Project Muse 791092

The Scope and Implications of the International Criminal
Court's Jurisdictional Decision over the Rohingya Crisis
Yuzuki Nagakoshi
Human Rights Quarterly, Volume 43, Number 2, May 2021, pp. 259-289
(Article)
Published by Johns Hopkins University Press

DOI: https://doi.org/10.1353/hrq.2021.0018
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HUMAN RIGHTS QUARTERLY
The Scope and Implications of

the International Criminal Court’s
Jurisdictional Decision over the
Rohingya Crisis
Yuzuki Nagakoshi
ABSTRACT
In 2018, the International Criminal Court ruled that it has jurisdiction over
the Myanmar government’s deportation of the Rohingya to Bangladesh. The
basis for its jurisdiction was that Bangladesh is an ICC state party, although
Myanmar is not. This decision has raised questions on the applicability of
the decision to other crimes, including genocide. Moreover, its potential
applicability to other situations that have taken place in a non-state party
became the subject of much debate. The author concludes that the ICC
may exercise its jurisdiction over Myanmar’s alleged genocide but not over
all international crimes that generate refugees.
I. INTRODUCTION
In September 2018, Pre-Trial Chamber I of the International Criminal Court

(“ICC” or “Court”) ruled that it has jurisdiction over the Myanmar govern-
ment’s forced deportation of the Rohingya from Myanmar to Bangladesh.1
Myanmar is not a state party to the Rome Statute of the International Criminal
Court (“Rome Statute” or “Statute”) and has opposed the exercise of juris-
diction for this reason. Nevertheless, the Court ruled that it has jurisdiction
Yuzuki Nagakoshi, J.D., Ph.D., is a Law Clerk at Linklaters LLP’s Frankfurt am Main office.
The views expressed in this manuscript are the author’s own and not necessarily those
of Linklaters LLP.
1. ICC-RoC46(3)-01/18-37, Decision on the “Prosecution’s Request for a Ruling on Jurisdic-
tion under Article 19(3) of the Statute” [hereinafter Pre-Trial Chamber] (6 Sept. 2018).
Human Rights Quarterly 43 (2021) 259–289 © 2021 by Johns Hopkins University Press
260 HUMAN RIGHTS QUARTERLY Vol. 43
over the issue because Bangladesh, the country to which the refugees fled,
is a signatory to the Rome Statute.2 Following this decision, the Prosecutor
proceeded with the preliminary examination3 and subsequently opened
an investigation, authorized by Pre-Trial Chamber III in November 2019.4
This article attempts to answer two questions: first, how expansive the
Court’s jurisdiction would be under the Pre-Trial Chamber jurisdiction deci-
sion, and second, what implications this expansive interpretation has. To this
end, this article first provides a brief overview of the current crisis. It then
describes the Myanmar military’s violent attacks against the Rohingya that
started in August 2017, after which the Rohingya were forced to flee, and
how the ICC and Myanmar have responded to them. The latter half of this
article analyzes the Pre-Trial Chamber jurisdiction decision, including the
extent of its application and implications to other cases and other crimes. This
article concludes that, although the jurisdictional interpretation is expansive,
it is still within a reasonable reading of the jurisdictional clauses of the ICC.
The principle of free consent, which is one of the fundamental principles of
international law, theoretically supports some countries’ opposition to the
expansive interpretation of the Court’s jurisdiction, despite the Rome Statute
drafters’ rejection of universal jurisdiction. The US is one of the most vocal
opponents against any kind of expansion of the ICC’s jurisdiction. But the
legal arguments these countries make more often than not appear to be a
thinly veiled attempt to allow the suspected perpetrators to get away with
grave international crimes.
II. THE ROHINGYA IN MYANMAR AND THE CURRENT CRISIS
A. The Rohingya as an Ethnic and Religious Group
The Rohingya is an ethnic minority group5 that originates in the Arakan

region, which corresponds to Rakhine state of modern-day Myanmar.6 They
2. Rome Statute of the International Criminal Court, adopted 17 July 1998, U.N. Doc.
A/CONF.183/9 (1998), 2187 U.N.T.S. 90 (entered into force 1 July 2002) [hereinafter
Rome Statute].
3. ICC, ICC-01/19, Situation in the People’s Republic of Bangladesh/Republic of the Union
of Myanmar, https://www.icc-cpi.int/rohingya-myanmar.
4. Press Release, ICC Judges Authorize Opening of an Investigation into the Situation in Ban-
gladesh/Myanmar (14 Nov. 2019), https://www.icc-cpi.int/Pages/item.aspx?name=pr1495.
5. Rome Statute, supra note 2, art. 6. The Rohingya is an ethnic and religious group pro-
tected under Article 6, which lists the crime of genocide as one of the international
crimes over which the Court can exercise its jurisdiction. “Genocide” means any of the
enlisted acts committed with intent to destroy, in whole or in part, a national, ethnical,
racial, or religious group, as such.
6. Azeem Ibrahim, The Rohingyas: Inside Myanmar’s Genocide 17-26 (2016).
2021 Scope and Implications of the ICC 261
have been living within the current Myanmar border for centuries.7 They have
their own language, the Rohingya language, which shows Persian, Arabic,
and Bengali influences.8 The Rohingya is not only an ethnically distinct
group but also a religiously distinct group. While nearly 90 percent of the
Myanmar population is Buddhist, most Rohingya are Muslim.9
Buddhism enjoys a “special position” under the 2008 constitution; other
religions are acknowledged but do not have a strong political and societal
influence as Buddhism and its leaders do.10 Since the outset of the political
reform in 2011, certain Buddhist monks have become active in addressing
concerns about Muslim immigration and dominance, although facts did not
support the allegations.11 A government-appointed committee that manages
the Buddhist clergy has consistently opposed the use of Buddhist symbols
by the nationalistic group of Buddhist monks and subsequently banned
the group in July 2018.12 Nevertheless, the group has gained strong public
support through providing essential services the people lack and promot-
ing cultural values, and their narratives have come to be shared by many
people in Myanmar.13
B. Longstanding Discrimination of the Rohingya in Myanmar
The Rohingya have been discriminated against since the 1960s,14 but the
situation has worsened in recent years, as the laws and policies that regu-
late citizenship and legal status became “increasingly exclusionary in their
formulation, and arbitrary and discriminatory in their application.”15 Under
the 1982 Citizenship Law, the government effectively denied citizenship to
7. Id. at 24-25.
8. Id. at 21.
9. The Republic of the Union of Myanmar, The 2014 Myanmar Population and Hous-
ing Census, The Union Report: Religion Census Report Volume 2-C, https://myanmar.
unfpa.org/sites/default/files/pub-pdf/UNION_2C_Religion_EN.pdf. This census does not
include many Rohingya; an estimated 1,090,000 individuals were not counted in the
census. Id. Partly because of the undercounting of the Rohingya, the overall percentage
of Muslim population in 2014 is expected to be higher in reality. Kyaw Ye Lynn, Census
Data Shows Myanmar Muslim Population has Fallen, Anadoulu Agency (21 July 2016),
https://www.aa.com.tr/en/asia-pacific/census-data-shows-myanmar-muslim-population-
has-fallen/612764. Since this census was taken in 2014, the number of Muslim people
who live in Myanmar has likely further decreased after the “clearance operations” in
2017, which resulted in more than 725,000 refugees. Infra note 160.
10. Human Rights Council, Report of the Detailed Findings of the Independent International
Fact-Finding Mission on Myanmar, ¶¶ 87-88 U.N. Doc. A/HRC/39/CRP.2 (17 Sept.
2018) [hereinafter Myanmar Report].
11. Myanmar Report, supra note 10, ¶ 89.
12. Id. ¶¶ 89-92.
13. Id. ¶¶ 91-92.
14. Id. ¶¶ 100; 475. One example of such discrimination is a cap on the number of children
allowed per family. Id. ¶ 466.
15. Id. ¶¶ 460.
the Rohingya by refusing to issue proof of identity to Rohingya residents,

