Australian Journal of International Affairs

ISSN: 1035-7718 (Print) 1465-332X (Online) Journal homepage: https://www.tandfonline.com/loi/caji20

The ICC pre-trial chamber decision on jurisdiction

over the situation in Myanmar

Douglas Guilfoyle

To cite this article: Douglas Guilfoyle (2019) The ICC pre-trial chamber decision on jurisdiction
over the situation in Myanmar, Australian Journal of International Affairs, 73:1, 2-8, DOI:
10.1080/10357718.2018.1538316

To link to this article: https://doi.org/10.1080/10357718.2018.1538316

Published online: 29 Oct 2018.

Submit your article to this journal

Article views: 2133

View related articles

View Crossmark data

Citing articles: 3 View citing articles

Full Terms & Conditions of access and use can be found at

https://www.tandfonline.com/action/journalInformation?journalCode=caji20
AUSTRALIAN JOURNAL OF INTERNATIONAL AFFAIRS
2019, VOL. 73, NO. 1, 2–8
https://doi.org/10.1080/10357718.2018.1538316

COMMENTARY AND PROVOCATION

The ICC pre-trial chamber decision on jurisdiction over the

situation in Myanmar
Douglas Guilfoyle
School of Humanities, Arts and Social Sciences, UNSW Canberra at the Australian Defence Force Academy

ABSTRACT KEYWORDS
The transfer and deportation of ethnically Rohingya people from International Criminal Court;
Myanmar into Bangladesh is a crime against humanity demanding Bangladesh; Myanmar;
an international response. What role, however, should the Rohingya; crimes against
International Criminal Court (ICC) play? On 6 September 2018 an humanity; jurisdiction;
international law; norms
ICC Pre-Trial Chamber ruled that the Court has jurisdiction to
investigate and prosecute such crimes as they are completed on
the territory of a State party, Bangladesh. Myanmar is not a party
to ICC Statute and has invoked the principle that treaties do not
bind third parties without their consent. The case put in this
commentary is that while the Pre-Trial Chamber’s approach to the
law was arguable as an interpretation of the ICC Statute, it was
unwise as a matter of policy. The argument is threefold. First,
the Pre-Trial Chamber’s ruling is as a matter of legal method only
the first-move in a process of norm-creation and persuasion.
Second, it does not follow that because territorial jurisdiction
in international law includes ‘objective’ jurisdiction over
transboundary acts completed on a State’s territory that such
jurisdiction was delegated by member States to the ICC in all
cases. Finally, it is argued that international criminal tribunals do
not succeed when the cooperation of necessary territorial
governments (here, Myanmar) is withheld. Proceeding in this case
risks becoming a quagmire of the ICC’s own creation at a time
when it can little afford further risks to its legitimacy.

Introduction
The forcible transfer and deportation of ethnically Rohingya people from Myanmar into
Bangladesh is a crime against humanity demanding an international response. On 6 Sep-
tember 2018 a Pre-Trial Chamber of the International Criminal Court (ICC) ruled in
response to a request from the ICC Prosecutor that the Court has jurisdiction to investi-
gate and prosecute such crimes as they are completed on the territory of a State party,
Bangladesh (ICC 2018). Notably, Myanmar is not a party to ICC Statute and has predic-
tably invoked the principle that treaties—such as the ICC Statute—do not create rights or
obligations for third parties without their consent. Was the Pre-Trial Chamber’s ruling
(which may not be the ICC’s final word on the issue) justifiable or prudent? My
answer, as an international lawyer, is that the Pre-Trial Chamber’s approach to the law

CONTACT Douglas Guilfoyle d.guilfoyle@adfa.edu.au

© 2018 Australian Institute of International Affairs
 AUSTRALIAN JOURNAL OF INTERNATIONAL AFFAIRS 3

was not unarguable as an interpretation of the ICC Statute but was unwise as a matter of
policy. To outline my reasoning, I need to address several matters: interpretation and
international legal method; jurisdiction in international law; and the role, effectiveness
and legitimacy of the ICC at the present moment.

Interpretation and international legal method

As Scobbie has put it:
legal argumentation is a specialised form of rhetoric which is principally concerned with
interpretation—interpretation of facts, of legal terms and concepts, of meaning and value,
of what the law is meant to achieve, of what the parties to a case want to law to ‘mean’
(2018, 64).

