On April 9, 2018, in an attempt to work around the impasse in the Security Council and the fact that Myanmar is not a state party to the Rome Statute of the International Criminal Court (popularly known as Rome Statute), the prosecutor of the International Criminal Court (ICC) submitted a request to the court for a ruling on whether it has jurisdiction over the alleged crime of deportation of the Rohingyas from Myanmar to Bangladesh. In the request, the prosecution stated that “consistent and credible public reports” indicate that since August 2017, more than 670,000 Rohingyas who were lawfully residing in Myanmar have been intentionally deported to Bangladesh. To that end, the prosecutor sought the court’s opinion on the question of whether it has jurisdiction over the aforementioned alleged conduct.
The prosecution argued that even though the coercive acts that caused the deportation occurred on the territory of Myanmar, the ICC may nonetheless exercise jurisdiction over the alleged crime because an “essential element” of it—the enforced crossing of an international border—occurred on the territory of Bangladesh, a state party to the Rome Statute. On May 7, 2018, the ICC issued a decision inviting Bangladesh to submit written observations on the aforementioned subject.
At the outset, it must be understood that the scope of the matter at hand is limited only to the crime of deportation of the Rohingyas. Therefore, neither the current proceedings at the ICC nor Bangladesh’s observations will inquire into the crimes of genocide, murder, or sexual violence since they were committed only on the territory of Myanmar, which is beyond the ICC’s jurisdiction without a referral from the Security Council. Therefore, an affirmative ruling by the ICC would only mean that the prosecutor would be able to investigate and charge Myanmar officials for only the crime of deportation.
Bangladesh’s observations should include significant legal analysis of the crime of deportation, territorial jurisdiction, and evidence to demonstrate that the Rohingyas were lawfully residing in Myanmar and were coerced into leaving Myanmar. There is not much more substance that Bangladesh can add to the facts and evidence already provided in the reports by multiple UN agencies, international organisations and NGOs which were cited by the prosecutor in the request, which underlined the consistent and intentional acts of coercion that caused the Rohingyas to leave Myanmar. Nonetheless, Bangladesh should provide first-hand accounts of the victims, casualty statistics, relevant intelligence and reconnaissance information, and any other corroborative information that may help the court to comprehend the relevant circumstances.
Essentially, the most contentious question before the court is whether it has territorial jurisdiction when persons are deported from the territory of a state which is not a party to the Rome Statute directly into the territory of a state which is a party to the Rome Statute. Fundamentally, this is a legal question. The prosecutor’s arguments on this question are an excellent exposition of the law and practice on deportation and territorial jurisdiction.
By comparing the situation to “cross-border shooting”, the prosecution has argued that deportation has two legal elements: (i) coercion—which forces the victim to (ii) cross an international border. The first element occurs in one state and the second in another. The second element requires that the coercion causes the victim to cross an international border into the territory of another state. Therefore, the prosecution has argued that an “essential element” of the crime takes place in the latter state, i.e. Bangladesh.
As convincing as this argument may seem, it hinges on the notion that crossing an international border into another state is an “essential element” of the crime of deportation. However, people can be deported to high seas (international waters) where the victim is not forced across the border into the territory of another state but rather simply across an international border. Therefore, deportation occurs as soon as the victim is forced to cross an international border; it is irrelevant whether they cross into the territory of another state or the high seas.
This is where Bangladesh can make a significant contribution to the proceedings. Bangladesh could provide extensive legal analysis on the nature and status of international borders, and argue that even if mere crossing of an international border is required for deportation, this too could occur on the territory of another state. In case of the Bangladesh-Myanmar border, factors such as the “no man’s land” and the nature of bilateral administration of the border should be explored in the observations.
Bangladesh could argue that the border between two states (including the no man’s land and the physical border itself) is a territory over which both states exercise shared sovereignty, i.e. the territory belongs to both states. This view is supported by the fact that borders are generally defined and administered jointly by the two neighbouring states and that not all international borders are administered in the same way; their administration is generally the outcome of various bilateral arrangements. Therefore, it could be argued that the element of the crime of deportation, of crossing an international border, occurred on a territory that belongs to both Bangladesh and Myanmar. This is not a new notion in international law. In other words, the international border between Myanmar and Bangladesh is technically Bangladeshi territory. Therefore, the act of crossing of the Myanmar-Bangladesh border occurs in part on Bangladeshi territory, thus establishing the ICC’s jurisdiction over the alleged crime.
Regardless of the direction of the court’s ruling, Bangladesh and the international community must continue to push the Security Council to refer the situation in Myanmar to the ICC so as to allow a complete investigation and subsequent trial of the perpetrators of not only deportation, but all the relevant international crimes.