thus rendering a majority of the Rohingya “de-facto stateless.”16 The govern-
ment alleges that the Rohingya are “immigrants” from Bangladesh and has
consequently treated them as “outsiders” who do not belong in the coun-
try.17 Historical facts, however, do not support this view—most Rohingya
individuals were recognized as Burmese citizens upon independence, and
sources indicate that the Rohingya was considered to be one of the indig-
enous groups of Myanmar.18 Forced denationalization of citizens that renders
people stateless violates the Rohingya’s right to nationality, which is, at least
arguably, a right under customary international law.19
On top of the daily oppression and exclusion from the majority Myanmar
society, the Rohingya had to endure widespread and systematic violent at-
tacks, including incidents in 2012 and 2016, resulting in more than 125,000
internally displaced people and 87,000 refugees.20 These attacks were hardly
a new phenomenon: the Myanmar government previously conducted large-
scale persecution campaigns in 1978 and 1989, which caused hundreds of
thousands of people to seek refuge in Bangladesh.21
In early 2017, before the most recent flow of refugees started, approxi-
mately one million Rohingya lived in Rakhine State.22 Due to the “clearance
16. Myanmar Report supra note 10 ¶¶ 460-88; Burma Citizenship Law (1982).
17. Myanmar Report supra note 10 ¶ 85.
18. Id. ¶¶ 472-73.
19. In Anudo v. Tanzania, the African Court on Human and Peoples’ Rights issued a deci-
sion that the right to nationality as set forth by the Universal Declaration of Human
Rights was a part of customary international law. Anudo v. Tanzania, No. 012/2015,
Decision, African Court on Human and Peoples’ Rights [Afr. Ct. H.P.R.], ¶ 76 (22
Mar. 2018), https://www.african-court.org/cpmt/storage/app/uploads/public/5f5/646/
bfc/5f5646bfc496d510939321.pdf. Even if the right to nationality has not yet matured
into customary international law, Myanmar has at least affirmed the existence of such
rights through voting in favor of the Universal Declaration of Human Rights, adopted 10
Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess, art. 15, U.N. Doc. A/RES/3/217A
(1948) [hereinafter UDHR], which includes the right to a nationality and provides for
the prohibition of arbitrary deprivation of nationality. Universal Declaration of Human
Rights, Global New Light of Myanmar: Opinion (10 May 2016), http://www.globalnew-
lightofmyanmar.com/universal-declaration-of-human-rights-udhr/.
20. United Nations High Commissioner for Refugees (UNHCR), Global Trends: Forced Displacement
in 2017, at 25 (2017), https://www.unhcr.org/5b27be547.pdf [hereinafter Global Trends
2017]; “Caged Without A Roof,” Amnesty Int’l 22-23 (2017), https://www.amnesty.org.
uk/files/CagedwithoutaRoof-ApartheidMyanmar-AIreport.pdf.
21. Myanmar Report, supra note 10, ¶ 100-01.
22. Global Trends 2017, supra note 20, at 24. The number of estimated Rohingya remaining in
Myanmar varies between different sources. A report estimates that only 200,000 Rohingya
remain, but this number is irreconcilable with UNHCR’s estimate. Mohshin Habib et al.,
Ontario Int’l Dev. Agency, Forced Migration of Rohingya: The Untold Experience 5 (2018),
https://nla.gov.au/nla.obj-748001039/view. Others state that the number of Rohingya
remaining is as high as 850,000. Sorwar Alam, INFOGRAPHIC: Top Rohingya-Hosting
Countries, Anadoulu Agency, (24 Aug. 2019), https://www.aa.com.tr/en/asia-pacific/
infographic-top-rohingya-hosting-countries/1563674. Accurate counting of the Rohingya
population is difficult, presumably because of factors such as the government’s denial
of birth certificates to Rohingya newborns and many Rohingya individuals’ refusal to
operations” that started in August 2017, which is the focus of this paper,
655,500 Rohingya fled to Bangladesh in 2017.23 Consequently, at the end
of that year, only 470,000 non-displaced Rohingya and 125,000 internally
displaced Rohingya lived in Rakhine State.24 This was the “fastest refugee
outflow” since the infamous Rwandan genocide.25 The number of Rohingya
refugees grew in 2018 and 2019, and over a total of 725,000 Rohingya
individuals crossed the Myanmar-Bangladesh border to seek asylum since
the “clearance operations.”26 As of 31 January, 2021, more than 870,000
Rohingya refugees reside in Bangladesh, some of whom arrived in Bangla-
desh fleeing previous rounds of violence.27
C. The Latest Crisis
The latest crisis started on 25 August 2017, when the Arakan Rohingya Salva-
tion Army (hereinafter “ARSA”)28 attacked more than thirty security outposts
in Northern Rakhine State.29 Some additional attacks occurred during the
following days.30 These attacks killed twelve and were the largest in terms
participate in the national census due to the lack of possibility to identify themselves
as “Rohingya.” Id.; Myanmar Report, supra note 10, ¶¶ 461-68.
23. Global Trends 2017, supra note 20, at 24.
24. Id. at 25.
25. John Quinley III, The Rohingya Diaspora is Crucial to Achieving Justice in Myanmar,
Time: Ideas: Myanmar (14 Feb. 2019) http://time.com/5529321/rohingya-myanmar-genocide-
fortify-rights-diaspora/.
26. UNHCR, Refugee Response in Bangladesh (updated 31 Jan. 2021) https://data2.unhcr.
org/en/situations/myanmar_refugees.
27. Joint Government of Bangladesh-UNHCR Population Factsheet (31 Jan. 2021), https://
reliefweb.int/sites/reliefweb.int/files/resources/GoB%20UNHCR%20Population%20
Factsheet%2020210131_v6.pdf.
28. The Arakan Rohingya Salvation Army (ARSA) is an armed militant group, which started
training Rohingya youths around 2013. They conducted their first violent attack in
October 2016. Some sources suggest that the group is connected to Saudi Arabia. The
spokesperson for the ARSA denied ties with external jihadists. Int’l Crisis Group, Myanmar:
A New Muslim Insurgency in Rakhine State 12-14 (2016), https://d2071andvip0wj.cloud-
front.net/283-myanmar-a-new-muslim-insurgency-in-rakhine-state.pdf; Faisal Edroos,
ARSA Group Denies Links With al-Qaeda, ISIL and Others, Aljazeera: News: Rohingya
(14 Sept. 2017), https://www.aljazeera.com/news/2017/09/arsa-group-denies-links-al-
qaeda-isil-170914094048024.html; Faisal Edroos, ARSA: Who are the Arakan Rohingya
Salvation Army?, Aljazeera: News: Myanmar (13 Sept. 2017), https://www.aljazeera.com/
news/2017/09/myanmar-arakan-rohingya-salvation-army-170912060700394.html; Myan-
mar: Who are the Arakan Rohingya Salvation Army?, BBC: Asia (6 Sept. 2017), https://
www.bbc.com/news/world-asia-41160679/.
29. Myanmar Report, supra note 10, ¶¶ 1038-39; Amnesty International reports that ARSA
mobilized several thousand people to conduct the attack. Briefing: Attacks by the Arakan
Rohingya Salvation Army (ARSA) on Hindus in Northern Rakhine State, Amnesty Int’l 1
(22 May 2018) https://www.amnesty.org/en/documents/asa16/8454/2018/en/.
of killings by the ARSA up to that time.31 In response, the Myanmar military

