The Rohingya Plight at the ICC – Overcoming the Current Challenges for a Stronger Court

On September 6 2019, Pre-Trial Chamber (PTC) I of the International Criminal Court (ICC) handed down a majority decision, ruling that the Court may exercise its jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

The ground-breaking decision established that if an element of a Rome Statute crime takes place in the territory of a State Party to the Statute, the ICC will have jurisdiction over such crimes, regardless of whether other elements took place in the territory of a non-State Party.

Members of the Coalition for the International Criminal Court (CICC) have commented on the decision, highlighting how, from a wider perspective, this decision might increase the avenues available to prosecute and bring to justice perpetrators of war crimes, crimes against humanity and genocide.

Amnesty International’s South Asia Director, Mr. Biraj Patnaik stated that “This decision is a significant step in the right direction, which opens up a clear avenue of justice for the Rohingya people who were driven out of their homes, often as soldiers opened fire on them and burned down their villages.”

Following the decision, the ICC Prosecutor filed a request before ICC PTC III, seeking authorization to initiate a formal investigation into alleged crimes committed against the Rohingya people of Myanmar.

While the PTC III decision is still pending, a ruling granting the Prosecutor’s request not only has the potential of representing a significant milestone for the Court but would also serve as a reminder of the critical challenges currently being faced by the ICC.

The escalation of anti-multilateralism, an increasing workload with significant budgetary constraints, and continuous attacks aimed at undermining its independence and integrity are only some of the challenges before the ICC today.

Being heavily dependent on cooperation from States, these challenges may effectively obstruct any investigation by the OTP, especially when the State, where the alleged crimes have been committed, is not a State Party to the Rome Statute.

Indeed, as a non-State Party, Myanmar will likely not cooperate with the Court if a formal investigation is authorized. This will make it difficult for the ICC to succeed in prosecuting the alleged perpetrators, as it will not be able to rely on the assistance of the Rakhine state in matters such as the gathering of evidence, the protection of victims and witnesses or the execution of arrest warrants.

Moreover, given the current situation, any effort by the ICC to provide justice to victims in Myanmar would not encompass all crimes allegedly committed against the Rohingya, but only those cross-border crimes allegedly committed, at least partially, in Bangladesh.

These and other challenges will impact the work of the current Prosecutor for the remainder of her mandate, and of the next ICC Prosecutor that will be elected in 2020. The next ICC Prosecutor will, therefore, play a critical role in pursuing those suspected of committing international crimes and in influencing the ICC’s future direction in the Bangladesh/Myanmar situation.

In light of these challenges, it is essential that CSOs continue to support the ICC in fulfilling its mandate to deliver justice for heinous crimes, as they have done in the past.

For instance, Coalition members such as Women’s Initiative for Gender Justice (WIGJ), the European Centre for Constitutional and Human Rights (ECCHR), the Canadian Partnership for International Justice (CPIJ), and the International Commission of Jurists (ICJ), as well as other civil society organization, submitted a number of amici curiae briefs, to help the Court in considering whether the ICC had jurisdiction over crimes committed against the Rohingya.

These submissions were repeatedly cited by the PTC throughout its reasoning in the jurisdiction decision, suggesting that civil society’s unique perspective assisted the Chamber in making an informed decision.

These interventions are evidence of the impact that strategic litigation can have in influencing the progressive interpretation of key provisions of the Rome Statute.  

Similarly, the argument has been made that the ICC developments in relation to the Rohingya crisis provide grounds to initiate investigations in other situations, such as, for instance, the Syrian refugees’ crisis.

The Guernica Group Centre for International Justice, which represents some Syrian refugees is of the view that there is basis for the ICC to exercise jurisdiction over the Syrian situation and that a road towards accountability might finally exist based on existing similarities with the Rohingya situation.

In this context, CSOs need to continue playing their fundamental role in ensuring that perpetrators of grave crimes are brought to justice, including through research and publications, support to victims and efforts to strengthen domestic criminal justice systems as well as the ICC.

In addition, it is important that CSOs continue to advocate for justice to be delivered to victims in other countries and regions of the world. The situations in Syria and Myanmar are heart-rending and justice for victims remains elusive as the Permanent Members of the United Nations Security Council continue to bicker and abdicate their responsibility to uphold the United Nations Charter and prevent and provide redress for atrocities.  

To conclude, the PTC I decision represents a significant step in expanding the ICC’s jurisdictional scope. In this regard, the decision is ground-breaking and raises important new jurisprudence.

However, given the US administration’s policy towards the ICC and the rise of far-right nationalist politics, the expansion of the grounds upon which the ICC exercises jurisdiction is likely to encounter opposition.

In view of this, the Myanmar/Bangladesh case represents both an opportunity and a challenge to the Rome Statute System. Whether the case will result in the conviction of those alleged to be responsible for the killing and forced expulsion of the Rohingya from Myanmar will depend on numerous factors, not least whether leave is granted to the OTP to conduct an investigation, the quality of evidence gathered and the prosecution of those charged with offences.