Victim Rights and the ICC Pre-Trial Chamber’s Decision on the Jurisdiction of the Court over the Crime of Deportation Against the Rohingya People
On September 6, 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) rendered its decision on the question of whether it may "exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh." The Chamber's decision was prompted by a request from the Office of the Prosecutor (OTP) requesting the Chamber's opinion on the question of jurisdiction for the alleged crimes committed in both Myanmar and Bangladesh.
In its decision, the Chamber found that when the crime of deportation under Article 7(1)(d) of the Rome Statute is initiated in the territory of a state not party to the Rome Statute, and completed within the territory of a state party, the Court has jurisdiction over the crime under Article 12(2)(a). In other words, the Court found jurisdiction over the alleged crime of deportation against the Rohingya people, although it was initiated in Myanmar (not a state party), because it was completed in the territory of Bangladesh (a state party). With this confirmation, the OTP soon announced that it would "carry out a full-fledged preliminary examination."
The OTP's interest in conducting a Preliminary Examination is an important step forward for the victims of the alleged crimes. Beyond the important procedural implications for victims of opening a Preliminary Examination, further lasting effects on the rights of victims before the Court and on their ability to pursue justice before the ICC are contemplated below.
The Nature of the Crimes under Article 7(1)(d)
Most important to the rights of victims of the alleged crimes was the Chamber's decision that the Court has jurisdiction over the alleged crimes of deportation even though the Rohingya people's displacement started in a state not party to the Rome Statute.
In order to determine whether the Court may exercise jurisdiction over alleged crimes against the Rohingya people, the Pre-Trial Chamber considered that it must first determine the scope of the crimes alleged under Article 7(1)(d); namely whether the provision setting out the crime against humanity of "[d]eportation or forcible transfer of population" can be viewed as one crime, or two separate and distinct crimes. Considering the object and purpose of the Statute, as well as the interpretation of both the crime of deportation and forcible transfer by other international criminal tribunals, the Pre-Trial Chamber determined that deportation and forcible transfer are two separate crimes. The Chamber noted that the crimes are differentiated by whether they involved the crossing of a state's border, whereby "displacement of people lawfully living in an area to another State amounts to deportation" and "displacement to a location within the borders of a State" amounts to forcible transfer.
Significantly, this determination allows members of the Rohingya community who have been displaced from Myanmar to Bangladesh to consider that they are victims of the crime of deportation before the ICC. However, the distinction between deportation and forcible transfer highlights another important interest for the victims. As the Chamber noted, while the "legal interest commonly protected" by both crimes is the right to live in a certain area without forcible removal, the crime of deportation protects another right; the right to live and remain in a state (albeit lawfully) without forcible removal.
For victims seeking to participate in the proceedings before the Court, identification of these two legal interests expands the way in which a potential victim may claim they have suffered harm, and potentially the reparations which can be claimed. For example, without this distinction, a victim may only have listed the harm suffered by being forcibly moved from one area to another, but with the recognition that deportation also involves the right to stay in a specific state, a victim could also list the harm associated with being displaced to another country where the victim may have no legal protections or may be subject to differing customs and traditions.
Jurisdiction of the Crime Under Article 7(1)(d)
Once the Chamber found that Article 7(1)(d) comprised two distinct crimes, it went on to determine that the Court may exercise jurisdiction under Article 12(2)(a) if "at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party."
Noting the Element of Crimes, the Chamber recognized that the act of displacement over a border and into the territory of a state party is a specific element of the crime of deportation, and in the case of the Rohingya people, their displacement into the territory of Bangladesh would mean that the alleged crime of deportation would contain one legal element that occurred in the territory of a state party.
In making this decision, the Court acknowledged it was the first time the Court had considered the issue of jurisdiction over crimes spanning between states parties and non-state parties, and for a crime in which the movement of victims is integral to the nature of the crime.