launched “clearance operations” against Rohingya villages, which officially
ended on 5 September 2017, but seemed to have continued for longer on
the ground.32 The operations reportedly took place in at least 54 separate
locations spread across Northern Rakhine State.33
The gravity of the “clearance operations” was utterly disproportionate
to the ARSA attacks. Most ARSA members did not bear firearms.34 Some
participants were totally untrained and only had sticks.35 Some evidence
shows that the ARSA did not use weapons in attacking some of the outposts
because the purpose of the attacks was to draw attention to Rohingya is-
sues.36 Since the ARSA’s attack in 2016, access to weapons or civilian ob-
jects that could be turned into weapons was limited for the Rohingya.37 The
government confiscated only “15 assorted arms, 97 rounds of ammunition,
30 packages of gunpowder and 67 home-made mines”38 during the official
“clearance” period.
Survivors of the operations reported indiscriminate killings of civilians,39
including children, by means of shooting, stabbing, slitting throats, or burning
them alive. Gang rape and other forms of sexual violence against women
and girls were prevalent;40 men and boys were also victimized.41 Some of
the rape victims, stabbed, beaten, or otherwise severely injured, were locked
in buildings and burned alive.42 Soldiers abducted boys and men who were
31. Myanmar: Who are the Arakan Rohingya Salvation Army?, supra note 28; Amnesty
International reports that ARSA attacked Hindu Communities and killed or abducted
more than 100 people. See generally Amnesty Int’l, supra note 29.
33. Id. ¶ 880.
34. Id. ¶ 1032.
35. Id. ¶ 1033.
36. Id. ¶ 1048-49.
Another ARSA participant in the August 2017 attacks characterized it as follows: We were a group
of men, approaching the check-post with sticks and stones. But then the military started shooting.
We could not respond as we only had sticks and stones. It was not really like a military attack by
us, it was a protest or uprising, claiming our rights.
37. Id. ¶ 1032.
Regardless, in the 2017 attacks, most ARSA members were without firearms, but equipped
with homemade weapons such as sticks, knives, swords and slings-shots and some homemade
explosives. Some participants noted that even these types of homemade weapons were difficult
to obtain, given the Tatmadaw’s confiscation of knives and other bladed objects from Rohingya
households after October 2016.
38. Information Released by the Tatmadaw True News Information Team on the Findings
of the Investigation Team in Connection with the Performances of the Security Troops
During the Terrorist Attacks in Maungdaw Region, Rakhine State, Global New Light
of Myanmar (14 Nov. 2017). http://www.globalnewlightofmyanmar.com/information-
released-tatmadaw-true-news-information-team-findings-investigation-team-connection-
performances-security-troops-terrorist-attacks-mau/.
40. Id. ¶ 920.
41. Id., ¶ 939.
42. Id. ¶¶ 909; 924.
never to be seen again.43 Many Rohingya villages were completely burned

down,44 killing those without the ability to evacuate rapidly.45 Landmines
planted in the escape route killed fleeing villagers.46 Soldiers also attacked
the fleeing Rohingya near the border between Myanmar and Bangladesh.47
The Rohingya villagers fled to neighboring Bangladesh on foot or by
boat.48 Most of the refugees were women and children; 40 percent of them
were under twelve years old.49 An estimated 10,000 people died due to the
operations, around 71 percent of whom were killed by the violent attacks
and the rest due to the harsh conditions they had to suffer as they fled.50
D. International Investigative Efforts and Ongoing Proceedings

Worldwide
The UN Human Rights Council established an Independent International

Fact-Finding Mission on Myanmar (hereinafter “IIFFMM”) in March 2017 to
establish the circumstances and facts concerning the military and security
forces’ human rights violations and abuses in March 2017. The IIFFMM
submitted a 444-page report on 17 September 2018 detailing the crisis
and suggesting that the Security Council refer this situation to the ICC or
establish an ad hoc tribunal to hold responsible individuals accountable.51
So far, such a referral has not been made.
43. Id. ¶¶ 952-58.

44. Id. ¶ 905.
Houses were burned both manually using flammable liquid and matches, and by the use of
“launchers,” weapons firing a munition that explodes upon impact. This latter method in particular
meant that victims were often caught by surprise and had little time to escape.
Id.
Maungdaw, Buthidaung and Rathedaung Townships are comprised of approximately 993 villages.
Satellite imagery from August 2017 to March 2018 shows that, following 25 August 2017, ap-
proximately 392 of these villages across the three townships were partially (214 villages) or totally
(178 villages) destroyed during this period. This represents the destruction of approximately 40
per cent of villages in northern Rakhine State. More than 70 per cent of the destroyed villages, or
277, were located in Maungdaw Township, where the majority of Rohingya population in northern
Rakhine State resided. Fire was the main means of destruction.
Id. ¶ 959.
45. Id. ¶ 905. The most affected population was the elderly, disabled, children, and pregnant
women, all extremely unlikely to be combatants.
46. Id. ¶ 912. The government contends that ARSA planted the landmines, but there is no
proof that ARSA had access to landmines. Id. ¶ 914.
47. Id. ¶ 900.
48. Rohingya Emergency, UNHCR USA, http://www.unhcr.org/en-us/rohingya-emergency.
html.
49. Id.
50. James Bennett, Rohingya Death Toll Likely Above 10,000, MSF Says Amid Exodus, ABC
News Online (14 Dec. 2017), http://www.abc.net.au/news/2017-12-14/rohingya-death-
toll-in-the-thousands-says-msf/9260552.
The IIFFMM’s mandate ended in September 2019, and the evidence

gathered was handed over to the newly found Independent Investigative
Mechanism for Myanmar (hereinafter “IIMM”), also established by the
Human Rights Council.52 The IIMM’s mission is to “collect, consolidate,
preserve and analyse evidence of the most serious international crimes and
violations of international law committed in Myanmar since 2011, and to
prepare files in order to facilitate and expedite fair and independent criminal
proceedings, in accordance with international law standards, in national,
regional or international courts or tribunals that have or may in the future
have jurisdiction over these crimes, in accordance with international law.”53
The Gambia filed a case against Myanmar in November 2019 concern-
ing Myanmar’s alleged violation of the Convention on the Prevention and
Punishment of the Crime of Genocide (hereinafter “Genocide Convention”).54
Aung San Suu Kyi, appearing in court as the agent of Myanmar, denied that
the government had genocidal intent.55 She further added that the interna-
tional criminal law principle of complementarity applies because the country
has functioning domestic accountability mechanisms, although the case at
bar was based on the Genocide Convention and not the Rome Statute.56 In
January 2020, the ICJ indicated some provisional measures, which obligated
Myanmar to prevent the commission of genocidal acts against the Rohingya
and ensure that the military does not commit the same.57 The proceedings
at the ICJ for adjudication on the merits are ongoing.
Two days after the initial filing of the ICJ case, the Burmese Rohingya
Organisation UK (BROUK) and other human rights groups jointly filed a
genocide case against the Myanmar military and civilian leaders, including
Aung San Suu Kyi, in Argentina.58 Although Argentina does not have any
connection to the alleged genocide, the plaintiffs sought the application of
the principle of universal jurisdiction to this case.59 In June 2020, an Argen-
52. Human Rights Council, Independent International Fact-Finding Mission on Myanmar,

