ICJ Media Review: Judges hold that ICC may exercise jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh

Like Fatou Bensouda
Saturday, September 8, 2018 - 09:17

By ICL Media Review

In this week's review, news about the ICC’s decision on jurisdiction over deportation crimes against Rohingya people in Myanmar, judges removed from the appeal of Mladic, amicus requests in the admissibility challenge of Saif Gaddafi and final remarks from the High Commissioner for Human Rights

ICC decision finds by majority holds that court has jurisdiction over deportation crimes crossing from non ICC Member States to the territory of a Member State

The International Criminal Court’s Pre-Trial Chamber I held today that the ICC may exercise jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh, despite the fact that Myanmar is not a party to the Rome Statute. The ruling follows a request by the ICC Prosecutor under Article 19(3) of the Rome Statute, arguing that although the acts underlying the alleged deportation of the Rohingya occurred in Myanmar, the Court may still exercise jurisdiction because the Rohingya’s crossing of the border, which is an element of the crime, occurred in Bangladesh, which is a state party to the Rome Statute. Noting the “established principle” of “la competence de la compentence,” or the idea that an international court may determine the extent of its own jurisdiction, the Chamber held that it may entertain the Prosecutor’s request. It found that the jurisdictional issue raised by the Prosecutor was not abstract or hypothetical, but was rather a concrete question that had arisen in the context of communications received by the Prosecutor and public allegations of deportation.

In its majority decision, the Pre-Trial Chamber noted that the application of Article 12(2)(a) of the Rome Statute has generally been uncontroversial, as most of the cases before the Court are “geographically limited to the borders of a State Party to the Statute.” Considering, in particular, the object and purpose of the Rome Statute, however, the Chamber determined that as long as one legal element of a crime within the jurisdiction of the Court or part of such crime is committed on the territory of a State Party, the Court may exercise jurisdiction. In the instant case, the Chamber held that the ICC has jurisdiction over both the crime against humanity of deportation and any other crime set out in Article 5 of the Rome Statute, such as persecution and/or other inhumane acts. 

In a partially dissenting opinion on procedural grounds, Judge Perrin de Brichambaut argued that the ICC could not issue a ruling on its jurisdiction, as this would be an “exercise in speculation” tantamount to an advisory opinion. He argued that, at a stage where there is not even a preliminary examination that has defined the situation’s parameters, a jurisdictional ruling was not permissible. Further, he submitted that the principle of “la competence de la competence” only applied once a clear dispute has arisen, and that to assert that principle here was inappropriate and could potentially predetermine a later review of the ICC’s jurisdiction. He noted that the Prosecutor could instead conduct a preliminary examination and present a request for authorisation of an investigation, which would in his view have been the proper course of action. (ICC Press ReleaseICC PTC DecisionICC Dissent)

Three MICT judges removed from Mladic appeal due to the appearance of bias

In the International Residual Mechanism for Criminal Tribunals (‘MICT’), Judge Jean-Claude Antonetti issued a Decision granting three separate motions filed by the Defence for Mr Ratko Mladic in June 2018 requesting the disqualification of Judge Meron, Judge Agius and Judge Daqun from his case. Due to the possibility of conflicts of interest, his capacity as the President of the MICT and his appointment in the Mladic appeal, Judge Meron recused himself from deciding the matter. In the same Decision, he referred the three motions for consideration to Judge Antonetti. The five Appeals Chamber judges, namely Judges Meron, Agius, Daqun, Nyambe and Panton were assigned to the Mladic appeal case on 19 December 2017.

On 18 June 2018, the Mladic Defence requested that the three judges be disqualified from the appeal due to the appearance of bias caused by their respective appointments in other cases previously heard before the ICTY. Namely, the Mladic Defence argued that by virtue of their capacity as Trial Chamber judges, in particular Judge Agius in the Popovic at al case, Judge Daqun in the Blagojevic case and Judge Meron in the Krstic, Tolimir and Karadzic cases, all of which contained findings on Mr Mladic’s mens rea, his role, contribution and knowledge of the crimes or his membership in the JCE, their appointment in the present case infringes his fair trial rights. In the historic Decision, Judge Antonetti concluded that the appearance of bias justified the disqualification of the three judges and suggested that three other judges be drawn form a short list of judges who do not pose a risk of prejudice to Mr Mladic. This Decision marks only the second occasion when an ICTY/MICT judge was disqualified from a case. Previously, Judge Harhoff was disqualified from sitting in the Šešelj trial. Ratko Mladic was sentenced to life imprisonment for genocide committed in 1995 in the area of Srebrenica and war crimes in a judgment delivered on 22 November 2017. Both parties, the Prosecution and the Defence, filed their respective notice of appeal on 22 March 2018. The case of Mr Mladic is in the early stages of the appeals phase and according to the estimate stated by the Mladic Defence, the final verdict will not be delivered before the end of 2019. (MICT DecisionReutersN1)

Application for amicus submissions in Said Gadaffi admissibility challenge; Defence request to respond

On 30 August 2018, Justice in Libya and the Redress Trust sought leave to submit joint amicus curiae observations in the case against Saif Al-Islam Gadaffi before the International Criminal Court. They submitted that their collective expertise and experience “make them well placed to provide observations that will assist the Chamber in properly determining the issues raised.” They sought to make observations on the Libyan appeals process, the Libyan law under which Gadaffi was given amnesty and the wider application of any ruling by the Chamber in relation to amnesties and pardons for international crimes and gross violations of human rights. On 2 September 2018, the Defence sought leave to respond in opposition to the application, indicating that it would specifically focus in its response on the utility and propriety of the proposed observations, as well as the timing of the application and potential observations.

In 2011, the court issued an arrest warrant and requested Libya’s cooperation to arrest Gadaffi and surrender him to the Court. Having arrested Gadaffi, in 2012 Libya filed an Article 19 Application and sought to have the case declared inadmissible pursuant to Article 17(1)(a). The Chamber’s decision in 2013 determining that the case admissible was upheld on appeal. In 2018, Gadaffi filed an admissibility challenge pursuant to Articles 17(1), 19 and 20(3) of the Statute, arguing that he had already been tried by a Libyan court in respect to the same conduct as alleged in the case before the ICC. The Chamber allowed the Prosecutor, the UN Security Council and victims who had already communicated with the court in relation to the case until 28 September 2018 to submit written observations on the application. (Amicus applicationRequest for leave to respond)

UN High Commissioner for Human Rights finishes his term with remarks on the importance of human rights

Zeid Ra’ad Al-Hussein served as United Nations High Commissioner for Human Rights from 1 September 2014 until 31 August 2018. In his parting message, Zeid spoke of “the colossal number of people still victimised by discrimination, deprivation and fearfulness, removed from the services and protections of the state because they are seen as less deserving, by dint of religion, race, ethnicity, colour, gender, sexual orientation and so on,” which he said “reflects a massive dereliction of the duty to serve, by those who exercise sovereignty on behalf of their people.” While criticising the lack of courage among politicians, Zeid stated that he put his hope for a change in course in the leaders of communities and social movements. (OHCHR)

Photo: ICC-CPI/Flickr 

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