial jurisdiction is a permissive concept, requiring only “part” of a crime to occur on a State’s territory.” The request refers to commentators who agree that states can exercise jurisdiction in relation to crimes that occurred only in part on their territory, including based on “subjective territoriality” (when crimes were commenced on a state’s territory, but completed in another) and “objective territoriality” (when crimes were completed on a state’s territory, but commenced in another).[21]
The analysis includes the judgment in the Lotus case at the Permanent Court of International Justice, 1935 Harvard Draft Convention on Jurisdiction with Respect to Crime and numerous examples of domestic law establishing jurisdiction over crimes committed in part on their territory. Particularly interesting are examples of international treaty practice: (i) at least 168 States have ratified at least one international treaty which requires them to recognize that another State Party may exercise jurisdiction over conduct which occurs only partly on their territory; (ii) at least 66 States have also accepted international obligations to exercise domestic jurisdiction over serious crimes occurring only in part within their territory.[22]
Consistent with this framework of general international law, the Prosecution submits that Article 12(2)(a) of the Statute is correctly interpreted to require a crime to occur on the territory of a State Party either in whole or in part. This is not only the common conclusion of academic commentators but, more importantly still, follows from the ordinary meaning of the terms used, read in context, and in light of their object and purpose.[23] Crucially, the object and purpose of Article 12(2)(a) further confirms that this provision must be read to require only one legal element of an Article 5 crime to have occurred on the territory of a State Party.[24]
It’s for the judges to decide on the merits of the arguments raised by the ICC Prosecutor. But the Prosecutor’s decision to seek a ruling on whether the ICC can act based on existing jurisdiction speaks to the gravity of the situation.
Article 19(3) of the Statute empowers the Prosecutor to “seek a ruling from the Court regarding a question of jurisdiction or admissibility”. Thus, Ms. Bensouda notes that this provision is broad enough to encompass any issue which may arise in the context of articles 5-8bis (substantive jurisdiction), 11 (temporal jurisdiction), 12 (territorial and personal jurisdiction), and 13-15ter (triggers for jurisdiction).[25] A stage of proceedings is also irrelevant.
The ICC Prosecutor rightly points out that appropriate use of the Article 19(3) procedure promotes judicial economy—and, particularly, the apt use of the limited resources allocated to the Prosecutor—by allowing judicial consideration of certain fundamental questions, if the Prosecutor thinks appropriate, before embarking on a course of action which might be contentious.[26]
Human Rights Watch recommends that the Security Council shouldn’t wait on a ruling of the PTC to exercise their authority to refer the situation in Myanmar to the ICC.[27] However, achieving an ICC referral in the current political environment in the council will be difficult, notably because of China and Russia’s likely opposition to referring the situation in Burma to the Court. The state-run Myanmar News Agency quoted China’s ambassador to Myanmar as saying his country supported the crackdown in Rakhine.[28]
The political obstacles notwithstanding, even if Ms. Bensouda’s action is successful, any ICC investigation into the Rohingya situation would be limited in scope to deal with the issue of deportation. Deportation is not the most serious crime committed by the Myanmar military and government. Yet, no other war crime or crime against humanity necessarily involves conduct that crosses an international border.
In an earlier article, I argued that “the prospect for achieving justice in Myanmar or elsewhere is bleak.”[29] Further developments in the ICC in this case should be followed closely to determine whether this perspective will improve. One author warns against being overly optimistic.[30]
Professor Plachta specializes in criminal law and international criminal law. He has authored numerous publications on a wide range of problems concerning law enforcement and international cooperation in criminal matters. He currently teaches criminal law and European criminal law at the University of Security in Poznan, Poland.
[1] Report of the Independent International Fact-Finding Mission on Myanmar, Human Rights Council – Thirty-ninth session, August 24, 2018, A/HRC/39/64, at 3.
[2] https://www.hrw.org/report/2017/12/19/massacre-river/burmese-army-crimes-against-humanity-tula-toli.
[3] UN Rights Chief suggests Myanmar authorities could be charged with genocide in wake of attacks on Rohingya people, December 19, 2017, http://www.news.com.au.
[4] Mission report of OHCHR rapid response mission to Cox’s Bazar, Bangladesh, http://www.ohchr.org/Documents/Countries/MM/CXBMissionSummaryFindingsOctober2017.pdf.
[5] Report, supra note 1, at 8.
[6] Médecins Sans Frontières, “No one was left – Death and violence against the Rohingya in Rakhine State, Myanmar” (March 2018).
[7] Report, supra note 1, at 9.
[8] Burma: Scores of Rohingya Villages Bulldozed, February 23, 2018 https://www.hrw.org/news.
[9] Report, supra note 1, at 14-15.
[10] Id., at 16.
[11] Id., at 17.
[12] War Crimes Prosecutor Seeks Jurisdiction Over Rohingya Deportations, The New York Times, April 9, 2018.
[13] International Criminal Court, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, April 9, 2018, ICC-RoC46(3)-01/18-1, at 30-31.
[14] Eleanor Albert, The Rohingya Crisis. A backgrounder, February 9, 2018, https://www.cfr.org/backgrounder/rohingya-crisis.
[15] https://www.hrw.org/reports/2000/burma/burm005-01.htm.
[16] Poppy McPherson, 6,700 Rohingya Muslims killed in one month in Myanmar, MSF says, December 14, 2017, The Guardian.
[17] Michael Plachta, Does the Rohingya Tragedy Amount to International Crime?, 34 Int’l Enforcement L. Reporter 30-33 (2018).
[18] Prosecution’s Request, supra note 2, at 7.
[19] Id., at 14.
[20] Id., at 9.
[21] Id., at 15.
[22] Id., at 18.
[23] Id., at 22.
[24] Id., at 25.
[25] Id., at 28.
[26] Id., at 29.
[27] https://www.hrw.org/news/2018/04/10/icc-prosecutors-unprecedented-bid-bring-justice-rohingya.
[28] http://www.globalnewlightofmyanmar.com/rakhine-issue-internal-affair-chinese-ambassador.
[29] Michael Plachta, Does the Rohingya Tragedy, supra note 6, at 33.
[30] Kevin Jon Heller, Three Cautionary Thoughts on the OTP’s Rohingya Request, April 9. 2018, http://opiniojuris.org.
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