https://www.ohchr.org/en/hrbodies/hrc/myanmarffm/pages/index.aspx.
53. Human Rights Council, Situation of human rights of Rohingya Muslims and other mi-
norities in Myanmar, ¶ 22 U.N. Doc. A/HRC/RES/39/2 (3 Oct. 2018).
54. International Court of Justice [hereinafter “ICJ”], The Gambia v. Myanmar, Application
Instituting Proceedings and Request for Provisional Measures (filed in the Registry of
the Court on 11 Nov. 2019).
55. Transcript: Aung San Suu Kyi’s Speech at the ICJ in Full, Al Jazeera (12 Dec. 2019), https://
www.aljazeera.com/news/2019/12/12/transcript-aung-san-suu-kyis-speech-at-the-icj-in-
full.
56. Id.
57. ICJ, The Gambia v. Myanmar, Order of 23 Jan. 2020.
58. Argentinean Courts Urged to Prosecute Senior Myanmar Military and Government
Officials for the Rohingya Genocide, Burmese Rohingya Organization UK (13 Nov.
2019), https://www.brouk.org.uk/argentinean-courts-urged-to-prosecute-senior-myanmar-
military-and-government-officials-for-the-rohingya-genocide/.
59. Tun Khin, Universal Jurisdiction, the International Criminal Court, and the Rohingya
Genocide, Opinio Juris (23 Oct. 2020), http://opiniojuris.org/2020/10/23/universal-
jurisdiction-the-international-criminal-court-and-the-rohingya-genocide/.
tinian appellate court decided that it must approach the ICC to gather more
information before allowing the case to proceed.60 The Ministry of Foreign
Affairs of Argentina reached out to the Office of the Prosecutor of the ICC
in September 2020, inquiring whether an Argentinian investigation would
duplicate or disrupt the Prosecutor’s efforts.61
1. The ICC’s Examination of the Crisis and Myanmar’s Response

Following several communications and reports on crimes allegedly commit-
ted against the Rohingya population in Myanmar and their deportation to
Bangladesh, the Office of the Prosecutor of the ICC began examining the
Rohingya crisis.62 In April 2018, the Prosecutor, upon finding a preliminary
legal issue that deserved the Court’s attention,63 filed a request for a ruling
from the Pre-Trial Chamber on the Court’s jurisdiction over the alleged de-
portation of the Rohingya under Rome Statute Article 12(2)(a).64 The article
applies to proprio motu investigations by the Prosecutor based on consent
by the state in which the conduct in question occurred. This was the first
time the Prosecution has filed such a request under Article 19(3).65
Pre-Trial Chamber I invited Myanmar to submit observations on the Pros-
ecution’s Request, but Myanmar refused to accept or respond to it.66 Instead,
it issued two public statements concerning the proceedings at the ICC. In
April 2018, Myanmar issued a statement that denied the ICC’s jurisdiction
over the case because it was not an ICC state party that had consented to
60. Id.
61. Id.
62. Statement of ICC Prosecutor, Mrs. Fatou Bensouda, on Opening a Preliminary Exami-
nation Concerning the Alleged Deportation of the Rohingya People from Myanmar to
Bangladesh, ICC (18 Sept. 2018) https://www.icc-cpi.int/Pages/item.aspx?name=180918-
otp-stat-Rohingya.
63. Id.
64. Pre-Trial Chamber Jurisdiction Decision, supra note 1, ¶ 1; Rome Statute, supra note
2, art. 19(3):
The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility.
In proceedings with respect to jurisdiction or admissibility, those who have referred the situation
under article 13, as well as victims, may also submit observations to the Court.
Id. art. 12:
In the case of article 13 . . . (c) [proprio motu investigation by the prosecutor], the Court may
exercise its jurisdiction if one or more of the following States are Parties to this Statute. . . .
(a) The State on the territory of which the conduct in question occurred or, if the crime was com-
mitted on board a vessel or aircraft, the State of registration of that vessel or aircraft.
65. ICC-RoC46(3)-01/18-1, Prosecution’s Request for a Ruling on Jurisdiction under Article
19(3) of the Statute, ¶ 6 (9 Apr. 2018) [hereinafter Prosecution’s Request].
66. Pre-Trial Chamber Jurisdiction Decision, supra note 1, ¶¶ 11-13; 23. Under the Rules
of Procedure and Evidence, R.103(1) (Amicus curiae and other forms of submission),
“a Chamber may . . . invite or grant leave to a State . . . to submit . . . any observation
on any issue that the Chamber deems appropriate.”
the exercise of jurisdiction.67 The August 2018 statement68 once again de-
nied the Court’s jurisdiction over the situation.69 Myanmar further argued
in the statement that the case was inadmissible due to the complementarity
principle because Myanmar has established an Independent Commission of
Enquiry.70 In addition to challenging the Court’s jurisdiction, the statement
also raised substantive issues and maintained that crossing borders is not an
essential element of the crime of deportation under Article 7(1)(d).71 It also
negated the existence of an organizational policy necessary to establish that
crimes against humanity were committed.72
On September 6, 2018, the majority of Pre-Trial Chamber I ruled that
the Court can settle jurisdictional issues under Article 119(1) of the Rome
Statute, which establishes that the Court shall settle disputes concerning
the judicial functions of the Court,73 and “under the established principle
of international law that any international tribunal has the power to deter-
mine the extent of its own jurisdiction.”74 The Prosecutor proceeded with
the preliminary examination and subsequently opened an investigation,
which was authorized by Pre-Trial Chamber III in November 2019.75 The
November 2019 decision affirmed the earlier decision by Pre-Trial Chamber
I that the Court may exercise jurisdiction over crimes where at least part of
the criminal conduct takes place in a state party.76
2. The ICC’s Jurisdiction Over the Rohingya Crisis

The ICC has subject matter jurisdiction over the crime of genocide, crimes
against humanity, war crimes, and the crime of aggression.77 The Prosecution
67. Id. ¶ 35.

68. Government of the Republic of the Union of Myanmar, Ministry of the Office of the State
Counsellor, Press Release, The Republic of the Union of Myanmar: President Office (9
Aug. 2018) http://www.president-office.gov.mm/en/?q=briefing-room/news/2018/08/09/
id-8936 [hereinafter Myanmar Press Release 2018].
69. Id. ¶¶ 1-2.
70. Id. ¶ 20.
71. Id. ¶¶ 17. Although the Press Release does not explicitly state the conclusion arising
from this, it seems to imply that the Court cannot exercise jurisdiction using Bangladesh
as a jurisdictional hook because the element of the crime that is committed in Bangladesh
must be an essential element of the crime.
72. Id. ¶¶ 18-19.
73. Pre-Trial Chamber Jurisdiction Decision, supra note 1, ¶ 28.
74. “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 interna-
tional courts and tribunals.” Id. ¶ 30.
75. Press Release, ICC Judges Authorise Opening of an Investigation into the Situation in Ban-
gladesh/Myanmar (14 Nov. 2019) https://www.icc-cpi.int/Pages/item.aspx?name=pr1495.
76. ICC-01/19 Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of
an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of
the Union of Myanmar ¶ 43 (14 Nov. 2019).
77. Rome Statute, supra note 2, art. 5(1).
requested a ruling only for the crime of deportation,78 which is a subcategory

