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Memorandum: Potential ICC Investigation Into Alleged Crimes Against The Rohingya

Written By: Megan Hirst & James Kirk

Introduction

  • We represent a group of Rohingya victims from the village of Tula Toli. In proceedings at the International Criminal Court (ICC or “the Court”) concerning the Court’s jurisdiction, we made submissions on behalf of these victims. In doing so we received financial support from Burma Task Force.  We are now asked by Burma Task Force to provide a brief memorandum on the activities of the ICC concerning crimes committed against Rohingya people.
  • This memorandum explains the further steps that must be taken before investigations and prosecutions can be undertaken by the ICC Prosecutor, and what action could be taken to facilitate that process. While this memorandum is provided to Burma Task Force in the first instance, it is understood that it may be shared with interested states or human rights groups.

Jurisdiction And Its Exercise

  1. The Court’s jurisdiction is limited to four categories of crimes (war crimes, crimes against humanity, genocide and aggression), committed after 1 July 2002. Additionally, jurisdiction only exists where one or more of those crimes:
  2. occurs on the territory of a state which is, at the time, a state party to the Rome Statute (or which accepts jurisdiction on an ad hoc basis by an article 12(3) declaration even though it is not – or was not – a state party[1]);
  3. is committed by a national of a state which is, at the time, a state party to the Rome Statute (or which accepts jurisdiction on an ad hoc basis by an article 12(3) declaration even though it is not – or was not – a state party); or
  4. is referred to the ICC by the UN Security Council.
  5. However even if the ICC has jurisdiction over particular crimes, a further requirement must be met before the Court is permitted to exercise its jurisdiction over those crimes. In other words, the existence of jurisdiction does not automatically permit the ICC Prosecutor to commence an investigation. A “trigger” mechanism is required before jurisdiction can be exercised. These triggers, or “preconditions for the exercise of jurisdiction” are set out in article 13.[2] There are three different trigger mechanisms:
  6. a referral by a state party;
  7. a referral by the UN Security Council; or
  8. authorisation by a Pre-Trial Chamber of the Court, following a request made by the Prosecutor on her own initiative under article 15.
  9. The triggers most relevant to a potential ICC investigation into crimes allegedly committed against the Rohingya are explained in further detail below. 

Alleged Crimes Against The Rohingya

  1. On 9 April 2018 the ICC Prosecutor asked the Court’s judges to decide whether the Court has jurisdiction over the alleged deportation of Rohingya people from Myanmar (a non-state party) into Bangladesh (a state party). Deportation is a crime against humanity under article 7(1)(d) of the Rome Statute. The Prosecutor argued that at least one element of that crime occurred within the territory of a state party (Bangladesh), and that this suffices to establish jurisdiction. Although the Prosecutor’s arguments focused on the crime of deportation, subsequent submissions from victims and amicus curiae argued that the Court’s jurisdiction would also include other crimes committed partly within Bangladesh, including other crimes against humanity and genocide.
  2. On 6 September 2018 Pre-Trial Chamber I ruled that the Court does have jurisdiction over the deportation of Rohingya from Myanmar into Bangladesh. The Judges also held that the Court could have jurisdiction over other crimes if at least one element of the crime occurred inside Bangladesh.
  3. However, as explained above, the existence of jurisdiction is not in itself sufficient to enable an ICC investigation: one of the triggers is needed before jurisdiction can be exercised over these crimes. Identifying what further steps are required for an ICC investigation to begin requires an understanding of how each trigger mechanism operates.
  4. The second trigger mechanism – a UN Security Council referral – seems politically inconceivable in the present context and therefore need not be considered in any detail. This leaves two possibilities: an article 15 process whereby an investigation is requested by the Prosecutor and authorised by a Chamber of the Court; or a state referral. Each of these two triggers is considered in further detail below.
  5. Prior to the opening of an investigation pursuant to one of these trigger mechanisms, the matter will remain the subject of a “preliminary examination”.[3] A preliminary examination is distinct from an investigation. At the preliminary examination stage the Prosecutor does not build a case regarding individual crimes or suspects. Rather she decides whether there is a “reasonable basis” for proceeding to an investigation. This determination is made by reference to three factors, as required by article 53(1) of the Rome Statute: jurisdiction, admissibility and the “interests of justice”.[4]

The Article 15 Process

  1. Pre-Trial Chamber I’s decision assumes that the most likely trigger in the present instance is an article 15 process. Article 15 of the Rome Statute permits the Prosecutor to begin the process of opening an investigation on her own initiative: that is, without a referral from a state or the UN Security Council. However, where she does so, a process of judicial determination is involved.
  2. If the Prosecutor concludes, based on her preliminary examination, that there is a reasonable basis for proceeding to an investigation, she must initiate an investigation.[5] If there is no other trigger (that is, no state or Security Council referral), this means that she must request authorisation from a Pre-Trial Chamber under article 15.
  3. Article 15 requests are made by written submissions filed before the relevant Pre-Trial Chamber, along with any supporting material.[6] Victims are permitted to make representations regarding the Prosecutor’s request.[7] The Pre-Trial Chamber may request further information from the Prosecutor and/or victims,[8] and will ultimately rule on whether to permit an investigation.[9] If it permits an investigation, it will also rule on the scope of the investigation.