The PTC’s ruling is an interpretation of the ICC’s jurisdiction, and what the parties to the
ICC Statute intended by that term. International criminal law, like all law, involves an
attempt to change social reality through the manipulation of language. Indeed, ‘law is a
language of its own’ (Allott 2018, 384). The law operates by translating an outside reality
into categories of its own, and imposing its own abstractions upon the world (the idea of
the State chief among them) (ibid). The belief that one can change the world through the
manipulation of symbols is not unique to (international) law as a discipline, nor does it
mean (international) law is merely a process of argumentation without effects (Hakimi
2018). Law, however, does not become more effective through the fervency of belief held
by its practitioners; it is effective only to the extent it changes the beliefs and attitudes of
others. Law is obviously only one possible tool to such ends, but ‘legal language is designed
par excellence to change states of mind. Legal ideas are … designed to be life-changing and
world-changing.’ (Allott 2018, 386). In other words, ‘Legal argument is essentially instru-
mental because it aims to have a practical effect’ (Scobbie 2018, 64). It does this through
seeking to secure ‘the assent … of those to whom the argument is addressed rather than
demonstrating the truth of the proposition or interpretation advanced’ (Ibid).
In this context the ruling of the Pre-Trial Chamber is several things at once. First, it is
constitutive: unless overturned, the ICC as a matter of law has the formal jurisdiction the
Pre-Trial Chamber has claimed. However, this pronouncement is really only the opening
move in the process of rule creation: the legal process continues beyond the judicial utter-
ance. Other actors now will support (or not) the proposed rule, contributing to its
entrenchment in the international legal landscape or seeing it fall by the wayside
(Brunnée and Toope 2010). To further this process, the ruling must in addition be,
second, an act of legal persuasion. Third, it is also necessarily an intervention in a still-
developing humanitarian crisis by one arm of an international institution which,
because it is a judicial institution, has a limited ability to forge a coherent policy position
as an actor capable of influencing events. The results of the ruling in each of these three
aspects is by no means a foregone conclusion.

Jurisdiction in international law

Article 12 of the ICC Statute provides that the Court ‘may exercise its jurisdiction’ over
crimes within its statute if inter alia ‘[t]he State on the territory of which the conduct
4 D. GUILFOYLE

in question occurred’ is a party to the Statute (Rome Statute of the International Criminal
Court). This might be thought to give rise to the question, what is the scope of territorial
jurisdiction? This is the question which the Pre-Trial Chamber has answered through a
process of treaty interpretation. The ultimate objective of treaty interpretation is giving
effect to the intention of the parties. This presumes, of course, that a treaty text is an accu-
rate record of the meeting of minds. However, treaties are more commonly a ‘disagree-
ment reduced to writing’ (Allott 1999) and multilateral texts are often drafted in
general terms because ‘the price of consensus was ambiguity’ (Gray 2008). States may
have had different subjective understandings at the time of a negotiation, and it is for
the Pre-Trial Chamber to construct an ‘objective’ legal meaning. The question is thus
not ‘what is the scope of territorial jurisdiction at international law?’ but ‘what forms of
territorial jurisdiction did State Parties intend to delegate to the Court?’
In essence, the Pre-Trial Chamber notes that a narrow or broad view of jurisdiction
could be taken in a case such as this. On a narrow view, where there is an international
crime which crosses an international border then perhaps a treaty based body such as
the ICC should exercise jurisdiction only where both the State where the crime was com-
menced (the state of subjective territorial jurisdiction) and the where the consequences are
felt (the state of objective territorial jurisdiction) are parties to the ICC Statute. This view
would be founded on the idea that the totality of ‘the conduct in question’ should fall with
the territorial jurisdiction of State parties in order to give effect to the principle that treaties
do not create rights or obligations for third parties without their consent. The wider view is
that it is sufficient if the state where the criminal act was either commenced or completed is
a State party. Certainly, State parties had it within their power to delegate territorial jur-
isdiction to the ICC on either the wider or narrower view. But where could the Pre-Trial
Chamber look for evidence of such an intention?
Well, the subsequent practice of member States in relation to their legal obligations
under a treaty is one place to look (Vienna Convention on the Law of Treaties). And in
relation to the amendments regarding the crime of aggression the State Parties were
divided precisely between a wide and narrow view of territorial jurisdiction. The consensus
that saw the aggression amendments adopted at all was based on the narrow view (Inter-
national Criminal Court, Assembly of State Parties). This was recorded in the non-binding
Resolution 5 of the 16th Assembly of State Parties which ‘activated’ the crime of
aggression:
in the case of a State referral or propio motu investigation the Court shall not exercise its jur-
isdiction regarding a crime of aggression when committed by a national or on the territory of
a State Party that has not ratified or accepted these amendments.

