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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.

Relevant documents:

CPIJ members submit Amici Curiae to the ICC concerning the Rohingya situation

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June 2018 – On 18 June 2018, members of the Canadian Partnership for International Justice (CPIJ) submitted Amici Curiae observations to the International Criminal Court (ICC) on legal issues arising from the Prosecutor’s request for a ruling on jurisdiction concerning the Rohingya being deported from Myanmar to Bangladesh.

The Prosecutor’s request under Article 19(3) of the Rome Statute is the first of its kind. She asked the Court to determine if it has jurisdiction over the situation of the Rohingya, who are currently being deported from Myanmar (a non State party to the Rome Statute) to Bangladesh (a State party). The cross-border nature of this crime, involving a country who is not a party to the Court, raises important legal questions about to the Court’s ability to adjudicate the matter.

The Amici Curiae provided the Court with observations, in support of the Prosecutor’s arguments, on 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 Rome Statute. The full text of the observations can be found on the ICC website.

“We are proud to contribute to the development of complex judicial issues which are at the very heart of the Court’s work,” said Fannie Lafontaine, the Director of CPIJ. “In this case, it will be very important for the Court to provide clarity on its jurisdiction over cross-border crimes when a non-State party is involved.”

Members of CPIJ had submitted a request for leave on 25 May 2018 to provide these observations. The request was subsequently granted by the Court in a decision that recognized the extensive collective experience of CPIJ’s members in the field of international criminal law, human rights law, refugee law, migration and humanitarian law, as well as their previous interventions before domestic and international courts.

The Amici Curiae is signed by Fannie Lafontaine, Amanda Ghahremani, Jennifer BondRobert J. CurrieJulia GrignonMark KerstenFrançois LarocqueFrédéric MégretValerie OosterveldFrederick John PackerPascal ParadisDarryl RobinsonPenelope SimonsÉrick Sullivan, Alain-Guy Tachou Sipowo, Mirja Trilsch and Jo-Anne Wemmers.

 

For media requests, please contact:

Fannie Lafontaine
Fannie.Lafontaine@fd.ulaval.ca
1-418-656-2131 #3859
(English, French, Spanish)

 

Amanda Ghahremani
aghahremani@ccij.ca
1-514-915-0920
(English, French, Spanish)