Articled by Fabian Unser-Nad
On 6 September 2018 the Pre-Trial Chamber I (Chamber) of the International Criminal Court (the Court) ruled that it has jurisdiction over the alleged deportation of Rohingya from Myanmar to Bangladesh. This decision is a significant step towards justice for the Rohingya but has also major implications for another ongoing conflict – Syria.
The Syrian Civil War and the failure of the international community to find a solution is one of the graves tragedies in the history of humankind. Although the UN Human Rights Council in 2011, established the Independent International Commission of Inquiry on the Syrian Arab Republic (IIIM) to continue to monitor and report on violations of international law committed by parties to the conflict, it is barred from entering the territory and does not have a legal mechanism to hold the authors of the atrocities committed accountable. Further an referral by the UN Security Council to the Court is very unlikely. Now the Court’s decision confirming jurisdiction also opens the path for legal accountability in Syria.
On 9th April 2018 the Office of the Prosecutor (OTP) submitted a request pursuant to article 19(3) of the Rome Statute (Statute) on a ruling of the question whether the court may exercise jurisdiction pursuant to article 12(2)(a) on the alleged deportation of the Rohingya from Myanmar, not a State Party to the Statute, to Bangladesh, a State Party. The OTP indicated that “since August 2017 more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh.”
The Chamber first examined the Court’s jurisdiction in relation to deportation as a crime against humanity pursuant to article 7(1)(d). In doing so, it accepted the OTP’s interpretation that the provision sets forth two separate crimes, namely deportation and forcible transfer. This distinction is important because deportation requires the crossing of an international border, while forcible transfer does not, and the provision links the conduct to the destination. The Chamber also noted that the same rationale can be apply to other crimes under its jurisdiction if at least one element or part of the another crime was committed on the State Party’s territory.
Turning to question if the Court may exercise its jurisdiction pursuant to 12(2)(a) the Chamber considered that the precondition to exercise jurisdiction, as a minimum are fulfilled if “at least one legal element of a crime within the jurisdiction of the Court or part of such crime is committed on the territory of a State Party.”
The Chamber observed that the public international law permits the exercise of criminal jurisdiction by a State to the effect that it requires the commission of at least one legal element of the crime in the territory of that State. Further the Chamber highlighted that Myanmar’s penal code has a provision that held perpetrators of crimes committed beyond its borders. And additionally emphasized the inherently trans-boundary nature of the crime of deportation, namely that an element of the crime of deportation is “forced displacement across international borders” and means that the conduct related to this crime necessarily takes place on the territories of at least two states.
In conclusion the Chamber found that article 12(2)(a) allows for the exercise of the Court’s jurisdiction.
Turning to the Situation in Syria. Syria is like Myanmar not a State Party to the Statute. The Syrian Civil War is ongoing since 2011 and has already taken more than 400,000 lives, with around 5 million seeking refuge abroad and over 6 million internally displaced people. Various Syrian rebel groups or the Syrian governments are responsible for the deportations of the Syrian civil population and many of the population are fleeing as far as Europe. However, for the Court to exercise its jurisdiction the fleeing must be “direct” to another State. Accordingly, to exercise its jurisdiction only Syrian refugees who flee directly to the territory of a State Party could be taken into account. One of the neighbor to which many refugees flee is the Hashemite Kingdom of Jordan which is a State Party to the Statute. There are more than more than 655,000 registered Syrians as refugees in Jordan. This number is somewhat similar to the number of Rohingya people mentioned in the OTP’s request. At this moment a form of legal accountability is what the Syrian survivors need, and the recent chamber decision could be a step on that path.
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