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Essay: Deportation of Rohingyas from Myanmar to Bangladesh, ICC-RoC46(3)-01/18-37, 06 September 2018

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International Criminal Law (LAW 8558)

Critically evaluate the recent decision of the Pre-trial Chamber of the International Criminal Court to exercise jurisdiction over the alleged deportation of Rohingyas from Myanmar to Bangladesh. (Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, ICC-RoC46(3)-01/18-37, 06 September 2018)

Introduction

The name Rohingya re-emerged in recent months in media all over the world. Like in previous years, the news about the Rohingya was only about suffering, torture, and murder. The life of a person that was being tossed around and a lot of them persecuted in Myanmar and needed to flee to Bangladesh. In Bangladesh, they were again expelled to Myanmar. In Myanmar, they are not recognised by the state even though there have been several generations in the country, leading to discrimination, persecution again, and so on, this happens in a vicious circle.

But with everything that happen that evolve around them they keep holding on to a splinter of hope on ICC (International Criminal Law) to bring justice over them. However, these survivors provide a reminder that some do not enjoy the luxury of these intellectual critiques. Theirs is the grinding reality of basic need: security, a modicum of support and some kind of acknowledgement that might deter on-going crimes and identify those that had chased them out of their homes. Thus, this essay will critically evaluate and engage with the Pre-Trial Chamber’s decision in relation to deportation and jurisdiction.

Main Issue

Thorough investigation and full efforts in finding the real condition in refugee camps in Bangladesh, the findings of bad and large-scale traits carried out against the Rohingya in Myanmar, making many people to break away and trying to flee. Human Rights Watch, for example, stated : “it is found that Burmese security forces raped and sexually assaulted women and girls […]”.Also, Special Representative on Sexual Violence in Conflict, Pramila Patten, has already told the security council that from what she gained after talking to every woman or girl she had spoken during her visit to Rohingya’s camp in Bangladesh that “they either have to endured or witnessed sexual violence on a daily basis”. Including seeing their own family or friends literally being raped and tortured to death. From this finding, about 80% of those that were forced into fleed to Bangladesh since 25 August 2017 are mostly women and children.

Thankfully, ICC take the matter into precaution, it’s proven with their decision on September 6th ruling comes after months of process and deliberation since the ICC prosecutor sought a ruling and decision from the court Pre-Trial Chamber on whether the court itself could exercise their jurisdiction over the alleged deportation of Rohingya’s people. The prosecutor insists and argued that a very crucial part of the deportation of Rohingya’s people, the enforced displacement of individuals across an international border, that were occurred in Bangladesh, in this case, a state party to the ICC. Thus, its remark that the court had territorial jurisdiction over the alleged crime. The Pre-Trial Chamber I fully agreed with the Prosecutor’s decision and argument and found that the court can also exercise its own jurisdiction with regards to any other crimes that set in Article 5 of the Statute of Rome.

Pre-trial Chamber I of the International Criminal Court (ICC) provide their decision on the question left to answer of whether it can exercise the jurisdiction over the alleged deportation of the Rohingya’s from Myanmar to Bangladesh, this decision took places on September 2018. Its decided by majority that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The decision of the chamber is something that being pressured and prompted by a request from the Office of the Prosecutor (OTP), they requesting the chamber’s opinion on the question of the jurisdiction for the alleged crimes committed in both Myanmar and Bangladesh.

The chamber found that when the alleged crime of deportation under Article 7(1)(d) of the Rome Statute is supposedly initiated in the territory of a state that not a party to the Rome Statute, and it’s completed within the territory of a state party, the court has it’s own jurisdiction over the alleged crime under Article 12(2)(a). Besides, the court also finds jurisdiction over the alleged crime of deportation that happened against the Rohingya people, although it was initiated in Myanmar (in this case Myanmar is not a state party) because it was allegedly completed in the territory of Bangladesh (a state party). With this information and confirmation, the OTP (Office of the prosecutor) soon announced that it would “Carry out Full-fledged preliminary examination.” On its decision, OTP’s interest in conducting Preliminary Examinations is an important step forward for the victims of the alleged crime.

