On September 6, 2018, the Pre-Trial Chamber I (PTC) of the International Criminal Court (ICC) in a move that commentators have haild as “surprising,” “bald,” “innovative,” and “significant,”ruled 2-1 that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.
The prosecutor’s office admitted 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 Court ruled it can prosecute Myanmar for alleged crimes against humanity against the Rohingya people, an “unprecedented decision” that could expose the country’s politicians and military leaders to charges. The decision states that even though Myanmar is not a state party of the Rome Statute, its leaders can still be investigated for the crime of deportation.
The Court began by dealing with the core issue in this case –the question of jurisdiction. The judges chose to rely on the broadly-recognized principle of la compétence de la compétence or Kompetenz‑Kompetenz According to the principle, any international tribunal has the power to determine the extent of its own jurisdiction. In this case, the Chamber found that it has the power to entertain the Prosecutor’s request under Article 119(1) of the ICC Rome Statute.
The Court noted that it is equally endowed with the power to determine the limits of its own jurisdiction. Indeed, Chambers of the ICC have consistently upheld the principle of la compétence de la compétence.
The PTC noted that, in an April statement, the Myanmar government stressed that “Myanmar is not a party to the Rome Statute” and “the proposed claim for extension of jurisdiction exceeds the well enshrined principle that the ICC is a body which operates on behalf of, and with the consent of States Parties.”Nonetheless, the Chamber found that, in some circumstances consistent with principles of international law, the Statute may have an effect on States not Party to the Rome Statute.,.
The Chamber stresseed that more than 120 States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity called the “International Criminal Court,” possessing objective international personality, and not merely personality recognized by them alone, together with the capacity to act against impunity for the most serious crimes of concern to the international community as a whole and which is complementary to national criminal jurisdictions.
The judges also observed that “the objective legal personality of the Court does not imply either automatic or unconditional erga omnes jurisdiction.”.The conditions for the exercise of the Court’s jurisdiction are set out, first and foremost, in Articles 11, 12, 13, 14 and 15 of the Statute.
Turning to the issue sub judice, the Chamber considered that it must first determine the scope of Article 7(1)(d) of the Statute before it can address the question whether the preconditions for the exercise of the Court’s jurisdiction pursuant to Article 12(2)(a) of the Statute have been satisfied. In this regard, the Chamber considers that the preconditions for the exercise of the Court’s jurisdiction pursuant to article 12(2)(a) of the Statute are, as a minimum, fulfilled if at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party.
Based on its legal analysis, the Chamber concluded that “acts of deportation initiated in a State not Party to the Statute (through expulsion or other coercive acts) and completed in a State Party to the Statute” (when victims crossed the border to a State) are included within the application of Article 12(2)(a) of the Statute. It follows that, in the circumstances identified in the OTP Request, the Court has jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh, “provided that such allegations are established to the required threshold.”
Having delivered this ruling, the Chamber went further, deciding that “the rationale of its determination as to the Court’s jurisdiction in relation to the crime of deportation may apply to other crimes within the jurisdiction of the Court as well.” If it were established that at least an element of any crime within the jurisdiction of the Court, as defined in Article 5 of the Statute, or part of such a crime is committed on the territory of a State Party, the Court might exercise jurisdiction pursuant to Article 12(2)(a) of the Statute.
Specifically, the judges explained that when the threshold and evidentiary requirements are met the Court might also have jurisdiction over the crime against humanity of persecution pursuant to Article 7(1)(h) of the Statute as well as “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” (Article 7(1)(k) of the Statute).
In this context, the Chamber noted that, following their deportation, members of the Rohingya live in appalling conditions in Bangladesh and that the Myanmar government impedes their return to Myanmar. Under international human rights law, no one may be arbitrarily deprived of the right to enter one’s own country.
Finally, the Chamber rules that should the Prosecutor request authorization to open an investigation pursuant to Article 15 of the Statute or initiate an investigation pursuant to another legal basis, it falls within the OTP prerogatives to apply the preconditions for the exercise of the Court’s jurisdiction pursuant to Article 12(2)(a) of the Statute as stipulated and defined in the present decision.
In the final remarks, the PTC I noted that the Prosecutor appears to situate her Request in the context of a “pre-preliminary examination.” The judges explained, however, that the statutory documents of the Court do not envisage a “pre-preliminary examination stage.” In the Chamber’s view, rather, the steps taken by the Prosecutor do not precede a preliminary examination, but are part of that examination, “whether formally announced or not.”
One commentator argues that, following the ruling of the PTC I, the Court also has jurisdiction over a particular form of genocide, referred to as “conditions of life” genocide. According to the Elements of Crimes, that form of genocide include, inter alia, has the following elements: (i) The perpetrator inflicted certain conditions of life upon one or more persons; (ii) The conditions of life were calculated to bring about the physical destruction of that group, in whole or in part; (iii) The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.
It remains to be seen whether the present decision delivered by the Pre-Trial Chamber I and followed by the opening of investigation by the ICC Prosecutor will be a real step towards achieving justice for the Rohingya, or whether these actions only create an illusion of an outcome which is hard to deliver.
* 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.
 Marlise Simons, International Criminal Court Opens Door to a Rohingya Inquiry, New York Times, September 6, 2018.
 ICC Pre-Trial Chamber I rules that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh, Press release, September 6, 2018, ICC-CPI-20180906-PR1403.
 War Crimes Prosecutor Seeks Jurisdiction Over Rohingya Deportations, The New York Times, April 9, 2018.
 Michael Plachta, Justice for Rohingya: ICC Prosecutor Requests Ruling on Jurisdiction to Open Investigation, 34 Int’l Enforcement L. Reporter 127-130 (2018).
 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.
 Michael Safi, ICC says it can prosecute Myanmar for alleged Rohingya crimes, The Guardian (UK), September 6, 2018.
 International Criminal Court, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, September 6, 2018, ICC-RoC46(3)-01/18, para. 30.
 Id., para. 32.
 Id., para. 44.
 Id., para. 48.
 Id., para. 49.
 Id., para. 64.
 Id., para. 73.
 Id., para. 74.
 Id., para. 76.
 The horrific conditions in the refugee camps in Bangladesh have been described in the UNICEF report available at https://reliefweb.int/report/bangladesh/bangladesh-humanitarian-situation-report-no21-rohingya-influx-4-february-2018.
 Decision, supra note 7, para. 77.
 See. e.g., Article 12(4) of the International Covenant on Civil and Political Rights, 16 December 1966, UNTS vol. 999, p. 171.
 Decision, supra note 7, para. 79.
 Id., para. 82.
 Kevin Jon Heller, The ICC Has Jurisdiction over One Form of Genocide in the Rohingya Situation, http://opiniojuris.org.
 Michael Plachta, Does the Rohingya Tragedy Amount to International Crime?, 34 Int’l Enforcement L. Reporter 30-33 (2018).