The ICC and Myanmar – What happens now?

Documentary filmmaker Shafiur Rahman recently sat down with international criminal lawyer Megan Hirst about the confusion regarding the jurisdiction the International Criminal Court has over the deportation of the Rohingya people from Myanmar to Bangladesh

On September 6, the Pre-Trial Chamber of the International Criminal Court (ICC) decided that the court had jurisdiction over the deportation of Rohingya people from Myanmar to Bangladesh, and possibly other crimes.

There seems to be some confusion about what this actually means. To address this question, documentary filmmaker Shafiur Rahman spoke to Megan Hirst, an international criminal lawyer, of Doughty Street Chambers. With over a decade of experience in these issues, Megan Hirst visited the Rohingya refugee camps in 2018, and took testimony from victims of the Tula Toli massacre for her victims’ submissions to the International Criminal Court.

What does jurisdiction actually mean? On what issues does the ICC have jurisdiction given that Myanmar is not a party to the Rome statutes?

The ICC only has jurisdiction over specified crimes, and only if they are (a) committed by the national of a state party; (b) occur at least in part on the territory of a state party ( in this case Bangladesh) or (c) are referred to the Court by the UN Security Council.

So is the court now able to proceed without any further ado?

Even where jurisdiction exists, the prosecutor cannot just simply begin an investigation. A trigger mechanism is required before jurisdiction can be exercised through an investigation. The triggers are: (a) a referral by a state party; (b) a referral by the UN Security Council; or (c) where the prosecutor has requested and received authorization for an investigation from a Pre-Trial Chamber.

So in terms of the Rohingya, how do you see this working out?

The Court has ruled that it has jurisdiction over alleged crimes against the Rohingya which occurred at least in part within Bangladesh. However, before an investigation can occur (so that cases can eventually be brought), one of the triggers for the exercise of jurisdiction is needed. A UN Security Council referral is clearly unlikely. This leaves two options. Pre-Trial Chamber I has encouraged the prosecutor to request authorization for an investigation, and it seems likely that she would do so in due course. The alternative is that a state party refers the situation to the prosecutor. A referral can be made by any state party — it need not be a country which has a connection to the alleged crimes.

What are the pros and cons of a state party referral versus a prosecutor request?

If a state referral occurred, it would permit the prosecutor to initiate an investigation without going to the judges for authorization. The main advantage would be that an investigation could possibly begin much more quickly since the process for obtaining judicial authorization usually takes some time.

In terms of a state referral, hypothetically speaking, could a country like The Maldives do this?

If an unconnected state such as the Maldives wanted to refer the Rohingya situation to the prosecutor, it could do so (as long as it is a party to the Rome Statute). The effect of this referral would not be to expand the jurisdiction of the Court. The Court’s jurisdiction would remain the same: Pre-Trial Chamber I has held that this jurisdiction exists where part of a crime occurred in Bangladesh. (The Court would still not have jurisdiction over crimes committed entirely within Myanmar.) But the benefit of the referral would be that the prosecutor could decide on her own to begin an investigation, without needing to go through a possibly lengthy process of requesting authorization from the judges.

This article was first published on medium.com