In an unprecedented move, the prosecutor of the ICC is seeking to assert the jurisdiction of the court for the deportation of Rohingya from Myanmar to Bangladesh. This is based on Article 7 of the Rome Statute which includes “deportation or forcible transfer of population” as a crime against humanity. In her motion of 9 April 2018, the prosecutor argues that deportation requires the crossing of an international border and hence, the court has jurisdiction – due to the fact that Bangladesh is a party to the Rome Statute, even though Myanmar is not. Judges of the ICC have been asked to determine whether the prosecutor can proceed in this case.
As a crime against humanity, ‘deportation’ has been included in the statutes of international and hybrid tribunals for the former Yugoslavia, Rwanda, Sierra Leone and Cambodia. However, typically there has been a greater emphasis on crimes considered of greater gravity, often occurring in conjunction with, or the reason for the forced movement of the population.
Also, due to the type of conflicts, displacement within borders has been the focus mainly. While open to interpretation, the distinction drawn by the prosecutor is that ‘deportation’ requires crossing an international border, whereas ‘forcible transfer’ relates to displacement within state borders.
Hence, the argument asserting jurisdiction of the court hinges upon an essential element – completion of the crime of deportation in Bangladeshi territory.
The focus on deportation in the legal submission excludes a wide array of potential crimes identified by UN experts, including gross human rights violations such as killings, enforced disappearances, torture, sexual violence, and potentially, genocide. While the charges filed by the prosecutor are limited, this may not preclude additional charges subsequently, including by virtue of a potential UNSC referral.
Fulfilling evidentiary requirements to establish deportation as a crime against humanity will be a challenge, should the case move forward. While the completion of the crime requires the crossing of an international border and access to Bangladesh, the other elements of the crime, such as establishing a “widespread or systematic attack” against a civilian population will require access to evidence in, or from, Myanmar.
There have also been concerns pertaining to the process followed thus far. While the Bangladesh government has been asked to present its views to the pre-trial chamber on the prosecutors’ motion, the government of Myanmar has not been invited to do so. Further, on the basis of confidential information, a closed session of the chamber and the prosecutor has been scheduled. Such ex parte and closed proceedings have raised legitimate concerns as to the transparency of the proceedings.
The focus on deportation also serves to highlight the plight of those individuals - by various accounts numbering 5,000 - who are in “no man’s land”, stuck between the borders of both countries. For those who have made it to Bangladesh, dire living conditions in the camps are expected to be exacerbated by the oncoming monsoon.
A repatriation agreement between Bangladesh and Myanmar – which has not been made public – is yet to be implemented. As Human Rights Watch indicated to the Myanmar government, the terms of the agreement are highly problematic pertaining to essential elements including security of returnees, voluntariness of return, access to land and livelihood, and full citizenship rights.
This article has been excerpted from: ‘ICC vs Myanmar: A unique opportunity for ensuring accountability’.