Introduction
On September 6, 2018, Pre-Trial Chamber I of the International Criminal Court (Court) issued its “Decision on the ‘Prosecution's Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute.’” The decision is notable both for the procedural posture—the Prosecution submitted its request prior to opening a preliminary examination—and the majority's conclusion that the Court may exercise territorial jurisdiction over alleged deportation from Myanmar, a nonstate party to the Rome Statute of the International Criminal Court (Rome Statute or Statute), to a state party, Bangladesh.
Background
Since August 2017, “clearance operations” instituted by Myanmar security forces have caused over 725,000 Rohingya Muslims to flee from Myanmar to neighboring Bangladesh.Footnote 1 The plight of the Rohingya has garnered significant attention, with international outcry over alleged crimes against humanity—including forced deportation—and, potentially, genocide.Footnote 2
Under Article 19(3) of the Rome Statute, the Prosecutor is permitted to “seek a ruling from the Court regarding a question of jurisdiction or admissibility.”Footnote 3 On April 9, 2018, after reviewing “consistent and credible public reports”Footnote 4 from “prima facie reliable sources,”Footnote 5 the Prosecution submitted a request to the Court's Pre-Trial Division seeking a ruling on “whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.”Footnote 6
The request marked the first time the Prosecution sought a ruling on a question of jurisdiction. Its timing was unusual; the request was submitted before the Prosecutor opened a preliminary examination.Footnote 7 Ordinarily, the Prosecution would not engage the Pre-Trial Chamber prior to seeking authorization to open a formal investigation, a mandatory step in the process that occurs after the conclusion of the preliminary examination.Footnote 8
Under Article 12(2)(a) of the Rome Statute, the Court may exercise jurisdiction, inter alia, if the “State on the territory of which the conduct in question occurred” is a party to the Statute.Footnote 9 Myanmar is not a state party. Thus, absent Myanmar's consent, the Court may not exercise territorial jurisdiction over alleged crimes committed against the Rohingya unless the “conduct” at issue “occurred” on the territory of Bangladesh or another state party.Footnote 10 In its request, the Prosecution submitted that the crime against humanity of deportation, like a cross-border shooting, often necessarily occurs on the territory of more than one state and that the Court may exercise territorial jurisdiction if at least one element of a crime occurred on the territory of a state party.Footnote 11
Both Bangladesh and Myanmar were given the opportunity to respond to the Prosecutor's request. Bangladesh did so confidentially on June 11, 2018.Footnote 12 Myanmar refused to engage formally with the Court, but issued public statements on April 13, 2018, and August 9, 2018, objecting to the proceedings and arguing against the Court's jurisdiction.Footnote 13
The Pre-Trial Chamber's Decision
The Pre-Trial Chamber split 2-1 on the issue of the Court's authority to rule on the Prosecution's request. The majority determined that the Court had authority to issue a ruling on jurisdiction and concluded that it possesses territorial jurisdiction over crimes that occur in part on the territory of a state party. Judge Brichambaut dissented on the ground that the decision was premature and effectively amounted to an advisory opinion, which the Court lacks authority to issue.
The majority opinion is noteworthy for three reasons. First, it skirted the issue of whether Article 19(3) applies prior to the situation or case stage.Footnote 14 Instead, the majority invoked Article 119(1) of the Statute, which gives the Court the authority to resolve disputes over the Court's judicial functions,Footnote 15 as well as the international law principle of la compétence de la competence (or Kompetenz-Kompetenz), by which an international tribunal “has the power to determine the extent of its own jurisdiction.”Footnote 16 Both Article 119(1) and the principle of la compétence de la competence were deemed to permit the Court to issue a ruling because the Prosecutor's request involved a concrete “dispute” over a question of the Court's jurisdiction.Footnote 17
Second, the majority addressed and rejected Myanmar's argument in its public statements that the Court lacks jurisdiction over nonstate parties, because a treaty “does not create either obligations or rights for a third State without its consent.”Footnote 18 Although it was not responsive to the Prosecutor's request, the majority engaged in a lengthy discussion of the Court's “objective international personality,” which gives it the ability to interact with and impact even nonstates parties under certain circumstances.Footnote 19
Finally, the majority ruled that the Court's territorial jurisdiction extended to the situation presented by the Prosecution. It agreed that “deportation” and “forcible transfer” are distinct crimes against humanity and determined that the crime of “deportation,” unlike that of “forcible transfer,” necessarily occurs on the territory of more than one state.Footnote 20 The majority then concluded that Article 12(2)(a), read in context and in light of the object and purpose of the statute, clearly permits the exercise of jurisdiction if “at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party.”Footnote 21
Thus, the majority incorporated the principles of “subjective” and “objective” territoriality into the Rome Statute. Although these extensions of territorial jurisdiction are permissible under international law—and are contained in numerous international legal instruments and the national legislation of many statesFootnote 22—this determination is significant, because it opens the door to expansion of the Court's jurisdiction over nonstate parties that, like Myanmar, have expressed a desire not to be bound by the Rome Statute. Moreover, the implications of this ruling might be quite broad because the majority indicated that its reasoning could be applied to other crimes within the Court's jurisdiction, such as persecution and “other inhumane acts” committed in connection with deportation, even though those crimes would not necessarily occur on the territory of more than one state.Footnote 23
In dissent, Judge Brichambaut argued that the Prosecutor's request was not ripe for resolution and the Court lacked authority to resolve the question of territorial jurisdiction at this nascent stage. He rejected the Prosecutor's arguments regarding the applicability of Article 19(3) prior to the “case” stage on legal and prudential grounds and criticized the majority for failing to pronounce on the sole legal basis for the Prosecutor's request.Footnote 24 Judge Brichambaut also disagreed with the majority's conclusions on Article 119(1) and the principle of la compétence de la competence. There was no “dispute” for the Court to resolve: Myanmar had refused to participate in the proceedings and, to the extent that its public statements could be considered, they were not actually responsive to the Prosecutor's request.Footnote 25 Even assuming there was a “dispute” under Article 119(1), the request was hypothetical and premature, the dispute artificial, and the majority's analysis unconvincing.Footnote 26
Despite their disagreement on the threshold issues, both the majority and dissent urged the Prosecutor to open a preliminary examination into the alleged crimes.Footnote 27 On September 18, 2018, the Prosecutor did open a preliminary examination of the alleged deportation of Rohingya people from Myanmar to Bangladesh as well as potential other crimes under Article 7 of the Rome Statute.Footnote 28
Conclusion
Myanmar's Rohingya Muslims continue to suffer as a result of the “clearance operations” initiated in 2017, yet there has been little sign of action from the Security Council due to Russian and Chinese veto threats. That is true despite widespread credible reporting of killings, rapes, destruction of property, forced disappearance, and forced displacement.Footnote 29 Human rights practitioners and others seeking accountability undoubtedly will view the decision of the Pre-Trial Chamber as a welcome development because it provides the ICC an avenue to investigate this conduct and potentially provide redress for the many victims.
