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The ICC has jurisdiction over the alleged deportation of the Rohingya people

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Today, the Pre-trial Chamber I of the International Criminal Court (“ICC”) ruled on the Prosecutor’s request regarding jurisdiction on the deportation of Royingha people from Myanmar to Bangladesh. This ruling follows most of CPIJ’s observations submitted as Amici curiae in June 2018.

In its decision, the Chamber first determined that “it has the power to entertain the Prosecutor’s request under article 119(1) of the ICC Rome Statute (“Statute”), as well as pursuant to the principle of la compétence de la compétence”. It then decided that the Statute “contains two separate crimes” (forcible transfer and deportation) and that “the Court may exercise its jurisdiction if either an element of a crime mentioned in article 5 of the Statute or part of such a crime is committed on the territory of a State that is party to the Statute”.

The Chamber therefore ruled that “the Court has jurisdiction over the crime against humanity of deportation allegedly committed against members of the Rohingya people” because “an element of this crime (the crossing of the border) took place on the territory of a State party to the Statute (Bangladesh)”. It also recognized that “the Court may also exercise its jurisdiction with regard to any other crime set out in article 5 of the Statute, such as the crimes against humanity of persecution and/or other inhumane acts”.

The dissenting Judge Perrin de Brichambault was of the view that “articles 19(3) and 119(1) of the Statute are inapplicable and that the principle of la compétence de la compétence cannot serve as an alternative basis for the Chamber to provide a ruling”. He “believed that the Court cannot rule on its jurisdiction” at this stage, “but that it remains open to the Prosecutor to present a request for authorisation of an investigation to a Pre-Trial Chamber.”

This decision followed most of the analysis proposed in the CPIJ’s Amici Curiae observations, submitted to the ICC on June 18, 2018. These observations, in support of the Prosecutor’s arguments, concerned three distinct issues. First, the scope of article 19(3) and the powers of the Prosecutor to seek a ruling on jurisdiction before a formal situation has been assigned to it. Second, the scope of the ICC’s territorial jurisdiction under article 12(2). Third, the scope of the crime of deportation under article 7(1)(d) of the Statute.

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