If accepted by the ICC’s judges, the consequence of Resolution 5 that is both the territorial
State from which an act of aggression is launched and the territorial State in which its
effects are felt must be ICC State parties. Now, aggression is a somewhat complex case.
It was added to the Statute as an ‘opt in’ amendment and the relevant jurisdictional pro-
vision refers only to aggression committed by State parties (thus excluding the crime
‘catching’ the conduct of non-parties). But the rub is that is the consensus view in Resol-
ution 5 was not expressly incorporated into the Statute’s language. The relevant provisions
instead refer to aggression committed by an ICC State party which would fall within the
scope of Article 12 on jurisdiction, unless the State party expressly ‘opts out’. On the
 AUSTRALIAN JOURNAL OF INTERNATIONAL AFFAIRS 5

logic of the Pre-Trial Chamber, whether a State party ever ‘opted in’ to the aggression
amendments would seem irrelevant. If aggression is committed (whether or not by a
State party) and occurs within the territorial jurisdiction of a State party, including
through its objective effects, then ICC jurisdiction is established. That is what Article
12, we are told, means.
As a practical matter, ICC State parties can simply avail themselves of the ‘opt out’
clause on aggression. But the point was, in the mind of many states, they were not
meant to be bound by the crime of aggression unless they expressly chose to ‘opt in’.
As a matter of policy a message is sent: the Court will take an expansive view of its (ter-
ritorial) jurisdiction, even in the face of evidence that the State parties had intended to
confer only more limited jurisdiction.

The role, effectiveness and legitimacy of the ICC

The Pre-Trial Chamber with refreshing candour acknowledged that the Court is a ‘legal-
judicial-institutional’ entity (ICC 2018, para 48). That is, it is not simply a court but an
actor which makes decisions of consequence and we may therefore scrutinise those
decisions not merely on grounds of legality but prudence. Given that narrower interpret-
ations were available, is a wide view of the court’s jurisdiction desirable?
It must, unfortunately, be observed that the ICC has had no success in prosecuting cases
without the active support of the territorial State where crimes were committed or com-
menced. President Al Bashir remains free after 9 years. The only meaningful effect thus far
of the arrest warrant against him has been to hamper his ability to travel outside Africa
and to provoke his expulsion of numerous foreign aid agencies in 2009. The Kenyatta,
Ruto and Sang cases arising out of the Kenyan post-election violence of 2007–2008 col-
lapsed in the face of government obstruction. Indeed, the ICC case had the unantici-
pated consequence of pushing former rivals Kenyatta and Ruto onto a joint ticket
precisely in order that they could secure the machinery of government to defeat the
investigation (Makinda 2013). The ICC has secured no defendants in custody in
respect of the two Security Council referrals, the situations in Libya and Uganda. His-
torically, the functioning of the ICTR was heavily dependent on not antagonising the
Kagame government, which demonstrated its ability to turn off cooperation at will
(Ryngaert 2013); and the surrender of key defendants to the ICTY did not begin
until cooperation with the Tribunal was demanded of relevant States as a pre-condition
for opening accession talks with the EU (ICTY). If history proves anything in inter-
national criminal law, it proves that whoever controls physical access to evidence, wit-
nesses and defendants controls the whole game. It is a game hostile non-State parties
have little incentive to play unless the broader international community is willing to
bring pressure to bear (Langer 2011). The Nuremberg International Military Tribunal,
acting effectively as an arm of an occupation government, had substantial advantages in
this respect which should serve, if anything, as a note of caution to its descendants
(Guilfoyle 2016, 65).
The ICC was originally conceived as a backstop: a court of last resort which would step
in when States were unable or unwilling to act in respect of crimes within its jurisdiction.
This mandate for ‘complementary jurisdiction’ has not, in practice, been interpreted nar-
rowly. It has expanded at every turn (Heller 2016). In one sense, this is perfectly
6 D. GUILFOYLE

