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Q&A: How a legal challenge on Rohingya deportation could redefine the bounds of international justice

“It's an incredibly compelling case given the scale of the atrocities that have occurred”

Fred Dufour/AFP

It’s a simple-sounding question with far-reaching ramifications: does the International Criminal Court have the mandate to investigate the alleged deportation of Rohingya civilians from Myanmar into Bangladesh?

Chief Prosecutor Fatou Bensouda has asked judges to decide whether the ICC has jurisdiction over this narrow line of investigation, which does not include murder, torture, rape, apartheid, or other crimes against humanity. Bensouda is scheduled to hold a closed-door hearing with ICC judges on 20 June, but there’s no timeline on a decision.

The unprecedented procedural challenge comes months after Myanmar’s military crackdown in northern Rakhine State last August pushed more than 700,000 Rohingya into neighbouring Bangladesh.

☰     Read more: The narrow path to justice

Attempts to investigate rights abuses and possible crimes against humanity in Myanmar have stalled for months. Myanmar continues to block a UN-mandated rights probe on its soil, and the Security Council has not referred the Rohingya issue to the ICC, despite numerous calls from rights groups who accuse Myanmar security forces of committing ethnic cleansing.

While it’s unclear what ICC judges will decide on the deportation case, some say the prosecution’s focus is far too limited, given that Myanmar’s security forces are also accused of other grave crimes. In a separate submission to the court in late May, lawyers representing 400 Rohingya women and children who are now in refugee camps in Bangladesh argue that the court should also investigate crimes of persecution, apartheid, and genocide.

“The prosecution’s approach to jurisdiction is unjustifiably narrow,” the lawyers wrote in their submission, which included 400 thumbprints: one for each of the women.

“What happened in Rakhine State haunts us,” the women wrote in an accompanying statement. “We are looking for justice from the United Nations and the International Criminal Court. The way we have been thrown out of our country, the way we have lost our freedom, it is not right.”

Rights groups, UN investigators, and refugees themselves accuse Myanmar’s security forces of slaughtering civilians, raping women and girls, and burning down villages during last year’s violence. Médecins Sans Frontières researchers estimate that at least 6,700 Rohingya were killed in the crackdown. Myanmar officials have repeatedly denied almost all allegations; they say the security forces were responding to a series of attacks by a group of Rohingya fighters.


If judges decide in Bensouda’s favour, it would effectively bypass the need for UN Security Council referral to investigate Myanmar. And some legal observers say a ruling confirming jurisdiction would also have wider impacts, clearing a path for ICC investigations of alleged deportation crimes in countries currently beyond the court’s reach, such as Syria.

At issue is a key stumbling block: Myanmar is not a member of the war crimes court – meaning the ICC can’t investigate allegations there unless instructed to do so by the UN Security Council. However, Bangladesh is a member, opening this possible legal avenue.

To delve further, IRIN spoke to Priya Pillai, a Manila-based lawyer who specialises in international law and transitional justice. Pillai has worked at the International Criminal Tribunal for the Former Yugoslavia and the International Federation of Red Cross and Red Crescent Societies, and has a PhD from the Graduate Institute in Geneva.

Priya Pillai: I think it's an incredibly compelling case given the scale of the humanitarian issues, the scale of the atrocities that have occurred, and the lack of redress in terms of international accountability.

There have been attempts to try to get the UN Security Council to refer Myanmar to the International Criminal Court. There has been an international fact-finding mission, but there have been issues of access around some of these questions. Myanmar has also announced that it's going to set up a commission of inquiry to look into the events in northern Rakhine State. So, there are a few pushes and pulls, and there are attempts to get international legal accountability, but they've all been stalled so far or haven't really amounted to anything.

In-depth: The denied oppression of Myanmar’s Rohingya people


This current approach that the prosecutor of the International Criminal Court has taken is particularly interesting given the context of the massive humanitarian flow, as well as the question of who is accountable: is there anything that's going to occur at the level of an international accountability mechanism that is going to look at this, or is it going to be left to Myanmar to look at internally? For reasons that are very valid, there are a great number of questions around that and there's a great deal of scepticism in terms of any meaningful justice efforts in Myanmar itself.

IRIN: The prosecutor’s request comes down to a question of jurisdiction. Myanmar is not a signatory to the Rome Statute – the treaty that established the ICC – but Bangladesh is. How does this play a role in her decision to concentrate on the crime of deportation?