of crimes against humanity under Article 7(1)(d) of the Rome Statute. This
seems odd at first, as the persecution against the Rohingya may satisfy the
elements of the crime of genocide under Article 6 of the Statute.79 A geno-
cide charge would likely send a stronger message to the parties concerned
as well as the international community.
Holding Myanmar officials accountable for the genocide of the Rohingya
is not a far-fetched idea if it were not for the jurisdictional limitations; The
Gambia successfully sought provisional measures against Myanmar at the
International Court of Justice (hereinafter “ICJ”).80 Nevertheless, bringing
genocide committed entirely within Myanmar under the ICC’s jurisdiction is
more challenging because the crime is further attenuated from Bangladesh,
of which membership is the foundation for the Court’s jurisdiction over this
situation. The ICJ proceedings, on the other hand, have a solid jurisdictional
basis, namely the Genocide Convention, to which both Myanmar and The
Gambia are parties.81
At first glance, the ICC does not seem to have jurisdiction over the per-
petrators of the Rohingya persecution. The ICC may exercise jurisdiction over
an individual if the crime was committed in a state party,82 the suspect is a
national of a state party,83 a state agrees to the exercise of jurisdiction for a
particular case,84 or the UN Security Council refers the case to the ICC.85
Myanmar is neither a state party nor has it accepted the Court’s jurisdiction
over this case, and the Security Council has not yet made a referral. The
Myanmar military committed all the acts of violence in question within the
Myanmar borders. Nevertheless, the Pre-Trial Chamber ruled that it does
have jurisdiction over the crime of deportation because Bangladesh, where
most of the Rohingya fled to, is an ICC state party.86
78. Prosecution’s Request, supra note 65, ¶ 1.

79. Rome Statute, supra note 2, art. 6 (Genocide): For the purpose of this Statute, “genocide”
means any of the following acts committed with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group, as such:
a. Killing members of the group;
b. Causing serious bodily or mental harm to members of the group;
c. Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
d. Imposing measures intended to prevent births within the group;
e. Forcibly transferring children of the group to another group.
80. Provisional Measures of 23 Jan. 2020, The Gambia v. Myanmar, ICJ.
81. Id. ¶ 19.
82. Rome Statute, supra note 2, art. 12(2)(a).
83. Id. art. 12(2)(b).
84. Id. art. 12(3).
85. Id. art. 13(b); cf. art. 12(2).
86. Pre-Trial Chamber Jurisdiction Decision, supra note 1, ¶ 73. Whether the perpetrators
had the purpose of deporting the Rohingya people to Bangladesh is a factual inquiry
that needs to be made. The total destruction of the villages shows that the perpetrators
intended to expel the Rohingya from their residence. Furthermore, considering that
Article 7(1)(d) of the Rome Statute defines crimes against humanity to

mean committing any of the listed acts as part of a widespread or systematic
attack directed against any civilian population with knowledge of the attack.
“Deportation or forcible transfer of population” is a listed act. It is defined
under Article 7(2)(d) as “forced displacement of the persons concerned by
expulsion or other coercive acts from the area in which they are lawfully
present, without grounds permitted under international law.”
The Chamber, also referring to the Elements of Crimes,87 first stated that
deportation and forcible transfer are separate crimes, the former referring to
cross-border displacement and the latter referring to displacement within a
country’s borders.88 The grounds the Pre-Trial Chamber gave were that (i) the
dictionary meaning of “or” signified that the two were distinct alternatives,89
(ii) the Elements of Crimes used the word “or” in the same context,90 (iii)
international law concerning crimes of deportation and forcible transfer91
the narrative of the majority community in Myanmar is that the Rohingya are illegal
immigrants from Bangladesh, it could be possible to find intent to expel the Rohingya
from Myanmar. However, even if the Court does not find intent, the situation would still
likely satisfy the requisite mental state for the crime of deportation, which is knowledge.
The majority of the Rohingya have sought refuge in Bangladesh since the 1990s, and
therefore, the Rohingya fleeing to Bangladesh was within the ordinary course of events
that could happen following the “clearance operation.” Furthermore, the Rohingya have
been continuously fleeing to Bangladesh since August 2017 for at least a couple of
months. Thus during the time since the first wave of refugees arrived in Bangladesh, the
senior leaders were put on actual notice that their acts had been resulting in deportation.
Therefore, based on either ground, the knowledge requirement should be satisfied.
87. ICC, Elements of Crimes (2011), https://www.icc-cpi.int/nr/rdonlyres/336923d8-a6ad-40ec-
ad7b-45bf9de73d56/0/elementsofcrimeseng.pdf, is a document that lays out the elements
of each crime. It “shall assist the Court in the interpretation and application of articles
6, 7, 8 and 8 bis. They shall be adopted by a two-thirds majority of the members of the
Assembly of States Parties.” Rome Statute, supra note 2, art. 9 (1).
Elements of Crimes, art. 7(1)(d) (Crime against humanity of deportation or forcible transfer of
population):
1. The perpetrator deported or forcibly transferred, without grounds permitted under international
law, one or more persons to another State or location, by expulsion or other coercive acts.
2. Such person or persons were lawfully present in the area from which they were so deported
or transferred (internal footnotes omitted.
88. Arguably, the Court’s reading was not the only possible one; ICC, Elements of Crimes,
supra note 87, n.13, states that “deported or forcibly transferred” was interchangeable
with “forcibly displaced.” One way to read the footnote was that the crime of deporta-
tion and forcible transfer was a single crime that delegitimized the conduct of forcibly
displacing persons from their lawful area of presence. Pre-Trial Chamber Jurisdiction
Decision, supra note 1, ¶ 56. But the Chamber did not adopt this reading because the
reading of the footnote must be consistent with the Statute. Id. Because Article 7(1)(d)
sets out the two crimes as separate crimes, footnote 13 cannot be interpreted to change
the meaning of the article. Id.
89. Rome Statute, supra note 2, art. 7(1)(d); Pre-Trial Chamber Jurisdiction Decision, supra
note 1, ¶ 54.
90 Pre-Trial Chamber Jurisdiction Decision, supra note 1, ¶ 55.
91. Id. ¶ 57.
had developed separately, and (iv) the two crimes were distinguished by the
destination requirement.92
Based on the finding that the crime of deportation was a separate crime,
the Court concluded that the destination requirement was a distinct element
of the crime because it was essential for assigning the legal qualification
under Article 7(1)(d).93
The Pre-Trial Chamber then went on to discuss the preconditions for
exercising the Court’s jurisdiction pursuant to Article 12(2)(a) of the Statute.94
It held that at least one legal element of a crime or part of such a crime
must be committed on the territory of a state party for the Court to exercise
jurisdiction.95 This reading was supported by international public law96 and
domestic laws of many countries,97 including Myanmar98 and Bangladesh.99
The Pre-Trial Chamber drew additional support from the drafters’ inten-
tion to allow the Court to exercise jurisdiction over a case where a state party
is allowed to exercise its jurisdiction,100 especially for the crime of deporta-
tion. Deportation necessarily involves at least two states, but the drafters did
not limit the crime of deportation to deportation between states parties.101
For all the reasons mentioned above, the Pre-Trial Chamber concluded that
the Court has jurisdiction over the crime of deportation that occurred during
the current Rohingya crisis.102
During the analysis of the jurisdiction over the crime of deportation, the
Pre-Trial Chamber emphasized the fact that the destination requirement was
an element that necessarily had to be fulfilled abroad (in this case, Bangla-
desh, a state party). Nevertheless, the Pre-Trial Chamber ended the analysis
by stating that “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 [was] committed on the territory of a State
Party to the Statute.”103 This invites a reading that if at least one element of
the crime is committed in a state party, the crime falls under the jurisdic-
tion of the ICC, regardless of whether that element is, by its definition, of a
nature that it cannot be concluded domestically.
One part of the Pre-Trial Chamber’s Decision that supports that reading
is the analysis of the jurisdiction of the Court in relation to other crimes.
92. Id.
93. Id. ¶ 60.
94. Id. ¶ 64.
95. Id.
96. Id. ¶¶ 65-66.
97. Id. ¶ 66.
98. Id. ¶ 67.
99. Id. ¶ 68.
100. Id. ¶ 70.
101. Id. ¶ 71.
102. Id. ¶ 73.
103. Id. ¶ 72 (emphasis added).
It states that if Myanmar refuses to allow the Rohingya to return to their