Nevertheless, as the dissent stresses, the ICC's decision to rule on a question of jurisdiction prior to the initiation of a preliminary examination takes a very broad approach to the concept of “dispute,” approaching an advisory opinion. This precedent could create the risk of inconsistent judgments and generate other negative consequences down the line. Even more significantly, the substance of the ruling extending the Court's territorial jurisdiction has the potential to generate significant backlash and to further strain the resources of the ICC at a time when support for the Court is at an ebb and cooperation of even state parties, much less nonstate parties, has proven challenging.Footnote 30
Original: English No. ICC-RoC46(3)-01/18
Date: 6 September 2018
PRE-TRIAL CHAMBER I
Before: Judge Péter Kovács, Presiding Judge
Judge Marc Perrin de Brichambaut
Judge Reine Adélaïde Sophie Alapini-Gansou
REQUEST UNDER REGULATION 46(3) OF THE REGULATIONS OF THE COURT
Public
Decision on the “Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”
Decision to be notified in accordance with regulation 31 of the Regulations of the Court to:
PRE-TRIAL CHAMBER I (the “Chamber”) of the International Criminal Court (the “Court” or the “ICC”) issues this decision on the “Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” (the “Request” or the “Prosecutor's Request”).Footnote 1
I. PROCEDURAL HISTORY
1. On 9 April 2018, the Prosecutor filed her Request pursuant to regulation 46(3) of the Regulations of the Court (the “Regulations”) and article 19(3) of the Rome Statute (the “Statute”), seeking a ruling from the Pre-Trial Chamber on the question whether the Court may exercise jurisdiction pursuant to article 12(2)(a) of the Statute over the alleged deportation of members of the Rohingya people from the Republic of the Union of Myanmar (“Myanmar”) to the People's Republic of Bangladesh (“Bangladesh”).Footnote 2
2. On 11 April 2018, the President of the Pre-Trial Division assigned the Request to the Chamber.Footnote 3
3. On 7 May 2018, the Chamber invited the competent authorities of Bangladesh to submit observations on the Prosecutor's Request pursuant to rule 103(1) of the Rules of Procedure and Evidence (the “Rules”).Footnote 4
4. On 11 May 2018, the Chamber issued an order convening a status conference to be held on 20 June 2018, in closed session, only in the presence of the Prosecutor.Footnote 5
5. On 31 May 2018, the Chamber received, pursuant to article 19(3) or, alternatively, article 68(3) of the Statute, a submission filed by Global Rights Compliance on behalf of 400 Rohingya women and children, who were allegedly victims of the crime against humanity of deportation.Footnote 6
6. On 11 June 2018, Bangladesh submitted confidentially its observations on the Prosecutor's Request.Footnote 7
7. On 14 June 2018, the Registry submitted to the Chamber information related to 21 victim application forms received in relation to the Prosecutor's Request.Footnote 8
8. Between 29 May 2018 and 14 June 2018 the Chamber granted leave to the following organisations and persons to submit amici curiae observations on the Prosecutor's Request: the International Commission of Jurists;Footnote 9 members of the Canadian Partnership for International Justice;Footnote 10 the Women's Initiatives for Gender Justice, Naripokkho, Ms. Sara Hossain and the European Center for Constitutional and Human Rights (jointly);Footnote 11 Guernica 37 International Justice Chambers;Footnote 12 and the Bangladeshi Non-Governmental Representatives.Footnote 13 The Chamber received their written observations on 18 June 2018.Footnote 14
9. On 19 June 2018, the Chamber received “Observations on behalf of victims from Tula Toli” village in Myanmar, pursuant to article 19(3) of the Statute.Footnote 15
10. On 20 June 2018, the status conference took place in closed session, only in the presence of the Prosecutor.Footnote 16
11. On 21 June 2018, the Chamber invited the competent authorities of Myanmar to submit observations on the Prosecutor's Request pursuant to rule 103(1) of the Rules.Footnote 17
12. On 29 June 2018, the Registry transmitted to the Chamber a note verbale and a submission made by Bangladesh, dated 28 June 2018, whereby Bangladesh sought to respond to one of the amici curiae submissions, pursuant to regulation 24(3) of the Regulations.Footnote 18
13. On 5 July 2018, the Registry submitted its report on the implementation of the Chamber's decision inviting the competent authorities of Myanmar to submit observations on the Prosecutor's Request.Footnote 19 The Registry informed the Chamber that the Embassy of Myanmar to the Kingdom of Belgium had refused to accept the delivery of either the Chamber's decision or the Prosecutor's Request, which were returned to the Court.Footnote 20
14. On 11 July 2018, the Chamber issued its “Decision on the Reclassification of Certain Documents and Orders”.Footnote 21
15. On 11 July 2018, the Prosecutor filed her observations on the five amici curiae submissions mentioned in paragraph 8 above and the submissions of the two groups of alleged victims mentioned in paragraphs 5 and 9 above.Footnote 22
16. On 17 August 2018, the Prosecutor filed a “Notice of the Public Statement Issued by the Government of Myanmar” (the “17 August 2018 Notice/Request”).Footnote 23
II. PRELIMINARY ISSUES
1. Classification of the Present Decision
17. The present decision is classified as public although it refers to documents which have been submitted and are currently treated as confidential. The Chamber considers that these references are required by the principle of publicity and judicial reasoning. It has, however, kept such references to a minimum, without endangering the interests concerned and without defeating the very purpose of confidentiality.
2. The Response Submitted by Bangladesh
18. Pursuant to regulation 24(3) of the Regulations, Bangladesh submitted a response to the submissions presented by one of the amici curiae.Footnote 24
19. The Chamber recalls that it initially invited Bangladesh to submit observations on certain matters pursuant to rule 103(1) of the Rules.Footnote 25 Therefore, the involvement of Bangladesh is limited to submitting the observations requested by the Chamber under this rule. Since rule 103 of the Rules does not provide for an automatic right of response on the part of a State, organization or person submitting observations, the Chamber decides, pursuant to regulation 29 of the Regulations, to set aside the response submitted by Bangladesh.
3. The Victims’ Standing
20. The victims contend that they have standing to submit observations to the Chamber pursuant to, inter alia, article 19(3), second sentence, of the Statute or, in the alternative, article 68(3) of the Statute.Footnote 26
21. The Chamber considers that the victims have standing to submit observations pursuant to article 68(3) of the Statute. This article provides that, “[w]here the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court […]”. Furthermore, the Chamber is of the view that rule 93 of the Rules gives it discretion to accept observations presented by victims on any issue and at any stage of the proceedings, whenever the Chamber finds it appropriate. The Chamber considers that the victims’ personal interests are affected by the Request in view of the fact that their applications are linked to, inter alia, alleged deportations from Myanmar to Bangladesh in August 2017.Footnote 27 In addition, since their observations concern the specific legal question arising from the Request, the Chamber finds it appropriate, in these particular circumstances, to hear from the victims at this stage.
4. The 17 August 2018 Notice/Request
22. In the 17 August 2018 Notice, the Prosecutor drew the Chamber's attention to a public statement issued by the Government of Myanmar on 9 August 2018 concerning the current proceedings before the Court. The Prosecutor requests either to disregard this statement in its entiretyFootnote 28 or, “should the Pre-Trial Chamber […] be minded to take the Public Statement into consideration, to be granted leave to file brief observations in response”.Footnote 29
23. The Chamber accepts the Prosecutor's position that, for the purpose of relying on the recent statement of 9 August 2018 or any other statement issued by the Government of Myanmar, such statement should, in principle, be part of the Court's official record. On its face, this is not the case, given that “Myanmar has declined to engage with the ICC by way of a formal reply”.Footnote 30 Nevertheless, this does not deny the fact that, in limited circumstances depending on the complexity of the matter (as the case may be), the Chamber may rely on one or more statement(s) – such as those made by Myanmar – if any of these statements are brought to the attention of the Chamber through the Prosecutor's official filings. Thus, the information provided therein becomes part of the record.
24. Having said that and in view of the available information before the Chamber, which is considered sufficient, the Chamber does not deem it necessary for the Prosecutor to file any observations in response. Accordingly, the Chamber rejects the 17 August 2018 Request.
III. APPLICABLE LAW
25. The Chamber notes 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.
IV. THE POWER OF THE CHAMBER TO ENTERTAIN THE REQUEST
26. The Prosecutor has filed her Request pursuant to article 19(3) of the Statute. The Prosecutor submits that this provision empowers her to seek a ruling on a question of jurisdiction or admissibility at any stage of the proceedings.Footnote 31 She bases this argument, firstly, on a plain reading of the terms of article 19(3) of the Statute, which do not make a distinction between the situation stage and the case stage. She further submits that the context of article 19(3) of the Statute should not be taken to confine its application to a particular stage – the case stage.Footnote 32 Lastly, the Prosecutor advances that the object and purpose of article 19(3) of the Statute support a broad interpretation, “allowing judicial consideration of certain fundamental questions […] before embarking on a course of action which might be contentious”.Footnote 33
27. The position advanced by the Prosecutor relying on article 19(3) of the Statute is quite controversial based on the different readings of the Court's statutory documents and the literature interpreting this provision.Footnote 34 The Chamber recalls that the core question raised by the Prosecutor is a question of jurisdiction, i.e. “whether the Court may exercise jurisdiction under article 12(2)(a) over the alleged deportation of the Rohingya people from Myanmar to Bangladesh”.Footnote 35
28. The Chamber observes that, based on the material available in the record, the jurisdiction of the Court is clearly subject to dispute with Myanmar.Footnote 36 According to article 119(1) of the Statute, “[a]ny dispute concerning the judicial functions of the Court shall be settled by the decision of the Court”. This provision has been interpreted as including questions related to the Court's jurisdiction.Footnote 37 It follows that the Chamber is empowered to rule on the question of jurisdiction set out in the Request in accordance with article 119(1) of the Statute. Consequently, the Chamber does not see the need to enter a definite ruling on whether article 19(3) of the Statute is applicable at this stage of the proceedings.
29. In addition, since the Prosecutor's Request is premised on a question of jurisdiction, the Chamber considers that it could also entertain the Request in accordance with the established principles of international law, pursuant to article 21(1)(b) of the Statute.
30. It is an established principle of international law that any international tribunal has the power to determine the extent of its own 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. As early as 1953, the International Court of Justice (the “ICJ”) held that “in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction”.Footnote 38 It recognized this principle to be a “rule of general international law” which conferred upon it the competence to adjudicate on its own jurisdiction even in the absence of article 36(6) of its Statute.Footnote 39 This principle has been reaffirmed by the ICJ in its subsequent jurisprudence.Footnote 40
31. Since then, the principle of la compétence de la compétence has been reaffirmed by several other judicial bodies, including the Inter-American Court of Human Rights (the “IACtHR”),Footnote 41 the Appellate Body of the World Trade Organization,Footnote 42 tribunals or ad hoc committees constituted under the aegis of the International Centre for Settlement of Investment DisputesFootnote 43 and elsewhere.Footnote 44 International criminal courts and tribunals have made no exception. The International Criminal Tribunal for the former Yugoslavia (the “ICTY”) held in 1995 that this “well-entrenched principle of general international law”,
known as the principle of “Kompetenz-Kompetenz” in German or “la compétence de la compétence” in French, is part, and indeed a major part, of the incidental or inherent jurisdiction of any judicial or arbitral tribunal, consisting of its “jurisdiction to determine its own jurisdiction.” It is a necessary component in the exercise of the judicial function and does not need to be expressly provided for in the constitutive documents of those tribunals, although this is often done.Footnote 45
The same approach was adopted also by the Special Tribunal for Lebanon.Footnote 46
32. There is no question that this Court is equally endowed with the power to determine the limits of its own jurisdiction. Indeed, Chambers of this Court have consistently upheld the principle of la compétence de la compétence. Pre-Trial Chamber II held in the Situation in Uganda in 2006 that “[i]t is a well-known and fundamental principle that any judicial body, including any international tribunal, retains the power and the duty to determine the boundaries of its own jurisdiction and competence”.Footnote 47 Later on, Pre-Trial Chamber II stressed – on different occasions and in different compositions – in the same line as the ICTY, that this power existed “even in the absence of an explicit reference to that effect” as an “essential element in the exercise by any judicial body of its functions”.Footnote 48 The same approach was followed by Pre-Trial Chamber III.Footnote 49
33. In the light of the above, the Chamber considers that it also has the power pursuant to the principle of la compétence de la compétence to entertain the Prosecutor's Request. The Chamber does not consider it necessary to pronounce itself on the limits or conditions of the exercise of its compétence de la compétence for the purposes of the Request sub judice. Suffice it to note that, as highlighted by the Prosecutor herself, the jurisdictional question raised in the Request is not an abstract or hypothetical one, but it is a concrete question that has arisen in the context of individual communications received by the Prosecutor under article 15 of the Statute as well as public allegations of deportation of members of the Rohingya people from Myanmar to Bangladesh.Footnote 50 Having said that, the Chamber will now turn to the merits of the Request.
