Demystifying Myanmar's reactions towards ICC!
Recent formal invitation of International Criminal Court (ICC) to Myanmar for submitting its observations regarding the exercise of jurisdiction by the ICC over the Rohingya deportation is seen as the crucial point to the Prosecutor's Request under Article 19(3). On 9 April 2018, the Prosecutor of the ICC sought a ruling from the Pre-Trial Chamber under Article 19(3) of the Rome Statute on whether the Court may exercise its jurisdiction over the alleged deportation of Rohingyas from Myanmar into Bangladesh. Though the matter was supposed to be determined by an ex-parte hearing on 20 June 2018, the Chamber dramatically ended up with the decision to seek observation from Myanmar.
As a part of the Proceeding, the Pre-Trial Chamber comprised of Judge Péter Kov�cs (Presiding Judge), Judge Marc Perrin de Brichambaut and Judge Reine Adéla�de Sophie Alapini-Gansou invited its observation from the Government of Bangladesh on 7 May 2018, which was submitted confidentially on 11 June. This Proceeding has also drawn enough attention in the international legal community. Five amicus curiae submissions have been granted and one submission has been made on behalf of the victims. Since the matter is primarily concerned about Myanmar, it was desirable to ask for its observations from the perspective of international criminal law and principle of natural justice that no one should be unheard.
The invitation to Myanmar, like that of Bangladesh has asked for a written observation on three issues i.e. (i) the possibility of the ICC's exercise of territorial jurisdiction over the alleged crime of deportation; (ii) the circumstances surrounding the presence of the Rohingyas from Myanmar to Bangladesh; and (iii) any other matter which would assist the ICC in relation to the Request. It will also avail the opportunity to submit its observation either publicly or privately within 27 July 2018. The same decision also ordered the Prosecutor to submit her reply to the observation (if any) within 10 days.
In this regard, it is pertinent to look back on the earlier statement made by the Government of Myanmar on 13 April 2018. Expressing serious concern over the legality of this proceeding of the ICC, it severely questioned ICC's jurisdiction over the non-State Party. It further indicated that the alleged proceeding would undermine its sovereignty and be seen as an interference in its internal affairs. To add, it has frequently referred to the repatriation of Rohingyas as a shield against international criticism. It is foreseen that the Government of Myanmar may reiterate these standpoints in its observation. Since the ICC does not deal with contentious matters between states, the observation to be submitted by Myanmar will not serve as a counter-claim against the proceedings. Rather, its legal scrupulous observation may influence the merit of the decision.
As regards the possibility of exercising territorial jurisdiction by the ICC, Myanmar's position is although not totally unfounded but legally untenable. Within the framework of the Rome Statute, the ICC cannot exercise its jurisdiction on the crimes committed on the territory of a non-State Party. But it may exercise its jurisdiction over the crimes committed on the territory of a State Party by the nationals of a non-State Party.
The moot question of the Prosecutor's Request is whether the alleged deportation, though commenced on Myanmar, became complete on Bangladesh. Myanmar may take the position that it is not a Party to the Rome Statute and it does not recognize deportation as a crime in its domestic law. However, deportation has been unequivocally recognized as an international crime in customary international law since Nuremberg Trials and therefore, it would be difficult for Myanmar to refute the customary nature of the crime. It may also contest the principle of objective territoriality as the basis of jurisdiction. However, it has been apparent that many amicus curiae submissions demonstrated the strong support of this principle both in international law and comparative domestic law. The ultimate outcome should be left to the Chamber itself.
The second part of the Observation will be the real challenge for the Government of Myanmar. The well-documented presence of approximately 700,000 Rohingyas in Bangladesh can hardly be negated due to the acts or omissions of Myanmar. Neither the promise of repatriation nor the Arrangement between Myanmar and Bangladesh will be a legal defence against any international crime i.e. the crime of deportation. However, Myanmar may advance national security and counterterrorism argument. However, such alleged lawful acts can never justify the commission of an international crime. Besides, from the international criminal law perspective, it is questionable how they make the proportionality test between the security measures and a huge number of unlawful deportation. Furthermore, the widespread violence including the gender-based violence has been well evidenced and it would be challenging for Myanmar to disprove it.
Myanmar may contest the lawful presence of the Rohingyas in its territory claiming that they were not nationals at the time of displacement. With the development of the international legal regime of refugees and statelessness, the lawful presence does not require the formal nationality only. Several amicus curiae submissions have provided sufficient background information for supporting the 'lawful presence' of Rohingyas in Myanmar as required for the crime of deportation under international law.
The last part of the observation is open-ended, and it is totally unpredictable how they will respond to that. Presumably, they may accommodate the issues of repatriation, the possibility of future domestic investigation and trials etc. Considering the nature of the question and the mode of submission, it is not pertinent to comment further.
Apart from all these aspects, Myanmar is in a convenient position to provide its observations for it has the access to the majority of the documents submitted to the ICC. This will definitely help it to draft its observations by refuting all the positions. Simultaneously, it will be extremely tough to counter the plethora of legal arguments submitted in support of the position of the Prosecutor. Nevertheless, it is uncertain whether Myanmar will submit its observation or not; it is the expectation of the international community that it should forward its observation before the ICC so as to allow the Chamber to demystify the uncertainties surrounding the Proceeding reaching a comprehensive conclusion.
Quazi Omar Foysal is an LLM Candidate at the Geneva Academy of International Humanitarian Law and Human Rights, Geneva, Switzerland