homeland, it could fall within Article 7(1)(k) of the Statute, which prohibits
“[o]ther inhumane acts of a similar character intentionally causing great suf-
fering, or serious injury to body or to mental or physical health.”104 Article
7(1)(k), however, does not necessarily have a cross-border element, unlike
the crime of deportation under Article 7(1)(d). This supports the reading that
the element satisfied in a state party can be any one element, regardless of
whether that is one that can only be conducted abroad.
E. Jurisdiction Over Other Article 7 Crimes
The Pre-Trial Chamber jurisdiction decision suggested that “[i]f it were

established that at least an element of another crime . . . or part of such
a crime is committed on the territory of a State Party, the Court might as-
sert jurisdiction pursuant to article 12(2)(a) of the Statute.”105 The Pre-Trial
Chamber raises two examples: the crime of persecution under Article 7(1)
(h) and the crime of conducting other inhumane acts under Article 7(1)(k).
For the crime of persecution under Article 7(1)(h), the act that may
constitute persecution here, according to the Pre-Trial Chamber, is the de-
portation.106 The act of deportation has a cross-border element that involves
a state party as established above and might serve as a basis for the Court’s
jurisdiction.107
The Pre-Trial Chamber further stated that if the allegations that the
Myanmar government is impeding the refugees’ repatriation despite the ap-
palling living conditions in the refugee camps are established to the requisite
threshold, such a conduct would violate Article 7(1)(k).108 The article prohibits
other inhumane acts which intentionally cause “great suffering, or serious
injury to body or to mental or physical health.”109 The denial of repatriation
violates the right of the Rohingya people to enter their own country and
would cause great suffering or serious injury to their mental health.110 The
basis for jurisdiction here would be that an element or a part of this crime,
namely to compel the Rohingya people to remain in Bangladesh by refusing
repatriation, takes place in Bangladesh.111
The Pre-Trial Chamber went on to acknowledge that it falls within the
Prosecutor’s prerogatives to “apply the preconditions for the exercise of the
104. Id. ¶ 77-78; Rome Statute, supra note 2, art. 7(1)(k).

106. Id. ¶¶ 75-76
107. Id.
108. Id. ¶¶ 77-78.
109. Rome Statute, supra note 2, art. 7(1)(k).
111. Id. ¶ 78.
Court’s jurisdiction … in accordance with the present decision” to other

crimes.112
F. Complementarity
Although the Pre-Trial Chamber ruled that the Court has jurisdiction over the
forced displacement of the Rohingya, Myanmar could avoid ICC prosecu-
tion of its citizens if it conducts a genuine investigation and, if necessary,
prosecutes the suspects.113
Myanmar has constantly maintained that the principle of complementar-
ity applies to the Rakhine situation, thereby rendering the case inadmissible.
Its August 2018 statement argued that the case was inadmissible due to the
complementarity principle because Myanmar has established an Indepen-
dent Commission of Enquiry (ICOE).114 In January 2020, Aung Sang Suu Kyi
argued at the ICJ that Myanmar has a military justice system on top of the
ICOE, both of which must be “allowed to run their course” despite their
imperfectness.115
Merely conducting some domestic investigation is likely insufficient for
Article 17(1)(a) to apply to a situation.116 Precedents from other international
courts and commentators suggest that a genuine investigation, in which the
investigating body “use[s] all the legal means at its disposal”117 to conduct
112. Id. ¶ 79.

