Rohingya Deportation: ICC seeks opinion of Bangladesh over jurisdiction

The International Criminal Court has invited Bangladesh to submit written observations on whether the Hague-based court can exercise jurisdiction over the deportation of Rohingyas from Myanmar to Bangladesh.

A letter sent by the pre-trial Chamber of the ICC regarding the matter reads that Bangladesh has been particularly affected by the events concerning the alleged deportation of Rohingyas from Myanmar. “Accordingly, the Chamber considers it appropriate to seek observations from the competent authorities of Bangladesh on the prosecutor's request.”

Earlier on April 9, the prosecutor, Fatou Bensouda, asked the court to rule on whether it has jurisdiction over the deportation of the Myanmar nationals, a possible crime against humanity.

She submitted her request in pursuant to regulation 46(3) of the regulations of the Court and article 19(3) of the Rome Statute.

In a filing published on Monday, the court prosecutor also listed the well-documented mistreatment of Rohingya and cited the UN special envoy for human rights who described it as bearing the “hallmarks of genocide”.

She argued that although Myanmar was not a member of the court, the fact that part of the alleged crime took place on the territory of Bangladesh, which is a member, meant the court could seek powers of jurisdiction.

“The prosecution seeks ... to verify that the court has territorial jurisdiction when persons are deported from the territory of a state which is not a party to the statute directly into the territory of a state which is a party to the Statute,” the filing says.

The pre-trial Chamber has sent the letter on Monday and sought Bangladesh's submission of observations, either publicly or confidentially, by June 11. 

A senior official at the foreign ministry said the government received the letter yesterday and is taking the matter into consideration.

The letter read: "The Chamber hereby invites the competent authorities of Bangladesh to submit written observations, either publicly or confidentially, on the prosecutor's request no later than 11 June.”

The written observations will be regarding three specific matters: (i) the circumstances surrounding the presence of members of the Rohingya people from Myanmar on the territory of Bangladesh; (ii) the possibility of the Court's exercise of territorial jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar into Bangladesh; and (iii) any other matter in connection with the prosecutor's request that, in the opinion of the competent authorities of Bangladesh, would assist the Chamber in its determination of this request.

The Chamber ordered the registrar to notify this decision to the competent authorities of Bangladesh together with a copy of the prosecutor's request.

Reading the letter, the official said Bangladesh has been affected due to influx of Rohingyas from Myanmar and the chamber thinks it is right to seek Bangladesh's opinion.

On April 13, Myanmar responded in a statement from the ministry that oversees State Counsellor Aung San Suu Kyi's office.

The statement highlights the legal thorniness around the possible probe by arguing that Myanmar is not a party of the Rome Statute that countries must sign on to as ICC member states.

“Nowhere in the ICC Charter does it say that the Court has jurisdiction over States which have not accepted that jurisdiction,” Myanmar's statement says.

A ruling affirming jurisdiction could pave the way for an investigation into the deportation of thousands of Rohingyas, though Myanmar is unlikely to cooperate.

Over 700,000 Rohingyas fled Myanmar's Rakhine state and came to Bangladesh following a military crackdown on August 25 last year.