Yazdan Kargaran is an LLM student of Human Rights at Nottingham Trent University, focusing on international criminal law and international refugee law.

Introduction:

At a recent press conference at the United Nations in Geneva, Volker Türk, the UN High Commissioner for Human Rights, expressed his deep concern about Myanmar’s ongoing human rights crisis. “For decades, the Myanmar authorities have consistently targeted the Rohingya and other ethnic groups, depriving them of their rights and freedoms and undermining their ability to survive,” he said. Tragically, these atrocities have resulted in the loss of many lives and incalculable damage.

Türk’s personal experiences during his many trips to Myanmar, particularly in the east of the country, give a disturbing insight into the living conditions of the affected communities. In his view, this humanitarian disaster is directly linked to the systematic denial of human rights. It stresses the urgent need for the army to lift restrictions on movement, facilitate needs assessments and ensure the provision of vital aid and services.

Based on his observations, this blog post looks at the plight of the Rohingya, from home to exile, exploring the intricacies of international law and how the jurisdiction of the International Criminal Court (ICC) can bring hope to this dire situation.

The Unending Suffering of the Rohingya People:

The Rohingya struggle is not a recent saga. It dates to the 1960s and has been exacerbated by increasingly restrictive citizenship laws that have rendered them virtually stateless. The Myanmar government has treated them as “immigrants” from Bangladesh, ignoring the historical fact that the Rohingya were originally from Myanmar. This forced denationalisation violates their right to nationality and may constitute a breach of customary international law.

Living under the cloak of systemic oppression, the Rohingya have been the victims of recurrent violent attacks, such as sexual violence and the destruction of properties, notably in 2012 and 2016. The consequences? More than 125,000 internally displaced people and 87,000 refugees. Tragically, this persecution is nothing new. We can go back to the persecution campaigns of 1978 and 1989, which saw hundreds of thousands of Rohingya flee to Bangladesh to seek refuge.

Let us turn now to 25 August 2017. In northern Rakhine State, the Arakan Rohingya Salvation Army (ARSA) launched an assault on more than thirty security posts. In retaliation, the Myanmar army launched “clearance operations” against Rohingya villages. Although these operations officially ended after a few weeks, the facts show that they continued for much longer.

The military response was disproportionate to the actions of the ARSA. The horrifying accounts of the survivors reveal that unarmed civilians were subjected to unspeakable violence, including shootings, stabbings, rape, and burnings.

In the mass migration that followed, the majority of Rohingya, mainly women and children, fled to Bangladesh by any means imaginable. By 2021, more than 870,000 Rohingya had found refuge in Bangladesh.

The ICC Jurisdiction and The Rohingya Crisis

While the ICC has jurisdiction over a range of serious crimes, including genocide, war crimes and crimes against humanity, exercising its jurisdiction in the Rohingya crisis has raised several interesting legal questions. Let us take a closer look at how the ICC has approached these complex issues.

Interestingly, despite the ICC’s jurisdiction over serious crimes, the Prosecution has chosen to specifically request a ruling only on the crime of deportation, a subcategory of crimes against humanity under Article 7(1)(d) of the Rome Statute. Given the gravity of the violence inflicted on the Rohingya, a prosecution which included other international crimes might seem appropriate. This approach could potentially send a more powerful message to the parties involved as well as to the broader international community.

However, why hasn’t the ICC upheld other charges? It is a question of jurisdiction. Normally, the ICC can take jurisdiction over crimes committed in a Member State, crimes committed by nationals of a Member State, cases accepted by a State or cases referred by the UN Security Council. Myanmar does not meet any of these criteria.

However, the ICC Pre-Trial Chamber has found a way around these obstacles. Despite the violence in Myanmar, the majority of Rohingya victims were forced to flee to Bangladesh, an ICC member state. According to the ICC, this situation brought the crime of deportation within its jurisdiction, in accordance with Article 7(1)(d) of the Rome Statute.

The Pre-Trial Chamber clarified that deportation (cross-border) and forcible transfer (internal) are two distinct crimes, each with its elements. They concluded in paragraph 57 that the “destination requirement” – where victims end up after being forcibly removed – is a critical factor in legally qualifying an act of deportation. This allows the ICC to exercise jurisdiction over the crime of deportation in the context of the Rohingya crisis.

In addition, the Pre-Trial Chamber argued that at least one legal element of a crime must occur in a State Party for the ICC to exercise jurisdiction. In the case of the Rohingya, this condition was met by the mass deportation to Bangladesh.

The Pre-Trial Chamber also noted in paragraphs 77-78 that if Myanmar prevents the return of the Rohingya, this could amount to a violation of Article 7(1)(k), which prohibits “other inhuman acts” causing great suffering or serious bodily or mental harm. Although this crime does not require a cross-border element such as deportation, it supports the idea that the ICC can exercise jurisdiction if part of the crime occurs in a State Party.

The whole situation is a compelling case study of how the ICC can exercise its jurisdiction in complex situations. By focusing on the crime of deportation, the ICC has skilfully navigated the jurisdictional twists and turns of the Rohingya crisis, paving the way for justice for the victims.

Final thoughts: The ICC investigation into Myanmar – a ray of hope for global justice?

The ICC’s jurisdiction over the Rohingya crisis in Myanmar has sparked renewed interest in how international justice systems deal with this type of crime. It has also provided an insight into the impact that the ICC could have in the future in discouraging governments from committing cross-border crimes, particularly those not parties to the Rome Statute.

This decision, particularly the possibility of extended jurisdiction, has given rise to a sense of optimism among supporters of international criminal justice. It suggests that even in the face of political and jurisdictional complexities, there is a way for the ICC to intervene and enforce international law. This is particularly important when faith in the ICC may be wavering due to various challenges. While jurisdiction over the Rohingya crisis may seem limited, it is a significant victory for international justice. It demonstrates the ICC’s ability to adapt its jurisdiction to complex situations, thereby providing an opportunity to strengthen the credibility and legitimacy of the ICC.

While we must seize the potential opportunities this Pre-Trial Chamber offers, it is essential to navigate cautiously. The value of using this decision as leverage to expand the Court’s jurisdiction is clear, but it is essential to preserve the ICC’s reputation by ensuring that any expansion complies with international law. The crime of deportation is not the only one with a cross-border aspect, and the Pre-Trial Chamber has also highlighted other cases of crimes of this type. This broadened perspective opens new avenues for discussion and exploration, giving hope for further progress in international justice.

Although the focus has been on the crime of deportation by Article 7(1)(d) of the Rome Statute, other serious crimes should not be overlooked. These include persecution under Article 7(1)(h) and other inhumane acts causing great suffering under Article 7(1)(k). For example, if the Myanmar authorities continue to prevent the return of the Rohingya, who are now living in appalling conditions in Bangladesh, these actions could constitute other crimes against humanity committed on the territory of Bangladesh. This idea implies that denying the right to return to one’s country could serve as an additional basis for the ICC’s jurisdiction.

The ICC’s jurisdiction over the situation in Myanmar raises important questions about the potential global implications of such a decision. Can the principles set out in this decision be applied to other international crises? To what extent could jurisdiction over non-state parties be extended? For example, many Syrian refugees have fled to Jordan, a state party to the ICC, paralleled by large numbers of Iranian refugees who have fled to various European countries, many of which are parties to the Rome Statute.

The repercussions of the ICC’s Pre-Trial Chamber decision could be considerable, potentially indicating a substantial change in the landscape of international justice and refugee protection.