113. Statement of ICC Prosecutor, Mrs Fatou Bensouda, supra note 62.
Further, under the Rome Statute, national jurisdictions have the primary responsibility to investigate
and prosecute those responsible for international crimes. In conformity with the complementar-
ity principle, my Office will be engaging with the national authorities concerned with a view to
discussing and assessing any relevant investigation and prosecution at the national level.
Id. Even if the complementarity principle does not apply, the UN Security Council
may request a deferral of the investigation, in which case it must be deferred for one
year with the possibility of renewal of the request. Rome Statute, supra note 2, art. 16.
Although such a deferral request is theoretically possible, this section solely focuses on
the complementarity issue posed by Myanmar’s domestic investigations because the
Security Council would likely not make such a request. The coup on 1 February 2021
was yet another proof of the military’s utter disregard towards human rights. It underlined
the need to deter the military from committing further abuses through investigation and
prosecution.
114. Myanmar Press Release 2018, supra note 68, ¶ 20.
115. Transcript: Aung San Suu Kyi’s Speech, supra note 55.
116. In the Paniagua Morales Case, the Inter-American Court of Human Rights stated that
Guatemala had the “obligation to conduct, with the means at its disposal, a serious
investigation of the violations committed, identify and punish those responsible, and
ensure appropriate reparations to the victims.” Paniagua Morales et al. (‘Panel Blanca’),
Judgment (8 Mar. 1998), IACtHR (Ser. C) No. 37 (1998), ¶ 139. Although Guatemala
had conducted an investigation, it did not yield any results due to deliberate stagnation,
and thus the investigation did not qualify as genuine. Id. The Inter-American Court of
Human Rights decision is not binding authority but persuasive authority.
117. Id. ¶ 173.
a good-faith criminal process that identifies and captures the suspects and
leads to trial and punishment, is necessary.118
The military justice system appears grossly inadequate to trigger the ap-
plication of the complementarity principle. Under the Myanmar Constitution,
“the decision of the Commander-in-Chief of the Defence Services [in the
adjudication of military justice] is final and conclusive.”119 Genuine prosecu-
tion of the persons responsible for the mass-atrocities is unlikely, considering
that the Commander-in-Chief himself is likely liable for them as well.
Unsurprisingly, the military justice system failed to conduct genuine
investigations and prosecutions in the past. In April 2018, seven members of
the military who were involved in the Inn Din village massacre, which took
place in early September 2017, were dismissed or demoted and sentenced
to ten years in prison.120 Ten Rohingya villagers lost their lives at the hands
of the Buddhist villagers and soldiers.121 These prosecutions were among
the rare cases that were brought before the military courts.122 The details of
the military justice proceedings, including the names of the accused and
the roles they played in the atrocity, remain unpublished.123 On top of the
secretive nature of the proceedings, the enforcement of the sentence was
highly problematic. In November 2018, Min Aung Hlaing reduced the sol-
diers’ sentences and released all of them.124
At least two officers responsible for the mass-atrocities against the Ro-
hingya had since been removed or had voluntarily resigned, but ostensibly
for reasons apart from the human rights violations. Major-General Maung
Maung Soe, the Commander of the Western Regional Military Command,
and Lieutenant-General Aung Kyaw Zaw, the Commander of the Bureau of
Special Operations-3, were both on the initial list of alleged perpetrators of
international crimes created by the IIFFMM in September 2018.125 Maung
118. Otto Triffterer & Kai Ambos, The Rome Statute of the International Criminal Court: A Com-
mentary 805 (3d. ed. 2016).
119. Constitution of the Republic of the Union of Myanmar 343(b) (2008).
120. Ye Mon, Myanmar’s Military “Justice” System, Frontier Myanmar (25 Jan. 2020) https://
www.frontiermyanmar.net/en/myanmars-military-justice-system/.
121. Wa Lone, Kyaw Soe Oo, Simon Lewis, and Antoni Slodkowski, Massacre in Myanmar:
How Myanmar Forces Burned, Looted and Killed in a Remote Village, Reuters (8 Feb.
2018) https://www.reuters.com/investigates/special-report/myanmar-rakhine-events/. Wa
Lone and Kyaw Soe Oo, the two Myanmar journalists who investigated the massacre,
were sentenced to seven years in prison. They were later pardoned after serving a part
of their sentences. Mon, supra note 120.
122. Human Rights Council, Report of the independent international fact-finding mission
on Myanmar (Advance Edited Version) ¶ 97 U.N. Doc. A/HRC/39/64 (12 Sept. 2018)
[hereinafter September 2018 Report].
123. Shoon Naing & Simon Lewis, Exclusive: Myanmar Soldiers Jailed for Rohingya Killings
Freed After Less Than a Year, Reuters (27 May 2019) https://www.reuters.com/article/
us-myanmar-rohingya-soldiers-exclusive-idUSKCN1SX007.
124. Human Rights Council, Report of The Independent International Fact-Finding Mission
on Myanmar ¶ 97 U.N. Doc. A/HRC/42/50 (8 Aug. 2019).
125. September 2018 Report, supra note 122, ¶ 92.
Maung Soe was dismissed from the military due to his “weak performance,”
and Aung Kyaw Zaw, the supervisor of Maung Maung Soe, was allowed to
resign.126 The failure to adequately investigate and prosecute is apparent in
these cases.
Apart from dealing with the situation within the military justice mecha-
nism, Myanmar established the ICOE in July 2018 to investigate the “allega-
tions of human rights violations and related issues following the terror attacks
by the Arakan Rohingya Salvation Army (ARSA).”127 The ICOE submitted
its final report to President Win Myint in January 2020.128 A fourteen-page
executive summary of the report and some of the annexes are published,
but not the full report, which reportedly has 461 pages with 31 annexes.129
At the end, the ICOE failed to genuinely investigate the case to the
extent that the complementarity principle will apply to exclude an ICC
investigation. From the outset, some commentators doubted the neutrality
of the Commission.130 The more fundamental problem was perhaps that
the aim of the inquiry was not to establish individual accountability. The
chairperson has reportedly stated that “there will be no blaming of anybody,
no finger pointing of anybody” and that saying “you are accountable” is a
very bad approach.131
The content of the report differed from the findings of the IIFFMM, nu-
merous reports published by international non-governmental organizations,
as well as what many Rohingya witnesses claim to have experienced. For
example, the ICOE did not find any credible statements that establish that
the security forces committed gang rape.132 It found all the testimonies re-
garding rape to be “second-hand information heard from someone else.”133
This finding squarely contradicts the statements of rape victims and physical
evidence of rape gathered in the refugee camps.134
126. Myanmar: Prosecute Dismissed Officers for Atrocities, HRW (29 June 2018), https://
www.hrw.org/news/2018/06/29/myanmar-prosecute-dismissed-officers-atrocities.
127. Myanmar Press Release 2018, supra note 68, ¶ 20.
128. Press Release, Independent Commission of Enquiry (20 Jan. 2020), https://www.icoe-
myanmar.org/icoe-pr-final-report.
129. Id.; Official Documents and Reports, Independent Commission of Enquiry, https://www.
icoe-myanmar.org/documents.
130. Rik Glauert, Is Myanmar’s “Independent” Probe into Atrocities Stacked Against Rohingya?,
South China Morning Post (5 Aug. 2018), https://www.scmp.com/week-asia/politics/
article/2158161/myanmars-independent-probe-atrocities-stacked-against-rohingya.
Aung Tun Thet has been criticised as neither impartial nor independent. In 2016, he was part of
a national investigation that rejected a UN report of previous atrocities against Rohingya, and in
April he flat-out denied that abuse against the Rohingya was systematic or could be labelled as
ethnic cleansing.
131. Richard Weir, Don’t Expect Much from Latest Myanmar Commission, HRW (17 Aug. 2018)
https://www.hrw.org/news/2018/08/17/dont-expect-much-latest-myanmar-commission.
132. Executive Summary of Independent Commission of Enquiry-ICOE’ Final Report, Inde-
pendent Commission of Enquiry 6 (n.d.), https://reliefweb.int/sites/reliefweb.int/files/
resources/BM.pdf [hereinafter Executive Summary Final Report].
133. Id.
134. See, e.g., Myanmar Report, supra note 10, ¶¶ 926, 928.
The ICOE recommended that the Judge Advocate General conduct

investigations and seek accountability for responsible military personnel.135
It offered no other recommendations to hold military officers accountable
apart from a vague suggestion for the government to ensure access to pros-
ecution and judicial remedies “for members of all communities in northern
Rakhine State.”136
Merely offering suggestions to prosecute criminals is insufficient to
count as a genuine investigation or prosecution that eliminates the need for
the ICC’s complementary investigation. Moreover, the suggestions, even if
implemented, would be inadequate to end impunity. As mentioned above,
the military justice system has been and would be unable to hold the per-
petrators accountable due to its structural design and implementation.
Following the ICOE report and the ICJ order, the Office of the President
of Myanmar issued a presidential directive in April 2020 to ensure compli-
ance with the Genocide Convention and preserve evidence of genocide.137
This directive ordered all government officials to comply with the Genocide
Convention and report violations thereof to the Office of the President
without mentioning any specific incidents in Myanmar or referring to the
Rohingya.138 Another presidential directive issued on the same day obligat-
ed all government divisions and officers to preserve evidence of “events
referred to in the ICOE’s final report.”139 The directive also prohibited the
destruction or removal of genocide evidence, although it did not use the
word “genocide.”140
The military investigations were making some progress during 2020. In
June, three military officers were found guilty of the massacre against the
Rohingya in Gu Dar Pyin, although the military kept their identity and sen-
tences confidential.141 Moreover, in September, following reports of former
Myanmar soldiers being held under ICC custody, the military acknowledged
the possibility that a broader pattern of abuse existed in Rakhine State during
2016-2017.142 Such an acknowledgment was unprecedented.143
135. Executive Summary Final Report, supra note 132, Recommendation 1.

