Decoding The Decision Of ICC To Authorise The Prosecutor To Investigate The Situation Of Rohingyas

On November 14, Pre-Trial Chamber III of the International Criminal Court authorised the Prosecutor to conduct a preliminary investigation on the possible crimes against humanity committed against the Rohingyas. The approval has been given under Article 15 of the Rome Statute, which allows the Prosecutor to initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the ICC.

The authorisation has come in pursuance of a request made by the Prosecutor Fetou Bensouda on July 4 2019, seeking permission to investigate into the alleged crimes against humanity, deportation, and other inhumane acts and persecution against the Rohingya people from Myanmar.

The Pre-Trial Chamber had also received requests on behalf of the hundreds of alleged victims who had expressed their willingness for the court to investigate the crimes as they believe that 'only justice and accountability can ensure that the perceived circle of violence and abuse comes to an end'.

The present authorisation is not just a significant development in the jurisprudence of the court, but it also raises certain fascinating issues regarding the scope of such investigation, considering that Myanmar is not a party to the Rome Statute as well the efficacy of the same to establish the crimes enshrined under the said Statute.

Jurisdiction ratione temporis

Since Myanmar is not the party to the Rome Statute, neither has it made any declaration invoking the jurisdiction of the court in the present situation, the investigation could not be allowed to take place for the crimes committed only in Myanmar.

However, as Bangladesh is a state party to the Rome Statute, the court can exercise its jurisdiction over alleged crimes that have partially been committed on the territory of Bangladesh since at least 9 October 2016, under Article 11 of the Statute. This is how court has exercised its jurisdiction 'ratione temporis' over the present situation.

Principle of Complementarity

Under Article 17 of the Rome Statute, the court has to declare a particular case to be inadmissible, if any of the following conditions exist:

The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

The case is not of sufficient gravity to justify further action by the Court.

In the present decision, the Chamber has held that due to the open-ended request of the Prosecutor, absence of any specific suspects or charges and the general nature of the information, the Chamber sees no need to conduct a detailed analysis, as this would be largely speculative.

On the issue of Prosecutor notifying Myanmar about her decision to conduct investigation, the Chamber considered that Prosecutor can move such an application now and Myanmar can ask for deferral of investigation within one month from the date of this decision. Moreover, specific challenges to the admissibility of specific cases can be brought at a later stage, pursuant to article 19 of the Statute.

The Chamber also relied upon the report submitted by the victims, wherein the desire for an investigation by the Prosecutor has been meeting l mentioned, is a sufficient ground to believe that the investigation would serve the interest of justice. Moreover, on the issue of gravity, it was held that almost a million Rohingyas have been forcibly displaced from Myanmar to Bangladesh. Therefore the said figure is sufficient to meet the gravity requirement to invoke the jurisdiction of the court.

Ratione Materiae: Material Scope of the Investigation

In terms of the extent and nature of investigation to be conducted, the Chamber has authorised investigation in relation to any crime within the jurisdiction of the Court committed at least in part on the territory of Bangladesh, or on the territory of any other State Party or State making a declaration under article 12(3) of the Statute, if the alleged crime is sufficiently linked to the situation as described in this decision.

The Chamber has also highlighted that the Prosecutor is not restricted to the incidents identified in the Request and the crimes set out in the present decision but may, on the basis of the evidence gathered during her investigation, extend her investigation to other crimes against humanity or other article 5 crimes, as long as they remain within the parameters of the authorised investigation. Moreover, the Prosecutor is also not restricted to the persons or groups of persons identified in the Request.

The Chamber has allowed such a long arm of investigation keeping in mind the purpose of Article 15 - which is to prevent frivolous, unwarranted and politically motivated investigations. It is opined that pursuant to an intensive investigation, if it appears that at least one crime under the Statute has been committed and the potential cases are admissible under Article 53(1), then claims of political motivated investigations would not stand.

The Chamber also noted that limiting the Prosecutor in her investigation to the incidents identified in the Request would have a negative impact on the efficiency of proceedings and the

effectiveness of the investigation. It would require the Prosecutor to request authorisation every time she wishes to add new incidents to the investigation, making the article 15 procedure highly cumbersome.

It would also put pressure on her to identify incidents, crimes and actors involved as comprehensively as possible at the preliminary examination stage, even after she is satisfied that the requirements set out in article 53(1)(a)-(c) of the Statute are met. This will inevitably delay the request for authorisation and the investigation itself and would be highly inefficient with regard to the collection of evidence.