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The REPUBLIC OF GAMBIA.VS. REPUBLIC OF UNION OF MYANMAR., PRE-TRIAL CHAMBER I, ICC-RoC46(3)-01/18, 2018.

The current issue of Rohingya people and their deportation administered by cruel methods will make our blood run cold. Rohingyas are Muslim minority people inhabiting western Burma (Myanmar). They were subjected to genocide, sexual assaults, burning of houses and annihilation. Muslim population became stateless as Myanmar rejected citizenship to Rohingya people.

The unabridged issue is about ethnic cleansing and comes under Responsibility To Protect doctrine. The Organisation of Islamic Cooperation (OIC) adopted a resolution to move the ICC for establishing the legal rights of Rohingyas. The 14th Islamic Summit Conference in Makkah further called for ensuring free and unrestricted access to humanitarian assistance. In the Conference, forming a joint communiqué led by the Gambia, OIC urged to take immediate measures to launch the case at the International Criminal Court on behalf of the 57-member global body. The Republic of Gambia filed a lawsuit at the International Criminal Court (ICC) against the Republic of the Union of Myanmar for violating its obligations under the Genocide Convention. The Gambia is a country in West Africa and it plays an active role in international affairs, especially West African and Islamic affairs.

This case was presented in the Pre Trial Chamber I at the ICC before Judge Péter Kovács, Presiding Judge, Jugme Marc Perrin de Brichambaut and Judge Reine Adélaïde Sophie Alapini-Gansou. The instant case is about The clearance operations taken up by Myanmar by rendering most its Rohingya population stateless through discriminatory laws and placed severe restrictions on their freedom of movement, fundamental religious freedom as well as reproductive and marital rights. This ended up in the deportation of those people from Myanmar to Bangladesh. Thus, the parties involved are the Republic of the Union of Myanmar and the People’s Republic of Bangladesh. The issue was whether the Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute was permissible since Myanmar is a non-party to ICC.

The Prosecutor situated her Request in the context of a pre-preliminary examination. She noted in her submissions before the Chamber that her Request “precedes any preliminary examination by the Prosecution if the Pre-Trial Chamber in its ruling confirms that the Court may in principle exercise jurisdiction under Article 12(2)(a)” Only then she will proceed to consider whether to formally announce the opening of a preliminary examination. The Chamber noted articles 2, 4, 7(1)(d), (h), and (k), 12(2)(a), 13, 19, 21(1)(a) and (b), (2) and (3), 87(6) and 119(1) of the Statute, rules 58, 59 and 93 of the Rules, regulation 29 of the Regulations, and the Relationship Agreement between the Court and the United Nations, especially its preamble and articles 7, 15, 17 and 18 as the applicable law. When it is about jurisdiction then it is an established principle that an international tribunal has the power to determine the extent of its jurisdiction. This principle is commonly referred to as la compétence de la compétence, in French, or Kompetenz-Kompetenz, in German, and has been recognized by numerous international courts and tribunals. The same was held in Liechtenstein v. Guatemala; Guinea-Bissau v. Senegal; Constitutional Court v. Peru; Hilaire, Constantine and

Benjamin et al. v. Trinidad and Tobago and Ivcher-Bronstein v. Peru. In line with that, the chamber considered the prosecutor’s request and entertained the same following the established principles of international law, according to article 21(1)(b) of the Statute. The Prosecutor drew the attention of the Chamber to public statements issued by the Government of Myanmar on 13 April and 9 August 2018. Even then it did not submit any observations before the Court following the Chamber’s invitation.

The Government of Myanmar, in its 13 April 2018 statement, stressed that it is not a party to the Rome Statute and the proposed claim for extension of jurisdiction exceeded the well-enshrined principle of ICC. It also recalled the 1969 Vienna Convention on the Law of Treaties and underlined that “no treaty can be imposed on a country that has not ratified it”. It further contended that the actions of the Prosecutor constituted an attempt to circumvent the spirit of article 34 of the Vienna Convention.

Interestingly, the Chamber observes that, under particular circumstances, the Statute may have an effect on States not Party to the Statute, consistent with principles of international law since The Statute also contains a number of verbatim from quasi-universal treaties namely: the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; 1899, 1907, 1954 Hague Conventions; the 1949 Geneva Conventions and their 1977 and 2005 Additional Protocols; and the 1989 Convention on the Rights of the Child. It stressed that certain provisions of the Statute may also produce effects for States not Party to the Statute. ICC is a legal-judicial-institutional entity which has engaged and cooperated not only with States Parties, but with a large number of States not Party to the Statute as well, whether signatories or not. The Court’s jurisdiction is set out foremost in articles 11, 12, 13, 14 and 15 of the Statute. Furthermore, Article 12(2)(a) of the Statute provided in the relevant part that,

“[i]n the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) [t]he State on the territory of which the conduct in question occurred […]”.

The chamber held confidential sessions and heard the submission from both the parties. It determined the scope of article 7(1)(d) of the Statute and relying on it, it signified the existence of two distinct crimes: deportation and forcible transfer. The former is linked to the destination of another State while the latter is linked to the destination of another location within the same state. In this respect, the Chamber further highlighted that Myanmar is party to different international treaties that require it to take measures to establish its jurisdiction over certain offenses, inter alia, in cases where the alleged offender is present in its territory, irrespective of the location of the commission of the alleged offense or the nationality of the alleged offender. It also looked into the penal provision of Myanmar and Bangladesh to conclude. The Court concluded by stating the following:

“In the light of the foregoing, the Chamber is of the view that acts of deportation initiated in a State, not Party to the Statute (through expulsion or other coercive acts) and completed in a State Party to the Statute (by virtue of victims crossing the border to a State) fall within the parameters of Article 12(2)(a) of the Statute. It follows that, in the circumstances identified in the Request, the Court has jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh. FOR THESE REASONS, THE CHAMBER, BY MAJORITY, HEREBY GRANTS the Request following Parts IV, VI and VII of the present decision.” The chamber also considered the rights of the victims and empowered them to voice their struggles.

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– Jumanah Kader

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