Examining ICC Jurisdiction in the Rohingya Crisis

Purbasha is a fourth year student, pursing constitutional law, at National University of Study and Research in Law, Ranchi.

Myanmar has always been plagued by civil war and accompanying human rights violations throughout its troubled history since 1962 when the then military under General Ne Win staged a coup and overthrew the democratically elected government of Prime Minister U Nu. The savage violence being employed to evict the Rohingya community overtly endorsed by the state of Myanmar is only the latest act in a tragedy that has been unfolding for much of the past half-century. Rohingya Muslims have lived in Myanmar since as early as the 12th century as according to various historians and human rights groups. However, during the British rule, there was a significant migration of labourers which was considered internal since the British administered Myanmar as a province of India. However, after independence, the Myanmar government viewed this migration as illegal, and it is on this basis that they refused citizenship to the Rohingyas, who are often referred to as “Bengalis” in the state of Myanmar. After the 1962 military coup in Myanmar, all citizens were required to obtain national registration cards, the Rohingyas however were only given foreign identity cards, which limited their job and educational opportunities. In 1982, a new citizenship law was passed that also did not include Rohingya as one of the ethnic groups, effectively rendering them stateless. The law recognized three levels of citizenship, the most basic level being naturalization, proof of family living in Myanmar prior to 1948. The Rohingya generally did not possess such documents since their families had initially been denied citizenship. They have now fled to nearby countries, especially Bangladesh, which now is home to 32,000 registered Rohingya refugees, who are sheltering in camps in the south-eastern district of Cox Bazar.[1] Though countries like Bangladesh and Thailand had allowed these refugees, it has returned many others to Myanmar[2] violating international principles of non-refoulement. There have been incidents of arbitrary violence, and also unjustified mass detentions.[3]

The Rohingya issue is of gravity and requires international attention, simply because domestic courts in Myanmar are still ill-equipped to ensure fair administration of justice and due process of law. The Burmese judicial system has remained largely untouched by recent reforms and still lacks independence of an impartial investigation.[4] They are also not fully independent from the military regime.[5] UN High Commissioner for human rights Zaid Ra’ad al Hussein has described this as a “textbook example of ethnic cleansing”. It is also pertinent to mention here that the government institutions in Myanmar have rendered the Rohingyas “stateless”. This issue “statelessness” lies at the root of the Rohingya crisis and the several human rights violations are nothing but a manifestation of the same.

Recently the Chief Prosecutor for International Criminal Court at Hague, Fataou Bensouda, has taken cognizance of this issue and asked judges to rule whether the body has jurisdiction to open probe into more than 670,000 Rohingya who have been intentionally deported across the border into Bangladesh. She has filed a petition in this regard under Article 19 (3)[6] of the Statute. Given the exceptional circumstance and nature of the legal issue, the Prosecutor has exercised her independent jurisdiction under article 19(3) and 42 to seek a ruling on the question from the Pre-Trial Chamber. Her basic argument stands on invoking jurisdiction against Myanmar military officials, but not by relying on Myanmar’s position with respect to the Rome Statute[7] but rather she has used Bangladesh’s position with respect to Rome Statute considering that it is a receiving country to most of the refugees by relying on Article 12(2)(a)[8] of the statute.

She has submitted that the nature of crime in the present case is such that it is not indivisible, an essential legal element of the crime covered by Article (12)(2)(a) is that crossing an international border must have occurred in the territory of a state which is a party to the Rome Statute, that is what actually happening in the present case. The International Criminal Court has jurisdiction to prosecute individuals for international crime of genocide, crime against humanity and war crimes.[9] Myanmar is not a party to the Rome Statute.[10] The crimes that are happening with the Rohingyas today have been acknowledged as Crime Against Humanity by the UN High Commissioner for human rights.[11] Article 7 of the Rome Statute covers “Crime Against Humanity” which includes deportation and forcible transfer. It is important to determine the distinction between both the terms, as the protection afforded with respect to both the crimes is different. While both safeguard the right of individuals to live in their community and homes, deportation also protects a further set of important rights: the right of individuals to live in the particular state in which they were lawfully present- which means living within a particular culture, society, language, set of values and legal protections.[12]

In circumstances where the enforced border crossing takes the victim directly into territory of another state and when this legal requirement is completed in that second state, the prosecutor has submitted that such a scenario is similar to “cross-border shooting”, in which a perpetrator on the territory of one state fires a weapon and a victim on the territory of the neighboring state is struck and injured. Thus, the above crime would amount to deportation.