acceptable. The law evolves through interpretation; and those creating an independent
judicial institution must accept from the outset that such a court will be a living institution
which may develop its own jurisprudence over time.
However, as noted, for the law to be truly effective it must change minds. Even at the
national level the rule of law works not because we all fear enforcement all of the time,
but because we are voluntarily participants in a socially-sanctioned system of rules which
is only in the last resort coercive (and even then enforcement is always imperfect and
variable) (Brunnée and Toope 2010). At the international level, law has little more to
rely upon that its power to condition behaviour through inducing a respect for the
rules. This ‘legitimacy effect’ has a complex and contested relationship with legality
which I lack space to explore here (Kennedy 2016). The point, however, is that the legiti-
macy of legal institutions is always contingent. The ICC is not legitimate merely because
it is founded in a treaty: it is an actor in an ongoing process of legitimation and norm
entrenchment that concerns both the international criminal law project and its own sur-
vival. At a time of waning enthusiasm for the Court, even among its own membership, it
seems an unwise moment to continue to seek the expansion of its jurisdiction (Whiting
2018). The ICC already appears to be visibly overstretched and underperforming, despite
a substantial and growing budget (very little of which is directed to defence counsel). In
particular, it has failed to make headway in those situations concerning non-member
States referred to it by the Security Council. This has led to a common refrain decrying
the lack of additional resources provided to cope with such referrals, and the obvious
conclusion that it is unfair for ICC State parties to bear their cost of such cases when
the Security Council will not (Kersten 2012). Here the Pre-Trial Chamber has gone a
step further and rushed in where the Security Council refused to tread.
The attitude of the Pre-Trial Chamber is not reassuring. Its decision on jurisdiction sees
fit to lecture the Prosecutor in some detail about her duties in respect of this situation,
including a duty to apply to the Chamber to open a formal investigation once the low evi-
dentiary bar of a ‘reasonable basis’ to proceed is met (paras 80–88). This constitutes a
definite but not unprecedented effort by a Pre-Trial Chamber to micro-manage the Pro-
secutor (Guilfoyle 2016, 132–133). This may, in part, be a response to the first Prosecutor’s
tendency to take a rather expansive view of his own powers (ibid, 144–145). Nonetheless,
an unfortunate legacy of that time was the practice of short and focussed investigations:
attempting to initiate investigations, issue warrants and commence cases as soon as the
minimum evidentiary hurdles were cleared (Anderson 2018). That this was a mistake
which potentially contributed to the collapse or near-collapse of a number of cases is
perhaps implicitly conceded in the new Prosecutor’s preference for open-ended holistic
investigations, a process less likely to result in setting an under-investigated potential
case off on fixed rails towards a trial any earlier than needed (ICC 2015). The Pre-Trial
Chamber’s less-than-subtle observations directed to the Prosecutor seem an unwise
attempt to railroad the course any investigation should take.

Conclusion
All judges know that while they must be impartial servants and defenders of the rule of
law, they also rely upon executive power to be effective. While the law must strive to dis-
cipline power, the existence of power tends to makes the law and its officers circumspect;
 AUSTRALIAN JOURNAL OF INTERNATIONAL AFFAIRS 7

usually incremental agents of change at best. At a delicate moment in the ICC’s history the
Pre-Trial Chamber in its ruling on jurisdiction regarding the Rohingya deportations has
made several unforced errors, all of which may damage the institution’s legitimacy
while delivering nothing of use to the victims in this situation. It has taken an expansive
approach to its territorial jurisdiction, despite evidence that its member States do not
necessarily support the Rome Statute being read so widely. It has, de facto, assumed jur-
isdiction over a situation in a non-member State pre-empting any Security Council refer-
ral. In no case to date has the court secured defendants from non-party territories or
conducted successful trials without the cooperation of the territorial State. The history
of international criminal law provides no reason to presume this time will be the excep-
tion. The Pre-Trial Chamber has also taken the opportunity to highlight once again the
running power-struggle between the prosecutorial and judicial arms of the Court regard-
ing the conduct of investigations and evidence gathering. It has taken these ambitious
steps at a time of flagging political support; and done so in a manner which risks providing
political cover to other international actors justifying their inaction. (‘We don’t need to act,
the ICC is investigating.’) It is possible the result will not be another judicial quagmire of
the Court’s own making, but one doubts it.

Disclosure statement
No potential conflict of interest was reported by the author.