Pillai: The prosecutor is basically asking the court to say that it has jurisdiction based on a crime that has occurred partly in a non-state party as well as a state party. So it's a very unique legal situation. The prosecutor’s argument is that deportation is across these two borders, given that the crime started in Myanmar and is continuing in and has taken place across the border, and Bangladesh is a state party. Therefore, the ICC prosecutor believes she has jurisdiction.

This is definitely a way of inquiring into a crime that has cross-border effects. Deportation has been looked at as part of international legal proceedings, but typically with many other serious crimes, and usually most of the other crimes have been given more emphasis or given more importance. So this is really the first case where the stand-alone question of the crime of deportation as a crime against humanity is being seriously pursued in an international criminal court to assert jurisdiction.

IRIN: This means that the prosecution is focusing on a very specific crime, deportation, but other arguably more serious crimes would not form part of any eventual investigation.

Pillai: The first thing I would say is: I wouldn't consider deportation to be a minor crime. I understand in the context of possible allegations of genocide as well as various other crimes against humanity, this may not seem that important. But I think it's good to emphasise that it is a huge part of what has happened in Myanmar. Essentially, you've had deportation as a result of and as a consequence of other atrocities, but it has also resulted in an incredible loss of life as well as essentially an entire population being moved from their place of origin. So, I think it is serious.

The scope is relatively limited, but it does hold a certain measure of accountability, given that there are a lack of any other legal proceedings at this point related to Myanmar. This is a relatively significant step in at least ensuring that there is a certain measure of accountability. But it does hinge on this particular crime of deportation and its cross-border effects.

IRIN: The Rome Statute considers “deportation or forcible transfer of population” as a crime against humanity, but it does not specify that deportation involves a population crossing an international border. In her submissions, the prosecutor argues that “crossing an international border” is an “essential legal element of the crime”. Why this focus?

Pillai: This crossing of a border is a part of the crime of deportation. The distinction drawn by the prosecutor is that “deportation” requires crossing an international border, whereas “forcible transfer” relates to displacement within state borders. The argument asserting jurisdiction of the court hinges upon an essential element: completion of the crime of deportation in Bangladeshi territory.

If the judges say deportation doesn't consist of crossing a border or it's not a component of it, then possibly you wouldn't be able to assert jurisdiction. So the point of jurisdiction and the crime are actually very closely related and one will affect the outcome of the other.

IRIN: How might this case impact future ICC investigations into crimes committed in other countries?

Pillai: It's really the first case where the court is going to look at asserting its jurisdiction in a non-state party, based on the fact that you've had deportations that have started in the territory of a non-state party. So it's basically a test case. It could open the door to a clearer legal analysis and understanding of deportation as a crime against humanity across these borders under the Rome Statute. And it could also then open the door to other instances where you might have a state party that borders a non-state party, and a way for the court to assert jurisdiction over the crime of deportation.

I think Syria and Jordan is probably the closest corollary. Jordan ratified the Rome Statute in 2002. So Jordan is a state party. Syria is not. And you have an ongoing conflict with a massive exodus of people across borders.

The UN Security Council has not referred this to the ICC. So this could potentially open the door to the prosecutor looking into deportation by looking into a state party that borders Syria; in this case that could be Jordan. So I think there are implications in terms of real-world policy-making and how state officials might be held to account – or at least people within the state who have direct knowledge or direct input into any of the elements of this crime of deportation.

Given the growing frustrations around the role of the Security Council and how business is conducted there, this could be a way of sidestepping the Security Council.

IRIN: So a ruling confirming jurisdiction for cross-border deportation crimes from Myanmar could have far broader implications.

Pillai: If the court does rule that the prosecution has jurisdiction in the case of Myanmar, I think there's a huge impact for any potential cases where you have a state party that adjoins a non-state party, or you have the forced movement of people across borders between a state and non-state party.

There will also be strenuous objections by many states in response to this development. And essentially it comes down to the question of sovereignty: states are sovereign. They should be able to take on obligations or responsibilities that they want to take on – that's basically the underlying basis of most of your international treaties, whether they're in the economics sphere or human rights or any other areas. But having this case decided before the ICC, which essentially asserts jurisdiction of an international criminal body over a state that has not accepted the obligations of the Rome Statute, will definitely raise questions from a lot of states.

And the counter-argument to that is: when you have massive human rights violations then, to a certain extent, you don't have the option to sidestep accountability. But it will raise really complex questions in terms of the nature of international law and international judicial oversight, as well as accountability.

(This interview was edited for length and clarity)

(TOP PHOTO: Rohingya refugees wait in line under the rain during a food distribution at Nayapara refugee camp in Bangladesh's Ukhia district on 6 October 2017. CREDIT: Fred Dufour/AFP)

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