V. THE INTERNATIONAL LEGAL PERSONALITY OF THE COURT
34. Ahead of the 20 June 2018 status conference and, later on, in its 17 August 2018 Notice, the Prosecutor drew the attention of the Chamber to public statements issued by the Government of Myanmar on 13 April and 9 August 2018 respectively, with regard to the current proceedings before the Court.Footnote 51 While it is regretful that Myanmar has not submitted any observations before the Court following the Chamber's invitation, the Chamber finds it pertinent to set forth its understanding regarding certain issues raised in Myanmar's public statements. The Chamber expresses its hope that Myanmar's position will change.Footnote 52
35. In its 13 April 2018 statement, the Government of Myanmar stressed that “Myanmar is not a party to the Rome Statute” and “[t]he proposed claim for extension of jurisdiction […] exceed[s] the well enshrined principle that the ICC is a body which operates on behalf of, and with the consent of States Parties”.Footnote 53 Recalling the 1969 Vienna Convention on the Law of Treaties, the Government of Myanmar underlined that “no treaty can be imposed on a country that has not ratified it”.Footnote 54 In its 9 August 2018 statement, Myanmar once again expressed its concern that “[t]he actions of the Prosecutor, constitute an attempt to circumvent the spirit of article 34 of the Vienna Convention”.Footnote 55
36. According to article 34 of the 1969 Vienna Convention on the Law of Treaties, “[a] treaty does not create either obligations or rights for a third State without its consent”.Footnote 56 The Chamber recognizes the paramount importance of the principle of pacta tertiis nec nocent nec pro sunt. It should be recalled though that this principle is not without exceptions (see, for example, article 38 of the Vienna Convention on the Law of Treaties,Footnote 57 as well as other exceptionsFootnote 58).
37. The Chamber further recalls the pronouncement of the ICJ in its advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations (“Bernadotte”), where the ICJ famously held that the United Nations (the “UN”) possessed objective international personality. In the words of the ICJ, “fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone”.Footnote 59
38. In addition to the recognition of a locus standi for the UN for reparations of harms caused to its functionaries and agents, the main legacy of the aforementioned dictum of the ICJ is the judicial confirmation of the competence of the UN (Security Council) in case of a threat to the peace and security, a competence which extends to non-Member States of the UN. Furthermore, with due regard to the special nature of preambles in the law of international treaties, it is worth remembering that the UN Charter contains purposes and considerations that are not inter partes but erga omnes in character.Footnote 60
39. The Chamber is mindful of the main doctrinal approaches that have been developed regarding the eventual applicability of the criteria set out by the ICJ to international organizations (or entities) other than the UN and, in particular, the ICC, and has studied carefully arguments in favour and against the applicability of these criteria to the ICC.Footnote 61
40. After the entry into force of the UN Charter, States committed themselves to establishing an “international penal tribunal” in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which is an instrument of quasi-universal participation nowadays.Footnote 62 It was anticipated that this “international penal tribunal” would have similar competences and working principles as the ICC, which was established fifty years later.Footnote 63
41. The Chamber acknowledges the similarities, as well as the differences, between the creation and vocation of the UN and that of the Court, as reflected in the UN Charter and the Statute of the Court, respectively. It is worth noting that the Statute was adopted on 17 July 1998 by a vote of 120 to 7, with 21 countries abstaining. At the time, the number of UN Member States was 185 (as of 2011, there are 193 UN Member States).
42. Moreover, even those States which cast a negative vote on the adoption of the Statute were acting during the Rome Diplomatic Conference – as well as prior or after this Conference, during the Preparatory Committee or Commission – as fervent promoters of the establishment of the ICC. They provided as reasons for their eventual negative votes alleged flaws, missing crimes or certain formulations which, to them, seemed not appropriate or not precise enough. Two of them, namely the United States (the “US”)Footnote 64 and Israel,Footnote 65 later became signatory States, although the US withdrew its signature shortly after. Israel also expressed its decision not to ratify the Statute.Footnote 66 Russia signed the Statute, but withdrew its signature in 2016.Footnote 67 China did not sign the StatuteFootnote 68 and India expressed great concerns at the opening of the Rome Diplomatic Conference vis-à-vis the envisaged procedures and mechanisms, but not towards the idea of the establishment of the ICC.Footnote 69 At the opening of the Conference, Iran's position was also in favour of the establishment of the ICC,Footnote 70 notwithstanding the fact that the Iranian representative enumerated a number of items in relation to which his Government wished to see substantive changes.Footnote 71 (Iran's signature has not yet been followed by ratification.) The Chamber does not hereby qualify the decisions or reasons of these States, but highlights that while these States criticized certain formulations, competences or practices, they fully recognized in 1998-2002 the necessity of an international criminal court and supported its establishment. Moreover, at the Assembly of States Parties, States acting as observers – for example, the USFootnote 72 and ChinaFootnote 73 – while recalling their concerns, also emphasized the importance of the ICC on the international plane.
43. The Chamber further notes that the drafters of the Statute intended to bring the Court into relationship with the UN.Footnote 74 In this regard, it is recalled that, when the Security Council refers a situation on the territory of a State not Party to the Statute, such a State – provided that it is a UN Member State – is duty bound to cooperate with the Court in case the Security Council requires such cooperation. This duty stems from its membership in the UN. If this country is not a UN Member State, which is a theoretical hypothesis nowadays, the competences of the Security Council pursuant to Chapter VII of the UN Charter suffice to force the cooperation of the State in case of a threat to the peace. In such a situation, the objective legal personality of the UN assists the ICC to act accordingly.
44. In addition, 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.
45. First, such effects may arise because of certain general characteristics of the Statute. As with the UN Charter, the Preamble of the Statute sets forth purposes and considerations of an erga omnes character.Footnote 75 The Statute also contains a number of formulations adopted verbatim from quasi-universal treaties (such as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 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).Footnote 76 Furthermore, several provisions are generally considered to be customary law (i.e. “pure codification” elements, such as substantial parts of articles 7 and 8 of the Statute), while other provisions represent a “progressive evolution” of custom.Footnote 77 Yet other formulations contained in the Statute reflect well-established judicial interpretations of the laws of war by, for example, the Nuremberg and Tokyo tribunals, the ICTY, the International Criminal Tribunal for Rwanda (the “ICTR”), and other international or hybrid tribunals.
46. Second, the application of certain provisions of the Statute may also produce effects for States not Party to the Statute. For example, if a perpetrator is charged and found guilty before this Court in accordance with the relevant jurisdictional parameters, his or her conviction may be duly taken into account before any national jurisdiction in order to avoid double jeopardy (ne bis in idem re), including by a State not Party to the Statute that chooses to do so, given the customary law character of this principle (or, according to certain doctrines, its status as a general principle of law). Similarly, if a sentence pronounced by the Court is executed in a State Party to the Statute, it may also be taken into account by States not Party to the Statute that wish to do so. This is especially the case if there is a bilateral agreement between the Court and the State in question on the enforcement of sentences.
47. Third, such effects may manifest themselves as a result of the decision of States not Party to the Statute (including permanent members of the Security Council) to cooperate with the Court.Footnote 78 Such cooperation may concern, for instance, the arrest and surrender of suspects,Footnote 79 the explicit approval of Security Council resolutions referring situations to the ICC,Footnote 80 refraining from exercising the veto power, participating as observers in the works of the Assembly of States Parties,Footnote 81 or consenting to outreach activities.Footnote 82
48. In the light of the foregoing, it is the view of the Chamber that more than 120 States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity called the “International Criminal Court”, possessing objective international personality, and not merely personality recognized by them alone, together with the capacity to act against impunity for the most serious crimes of concern to the international community as a whole and which is complementary to national criminal jurisdictions. Thus, the existence of the ICC is an objective fact. In other words, it 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.
