Preliminary Examination under the Rome Statute

Introduction

The Rome Statute of the International Criminal Court established the International Criminal Court (ICC) and is the principal law for determining the jurisdiction of the ICC. The Office of the Prosecutor is responsible for determining whether a situation meets the legal criteria to warrant investigation by the Office into an alleged crime over which it has jurisdiction. The first part of this report discusses the statutory provisions related to preliminary examinations. The second part of this report evaluates whether the given situation in Bangladesh / Myanmar presents a proper case for preliminary examination.

Part I

Part 2 of the Rome Statute relates to the jurisdiction of the ICC. There are four crimes over which the ICC exercises jurisdiction, which are genocide, crimes against humanity, war crimes, and crime of aggression. The Office of the Prosecutor is responsible for the preliminary examination situations related to any of these crimes. Article 53(1) (a)-(c) of the Rome Statute are relevant to determining whether a case for preliminary examination of that situation exists. Article 53(1) (a)-(c) relates to whether ICC has temporal and material jurisdiction; whether the case is admissible (complementarity and gravity); and whether prosecution serves the interests of justice.

If the Prosecutor is satisfied that the legal framework containing these three elements is met with, then they may proceed with the investigation. For the purpose of determining jurisdiction, regard must be had to temporal jurisdiction, which is that the situation arose after the Rome Statute entered into force; and either territorial or personal jurisdiction, which relates to the acceptance of the ICC jurisdiction by the State Party. Furthermore, subject-matter jurisdiction is contained in Article 5 of the Rome Statute, which requires that the situation is admissible based on complementarity, that is, existence of relevant national proceedings into the same situation; and gravity, which relates to the scale, nature, and impact of the crimes. Finally, the consideration of “interests of justice” relates to an assessment on the gravity of the crime and the victims’ interests.

This entire process is aimed at determining whether there exists a case for preliminary examination. After considering the facts and circumstances of the situation, the Prosecutor may refuse to initiate an investigation if Article 53(1) (a)-(c) conditions are not met, or continue to collect information, or decide to initiate the investigation. There are four phases in which the preliminary examination is conducted. Phase 1 involves initial evaluation of information received under Article 15. Formal commencement of a preliminary examination is done in Phase 2, which evaluates whether alleged crimes may reasonably fall within the ICC jurisdiction. Admissibility of cases in terms of complementarity and gravity is done under Phase 3 while the interests of justice consideration takes place in Phase 4.

Part II

The situation in Bangladesh and Myanmar preliminary examination relates to the “alleged crimes of deportation, persecution, and other crimes within the ICC jurisdiction against the Rohingya people” of Myanmar in the Rakhine State of Myanmar. Based on the discussion in Part I of this report, this part evaluates whether it can be reasonably believed that the situation related to Rohingyas can be prosecuted under the provisions of the Rome Statute. Although Myanmar is not a part to the ICC, Bangladesh is. As per the mandate to the Prosecutor, investigation can be done into any crimes “within ICC jurisdiction and committed on the territory of Bangladesh or any other State formally accepting the jurisdiction of the ICC”.

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1. Ibid, Part 2, Article 5.
2. The Prosecutor v. Bosco Ntaganda ICC-01/04-02/06.

Bangladesh/Myanmar situation

The investigation into the Bangladesh and Myanmar situation arises from the late 2016 events of widespread acts of violence committed against the Rohingya people in the Rakhine state of Myanmar. The members of the armed forces and other security agencies in Myanmar may also be implicated in these crimes.

In order for the situation related to Rohingya be considered appropriate for prosecution by the ICC, the court should have jurisdiction over the situation. Temporal jurisdiction would require that the Myanmar and Bangladesh are members of the ICC. In this case, Myanmar is not a member of the ICC and does not accept the jurisdiction of the ICC; however, crimes against humanity can be tried by the ICC as per the Pre Trial Chamber of ICC on 9 April 2018. The question that is addressed in this part of the report is whether there is reasonable ground to advice that the Rohingya situation can be prosecuted for crimes against humanity.

Article 5 of the Part 2 of the Rome Statute relates to the ICC’s subject matter jurisdiction, which relates to genocide, crimes against humanity, war crimes, and crime of aggression. With regard to the situation related to the Rohingya people, the crimes of genocide and crime against humanity can be considered. Genocide includes a range of acts targeted at a national, ethnic, religious or racial group, including killing, or causing bodily or mental harm to members of the group, imposing birth preventive measures, or transferring children to other groups, and relates to the destruction of racial minorities. Prosecution under the Rome Statute requires the conditions of mens rea to be satisfied, which means that the genocide should be committed “with the intent to destroy”. Furthermore, the concerned state should have membership of Rome Statute for the purpose of prosecution of genocide. As such, Myanmar does not come within the domain of ICC jurisdiction for the purpose of genocide. However, crimes against humanity can be prosecuted by the ICC even if Myanmar is not a signatory to the Rome Statute.