Notes on contributor
Dr Douglas Guilfoyle is Associate Professor of International and Security Law at the University of
New South Wales Canberra (from 3 December 2018). Previously, he has worked as a Professor of
International Law at the Faculty of Law, Monash University, and Reader in Law at University
College London. His principal areas of research are international criminal law, the international
law of the sea, and maritime security. He has acted as a consultant to governments and international
organisations. He tweets at @djag2.

References
Allott, Philip. 1999. “The Concept of International Law.” European Journal of International Law 10
(1): 31–50, 43.
Allott, Philip. 2018. “Interpretation: An Exact Art.” In Interpretation in International Law, edited by
Andrea Bianchi, Daniel Peat, and Matthew Windsor, 373–392. Oxford: Oxford University Press.
Anderson, Janet H. 2018. “Ocampo’s Shadow Still Hangs Over the ICC.” International Justice
Tribune, June 18. https://www.justicetribune.com/blog/ocampos-shadow-still-hangs-over-icc.
Brunnée, Jutta, and Stephen J Toope. 2010. Legitimacy and Legality in International Law: An
Interactional Account. Cambridge: Cambridge University Press.
Gray, Christine. 2008. International Law and the Use of Force. 3rd ed. 9. Cambridge: Cambridge
University Press (referring to General Assembly resolutions).
Guilfoyle, Douglas. 2016. International Criminal Law. Oxford: Oxford University Press.
Hakimi, Monica. 2018. “Ian Hurd, How to Do Things with International Law.” European Journal of
International Law 29 (2): 662–666.
Heller, Kevin Jon. 2016. “Radical Complementarity.” Journal of International Criminal Justice 14
(3): 637–665.
8 D. GUILFOYLE

International Criminal Court. 2015. “Office of the Prosecutor, ‘Strategic Plan (2016–2018)’.”
November 16.
International Criminal Court, Assembly of State Parties. “Activation of the Jurisdiction of the Court
Over the Crime of Aggression”, Doc. No. ICC-ASP/16/Res.5 (14 December 2017).
International Criminal Court, Pre-Trial Chamber I. Decision on the “Prosecution’s Request for a
Ruling on Jurisdiction under Article 19(3) of the Statute”, No. ICC-RoC46(3)-01/18. Accessed
September 6, 2018. https://www.icc-cpi.int/CourtRecords/CR2018_04203.PDF.
International Criminal Tribunal for the former Yugoslavia (ICTY). “The Fugitives.” Undated,
http://www.icty.org/en/about/office-of-the-prosecutor/the-fugitives.
Kennedy, David. 2016. A World of Struggle: How Power, Law, and Expertise Shape Global Political
Economy, 173. Princeton: Princeton University Press.
Kersten, Mark. 2012. “Missing the Mark: The ICC on its Relationship with the UN Security
Council.” Justice in Conflict Blog, October 24. https://justiceinconflict.org/2012/10/24/missing-
the-mark-the-icc-on-its-relationship-with-the-un-security-council/.
Langer, Maximo. 2011. “The Diplomacy of Universal Jurisdiction: The Political Branches and the
Transnational Prosecution of International Crimes.” The American Journal of International Law
105 (1): 1–49.
Makinda, Samuel M. 2013. “Kenya, Uhuru Kenyatta and politicising the International Criminal
Court.” The Conversation, May 30. https://theconversation.com/kenya-uhuru-kenyatta-and-
politicising-the-international-criminal-court-14583.
Rome Statute of the International Criminal Court 1998, 2187 UNTS 3, Article 12.
Ryngaert, C. 2013. “State Cooperation with the International Criminal Tribunal for Rwanda.”
International Criminal Law Review 13: 125–146.
Scobbie, Iain. 2018. “Rhetoric, Persuasion, and the Object of Interpretation in International Law.”
In Interpretation in International Law, edited by Andrea Bianchi, Daniel Peat, and Matthew
Windsor, 61–77. Oxford: Oxford University Press.
Vienna Convention on the Law of Treaties. 1969. 1155 UNTS 331, Article 31(3)(b).
Whiting, Alex. 2018. “Why John Bolton vs. Int’l Criminal Court 2.0 is Different from Version 1.0.”
Just Security Blog, September 10. https://www.justsecurity.org/60680/international-criminal-
court-john-bolton-afghanistan-torture/.