State Referral

  1. Article 13(a) establishes state referral as a possible trigger for the exercise of jurisdiction.
  2. Any state which is a party to the Rome Statute may refer alleged crimes to the Prosecutor.[10] All of the state referrals to date have been “self-referrals” (that is, a state referring crimes allegedly committed on its own territory[11] or on its flagged vessels[12]). However, this is not a legal requirement. The Rome Statute does not require that there be any connection between the referring state and the alleged crimes.
  3. No specific process is set out in the Court’s legal texts for the making of a referral. The only requirement is that the state request the Prosecutor to investigate,[13] and that this be done in writing.[14] To the extent possible the referral should “specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.”[15] In practice, a state referral might be discussed informally in advance with the Prosecutor’s Jurisdiction, Complementarity and Cooperation Division, but it may equally be done simply by sending a written notice to the Office of the Prosecutor.
  4. If a referral is received by the Prosecutor, she will conduct a preliminary examination in order to ensure that there is a reasonable basis to open an investigation, taking into account jurisdiction, admissibility and the interests of justice. However, if she concludes that a reasonable basis does exist, then she can open an investigation without seeking the judicial authorisation that is required under the article 15 process. Indeed the opening of an investigation following a state referral is done with minimal formality, although the Prosecutor has adopted the practice of issuing a report explaining her conclusions in respect of the criteria for an investigation under article 53(1).

Relative Merits Of The Article 15 Process And State Referral

  1. Regardless of which of the two triggers is used, the criteria for opening an investigation are the same (namely jurisdiction, admissibility and the interests of justice). Moreover, if an investigation is opened the Prosecutor’s powers will be the same, regardless of which trigger mechanism was used. The key difference between the two potential triggers is therefore the process that must be followed rather than the outcome.
  2. Most significantly, it appears almost inevitable that a state referral process will be faster than an article 15 process. This is because although both processes require a preliminary examination analysis, an article 15 process involves at least three additional and potentially time-consuming steps that do not have to be taken in a state referral process:
  3. The production of a written request by the Prosecutor: The request will document the analysis which the Prosecutor undertaken through her preliminary examination, and it may be extremely lengthy and accompanied by numerous annexes.[16] The Regulations of the Court set out specific matters which must be covered by the request.[17] Drafting the request is likely to take many weeks and possibly months.
  4. A process for collecting victims’ representations: The Regulations of the Court give a 30-day deadline for victims to provide representations, but the deadline can be extended.[18] This process has been undertaken four times so far, and in three of those instances sizeable extensions were granted by the responsible Chamber.[19] Even if the victims’ representations can be collected or received within the 30 day period, some additional time is needed for the Registry to collate, analyse and transmit the representations to the Chamber.[20]
  5. Deliberation and the production of a written decision by the Pre-Trial Chamber: The relevant Pre-Trial Chamber must decide on the Prosecutor’s request, but the Court’s legal texts do not provide a timeframe for this: the Chamber can take as long as it needs. If the context is complex and a lot of material has been provided, significant time may be required. In some instances, a Chamber has requested further information from the Prosecutor before issuing its decision, and requests such as this can further draw out the decision-making process.
  6. As explained above, these three steps are not required if a state referral is made. A written report is produced by the Prosecutor (as a matter of policy rather than a legal requirement), but these reports are generally shorter and less meticulous than the written requests that the Prosecutor files in an article 15 judicial process.[21] A state referral will therefore almost inevitably be faster than an article 15 process. While the time periods involved in opening investigations to date can only provide limited guidance given the specific nature of every situation, it does seem that preliminary examinations have consistently been concluded more quickly where there was a state referral than where an article 15 process was used.[22] Following an article 15 request, a  period of at least a few months is the norm before an investigation is authorised by the Pre-Trial Chamber,[23] although it can be longer.[24]
  7. The major drawback of a state referral, when compared with an article 15 process, is that it does not provide an avenue for victim input before an investigation is opened. In an article 15 process victims may make representations on the Prosecutor’s request to open an investigation (unless security concerns justify conducting the process in secret, which is rare[25]). Victims have made representations in this way in four situations to date: Kenya, Côte d’Ivoire, Georgia, and Afghanistan. In those situations, victims engaged enthusiastically and in large numbers with the Court. They overwhelmingly supported the opening of investigations and were also able to give input regarding the scope of matters which should be investigated. However, victims can only participate in a limited way at this stage. The timeframe is short and generally inadequate for victims to provide a full account of their experiences and views, and legal representation is not arranged or funded by the Court (although lawyers acting pro bono or funded externally are permitted to assist their clients).
  8. However, the picture is complicated by the fact that, paradoxically, the speedy opening of an investigation may in some ways advance victims’ participatory rights. Once an investigation is opened, whether via an article 15 process or a state referral, the system for victim participation becomes different. Obtaining permission to participate at the investigation stage is more onerous and participation is still subject to significant limitations, but participation can in some instances be more extensive and meaningful than it is under an article 15 process, particularly if the victims are represented by proactive counsel.  

