ICC's jurisdiction & response of Myanmar

On September 06, 2018, the International Criminal Court (ICC), composed of three judges, decided by a majority that it has jurisdiction to investigate officials of the Myanmar Government for committing acts of violence towards the Rohingya minority.

Following the Prosecutor's request under Article 19(3) of the ICC Statute, the Court decided this on the basis that although the coercive acts underlying the alleged deportation of members of the Rohingya people occurred on the territory of Myanmar (which is not a party to the Statute), the Court may nonetheless exercise its jurisdiction, since an element of this crime (the crossing of a border) occurred on the territory of Bangladesh (which is a State party to the Statute), as well as pursuant to the principle of la compétence de la compétence or Kompetenz Kompetenz– a well-established principle of international law according to which any international tribunal has the power to determine the extent of its own jurisdiction.

In relation to the central question contained in the Prosecutor's request, the Chamber decided, first, that Article 7(1)(d) of the Statute contains two separate crimes (namely forcible transfer and deportation) and, second, that the Court may exercise its jurisdiction if either an element of a crime mentioned in Article 5 of the Statute or part of such a crime is committed on the territory of a State that is party to the Statute, under Article 12(2)(a) of the Statute.

However, there was a dissenting opinion by Judge Perrin de Brichambaut on procedural grounds. In his opinion, rendering the ruling requested by the Prosecutor would amount to an advisory opinion, which the Court is not allowed to do. For these reasons, Judge Perrin de Brichambaut believes that the Court cannot rule on its jurisdiction in relation to the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh at this stage, but that it remains open to the Prosecutor to present a request for authorisation of an investigation to a Pre-Trial Chamber under Article 15 of the Statute.

In response, the office of Myanmar's President Win Myint on September 07 dismissed the ICC ruling, calling it “the result of faulty procedure and of dubious legal merit” and said that as the country is not a State party to the Statute, the country is “under no obligation” to respect it.

Earlier on August 28, the UN Fact Finding Mission accused Myanmar's top military generals for genocide of Rohingya people in the north of Rakhine State in Myanmar. As expected, the Myanmar government rejected that report as well.

Compiled by law desk (Source: www.icc-cpi.int).