Jurisdiction

Jurisdiction has been mentioned several times in this essay, and predominantly became one of the main problems regarding the alleged case. To explain it we can say that jurisdiction is, According to Anthony Csabafi, in a book entitled “The Concept of State Jurisdiction in International Space Law”, it states the definition of state jurisdiction by stating the following:

“State jurisdiction in international law means the right of a country to regulate and influence legislative, executive, and judicial measures and actions on individual rights, property or property, behaviours or events that are not solely eyes are a domestic problem “(Csabafi, 1971: 45).

in this case, The court bravely enough took precaution and make the decision.

Myanmar representative with proudly announce that because they are not a member of the Hague-based court, but Bangladesh is, and the cross-border nature of deportation was sufficient for jurisdiction, the ICC said on the 6th September 2018 ruling. Myanmar has also continuously denied allegations of atrocities made against its security forces by refugees, saying its military carried out justifiable actions against militants. On 7th of September 2018, Friday’s statement, the Southeast Asian nation repeated its position that, not being a party to the Rome Statute that set up the ICC, it was under no obligation to respect its rulings.

But, From what we have seen from the explanation above, the Pre-Trial Chamber particularly did not limit the Court’s territorial jurisdiction to crimes whose necessary elements certainly take place in two states. If that was the main case, the Court’s jurisdiction might indeed be limited to see deportation as a war crime and as a crime against humanity. But, instead, the Pre-Trial Chamber adopted a much broader approach, holding that the Court has jurisdiction over any crime committed primarily on the territory of a non-state party as long as either an essential element or part of the crime is committed on the territory of a state party. That is why the Pre-Trial Chamber implies that the Court “might” also have territorial jurisdiction over the crimes against humanity of persecution and other inhumane acts. Neither crime necessarily takes place in more than one state, but in fact both did take place in two states in the context of Myanmar’s violence toward the Rohingya, their persecution took place in part in Bangladesh because the crime of persecution was connected to a deportation that was only complete once they were driven out of Myanmar; their inhumane treatment took place in part in Bangladesh because the prohibited act causing the Rohingya great suffering was not permitting them to re-enter Myanmar.

This problem that involved Universal jurisdiction as their main problem quite similar to the “The Trial of Kumar Lama” the case that was happened on 3 August 2016, a verdict handed down in an English English courtroom made front-page news in Nepal, though was barely reported in the UK press. The trial of Kumar Lama, a colonel in the Royal Nepalese Army, took place in the Old Bailey in London from June to July 2016. Colonel Lama was charged with two counts of torture under section 134 of the Criminal Justice Act, relating to incidents that had allegedly occurred between April and May 2005 at the Gorusinghe Army Barracks in Nepal.

This problem that involved Universal jurisdiction as their main problem quite similar to the “The Trial of Kumar Lama” the case that was happened on 3 August 2016, a verdict handed down in an English English courtroom made front-page news in Nepal, though was barely reported in the UK press. The trial of Kumar Lama, a colonel in the Royal Nepalese Army, took place in the Old Bailey in London from June to July 2016. Colonel Lama was charged with two counts of torture under section 134 of the Criminal Justice Act, relating to incidents that had allegedly occurred between April and May 2005 at the Gorusinghe Army Barracks in Nepal.

The Criminal Justice Act vests British courts with ‘universal jurisdiction’ over the offence of torture, meaning the offence can be prosecuted in the UK whatever the nationality of the offender and wherever the alleged torture was committed. Little mention was made of the jurisdictional basis at trial, save for the Prosecutor’s acknowledgement to the jury in his opening that ‘this trial in a far-off land may seem a bit alien’. When the term ‘universal jurisdiction’ was mentioned in passing during the questioning of a witness on Day 9 of the trial, a juror passed up a note asking the judge to explain its meaning. The judge explained that while usually jurisdiction of courts is confined to geographical territory, universal jurisdiction means there are certain crimes that any court can prosecute regardless of where they happened and that ‘torture is one of those’. The parties had nothing to add. For the presiding judge, and indeed the parties, the question of the court’s jurisdiction, being based in statute, was uncontroversial and merited little attention. It was nevertheless with some consternation that the judge told the jury at the end of the trial, ‘it is relatively rare for so many witnesses to require interpreters and indeed for so many problems to arise in one case’.

