In September 2018, the International Criminal Court’s (ICC) Pre-Trial Chamber I issued a landmark decision confirming the Court had jurisdiction over the crimes against humanity of deportation, persecution, and other inhumane acts committed by the Myanmar authorities occurring at least in part on the territory of a state party, Bangladesh. In November 2019, Pre-Trial Chamber III granted the Office of the Prosecutor’s (OTP) request to open an investigation into the situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar for these crimes. The Pre-Trial Chamber’s (PTC) decision was praised as a bold but principled move to subject the atrocities perpetrated against the Rohingya to the scrutiny of an international criminal investigation. However, the full impact of these decisions, particularly their application as precedent in other situations brought to the attention of the court, remains unclear.
While the PTC decision opened the door for Rohingya survivors to obtain redress, it has not yet been extended to other situations involving transboundary crimes. For survivors, promise has given way to pessimism, as achieving justice for these displaced populations has proven difficult. Communications under Article 15 of the Rome Statute have requested the OTP open preliminary examinations into transboundary crimes against Belarusian opposition supporters deported into Lithuania, Chinese Uyghurs deported from Tajikistan into China, and Syrian civilians deported into Jordan, where over 600,000 of them currently live in exile.
One such communication was filed by Legal Action Worldwide (LAW) on behalf of 20 Syrian survivors in Jordan, following similar communications to the OTP by Guernica Centre and the Syrian War Victims Association. LAW’s submission argues that the survivors were subjected to the crimes against humanity of deportation, persecution, and other inhumane acts by the Syrian government, with all or part of the crimes taking place on the territory of a state party: Jordan. In the situation in Belarus, four organisations petitioned the OTP under Article 15 to open a preliminary investigation into crimes against humanity of deportation and persecution, impacting an estimated 14,000 civilians who fled their homes in Belarus following post-election violence. The submission argues that one element of deportation and persecution occurred in Poland, Lithuania, Latvia, or Ukraine, all state parties to the Rome Statute. A series of Article 15 communications outlining enforced disappearances and deportations against Uyghurs in Tajikistan have been submitted to the OTP. The submissions detail how Chinese security forces have instigated and directed crimes against the Uyghurs inside Tajikistan, which is a Member State of the ICC.
The Bangladesh/Myanmar decision rested on well-established jurisdictional principles, the applicability of which is not prima facie confined to a single situation. This panel discussion will bring together international legal experts, international justice practitioners, and civil society members, to scrutinise the Bangladesh/Myanmar precedent, its possibilities and limitations, and to discuss how it can and cannot be applied in other contexts involving transboundary crimes. The panel will also critically examine the basis of the Bangladesh/Myanmar decision, asking how it could apply in other situations.
II. Objectives of the panel
This event will grapple with the implications of the Bangladesh/Myanmar precedent in the jurisprudence of the court and in international criminal justice more broadly. The expert panel will discuss possibilities for obtaining justice based on a fair reading of the decision, as well as potential limitations. Clear parallels and distinctions will be drawn between Bangladesh/Myanmar and other situations brought to the attention of the Court with a view to elucidating the decision as legal precedent.
Key matters for consideration include:
- What precedential possibilities did the Bangladesh-Myanmar decision create? What crimes can reasonably be regarded as having a transboundary element?
- What kind of situations can realistically be investigated under the precedent, and what legal and evidentiary thresholds must be satisfied to ensure these situations fit within the parameters?
- Does failure or reluctance to investigate other situations involving transboundary crimes risk an erosion of trust in the ICC’s impartial exercise of jurisdiction? Would a clearer articulation of the basis of the Bangladesh/Myanmar jurisdiction decision, in particular what factors combined to make the transboundary nature of crimes against the Rohingya so salient, mitigate that risk?
- What role will the precedent play in the jurisprudence of the ICC and within international criminal law more generally? Does it have implications for national prosecutorial authorities exercising universal or other forms of extra-territorial jurisdiction?
III. Draft agenda
- Antonia Mulvey (Legal Action Worldwide)
Panel discussion speakers:
- Ambassador Stephen Rapp (Blavatnik School of Government, Guernica Centre for International Justice)
- Nick Leddy (Legal Action Worldwide)
- Rodney Dixon K.C. (Temple Garden Chambers)
- Simon Papuashvili (International Partnership for Human Rights)
- Antonia Mulvey (Legal Action Worldwide)