49. Having said that, the objective legal personality of the Court does not imply either automatic or unconditional erga omnes jurisdiction. The conditions for the exercise of the Court's jurisdiction are set out, first and foremost, in articles 11, 12, 13, 14 and 15 of the Statute. Accordingly, the Chamber turns to the assessment of its jurisdiction in relation to the matter sub judice.
VI. THE JURISDICTION OF THE COURT IN RELATION TO DEPORTATION AS A CRIME AGAINST HUMANITY
50. The Chamber underlines that the present proceedings are limited in scope. As correctly stated by the Prosecutor, the issue sub judice is “a pure question of law”.Footnote 83 In more specific terms, the central question before the Chamber is whether the Court may exercise jurisdiction over allegations that members of the Rohingya people from Myanmar (a State not Party to the Statute) were deported to Bangladesh (a State Party to the Statute).Footnote 84 This means that, although it has carefully considered the submissions provided in relation to the situation of the Rohingya people in Myanmar and Bangladesh,Footnote 85 the Chamber is not called upon to make any findings of fact concerning the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh. The present decision is, thus, without prejudice to any possible decision on the merits of these factual allegations.
51. Turning to the issue sub judice, the Chamber considers that it must first determine the scope of article 7(1)(d) of the Statute before it can address the question whether the preconditions for the exercise of the Court's jurisdiction pursuant to article 12(2)(a) of the Statute have been satisfied in relation to the aforementioned allegations. These matters will, therefore, be discussed in turn.
1. Article 7(1)(d) of the Statute
52. Article 7(1)(d) of the Statute lists “[d]eportation or forcible transfer of population” among the crimes against humanity within the jurisdiction ratione materiae of the Court. The question arising from the wording and structure of this provision is whether it embodies either a single crime or two separate crimes.
53. In this regard, the Chamber agrees with the Prosecutor that article 7(1)(d) of the Statute sets forth two separate crimes, namely deportation and forcible transfer.Footnote 86 This finding is based on the following reasons.
54. This conclusion arises, in the first place, out of “the ordinary meaning to be given to the terms of” article 7(1)(d) of the Statute.Footnote 87 As mentioned above, this provision reads: “[d]eportation or forcible transfer of population”. According to the Oxford Dictionary, “or” is “[u]sed to coordinate two (or more) sentence elements between which there is an alternative” and “[t]hings so coordinated may differ in nature […]”.Footnote 88 This means that the reference to “or” in article 7(1)(d) of the Statute signifies that this provision includes two alternatives, namely two distinct crimes.Footnote 89
55. The Elements of Crimes pertaining to article 7(1)(d) of the Statute support this interpretation. The underlying conduct (“deported or forcibly transferred”) and the destination (“another State or location”) also contain references to “or”. In this manner, the Elements of Crimes link the conduct and the destinations. In more specific terms, “deported” is linked to the destination of “another State”, while “forcibly transferred” is linked to the destination of “another […] location” (which specifically entails, a contrario, another location within the same State). This means that, provided that all other requirements are met, the displacement of persons lawfully residing in an area to another State amounts to deportation, whereas such displacement to a location within the borders of a State must be characterised as forcible transfer.Footnote 90 These linkages are, therefore, consistent with an interpretation of article 7(1)(d) of the Statute as including two separate crimes that are distinguished from each other by the destination of the forced displacement.
56. In this regard, the Chamber further considers that footnote 13 to the Elements of Crimes does not affect its interpretation of article 7(1)(d) of the Statute. This footnote specifies that “‘[d]eported or forcibly transferred’ is interchangeable with ‘forcibly displaced’”. The Elements of Crimes must, in general, be “consistent with” the Statute.Footnote 91 Considering the abovementioned wording of article 7(1)(d) of the Statute, footnote 13 to the Elements of Crimes cannot be interpreted in a manner to modify the interpretation of this article as differentiating between deportation and forcible transfer. This footnote is rather a clarification that, in line with article 7(2)(d) of the Statute, the underlying acts for both crimes concern forced displacement.Footnote 92
57. The Chamber finds, in addition, that the rules of international law concerning deportation and forcible transfer reinforce its interpretation of article 7(1)(d) of the Statute.Footnote 93 The prohibition against deportation as a crime against humanity is strongly embedded in international law. This crime has been included in a number of international instruments, including Statutes of international tribunals.Footnote 94 Moreover, individuals have been held accountable for this crime by different international courts and tribunals, including the International Military Tribunal sitting at Nuremberg.Footnote 95 On the other hand, the prohibition against forcible transfer as a crime against humanity was first expressed following the recognition of deportation as a crime against humanity.Footnote 96 What is more, in international law, these crimes are distinguished on the basis of the destination requirement, namely displacement across national borders in the case of deportation and displacement within national borders in the case of forcible transfer.Footnote 97 This means that the crimes against humanity of deportation and forcible transfer exist independently from each other in international law. Therefore, also when considered in this light, article 7(1)(d) of the Statute must be interpreted to enshrine two separate crimes.
58. Furthermore, in the view of the Chamber, the object and purpose of the Statute lend additional support to the conclusion that deportation and forcible transfer are separate crimes.Footnote 98 The legal interest commonly protected by the crimes of deportation and forcible transfer is the right of individuals to live in their area of residence. However, the legal interest protected by the crime of deportation further extends to the right of individuals to live in the State in which they are lawfully present. Therefore, in order to give effect to these different legal interests, article 7(1)(d) of the Statute must be interpreted to express two separate crimes.
59. Finally, the Chamber notes that its interpretation of article 7(1)(d) of the Statute is consistent with the jurisprudence of the Court.Footnote 99 After finding that there were substantial grounds to believe that certain persons had been forcibly displaced without grounds permitted under international law from the areas where they were lawfully present, Pre-Trial Chamber II stated that “[t]he factor of where they have finally relocated as a result of these acts (i.e. within the State or outside the State) in order to draw the distinction between deportation and forcible transfer is […] to be decided by the Trial Chamber”.Footnote 100 The finding that the destination requirement distinguishes between deportation and forcible transfer implies that two separate crimes are included in article 7(1)(d) of the Statute.
60. In line with the Chamber's finding that deportation is a separate crime within article 7(1)(d) of the Statute, it follows that the first element of the Elements of Crimes associated with this article requires that “[t]he perpetrator deported […], without grounds permitted under international law, one or more persons to another State […], by expulsion or other coercive acts” (footnotes omitted). In this regard, the Chamber further considers that the requirement of displacement across a border constitutes a specific element of the crime of deportation under article 7(1)(d) of the Statute.Footnote 101 The reason is that, as discussed, the destination requirement is essential to article 7(1)(d) of the Statute as it determines the appropriate legal qualification to be assigned to the behaviour criminalised under this provision.
61. Having clarified that article 7(1)(d) of the Statute comprises the crimes of deportation and forcible transfer, the Chamber also considers it appropriate to reiterate the interpretation afforded to the element of “expulsion or other coercive acts” by the Court. As held by Pre-Trial Chamber II, “deportation or forcible transfer of population is an open-conduct crime”, meaning that a “perpetrator may commit several different conducts which can amount to ‘expulsion or other coercive acts’”.Footnote 102 This entails that, in the context of the allegations contained in the Request, various types of conduct may, if established to the relevant threshold, qualify as “expulsion or other coercive acts” for the purposes of the crime against humanity of deportation, including deprivation of fundamental rights, killing, sexual violence, torture, enforced disappearance, destruction and looting.Footnote 103
2. Article 12(2)(a) of the Statute
62. Article 12(2)(a) of the Statute provides 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 […]”.
63. To date, the application of this provision has generally been uncontroversial in most of the situations and related cases before the Court. The reason is that most of them are geographically limited to the borders of a State Party to the Statute. However, in the present Request, the Prosecutor submits that the reference to “conduct” in article 12(2)(a) of the Statute “means only that ‘at least one legal element of an article 5 crime’ must occur on the territory of a State Party”.Footnote 104 Accordingly, the contours of this provision require further specification.Footnote 105
64. In this regard, the Chamber considers that the preconditions for the exercise of the Court's jurisdiction pursuant to article 12(2)(a) of the Statute are, as a minimum, fulfilled if at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party.
65. First, this finding is based on a contextual interpretation of article 12(2)(a) of the Statute, which takes relevant rules of international law into account.Footnote 106 In this regard, the Chamber observes that public international law permits the exercise of criminal jurisdiction by a State pursuant to the aforementioned approaches.