Conclusion

  1. While Pre-Trial Chamber I’s decision on jurisdiction is a hugely important step toward ICC investigation and prosecution of crimes allegedly committed against the Rohingya, an active investigation remains some way off.  If a state party to the Rome Statute were to make a referral to the Prosecutor, an investigation would almost certainly be opened sooner than would otherwise be the case. Although a state referral would not enable formal victim participation at the pre-investigation stage, it may nonetheless be in many victims’ interests if, as expected, it expedites the opening of an investigation; and steps can, in any event, be taken to ensure that victims’ voices are heard by the Court at the pre-investigation stage, even if formal participation is not possible.  

Megan Hirst

James Kirk

DOUGHTY STREET CHAMBERS

London

21 September 2018


[1] Declarations under article 12(3) may be used to grant jurisdiction in a limited way by states which are not parties to the Rome Statute. Such declarations have been made by Côte d’Ivoire (2003), Palestine (2015), and Ukraine (2014 and 2015).

[2] Slightly more complex rules regarding exercise of jurisdiction apply in respect of the crime of aggression (pursuant to articles 15bis and 15ter).

[3] The Prosecutor issued a statement concerning her preliminary examination on the alleged deportation of Rohingya people on 18th September 2018: https://www.icc-cpi.int/Pages/item.aspx?name=180918-otp-stat-Rohingya.

[4] Article 53(1), Rome Statute; see also Office of the Prosecutor, Policy Paper on Preliminary Examinations, https://www.icc-cpi.int/iccdocs/otp/OTP-Policy_Paper_Preliminary_Examinations_2013-ENG.pdf which sets out in more detail what is covered by each of these three aspects of a preliminary examination.

[5] Article 53(1), Rome Statute.

[6] Article 15(3), Rome Statute.

[7] Article 15(3), Rome Statute; Rule 50(3), Rules of Procedure and Evidence.

[8] Rule 50(4), Rules of Procedure and Evidence.

[9] Rule 50(5), Rules of Procedure and Evidence.

[10] Article 14, Rome Statute.

[11] Northern Uganda (2004), Democratic Republic of the Congo (2004), Central African Republic (2004 and 2014), Mali (2012), Gabon (2016), Palestine (2018).

[12] Comoros Islands (2013).

[13] Article 14(1), Rome Statute.

[14] Rule 45, Rules of Procedure and Evidence.

[15] Article 14(2), Rome Statute.

[16] Regulation 38(2)(e), Regulations of the Court permits the request to be up to 60 pages in length. However a Chamber may permit an extension of that page limit and authorisation requests have tended to be significantly longer, as was the case for example with the requests made regarding Burundi in 2017 (85 pages), Afghanistan in 2017 (181 pages), and Georgia in 2015 (160 pages).

[17] Regulation 49, Regulations of the Court.

[18] From the date on which notification is made of this possibility: Regulation 50(1), Regulations of the Court. 

[19] In the Kenya situation nearly four months was required, including the collection of representations and their analysis and transmission to the Chamber; in Côte d’Ivoire the process took around 2 ½ months; and in Afghanistan 3 months.  

[20] In the Georgia situation, representations were collected during the 30 day period, but a further 3 weeks were required for the Registry to provide its report on the representations to the Chamber.

[21] The Mali report in January 2013 ran to 34 pages; the Central African Republic II Report in September 2014 was 94 pages. Neither has multiple annexes of the kind which are to be expected with an article 15 request.

[22] Preliminary examinations of around 6-7 months followed state referrals in respect of Mali (July 2012-January 2013) and Central African Republic II (February 2014-September 2014). Gabon’s state referral in September 2016 has not yet led to the opening of an investigation, with a preliminary examination continuing after approximately 2 years. Much longer preliminary examinations have been the norm where no referral is received and an investigation can only therefore be opened through an article 15 process. For example, the Afghanistan preliminary examination was made public in 2007 and did not result in an article 15 request until November 2017.  The shortest recent example of a preliminary examination ending in an article 15 process is that of Burundi: it ran for around 16 months from 25 April 2016 before the submission of an article 15 request on 5 September 2017.

[23] Approximately 4 months for Kenya, 5 months for Côte d’Ivoire, and 3 months for Georgia. The process was faster in Burundi (only 2 months), and this was probably partly due to the absence of a victim representation process because the proceedings were conducted in secret for security reasons.

[24] Most clearly seen in respect of the Afghanistan article 15 request, which was submitted in November 2017 and has not yet been determined.

[25] To date this has occurred only once, in respect of Burundi.

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