Crimes against humanity are defined as a range of acts when “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” which acts may include murder, rape, torture, persecution, rape, sexual slavery, to name a few. For certain acts to fall within the jurisdiction of ICC, Article 7(2) requires that such a crime should not be an individual act but multiple commission of acts against the civilian population “pursuant to or in furtherance of a State or organizational policy to commit such attack." Therefore, there should be systematic and state sponsored or encouraged acts against a group of people within Article 7(1) for there to be a case for prosecution. This also means that the mens rea element of the crime against humanity is that there should be knowledge that the criminal act is part of a more widespread attack and is not a solitary act. Article 7 (2) further includes certain acts like extermination and enslavement of the victims as being a part of the definition on crimes against humanity.

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3. Regan Ahmed, ‘International Criminal Court and its Tryst with Justice: The case of Myanmar’ (2019) 4 (10) International Journal of Arts Humanities and Social Sciences Studies 23.
4. Rome Statute, Article 6.
5. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2017).
6. Rome Statute, Article 6.
7. Rome Statue, Article 7.

Reports from the UN bodies do suggest that there is evidence to show widespread human rights violations of the Rohingya by the security agencies of Myanmar, which include acts like killings, gang rapes, arson, and infanticides. Prima facie these acts fall within the definition of crimes against humanity in Article 7. Independent studies also indicate that there have been acts sponsored by or not prevented by the government of Myanmar against the Rohingya, with one study revealing findings that at least 24,000 Rohingya people were killed till January 2018, and 18000 Rohingya Muslim women and girls were victims of sexual violence, and 36000 Rohingya Muslims were burnt to death. These events have been widely reported in the media, and have also featured in discussions in the United Nations bodies like the General Assembly and the Security Council, where the widely acknowledged fact is that the conditions in Myanmar against the Rohingya amounted to genocide.

The allegation of crime against humanity against Myanmar with respect to the Rohingya is based on the systematically targeting of Rohingyas that led to their mass exodus from Rakhine state in Myanmar. Based on the above reports and evidence collected from the victims of the genocide currently in Bangladesh, there are indications of crimes against humanity, which comes within subject matter jurisdiction of the ICC. However, the challenges for the ICC prosecution in this case are related to Myanmar not being a member of the ICC and the fact that the Rohingya case has not come as a referral to the ICC jurisdiction. With regard to the membership of Myanmar to the ICC, the Pre Trial Chamber has noted that as the Rohingya have crossed over to Bangladesh (which is a State Party), it shall have jurisdiction. With regard to the latter, it may be noted that there are three ways in which cases can come before the ICC: referral by a State Party, or the Security Council, or by the Prosecutor under Article 13 of the Rome Statute. In the present situation, no such referral has proceeded from Bangladesh or the Security Council.



Conclusion

To conclude, there is evidence to indicate that the case for prosecution for crimes against humanity is made out in context of the Rohingya situation in Myanmar/Bangladesh.

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8. Rome Statue, Article 7 (2).
9. International Criminal Court, ICC Prosecutor presents case against Sudanese President, Hassan Ahmad AL Bashir, for genocide, crimes against humanity and war crimes in Darfur (14 July 2008).
10. Antonio Cassesse, Cassese's International Criminal Law (Oxford University Press 2013).
11. OHCHR, Report of OHCHR mission to Bangladesh – Interviews with Rohingyas fleeing from Myanmar since 9 October 2016 (OHCHR 2017).
12. Mohshin Habib, Christine Jubb, Salahuddin Ahmad, Masudur Rahman, and Henri Pallard, Forced migration of Rohingya: the untold experience (Ontario International Development Agency 2018).
13. United Nations High Commissioner for Human Rights, Situation of human rights of Rohingya Muslims and other minorities in Myanmar (UNHCR 2017); OHCHR, FLASH REPORT: Report of OHCHR mission to Bangladesh: Interviews with Rohingyas fleeing from Myanmar since 9 October 2016 (OHCHR 2017); OHCHR, Report of Independent International Fact-Finding Mission on Myanmar (OHCHR 2018).
14. Morten B. Pedersen, ‘The ICC, the Rohingya and the limitations of retributive justice’ (2019) 73 (1) Australian Journal of International Affairs 9.

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Bibliography

Books

Habib M, Jubb C, Ahmad S, Rahman M, and Pallard H, Forced migration of Rohingya: the untold experience (Ontario International Development Agency 2018).

Schabas WA, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2017).

Journals

Ahmed R, ‘International Criminal Court and its Tryst with Justice: The case of Myanmar’ (2019) 4 (10) International Journal of Arts Humanities and Social Sciences Studies 23.

Cassesse A, Cassese's International Criminal Law (Oxford University Press 2013).

Pedersen MB, ‘The ICC, the Rohingya and the limitations of retributive justice’ (2019) 73 (1) Australian Journal of International Affairs 9.

Reports

OHCHR, Report of OHCHR mission to Bangladesh – Interviews with Rohingyas fleeing from Myanmar since 9 October 2016 (OHCHR 2017).

OHCHR, FLASH REPORT: Report of OHCHR mission to Bangladesh: Interviews with Rohingyas fleeing from Myanmar since 9 October 2016 (OHCHR 2017)

OHCHR, Report of Independent International Fact-Finding Mission on Myanmar (OHCHR 2018).

United Nations High Commissioner for Human Rights, Situation of human rights of Rohingya Muslims and other minorities in Myanmar (UNHCR 2017)