Finding that only one element of the crime of deportation must take place in the territory of a state party to trigger the jurisdiction of the Court recognizes the reality that the harm suffered by victims can occur at different stages of its commission and in the territory of both state parties and non-state parties. Considering that many conflicts are not confined to one country's borders and spill-over into the territory of a neighboring state, the Chamber's decision raises whether the requirement that one element be committed in the territory of a state party could be fulfilled at the beginning of the crime as well. In the case of the Rohingya people, the elements of the crime of deportation began in a non-state party but ended within a state party, so it seems that this could also apply to situations where only one element was initially committed in a state party but the rest of the crime evolved and concluded in a non-state party. When viewing the decision in this way, it highlights a more accurate reflection of the victims' experiences in conflict and with mass violence, and expands the potential for victims to seek justice at the ICC.
The Prosecution's Power to Seek the Chamber's Ruling on Jurisdiction
In making its request, the OTP asserted "independent discretion under Articles 19(3) and 42" to justify a ruling on the question of jurisdiction in the case of the Rohingya peoples' deportation into Bangladesh. Although there was "no case present" before the ICC on the issue, it was requested "prior to an indication that the [OTP] intends to proceed with an investigation."
It was for this reason that JudgeMarc Perrin de Brichambaut lodged a partially dissenting opinion taking issue with the Prosecution's ability to seek such an opinion before the initiation of proceedings before Court, and found that entertaining the request at this "embryonic"time rendered the Chamber's decision "purely academic" and "speculation tantamount to delivering a de facto advisory opinion." Judge de Brichambaut submitted that the prosecution could not rely on Article 19(3) to seek a ruling on jurisdiction from the Court until "the proceedings have reached the stage of a case identified by the Prosecutor."
Instead, the majority found that the OTP may make such a request, though not for the reasons set out by the prosecution under Article 19(3), which it found to be "quite controversial." Instead, the majority decided there was no "need to enter a definite ruling on whether article 19(3) . . . is applicable at this stage of the proceedings" and alternatively offered Article 119(1), and the "established principle" that a tribunal may determine the extent of its jurisdiction (la compétence de la compétence), as justification for allowing consideration of the prosecution's request.
The majority's decision allowing the prosecution's request creates an important precedent that may permit the prosecution to gauge the viability of certain aspects of a case ahead of starting a Preliminary Examination. While, for the Rohingya people, the Chamber's decision on jurisdiction worked in favor of victims hoping to pursue justice before the ICC, victims should not assume that future requests from the prosecution will always work in their best interests.
If the majority had agreed with Judgede Brichambaut, the prosecution would have been required to conduct a Preliminary Examination into the crimes committed against the Rohingya people, and to reach a stage where a case was identified, before requesting a ruling from the Court on the jurisdiction. During the Preliminary Examination, individuals would have ample time to register as participating victims and submit evidence of the crimes committed—evidence that could also support arguments that the Court's jurisdiction has been met. However, in bypassing the Preliminary Examination phase, the victims' rights to participate in this phase of the proceedings are curtailed and, if the Court does not find in favor of jurisdiction, completely extinguished with little chance the OTP would pursue any further examination of the alleged crimes.
Although the Chamber decided that because the "personal interests of the victims [were] affected" by the Court's consideration of the Prosecution's request, the victims could submit observations on their views, the scope of the victims' right to participate in the proceedings was limited in comparison to their participatory rights during a Preliminary Examination. Here, the victims' ability to participate was limited to submissions on the "specific legal question arising from the Request," while a Preliminary Examination allows all victims who have suffered harm as a result of crimes under the Rome Statute sufficient time to register as victims and submit full accounts of their experience for consideration by the Prosecution.
Triggering Victims' Rights Before the Court
Despite this risk, the Chamber's decision to allow victim participation during adjudication of the Prosecution Request reinforced the victims' ability to participate before the Court whenever their "personal interests . . . are affected."
While Article 68(3) permits the Court to allow the victims' "views and concerns to be presented and considered at a stage of the proceedings determined to be appropriate by the Court," the Chamber allowed victim participation although no official proceedings had been initiated.
Notably, the Chamber's decision suggested that the Prosecution has already de facto initiated a Preliminary Examination—"whether formally announced or not"—by receiving and reviewing communications and complaints on the alleged crimes. Given their approval of jurisdiction, the Chamber recommended that the OTP take steps to open an official investigation to avoid delay to victims' ability to claim reparations.