From this, we can be driven to see that the question of jurisdiction is not simply something to be taken “lightly”, particularly in cases that implicate rival claims in authority. In many cases, jurisdiction is something that appropriately a question that should be oriented, inform and influence the entire ordeal of the trial and its conduct. To attune oneself through jurisdiction is to give supreme primacy to questions of authority and to how the authorization of lawful relation could take place. In seeing the idea that jurisdiction is seen as an exercise of authority can be seen as something obvious, this invites us to think that the ‘claim’ inherent within it, particularly where the exercise of jurisdiction intrudes upon or displaces competing claims. Jurisdictional thinking invites us to put more attention to the need for those asserting such a claim to take responsibility for these claims to authority, encouraging responsiveness to the normative communities such claims put into relation and the potential need to rethink conventional modes of operation. As Dorsett and McVeigh observe, “thinking with jurisdiction invites more concern with means than with ultimate ends”.

Deportation

Citizenship Status is a part of human rights which is very important for humans to get protection from the state. Human rights are an essential element and a fundamental element in the state, then the status of citizenship creates a mutual relationship between citizens and their country. Everyone must have citizenship because with citizenship the relationship between the state and the person becomes clear so there is legal certainty. Thus, in this case, Rohingya’s people that were abruptly forced to leave their own home, resulting in them become a stateless person, this is the result of forcibly thrown out from their own home, we can categorize this action as deportation.

Rohingya ethnics who have settled in Myanmar for hundreds of years ago, continuously to get discrimination treatment by the Government of Myanmar. President Thein Sein did not want to recognise the nationality of the ethnic group and preferred to deport them and shove them in a shelter. This ongoing conflict has triggered a lot of Rohingya to flee from their countries to seek asylum in other countries such as Bangladesh, Malaysia, Thailand, Indonesia.

When talking about Deportation, the simplest definition is a unilateral action from a country expelling people who are not citizens (foreigners) by ordering them (the person involved) out of their territory also because their presence can potentially affect good relations between the two countries or there is a concern that the person committed a crime that has been committed in his home country or in the country where he originally came. This is because deportation is basically an administrative act of a government expelling foreigners to immediately get out of their territory.

The International Criminal Court (ICC) is exploring ways to conduct investigations into the forced deportations of hundreds of thousands of Rohingyas from Myanmar to Bangladesh as a possible crime against humanity. A top diplomat at the Foreign Ministry of Bangladesh expressing optimism that the ICC investigation will help solve the Rohingya crisis that Bangladesh is facing without being a party to it. He stated that “Most importantly, it might pave the way for the Rohingyas, who suffered extremely to get the justice they deserve,”. He also added that “The ministry and our embassy in The Hague, Netherlands where the ICC is based, are following the developments and we stand ready to provide any assistance in regards to the investigation,”.

On September 18, 2018, ICC prosecutor Fatou Bensouda release a statement stating that a major improvement and preliminary examination into the allegations of crimes committed by Myanmar in forcing deportation of Rohingya’s from Rakhine to Cox’s Bazar had begun. “Since the end of 2017, my Office has received a number of communications and reports concerning crimes allegedly committed against the Rohingya population in Myanmar and their deportation to Bangladesh,” she said in the statement.

Bangladesh is often the initial destination for Rohingya fleeing from Myanmar. Because the distance they feel much safer to run and fleeing to the much closer county. Rohingya’s people in Bangladesh lack legal status and fundamental rights, including the right to freedom of movement. Despite discussions that were happened between Bangladesh and Myanmar about potential ‘repatriation’ programs, any return without guarantees of rights and protections would be at best premature, and at worse forced. From what we have seen we can see that Rohingya refugees are adamantly against returning to Myanmar without protection, citizenship and accountability for the military’s crimes.

Conclusion

The actions of the Myanmar military and government are at the root of the Rohingya right now. The military is responsible for crimes against humanity and deportation against the Rohingya and must be held to account for their crimes. to justify their rights, Rohingya hoping for the ICC brings a miracle upon them, they were supported with advocates and other human rights organisations, they are calling on the UN Security Council to urgently refer the situation in Myanmar to the International Criminal Court. Thus resulting ICC take precaution over these cases and start to put their focus back to this case. The cycle of violence, displacement and exploitation against the Rohingya will continue until impunity ends, root causes are addressed and rights are assured. Until then, there is a very real danger that the tragic history of the Rohingya in Myanmar will continue to repeat itself.

But, if we look at past instances we will see that the ICC investigations are always time-consuming. It does not have its own resources. The court gets the investigations done by the parties of the state, but even though it’s time-consuming, from my opinion it’s worth it.