66. In general, the Permanent Court of International Justice has found that “[t]he territoriality of criminal law […] is not an absolute principle of international law and by no means coincides with territorial sovereignty”.Footnote 107 More specifically, a number of national jurisdictions have adopted legislation to the effect that the exercise of criminal jurisdiction requires the commission of at least one legal element of the crime on the territory of a State.Footnote 108 By the same token, numerous States have adopted legislative frameworks based on the principle that criminal jurisdiction may be asserted if part of a crime takes place on the territory of a State.Footnote 109 Such a notion of criminal jurisdiction has also been set forth in different international instruments.Footnote 110
67. In this respect, the Chamber further highlights that Myanmar is party to different international treaties that require it to take measures to establish its jurisdiction over certain offences, inter alia, in cases where the alleged offender is present in its territory, irrespective of the location of the commission of the alleged offence or the nationality of the alleged offender.Footnote 111 What is more, the penal code of Myanmar provides that “[a]ny person liable, by any law in force in the Union of Burma, to be tried for an offence committed beyond the limits of the Union of Burma shall be death [sic] with according to the provisions of this Code for any act committed beyond the Union of Burma in the same manner as if such act had been committed within the Union of Burma”.Footnote 112
68. The Chamber also notes, along similar lines, that the penal code of Bangladesh sets forth that “[e]very person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within Bangladesh”.Footnote 113 In this regard, the Supreme Court of Bangladesh has interpreted the reference to “within Bangladesh” as necessitating merely that part of a crime be committed in Bangladesh.Footnote 114 In addition, the penal code of Bangladesh includes certain offences requiring that conduct takes place both within and outside Bangladesh.Footnote 115
69. Second, the Chamber's interpretation of article 12(2)(a) of the Statute finds further support in the object and purpose of the Statute.Footnote 116
70. In general, article 12(2)(a) of the Statute is the outcome of the compromise reached by States at the Rome Conference that allows the Court to assert “jurisdiction over the most serious crimes of concern to the international community as a whole” on the basis of approaches to criminal jurisdiction that are firmly anchored in international law and domestic legal systems.Footnote 117 Thus, the drafters of the Statute intended to allow the Court to exercise its jurisdiction pursuant to article 12(2)(a) of the Statute in the same circumstances in which States Parties would be allowed to assert jurisdiction over such crimes under their legal systems, within the confines imposed by international law and the Statute. It follows that a restrictive reading of article 12(2)(a) of the Statute, which would deny the Court's jurisdiction on the basis that one or more elements of a crime within the jurisdiction of the Court or part of such a crime was committed on the territory of a State not Party to the Statute, would not be in keeping with such an object and purpose.
71. In addition, and more specifically, the inherently transboundary nature of the crime of deportation further confirms this interpretation of article 12(2)(a) of the Statute. As discussed, an element of the crime of deportation is forced displacement across international borders, which means that the conduct related to this crime necessarily takes place on the territories of at least two States. What is more, the drafters of the Statute did not limit the crime of deportation from one State Party to another State Party. Article 7(2)(d) of the Statute only speaks of displacement from “the area in which they were lawfully present” and the elements of crimes generally refer to deportation to “another State”. Therefore, the inclusion of the inherently transboundary crime of deportation in the Statute without limitation as to the requirement regarding the destination reflects the intentions of the drafters to, inter alia, allow for the exercise of the Court's jurisdiction when one element of this crime or part of it is committed on the territory of a State Party.Footnote 118
72. Accordingly, the Chamber finds that, interpreted in the context of the relevant rules of international law and in the light of the object and purpose of the Statute, the Court may assert jurisdiction pursuant to article 12(2)(a) of the Statute if at least one element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party to the Statute.
3. Conclusion
73. 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, provided that such allegations are established to the required threshold. This conclusion is without prejudice to subsequent findings on jurisdiction at a later stage of the proceedings.
VII. THE JURISDICTION OF THE COURT IN RELATION TO OTHER CRIMES
74. The Chamber considers it appropriate to emphasise that the rationale of its determination as to the Court's jurisdiction in relation to the crime of deportation may apply to other crimes within the jurisdiction of the Court as well. If it were established that at least an element of another crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party, the Court might assert jurisdiction pursuant to article 12(2)(a) of the Statute. In this regard, the Chamber refers to the following two examples.
75. First, article 7(1)(h) of the Statute identifies, as a crime against humanity within the jurisdiction of the Court, “[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph […]”. The reference to “any act referred to in this paragraph” signifies that persecution must be “committed in connection with any other crime within the jurisdiction of the Court”,Footnote 119 which includes the crime against humanity of deportation, provided that such acts are committed pursuant to any of the grounds mentioned in article 7(1)(h) of the Statute.
76. Therefore, if it were established to the applicable threshold that members of the Rohingya people were deported from Myanmar to Bangladesh on any of the grounds enumerated in article 7(1)(h) of the Statute, the Court might also have jurisdiction pursuant to article 12(2)(a) of the Statute over the crime against humanity of persecution, considering that an element or part of this crime (i.e. the cross-border transfer) takes place on the territory of a State Party.Footnote 120
77. Second, article 7(1)(k) of the Statute stipulates that “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”, amount to a crime against humanity within the jurisdiction of the Court. The Chamber notes that, following their deportation, members of the Rohingya people allegedly live in appalling conditions in Bangladesh and that the authorities of Myanmar supposedly impede their return to Myanmar.Footnote 121 If these allegations were to be established to the required threshold, preventing the return of members of the Rohingya people falls within article 7(1)(k) of the Statute. Under international human rights law, no one may be arbitrarily deprived of the right to enter one's own country.Footnote 122 Such conduct would, thus, be of a character similar to the crime against humanity of persecution, which “means the intentional and severe deprivation of fundamental rights contrary to international law”.Footnote 123 Furthermore, preventing a person from returning to his or her own country causes “great suffering, or serious injury […] to mental […] health”. In this manner, the anguish of persons uprooted from their own homes and forced to leave their country is deepened. It renders the victims’ future even more uncertain and compels them to continue living in deplorable conditions.
78. In these circumstances, the preconditions for the exercise of the Court's jurisdiction pursuant to article 12(2)(a) of the Statute might be fulfilled as well. This is because an element or part of this crime (i.e. unlawfully compelling the victims to remain outside their own country) takes place on the territory of Bangladesh, a State Party, provided that the allegations are established to the required threshold.
79. Finally, the Chamber considers that, in the event that the Prosecutor requests authorization to commence an investigation pursuant to article 15 of the Statute or initiates an investigation pursuant to another legal basis, it falls within her prerogatives to apply the preconditions for the exercise of the Court's jurisdiction pursuant to article 12(2)(a) of the Statute in accordance with the present decision. This is so if it were to be established that at least one element of another crime within the jurisdiction of the Court or part of such crime occured on the territory of a State Party to the Statute.
VIII. FINAL REMARKS
80. The Chamber finds it necessary to make two final remarks with regard to the Prosecutor's preliminary examination.
81. Firstly, the Prosecutor appears to situate her Request in the context of a pre-preliminary examination. She notes in her submissions before the Chamber that her Request “precedes any preliminary examination by the Prosecution”.Footnote 124 “[I]f the Pre-Trial Chamber in its ruling confirms that the Court may in principle exercise jurisdiction under article 12(2)(a), [she] will proceed to consider whether to formally announce the opening of a preliminary examination”.Footnote 125
82. The Chamber wishes to highlight that the statutory documents of the Court do not envisage a pre-preliminary examination stage. A plain reading of article 15, in particular paragraphs (1), (2) and (6), in conjunction with rule 48 of the Rules reveals that the preliminary examination is the pre-investigative assessment through which the Prosecutor analyses the seriousness of the information “received” or “made available”Footnote 126 to her against the factors set out in article 53(1)(a)-(c) of the Statute.Footnote 127 The Chamber notes that the Prosecutor has received 42 individual communications under article 15 of the Statute, which she has – in her submission – already reviewed, together with a number of reports and public information relating to crimes allegedly committed against members of the Rohingya people.Footnote 128 In submitting this Request, the Prosecutor has further given consideration to the criterion set out in article 53(1)(a) of the Statute, at least in part. It is the Chamber's view that such steps do not precede a preliminary examination, but are part of it, whether formally announced or not. The language of article 15(6) of the Statute does not leave room for any other interpretation.
83. Secondly, the Prosecutor submits that “if the Court agrees with [her] view of the Court's jurisdiction, then [she] will be able to continue her factual analysis and decide how to proceed [,] […] whether to seek authorisation to open an investigation”.Footnote 129
84. The Chamber recalls at this juncture Pre-Trial Chamber III's pronouncement that “the preliminary examination of a situation pursuant to article 53(1) of the Statute and rule 104 of the Rules must be completed within a reasonable time […] regardless of its complexity”.Footnote 130 If the Prosecutor reaches a positive determination according to the “reasonable basis” standard under articles 15(3) and 53(1) of the Statute, she “shall submit” to the Chamber a request for authorization of the investigation.Footnote 131 As held by this Chamber in a previous composition, “the presumption of article 53(1) of the Statute, as reflected by the use of the word ‘shall’ in the chapeau of that article, and of common sense, is that the Prosecutor investigates in order to be able to properly assess the relevant facts”.Footnote 132 It follows that a prolongation of a preliminary examination beyond that point is, in principle, unwarranted.
85. The Chamber recalls that the “reasonable basis” to proceed standard applicable at this stage is the lowest evidentiary standard provided for in the Statute.Footnote 133 Therefore, the preliminary examination as such “does not necessitate any complex or detailed process of analysis”,Footnote 134 and the information available is not expected to be “comprehensive” or “conclusive”,Footnote 135 particularly taking into account the limited investigative powers at the Prosecutor's disposal,Footnote 136 compared to those provided for in article 54 of the Statute at the investigation stage.Footnote 137
86. In addition, an investigation should in general be initiated without delay and be conducted efficiently in order for it to be effective, since “[w]ith the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and thus the prospects that any effective investigation can be undertaken will increasingly diminish”.Footnote 138 Even Trial Chambers at the Court have noted the profound impact and detrimental effect that the length of time between the occurrence of the crimes and the moment in which evidence is presented at trial can have on the reliability of evidence presented before a Chamber. In particular, with the passage of time, victims “who suffered trauma, may have had particular difficulty in providing a coherent, complete and logical account”.Footnote 139
87. Lastly, the Chamber recalls the Appeals Chamber's statement in the context of article 21(3) of the Statute that, “the law applicable under the Statute must be interpreted as well as applied in accordance with internationally recognized human rights. Human rights underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court”.Footnote 140 The preliminary examination is no exception to this fundamental principle and this concerns not only its result but also its conduct.