It is possible that an important precedent has been set, whereby such OTP's actions may be recognized as a de facto Preliminary Examination that would trigger the rights of the victims to participate. It further raises whether the victims could seek to exercise their rights when they believe a de facto preliminary examination has been conducted, as their rights would have been affected by such actions by the Prosecutor; whether formally announced or not.
Litigating Crimes Occurring in a Non-State Party
Last, the implications of investigating and proving a case which occurred, in part, in the territory of a non-State Party must not be underestimated.
There is a problematic reality concerning the limitations the prosecution will face in non-state parties when attempting to access evidence, precure official documents, interview and protect witnesses, or ultimately effectuate an arrest warrant. On this point, the Pre-Trial Chamber seems to surreptitiously address Myanmar's refusal to participate in the proceedings before the Court. On August 17, the Prosecution notified the Chamber of an official statement issued by Myanmar's Office of the State Counsellor (Aung San Suu Kyi) holding that the Court did not have jurisdiction to decide the Prosecution's question, and notably, the Chamber agreed to enter the statement in the "Court's official record" for the "purpose of relying on the recent statement . . . or any other statement issued by the Government of Myanmar."
Although this move still does not address the larger complications that a non-state party's lack of cooperation would have on issues such as investigations or witness protection, it indicates the Chamber's awareness of these difficulties and willingness to confront a state's attempts to dodge engagement with the Court by nevertheless relying on their public statements. It raises the question of whether parties in future could submit public statements to be entered into the public record and relied upon for their substance.
Overall, victims seeking to participate before the ICC should be aware of the diverse ways the Pre-Trial Chamber's decision affects their rights before the Court. Not only does this decision have the potential to trigger the rights of the victims at a stage when a Preliminary Examination could be deemed de facto initiated, but it expands the scope of harm a victim may be recognized as suffering and the territorial jurisdiction applicable for accessing potential crimes. Yet, victims should also be aware of the potential pitfalls to these advances; particularly the risk of preempting a decision on the viability of a case before the victims have had a chance to register their story with the Court, and of the potential for noncooperation in the territories of non-state parties.
About the Author: Haydee Dijkstal is an international criminal and human rights lawyer.
 ICC, Request under Regulation 46(3) of the Regulations of the Court, Case No. ICC-RoC46(3)-01/18-1, Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ¶ 43 (Apr. 9, 2018) [hereinafter Prosecution Request]. See also ICC, Request under Regulation 46(3) of the Regulations of the Court, Case No. ICC-RoC46(3)-01/18-37, Decision on the "Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute," ¶¶ 50, 73 (Sept. 6, 2018) [hereinafter PTC Decision].
 See Prosecution Request, supra note 1.
 PTC Decision, supra note 1, ¶ 73.
 ICC Press Release, Statement of ICC Prosecutor, Mrs Fatou Bensouda, on Opening a Preliminary Examination Concerning the Alleged Deportation of the Rohingya People from Myanmar to Bangladesh (Sept. 18, 2018), https://www.icc-cpi.int/Pages/item.aspx?name=180918-otp-stat-Rohingya.
 Rome Statute of the International Criminal Court art. 7(1)(d), July 17, 1998, 2187 U.N.T.S. 3.
 PTC Decision, supra note 1, ¶¶ 51–61.
 Id. ¶¶ 53, 55–58.
 Id. ¶ 55.
 Id. ¶ 58.
 Id. ¶ 64.
 Prosecution Request, supra note 1, ¶ 3.
 ICC, Request under Regulation 46(3) of the Regulations of the Court, Case No. ICC-RoC46(3)-01/18-37-Anx, Decision on the "Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute," (partially Dissenting Opinion of Judge Marc Perrin De Brichambaut), ¶ 8 (Sept. 6, 2018) [hereinafter Partially Dissenting Opinion].
 Id. ¶¶ 4, 5, 40.
 Id. ¶¶ 7–13.
 PTC Decision, supra note 1, ¶ 27.
 Id. ¶¶ 28–33.
 See, e.g ., Partially Dissenting Opinion, supra note 15, ¶¶ 12, 13.
 PTC Decision, supra note 1, ¶ 21.
 Rome Statute, supra note 5, art. 68(3). See also Rule 93.
 PTC Decision, supra note 1, ¶ 82.
 Id. ¶¶ 83–88.
 PTC Decision, supra note 1, ¶ 23.