BIBLIOGRAPHY

Legal Instruments

Statute Of Rome (1998)

Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” ICC-RoC46(3)-01/18 (06 September 2018).

EMBASSY OF THE REPUBLIC OF THE UNION OF MYANMAR, Oral Evidence Session: “Bangladesh, Burma and the Roh.ingya follow up Session” (UK Parliement, 15 September 2018)

Websites

World Vision Staff, ‘Myanmar refugees in Bangladesh: Facts, FAQs, and how to help’ (World Vision, 30 November 2018) <https://www.worldvision.org/refugees-news-stories/myanmar-refugee-crisis-facts> accessed on 26 December 2018

Wheeler S, ‘Sexual Violence by the Burmese Military Against Ethnic Minorities’ (Human Right Watch, 25 July 2018) < https://www.hrw.org/news/2018/07/25/sexual-violence-burmese-military-against-ethnic-minorities> accessed on 26 December 2018

Bigio J, ‘Eradicating Wartime Rape Once and for All’ (Council On Foreign Relations, 20 June 2018) < https://www.cfr.org/event/eradicating-wartime-rape-once-and-all-0> accessed on 26 December 2018

Safi M, ‘ICC says it can prosecute Myanmar for alleged Rohingya crimes’ (The Guardian, 6 September 2018) < https://www.theguardian.com/world/2018/sep/06/icc-says-it-can-prosecute-myanmar-for-alleged-rohingya-crimes> accessed on 26 December 2018

Paul R, ‘Bangladesh calls for pressure on Myanmar on Rohingya repatriation’ (Reuters, 9 September 2018) < https://uk.reuters.com/article/uk-myanmar-rohingya-bangladesh/bangladesh-calls-for-pressure-on-myanmar-on-rohingya-repatriation-idUKKCN1LP0GO> Accessed on 26 December 2018

Wintour P, ‘Myanmar Rohingya crisis: ICC begins inquiry into atrocities’ ( The Guardian, 19 September 2018) < https://www.theguardian.com/world/2018/sep/19/myanmar-rohingya-crisis-icc-begins-investigation-into-atrocities > Accessed 28 December 2018

Bhuiyan H K, ‘ICC exploring ways to investigate Rohingya deportation as crime against humanity’ ( Dhaka Tribune, 7 December 2018) < https://www.dhakatribune.com/bangladesh/foreign-affairs/2018/12/07/icc-exploring-ways-to-investigate-rohingya-deportation-as-crime-against-humanity > Accessed 28 December 2018

Articles

UN, ‘Note to Correspondents: Statement by Adama Dieng, United Nations Special Adviser on the Prevention of Genocide, on the decision of the ICC Pre-Trial Chamber on the jurisdiction over the crime of deportation of the Rohingya population from Myanmar’ (United Nations, 07 September 2018) < https://www.un.org/sg/en/content/sg/note-correspondents/2018-09-07/note-correspondents-statement-adama-dieng-united-nations> Accessed on 26 December 2018

Trial International, ‘Kumar Lama’ (Trial International, 7 September 2018) < https://trialinternational.org/latest-post/kumar-lama/> Accessed on 27 December 2018

Pahuja, ‘Laws of Encounter: A Jurisdictional Account of International Law’, 1(1) London Review of International Law (2013) 63; S. Dorsett and S. McVeigh, Jurisdiction (2012).

UNHCR, ‘CULTURE, CONTEXT AND MENTAL HEALTH OF ROHINGYA REFUGEES’ (2018) UNHCR < https://www.unhcr.org/5bbc6f014.pdf> Accessed 27 December 2018

ICC, ‘Statement of ICC Prosecutor, Mrs Fatou Bensouda, on opening a Preliminary Examination concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh’ ( ICC, 18 September 2018) < https://www.icc-cpi.int/Pages/item.aspx?name=180918-otp-stat-Rohingya > Accessed 28 December 2018

Kangkun P and Quinley III J, ‘Mass atrocities and human trafficking: Rohingya Muslims on the move’ (2018) ODIHPN < https://odihpn.org/magazine/mass-atrocities-human-trafficking-rohingya-muslims-move/ > Accessed 28 December 2018

Books

Shaw Malcolm, N, International Law ( First Published 2017, Cambridge)

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