88. This means that the Prosecutor is mandated to respect the internationally recognized human rights of victims with regard to the conduct and result of her preliminary examination, especially the rights of victims to know the truth, to have access to justice and to request reparations, as already established in the jurisprudence of this Court.Footnote 141 Moreover, the Chamber notes that the IACtHR has established that “it is necessary to act with special promptness when, owing to the design of the domestic laws, the possibility of filing a civil action for damages depends on the criminal proceeding”.Footnote 142 Within the Court's legal framework, the victims’ rights both to participate in the proceedings and to claim reparations are entirely dependent on the Prosecutor starting an investigation or requesting authorization to do so. The process of reparations is intrinsically linked to criminal proceedings,Footnote 143 as established in article 75 of the Statute, and any delay in the start of the investigation is a delay for the victims to be in a position to claim reparations for the harm suffered as a result of the commission of the crimes within the jurisdiction of this Court.
FOR THESE REASONS, THE CHAMBER, BY MAJORITY, HEREBY
GRANTS the Request in accordance with Parts IV, VI and VII of the present decision.
Judge Marc Perrin de Brichambaut appends a partially dissenting opinion.
Done in both English and French, the English version being authoritative.
Dated this Thursday, 6 September 2018
At The Hague, The Netherlands
Table of Contents
I. Introduction……………[ILM page 151]
II. Article 19(3) of the Statute is inapplicable to the present instance……………[ILM page 153]
III. Article 119(1) of the Statute is irrelevant and inapplicable……………[ILM page 156]
IV. The principle of la compétence de la compétence cannot serve as an alternative basis to entertain the Prosecutor's Request……………[ILM page 161]
A. Relying on the principle of la compétence de la compétence would be inappropriate in the present instance and risks misinterpreting previous jurisprudence……………[ILM page 162
B. The question of jurisdiction should be preserved for subsequent proceedings……………[ILM page 166]
V. Rendering the ruling requested by the Prosecutor at this phase would be tantamount to delivering an advisory opinion, which this Court is expressly prohibited from doing……………[ILM page 166]
VI. Conclusion……………[ILM page 169]
I. Introduction
1. At the outset, I find that the request presented by the ProsecutorFootnote 1 (the “Prosecutor's Request” or the “Request”) for a ruling on jurisdiction under article 19(3) of the Rome Statute (the “Statute”) comes at a highly unusual juncture before even a preliminary examination of a situation has been initiated by the Prosecutor, let alone authorization to commence an investigation has been requested from this Pre-Trial Chamber pursuant to article 15(3) of the Statute.
2. I cannot agree with the Majority's finding that the interpretation of article 19(3) of the Statute “is quite controversial based on the different readings of the Court's statutory documents and the literature interpreting this provision”.Footnote 2 I deem it necessary to fully address the issue of its applicability at such a premature stage of proceedings. Indeed, as the legal basis on which the Prosecutor's Request is grounded, this issue must be addressed by the Chamber and cannot be avoided or dismissed in a lapidary fashion.
3. I am moreover not persuaded by the analysis advanced by the Majority that finds alternative legal bases for the Chamber to entertain the Prosecutor's Request based on article 119(1) of the Statute, which is not mentioned in the Request, or based on the principle of international law commonly referred to as la compétence de la compétence/Kompetenz-Kompetenz (the “principle of la compétence de la compétence”).Footnote 3 Therefore, I am not in a position to participate in any kind of ruling by the Chamber at this juncture.
4. I further note that to answer the Prosecutor's jurisdictional question at this stage would be an exercise in speculation tantamount to delivering a de facto advisory opinion. To make a ruling on jurisdiction based on imprecise and selective submissions by the ProsecutorFootnote 4 when there is not even a preliminary examination that has defined the parameters of a situation, let alone has been concluded, is explicitly proscribed by well-established jurisprudence as will be discussed below.
5. I contend that the arguments proffered by the Prosecutor do not support the Court's ability to intervene effectively at this embryonic stage. However, were the Office of the Prosecutor to seek authorization to commence an investigation, after having satisfied itself of a reasonable basis to proceed, and, as part thereof, request a decision on jurisdiction, the Prosecutor would be well within its statutory rights.
6. This opinion first addresses the question of the applicability of article 19(3) of the Statute at this stage of the proceedings. I next explain why it is erroneous to invoke article 119(1) of the Statute as an alternative legal basis to address the Prosecutor's Request in the present instance. Subsequently, I scrutinize the proper recourse to the principle of la compétence de la compétence, underlining its inapplicability at this stage. Subsequently, I recall the express injunctions and underlying rationale for the Court to demur from delivering advisory opinions. Finally, I conclude that, at this juncture, the Court cannot rule on jurisdiction over the alleged deportation of the Rohingya people from the Republic of Myanmar (“Myanmar”) to the People's Republic of Bangladesh (“Bangladesh”).
II. Article 19(3) of the Statute is inapplicable to the present instance
7. First and foremost, I reiterate the need to address the interpretation of article 19(3) of the Statute presented by the Prosecutor and the question as to whether it is a sound legal basis to entertain her Request at this stage of the proceedings.
8. Article 19(3) of the Statute states that “[t]he Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility”. Although the questions of jurisdiction and admissibility are of crucial importance in the International Criminal Court's proceedings (the “ICC”), the level of controversy present at this early stage of the proceedings, with no case present and prior to an indication that the Office of the Prosecutor intends to proceed with an investigation, prevents recourse to article 19(3) of the Statute to render a ruling on jurisdiction. In that respect, I consider that article 19(3) of the Statute is inapplicable in the present instance.
9. In her Request, the Prosecutor provides an interpretation of article 19(3) of the Statute that is indifferent to its context, constituted of article 19 as a whole, to other regulatory texts of the Court and to the established jurisprudence of the latter altogether. This approach cannot be accepted since it is a deep-seated principle that, according to article 31 of the Vienna Convention on the Law of the Treaties, treaty provisions must be interpreted in accordance with their ordinary meaning in their context and in the light of the object and purpose of the treaty.Footnote 5 In order to determine whether article 19(3) can constitute the legal basis for the Chamber to address the Request, it is thus necessary to proceed to its contextual interpretation.
10. Firstly, a contextual interpretation of article 19(3) of the Statute with reference to the entirety of article 19 and against its scope of application suggests that this article applies only once a case has been defined by a warrant of arrest or a summons to appear pursuant to article 58 of the Statute. Indeed, taken as a whole, the article's title, “Challenges to the jurisdiction of the Court or the admissibility of a case” [emphasis added] infers that a “case” must be present for the article to apply. Hence, the article's heading itself makes clear that it only governs questions of jurisdiction and admissibility at the case stage. An interpretation of the other paragraphs of article 19 of the Statute equally supports this view. In fact, the first paragraph, in providing that the Court “shall satisfy itself it has jurisdiction in any case brought before it” and that it “may, on its own motion, determine the admissibility of a case” [emphasis added], clearly suggests that article 19(1) can be applied only at the case stage. Furthermore, the wording of the second paragraph of article 19 stresses this same point when providing that, for the identified parties to be able to challenge the jurisdiction of the Court or the admissibility of the case, the existence of the latter must be ascertained.
11. Secondly, the wording of other regulatory legal texts governing the activity of the Court, and thus the application of article 19(3) of the Statute as well, equally make clear that the latter cannot be invoked unless a case is present. In this regard, reference is made to rule 58(2) of the Rules of Procedure and Evidence establishing the procedure to be followed by Chambers when dealing with questions on jurisdiction or admissibility, which reads as follows:
When a Chamber receives a request or application raising a challenge or question concerning its jurisdiction or the admissibility of a case in accordance with article 19, paragraph 2 or 3, or is acting on its own motion as provided for in article 19, paragraph 1, it shall […] [emphasis added].
12. Accordingly, based on a contextual interpretation, I conclude that article 19(3) of the Statute can be applied only when the proceedings have reached the stage of a case identified by the Prosecutor.
13. Interpreting article 19(3) of the Statute in a manner that allows it to be applied at the “pre-preliminary examination” stage may open the door for the Prosecutor to put to the Pre-Trial Chamber hypothetical or abstract questions of jurisdiction that do not arise from a concrete case or even a situation. It might also allow the Prosecutor to circumvent the procedures otherwise applicable, delay her decision-making, or even shift the burden of assembling a case onto the Pre-Trial Chamber. Such prosecutorial attempts would not only be inappropriate, but also inconsistent with the four-phase procedure for preliminary examinations that the Office of the Prosecutor has itself determined and described as a “statutory-based approach”.Footnote 6 The purpose of this incremental and cumulative process is to marshal the evidence necessary for the Court to decide whether there is a reasonable basis to proceed with an investigation. In the present instance, the Prosecutor has deviated from that established practice and offered no compelling argument for such an unprecedented aberration, confusing a sequence it has itself designed.