Article 12(2) (a) provides that “the Court may exercise its jurisdiction” if the “State on the territory of which the conduct in question occurred” is a state party to the Statute. This conduct requirement means that at least one legal element of an article must occur on the territory of a state party. Accordingly, when a person is deported directly into the territory of a second State (and thus the required legal element—to cross an international border—is established on the facts only when they enter the second State), the Court may exercise jurisdiction under article 12(2) (a) either if the originating State is a State Party to the Court or if the receiving State is a State Party to the Court. This is irrespective of the fact that the coercive act(s) leading to the deportation may have occurred solely in the originating State, since the coercion and the movement of the victim are distinct legal elements under article 7(1) (d), both constituting different facets of the “conduct in question”. It follows therefore that the Court may in principle exercise jurisdiction over any crimes of deportation from Myanmar directly into Bangladesh. That’s when the application of objective territoriality principle comes into place. In 1927 the Permanent Court in the Lotus Case gave its endorsement to this rule.[13] Commentators agree that states can exercise jurisdiction in relation to crimes that occurred only in part on their territory. Internationally this principle has also been adopted. In the 1935 Harvard Draft Convention on jurisdiction with Respect to Crimes, objective territoriality principle has been affirmed.[14]  Article 3 provides that:

A state has jurisdiction with respect to any crime committed in whole or in parts with its territory [….]

More specifically, at least 168 States have ratified at least one international treaty which requires them to recognize that another State Party may exercise jurisdiction over conduct which occurs only partly on their territory.[15] The “Universality principle” also provides a very good ground for establishing jurisdiction in the present case. While other bases of jurisdiction require connections between the prosecuting states and the offense, the perpetrator, or the victim, the universality principle assumes that every state has a sufficient cause in exercising jurisdiction to combat egregious offences that states universally have condemned.

According to the United Nations and other aid agencies, since August nearly 700,000 Rohingya Muslims have fled a brutal military crackdown in Myanmar. Myanmar’s military violent operations against Rohingya Muslims bear the “hallmarks of genocide on human rights” , the UN special envoy on human rights said that though a definitive declaration could not be made until an international tribunal or court had weighed the evidence , there were signs and it is building up to that .[16]   Therefore, for the cause of justice it is the need of the hour that some way or the other the state of Myanmar or other military officials of the State of Myanmar must be held responsible for the atrocities that is being committed to the Rohingyas.


[1] Danish Immigration Service, Rohingya refugees on Bangladesh and Thailand (February, 2011)

[2] Ibid , at page 31

[3] Lee J. F. Depper mann, Increasing the ICJ’s Influence as a Court of Human Rights: The Muslim Rohingya as a CaseStudy, 14 Chi. J. Int’l L. 291 (2013)

[4] [4] Burmese Courts Hand Down Heft Sentence in Ethnic Clashes ,Voa News, Nov 28 2012 available online at (https://www.voanews.com/a/in-burma-ethnic-clash-participants-receive-hefty-sentences/1554351.html)   (Visited on Apr 16th 2018)

[5] Ibid

[6] Application under regulation 46 (3), “Prosecution’s request for a ruling on Jurisdiction under Article 19(3) of the Statute,9April2018,International Criminal Court available at https://www.icc-cpi.int/CourtRecords/CR2018_02057.PDF

[7] “The Rome Statute”, International Criminal Court, available at http://legal.un.org/icc/statute/99_corr/cstatute.htm

[8] Supra note 3 at 18

[9] Supra note 5 at 11

[10] Parties to the Rome Statute , International Criminal Court, available athttps://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx

[11] Supra note 3 at 11

[12] Ibid

[13] S.S Lotus(Fr.V.Turk) 1927 P.C.I.J (ser.A) No.10 (Sep 7)

[14]The Harvard Research in International Law: Contemporary Analysis and Appraisals”, Harvard Draft Convention 1935,Pg-501

[15] Supra note 8 at 18

[16]  Myanmar’s Crisis has hallmark of genocide, The New Arab ,available at https://www.alaraby.co.uk/english/news/2018/2/1/myanmars-rohingya-crisis-has-hallmarks-of-genocide-un


2 thoughts on “Examining ICC Jurisdiction in the Rohingya Crisis

  1. Do you think India should play a role in this, given the fact that it has not taken any stand yet? If we continue to be fence-sitters in such matters, we do not deserve a seat a security council, do we?

    Liked by 1 person

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