The referral is limited purely because of the lack of territorial jurisdiction over the situation in Burma.
The focus of the question is limited to the forcible deportation (which is a crime against humanity under Article 7(1)(d) of the Rome Statute) of the Rohingya Muslims and not on any other crimes that are alleged to have been perpetrated within the territory of Burma.
The ICC Chief Prosecutor’s submission seeks to clarify whether the ICC can exercise 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’ to be able to investigate the crime and prosecute the perpetrators. Ms Bensouda’s question focuses, instead, on Bangladesh which is a signatory to the Rome Statute. Put simply, Burma is not a signatory to the Rome Statute. The ICC does not have the territorial jurisdiction over the situation in Burma, that much is clear. The ICC Chief Prosecutor’s submission contained information of consistent and credible public reports to suggest that since at least August 2017, ‘more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh.’ The ICC Chief Prosecutor referred to recent statements of the UN High Commissioner for Human Rights who described the atrocities committed against the Rohingya Muslims in Burma as ‘ a textbook example of ethnic cleansing’ and the UN Special Envoy for human rights in Myanmar identifying the ‘ hallmarks of a genocide.’ The ICC Chief Prosecutor relied on evidence presented by the ‘UN Office of the High Commissioner for Human Rights (OHCHR), the UN Human Rights Council Independent International Fact-Finding Mission on Myanmar the UN Special Rapporteur on the Situation of Human Rights in Myanmar the UN Office of the High Commissioner for Refugees (UNHCR) the International Organization for Migration Inter Sector Coordination Group (ISCG) the UN Children’s Fund (UNICEF) Human Rights Watch Amnesty International Fortify Rights Médecins Sans Frontières and the International Rescue Committee’ and corroborative video footage and reports, and 42 individual communications received by the Office of the Prosecutor. The question she submitted asked ‘whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.’
In April 2018, the Chief Prosecutor of the International Criminal Court (the ICC), Ms Fatou Bensouda, sought a ruling from the President of the Pre-Trial Division on the question of the ICC’s jurisdiction in the case. While interviews could still be collected from Rohingya Muslims who have managed to escape to Bangladesh, a lot of evidence is lost without access to the areas that the crimes are alleged to have been committed.Īway from the UN, another international actor has decided to weigh in on the issue. Without the ability to conduct a fact-finding inquiry inside Burma, the quality of any enquiry would suffer.
They have so far been prevented from doing so by the Burmese government who have refused permission for fact-finders to enter the country. Following my original article, it has become clear that various UN bodies wish to commence a fact-finding mission in Burma.
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