III. Article 119(1) of the Statute is irrelevant and inapplicable
14. The approach followed by the Majority which relies on article 119(1) of the Statute as an alternative legal basis to entertain the Prosecutor's RequestFootnote 7 leaves room for perplexity for two reasons. First, article 119(1) is invoked proprio motu by the Majority, as the Prosecutor did not resort to it herself. Second, I note that invoking this article is unprecedented in the jurisprudence of the Court. However, the Majority does not explain why it is appropriate to invoke such provision at this stage of the proceedings, which would have been consistent with the Court's duty to present the reasons underlying its judicial decisions,Footnote 8 other than concluding that “this provision has been interpreted [by scholars] as including questions related to the Court's jurisdiction”.Footnote 9 At the very least, the choice of article 119(1) of the Statute as an alternative basis is questionable in light of its nature, since it is one of the “Final Clauses” provided for in Part 13 of the Statute and, thus, not directly related to issues of jurisdiction before this Court, which is addressed by specific statutory provisions. Hence, I find that the decision of the Majority to rely on article 119(1) of the Statute to entertain the Prosecutor's Request is not persuasive.
15. Importantly, as stated above, it is necessary to interpret article 119(1), as all other provisions of the Statute, with regards to its context, according to general principles of international law governing treaty interpretation as enshrined in article 31 of the Vienna Convention on the Law of the Treaties. When a contextual interpretation of article 119(1) of the Statute is elaborated upon, three particular concerns arise.
16. First, article 119(1) of the Statute applies only when there is a dispute concerning a judicial function of the Court. In that context, I cannot concur with the Majority's finding that “[…] the jurisdiction of the Court is clearly subject to dispute with Myanmar”.Footnote 10 In my view, there are at least two series of arguments relativizing such a stance. First of all, the Majority asserts that a “dispute” has arisen regarding a question of jurisdiction of the Court between a non-State party, namely Myanmar, and one of the Court's organs, i.e. the Prosecutor. No precise explanation with regards to the elements constituting such a “dispute”, which can be defined as “[a] conflict or controversy”,Footnote 11 is provided by the Majority.Footnote 12 Such a finding is questionable since the alleged “dispute” takes place outside of the current debate before the Court. Indeed, the alleged disagreement between Myanmar and the Prosecutor is merely based on diplomatic statements made by the former, with no relation to the official filings presented to the Court, since “Myanmar has declined to engage with the ICC by way of a formal reply”.Footnote 13 This state of affairs does not amount to a “dispute” within the meaning of article 119(1) of the Statute. First, Myanmar simply refused to cooperate with the Court, which in my view does not establish the existence of any disagreement, in the legal sense, between the latter and a non-State party. Accordingly, the only interested party at this point is the Prosecutor. Second, when analysing the public statement of the Office of the State Counsellor of Myanmar on 13 April 2018, referred to in footnote 36 of the Majority's decision to identify the alleged “dispute” (“Myanmar's 13 April 2018 public statement”), it is worth noting that it is limited to reminding that the Court does not have jurisdiction over non-State parties. The content of this statement cannot be deemed to equate to the question raised by the Prosecutor in her Request, i.e. whether the Court can exercise its jurisdiction over the alleged crimes of deportation of the Rohingya people. Hence, no actual disagreement on a point of law can be identified.
17. Additionally, I cannot share the interpretation of the jurisprudence cited in the Majority's decisionFootnote 14 to ground its finding of an ongoing “dispute” between Myanmar and the Prosecutor. At first, it is worth underscoring that both the Permanent Court of International Justice (the “PCIJ”) and the International Court of Justice (the “ICJ”) have jurisdiction only over interstate litigation: the reference is thus originally biased since, in the present instance, the alleged “dispute” arises between a State and an organ of an international organization, namely the Prosecutor of the ICC, a situation in no case comparable to those adjudicated by the PCIJ and the ICJ. Furthermore, neither the PCIJ nor the ICJ presented their definitions of “dispute” as quoted at a stage of the proceedings comparable to the phase in which the Chamber found itself in the present case.Footnote 15 Finally, and perhaps more importantly, when carefully reviewed, those references provide further guidance as to the determination of what constitutes a “dispute”. The PCIJ, after providing the above-mentioned defining elements of a “dispute”, specified that a disagreement “certainly possesses these characteristics [when a party] is asserting its own rights by claiming [from the other] an indemnity on the ground that [it] has been treated by the [other party] in a manner incompatible with certain international obligations which they were bound to observe”.Footnote 16 As regards the ICJ, it is worth noting that the definition of “dispute” is further explained asserting that “[i]n order to establish the existence of a dispute, ‘[i]t must be shown that the claim of one party is positively opposed by the other […]’” and that a dispute exists when a party “has, rightly or wrongly, formulated complaints of fact and law against [the other party] which the latter has denied”. It is “[b]y virtue of this denial [that] there is a legal dispute”.Footnote 17 In light of the aforementioned analysis of the ongoing dynamics related to the alleged “dispute” in the present instance, it can be inferred that the specific cases illustrated by the PCIJ and the ICJ do not correspond to the contents of the request made by the Prosecutor. This means that the latter doesn't correspond to the general definition of “dispute” as provided by the international courts cited by the Majority.
18. In a similar vein, some argue that article 119 of the Statute can be said to “affirme[r] une sorte de compétence de la compétence”.Footnote 18 As it will be further demonstrated in the following parts of this Opinion, the principle of la compétence de la compétence also requires a dispute or a case to be considered by a court to entertain the question relating to its own jurisdiction. Hence, the analogy between this general principle of international law and the statutory provision under scrutiny reinforces my position that the latter can only be applied when a clear dispute arises, which is not the case in the present instance.
19. Also in this regard, it is worth noting that, even assuming that Myanmar's 13 April 2018 public statement does give rise to a dispute within the meaning of article 119(1) of the Statute, resorting to that article is equally premature as the Prosecutor has not as of yet asked the Court to effectively assert its jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. Her Request merely purports to seek the Chamber's position on whether those facts give rise to jurisdiction under article 12(2)(a) of the Statute “to assist in her further deliberations concerning any preliminary examination she may independently undertake […]”.Footnote 19
20. Second, again assuming the existence of a “dispute”, the Majority omits to address the question of who can validly present a “dispute concerning the judicial functions of the Court” to the latter. This is of pivotal concern when seeking to assess whether article 119(1) of the Statute can be applied in the present instance. In my view, uncertainty remains as to knowing whether the “dispute” must arise between States or from a disagreement among the parties to judicial proceedings or even third parties.Footnote 20 Indeed, as the second paragraph of this article clearly addresses only “dispute[s] between two or more States Parties”, the same restriction would weigh in on article 119(1) disputes “concerning the judicial functions of the Court”, were article 119(1) interpreted contextually.
21. Thirdly, the Majority asserts that article 119(1) of the Statute “has been interpreted [by scholars] as including questions related to the Court's jurisdiction”.Footnote 21 However, such an interpretation is affirmed without any previous jurisprudence by any judicial institution and it only refers to academic writings and non-binding resolutions.Footnote 22 Additionally, when strictly scrutinized, these references provide a more nuanced perspective. For instance, regarding the citation of the Majority in footnote 37, the author appears to present “tentative suggestions” of what may be included in the category of “questions concerning the judicial functioning of the Court”, the object of article 119(1), asserting that “probably” they include “questions of jurisdiction”.Footnote 23 The tacitly suggested universality of the Majority's finding is thus far from being evident.
22. As a result, the alleged “dispute” can only be considered as an argument that is invoked to artificially create a legal basis for a decision. Apart from being unconvincing, this approach does not comply with the obligation of the Chambers to underpin their judicial decisions with sufficiently substantiated reasons.Footnote 24
23. Because of these concerns, which, in my view, render the Majority's interpretation of article 119(1) erroneous, I regret that I cannot join the Majority's decision as regards the fact that “the Chamber is empowered to rule on the question of jurisdiction set out in the Request in accordance with article 119(1) of the Statute”.Footnote 25
IV. The principle of la compétence de la compétence cannot serve as an alternative basis to entertain the Prosecutor's Request
24. Shifting from the power to make a ruling on jurisdiction of a case, which is explicitly conferred upon the Court by article 19(3) of the Statute, to those arising from interpretations of customary international law, is to venture onto precarious ground. The Prosecution contends that the “bedrock importance of jurisdiction [is] reflected in the general principle known as ‘compétence de la compétence’”.Footnote 26 The Majority appears to concur, stating that “[i]t is an established principle of international law that any international tribunal has the power to determine the extent of its own jurisdiction”.Footnote 27
25. I believe there are two primary reasons why it would be imprudent to assert the principle of la compétence de la compétence in the present case: to so do (1) would be inconsistent with the principle's purpose and previous jurisprudence; and (2) could potentially predetermine a subsequent review of jurisdiction at more appropriate stages of any future proceedings.
A. Relying on the principle of la compétence de la compétence would be inappropriate in the present instance and risks misinterpreting previous jurisprudence
26. As the Appeals Chamber explicitly observed in its Judgment on the Appeals of the Prosecutor and the Defendants in the Bemba et al. case:
In the legal framework of this Court, ‘inherent powers’ should be invoked in a very restrictive manner and, in principle, only with respect to matters of procedure […]The notion of ‘inherent powers’ – or ‘incidental jurisdiction’ – refers to judicial powers which, while not explicitly conferred in the relevant constitutive instruments, are to be considered necessarily encompassed within (‘inherent to’) other powers specifically provided for, in that they are essential to the judicial body's ability to perform the judicial functions assigned to it by such constitutive instruments. The nature and type of the concerned power […] are relevant considerations to determine whether there are gaps justifying recourse to subsidiary sources of law or invocation of ‘inherent powers.Footnote 28
Invoking the principle of la compétence de la compétence “is a significant event”.Footnote 29 The raison d’être for this principle is to serve as a mechanism to resolve conflicts of law and prevent a unilateral obstruction by litigation or arbitration. To assert the principle of la compétence de la compétence without a conflict or obstruction is to infer an inherent power absent from the Statute.
27. The Majority's decision bolsters the Prosecution's brief mention of the principle of la compétence de la compétence with substantial case law indicating that numerous international courts and tribunalsFootnote 30 have raised it to circumscribe their own jurisdiction, including, inter alia, the ICJ,Footnote 31 the Inter-American Court of Human Rights,Footnote 32 the ad hoc International Tribunal for the former Yugoslavia,Footnote 33 and the Special Tribunal for Lebanon.Footnote 34 References to the ICC's own jurisprudenceFootnote 35 include the decisions of Pre-Trial Chamber II regarding Situation in Uganda Footnote 36 and in the case of Prosecutor v. William Samoei Arap Ruto et al. Footnote 37 as well as the decisions of Pre-Trial Chamber II and Pre-Trial Chamber III in Prosecutor v. Jean-Pierre Bemba Gombo.Footnote 38
28. However, none of these citations supports the proposition that this or any other Court has made such a ruling at stages of proceedings analogous to the present instance, where neither a case nor a dispute is present.Footnote 39 Even in the case of advisory opinionsFootnote 40 rendered by the ICJ or other bodies, the Court or Tribunal has been seized of a question by an outside party or referring entity, and has not arrived at the issue in response to a request by a criminal prosecution.Footnote 41 In fact, as the Majority notes, the ICJ has emphasized and defined a dispute as sine qua non for an assertion of the principle of la compétence de la compétence.Footnote 42
29. In obiter dicta, this Court has cautioned explicitly against advancing the Court's powers based on conjecture or application of secondary authorities, holding: “In accordance with article 21 of the Statute, the Court shall apply in the first place the Statute and the Rules. Recourse to the subsidiary sources of law enumerated at paragraphs 1 (b) and (c) of the same provision may only be made in case there exists a lacuna in the primary sources of law when interpreted in accordance with the applicable canon of interpretation”.Footnote 43 As the Appeal Chamber has held, “in order to determine whether the absence of a power constitutes a ‘lacuna’, it has previously considered whether ‘[a] gap is noticeable [in the primary sources of law] with regard to the power claimed in the sense of an objective not being given effect to by [their] provisions”.Footnote 44 I am not satisfied that a lacuna here exists to warrant recourse to the principle of la compétence de la compétence, which is claimed to be an established principle of international law.Footnote 45
30. Were the Chamber to opine on jurisdictional matters under a general premise of the principle of la compétence de la compétence, it would risk exceeding or transgressing its mandate. Shall the Court hereafter step-in and pronounce when, where, and what matters it is competent to review prior to any substantive examination and presentation of facts? To do so would be to usurp the role of the Prosecutor, as delineated by article 15 of the Statute.
B. The question of jurisdiction should be preserved for subsequent proceedings
31. Second, the rule against superfluity holds that a statute should not be interpreted in such a way as to render portions thereof superfluous or duplicative. Given the Court's obligations under article 19(1) of the Statute to “satisfy itself that it has jurisdiction in any case brought before it”, if the matter of the Rohingya were to proceed, it would be necessary for the Pre-Trial Chamber to conduct an analysis of jurisdiction.
32. To attempt to rule on jurisdiction pre-emptively at this juncture would hazard an inconsistent result with subsequent determinations at a later (and more appropriate) phase of proceedings.
V. Rendering the ruling requested by the Prosecutor at this phase would be tantamount to delivering an advisory opinion, which this Court is expressly prohibited from doing
33. Elsewhere, I have cautioned against this Court rendering advisory opinions, noting “that the Appeals Chamber has held that it will not render ‘advisory opinions on issues that are not properly before it’”.Footnote 46 I maintain that position, mutatis mutandis, in the present case for the following reasons.
34. That the Statute makes no provision for advisory opinions is no coincidence. During its negotiations, such a role was contemplated and rejected.Footnote 47
35. The authority of the Court (and its potential influence) should derive from coherent jurisprudence, relying on well-motivated decisions on cases that progressively interweave the different legal cultures of the States Parties to the Statute. A dogmatic approach dependent on abstract pronouncements conveyed through advisory opinions or similar rulings would most likely frustrate such effort.
36. The Prosecutor asserts, and the Majority concurs, that “the jurisdictional question raised in the Request is not an abstract or hypothetical one, but it is a concrete question that has arisen in the context of individual communications received by the Prosecutor under article 15 of the Statute as well as public allegations of deportation of the Rohingya people from Myanmar to Bangladesh”.Footnote 48 However, besides the analysis of the crime of deportation, the “concrete” facts submitted appear to be brief and vague. Moreover, while the Prosecutor confines herself to a request on a ruling of jurisdiction over the crime of deportation, of the four pages in the request devoted to submissions on the facts, many of the allegations appear to indicate other alleged crimes sharing a common nexus as continuing crimes, on which the Prosecution does not elaborate.
37. The present matter therefore is not at all concrete, in the sense of ordinary criminal procedure. For the Chamber to properly fulfil its obligations and conduct a serious analysis of jurisdiction, the Prosecution must provide sufficient information to support that the requirements have been met. Here, the Prosecutor has asked the Chamber to provide telescopic clarity to what remains unfocused and nebulous.
38. At the same time that she contends the question sub judice is not abstract, the Prosecutor maintains that it is a “pure question of law”.Footnote 49 However, rulings of law exist in relation to alleged facts. Where the two are disjointed, what is left is the possibility of a speculative advisory opinion, despite claims to the contrary.
39. Furthermore, it should be noted that it is hard to clearly understand the legal nature of the Majority's decision due to various reasons. The first among them is the lack of clarity and the ambiguity that characterize the Prosecutor's Request, which she grounds on article 19(3) of the Statute thus expecting that, if entertained, it shall lead this Chamber to issue a “ruling”. If a ruling were to be rendered, it would be legally binding on the parties at the present instance, including the Prosecutor. However, in her Request the Prosecutor specifies that the requested “ruling” would only “assist in her further deliberations concerning any preliminary examination she may independently undertake […]”,Footnote 50 thus seemingly excluding any binding character of the latter. Secondly, the Majority is equally unclear as to the legally binding value of its present decision, since this question is not specifically addressed in its text. This reinforces the impression that this “ruling” has no binding character, especially towards the Prosecutor. It logically follows from this conclusion that the aforementioned finding that Pre-Trial Chamber I's present decision actually is tantamount to an advisory opinion, which is of no binding value to the parties, is correct.
VI. Conclusion
40. I would like to stress that the ambiguities of the Request in no way preclude the Prosecutor from undertaking her responsibilities and examining more closely the allegations with regard to the Rohingya people. Indeed, this Opinion clearly doesn't seek to suggest that accountability for grave alleged crimes can be avoided or to defer consideration thereof based on technicalities. Nothing in this Opinion should be taken as dissuading the Prosecution from conducting a preliminary examination and subsequently seeking authorization to commence an investigation pursuant to article 15(3) of the Statute into the Rohingya matter by making full use of its prerogatives. In fact, this would have been, in my view, the proper course of action, rather than seeking a ruling on jurisdiction. In this regard, the Prosecutor previously has made extensive use of the instrument of preliminary examinations, for which no jurisdictional review by the Pre-Trial Chamber is required. Nothing stands in her way were she to embark on a similar path. The facts as presented in the amici curiae and observations submitted would be valuable assets were she to decide to conduct a preliminary examination with a view to determining whether there is reasonable basis to commence an investigation pursuant to article 15(3) of the Statute. However, in the absence of a concomitant willingness on the part of the Prosecutor to actually do so, a decision on jurisdiction is purely academic and constitutes, as stated above, an advisory opinion.
41. This Chamber has taken very serious note of the allegations of crimes against the Rohingya people, as communicated a priori in the amici curiae, in numerous reports by governmental, inter-governmental, and non-governmental sources that the Chamber has reviewed. This Opinion is fully cognisant of the seriousness of the situation facing the Rohingya people and is hopeful that the steps the Chamber has taken since receiving the Prosecutor's Request will contribute to the realisation of justice.
42. Finally, I note that the Prosecution references the Court's finite financial, human, and temporal resources to plead in favour of judicial efficiency.Footnote 51 However, I deem necessary to reassert that the Court's paramount consideration should always be the interest of justice first, after which other factors may be considered. Expedience cannot come at the cost of full, robust, and in-depth contemplation of the complex issue of jurisdiction.
43. For these reasons, I consider that, at this juncture, the Court cannot rule on the question of jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.
Dated this 6 September 2018
At The Hague, Netherlands
Done in both English and French, with both versions being authoritative.