136. Id. Recommendation 3.
137. Compliance with the Convention on the Prevention and Punishment of the Crime of
Genocide, Republic of the Union of Myanmar Office of the President Directive No
1/2020, 1st Waning of Tagu 1381 ME (8 Apr. 2020).
138. Id.
139. Preservation of evidence and property in areas of Northern Rakhine State, Republic of
the Union of Myanmar Office of the President Directive No 2/2020, 1st Waning of Tagu
1381 ME (8 Apr. 2020).
140. Id.
141. Myanmar: Court Martial Latest Accountability Sham, HRW (3 July 2020) https://www.
hrw.org/news/2020/07/03/myanmar-court-martial-latest-accountability-sham.
142. Myanmar Army Probes “Wider Patterns” of Abuse Against Rohingya, Reuters (16 Sept.
2020), https://www.reuters.com/article/us-myanmar-rohingya-idUSKBN2670JF.
143. Id.
Despite the slow yet seemingly positive advances achieved, the 1 Febru-
ary coup and the violence against demonstrators have yet again proven the
military’s utter disregard towards fundamental human rights. The prospect of
holding the military officials accountable for their international crimes now
appears bleak at best, both in terms of domestic prosecution and cooperation
with international courts and other accountability mechanisms.
The current Myanmar junta is utterly unqualified to handle further inves-
tigations or prosecutions in a neutral way, considering that it is run by the
Commander-in-Chief, Min Aung Hlaing, who is one of the alleged perpetra-
tors of international crimes listed in IIFFMM’s September 2018 Report.144
Even if the quasi-civilian government is restored, the ability to conduct
genuine investigations and prosecutions is questionable. The National League
for Democracy (NLD) government, led by Aung San Suu Kyi, failed to rec-
tify the apartheid policies against the Rohingya145 or attempt to prevent the
mass-atrocities against them.146 What is even more telling is the fact that the
IOCE, established under the NLD government, failed to conduct meaningful
investigations leading to individual accountability. Moreover, to the best of
the author’s knowledge, there has not yet been any apparent initiative by
the NLD leaders to build a post-coup Myanmar inclusive of the Rohingya.147
144. September 2018 Report, supra note 122, ¶ 92. Min Aung Hlaing is infamous for his
Facebook post during the 2017 “clearance operations,” which stated that “the Bengali
problem was a long-standing one which has become an unfinished job despite the ef-
forts of the previous governments to solve it. The government in office is taking great
care in solving the problem.” Id. ¶ 35.
145. For example, in 2016,
the authorities embarked on a renewed effort to impose the National Verification Card on the
Rohingya, a card that the latter had refused, seeing it as symbol of a discriminatory system that
would entrench their status as “Bengali immigrants.” The card increasingly became a prerequisite
for passing through checkpoints, gaining access to farmland, and for fishing. Intimidation and
force were used, including at community meetings in the presence of the police and military,
during which threats were made at gunpoint. At these meetings, villagers were told to “take the
card or leave the country”; others, for example in Chut Pyin, were told by soldiers to accept it or
be killed. Most Rohingya still refused.
Id. ¶ 46.
146 As the September 2018 Report puts it,
nothing indicates that the civilian authorities used their limited powers to influence the situation
in Rakhine State where crimes were being perpetrated. The State Counsellor, Daw Aung San Suu
Kyi, has not used her de facto position as Head of Government, nor her moral authority, to stem
or prevent the unfolding events, or seek alternative avenues to meet a responsibility to protect the
civilian population. On the contrary, the civilian authorities have spread false narratives, denied
the wrongdoing of the Tatmadaw, blocked independent investigations (including that of the fact-
finding mission), and overseen the destruction of evidence. Through their acts and omissions, the
civilian authorities have contributed to the commission of atrocity crimes.
Id. ¶ 93.
147. “I couldn’t find any leaders from Daw Aung San Suu Kyi’s National League for De-
mocracy saying a word about the place of the Rohingya in the democratic system they
are demanding.” Mayyu Ali, Where Do the Rohingya Go After the Coup in Myanmar?,
N.Y. Times (18 Feb. 2021) https://www.nytimes.com/2021/02/18/opinion/myanmar-coup-
rohingya.html.
The current situation, however, is not entirely hopeless. Some Rohingya

human rights advocates suggest that empathy towards the Rohingya is slowly
spreading among the non-Rohingya in Myanmar after the coup.148 Consider-
ing that the NLD-led government was democratically elected, a meaningful
domestic investigation and prosecution might be possible if the demand for
accountability becomes strong enough.
Nevertheless, for domestic accountability mechanisms to function in
a fair and effective manner, restoration of the status quo would be insuf-
ficient. The power of the military must be drastically reduced for any kind
of meaningful inquiry into the mass-atrocities to happen in Myanmar.149
Until such a fundamental political reform occurs, international investiga-
tive and prosecutorial efforts are necessary to deliver justice to the victims and
deter the military from committing further international crimes. The impunity
of grave international crimes has had its consequences. The military reportedly
deployed the 33rd Light Infantry Division—the very division which played
a leading role in perpetrating the mass-atrocities against the Rohingya—to
quell the demonstration in Mandalay, which resulted in the deaths of two
demonstrators.150 The 33rd Light Infantry Division’s Commander, Brigadier-
General Aung Aung, was on the IIFFMM’s 2018 list of alleged perpetrators
of international crimes, together with Min Aung Hlaing.151
148. Q&A: Activist Tun Khin on how Myanmar Protests Affect the Rohingya, Al Jazeera (24
Feb. 2021), https://liberties.aljazeera.com/en/qa-activist-tun-khin-on-how-myanmar-
protests-affect-the-rohingya/?fbclid=IwAR12Bz-OOFVcXpUccnswLjQrwCtTkPu7RR2h-
v1pWE62mq-Qwq5kkQZJxqqQ.
One positive thing is that the people of Myanmar are slowly understanding what the Rohingya faced
because they are also being attacked now. From Twitter responses it is clear that ordinary people
in Myanmar are acknowledging the pain of the Rohingya. They now see that our military lied to
us. Some people are saying: “We are sorry that we were ignorant about what the Rohingya people
suffered and that we did not do enough.” People are finally showing empathy with the Rohingya.
Id.; Amy Gunia, Rohingya Activists Are Hoping That the Coup in Myanmar Will Be a
Turning Point for Their Struggle, Time (8 Feb. 2021), https://time.com/5936604/myanmar-
coup-rohingya/.
149. Some suggest that the fear of prosecution under the NLD government is one of the
reasons why the military staged a coup. Helen Regan, Why the generals really took
back power in Myanmar, CNN (8 Feb. 2021) https://edition.cnn.com/2021/02/06/asia/
myanmar-coup-what-led-to-it-intl-hnk/index.html. Others suggest that the civilian govern-
ment provided cover for war crimes and the military would not benefit from the coup
in this respect. Flora Durry, Myanmar’s Coup: Why now—and What’s Next?, BBC (1
Feb. 2021), https://www.bbc.com/news/world-asia-55882938.
150. Secretary-General Condemns Deadly Violence Against Protestors in Myanmar, UN News
(21 Feb. 2021) https://news.un.org/en/story/2021/02/1085322.
151. September 2018 Report, supra note 122, ¶ 92.
III. IMPLICATIONS OF THE PRE-TRIAL CHAMBER JURISDICTION

DECISION
A. Possible Impact on the Situation in Myanmar
Considering that persecutions against the Rohingya have repeated themselves

and the international community has failed to act against them, the need to
incapacitate and deter the actual and potential perpetrators from conducting
further acts of persecution is extremely high. Even after the ICJ’s order on
provisional measures, Myanmar seems still unconvinced that its violence and
discrimination policies against the Rohingya likely amount to genocide and
that it must take measures to prevent them.152 Stronger measures, therefore,
are necessary to prevent future mass-atrocities.
Admittedly, the possibility of immediate incapacitation through appre-
hending the criminals is low due to the non-cooperation of the Myanmar
government. Nevertheless, regime changes could lead to later prosecution,
either in domestic courts or the ICC. An example of this would be the Darfur
situation. More than a decade after the ICC’s issuance of an arrest warrant,153
former Sudanese President Omar Al Bashir is finally facing a realistic possibil-
ity of being tried for his alleged crimes in Darfur.154 Whether he will be tried
at the ICC or a hybrid tribunal remains open, but the Sudanese government
has assured the ICC Prosecutor that it will support and cooperate with her.155
Furthermore, the ICC investigation could bring the case under the
international spotlight and send a strong message against the Myanmar
government and the military.156 Specific deterrence is especially crucial now
that the military has the undivided power to rule the country. It could also
152. Press Release, Ministry of Foreign Affairs, Republic of the Union of Myanmar, on the
Decision by the ICJ on “Provisional Measures” in the Case Brought by The Gambia
Against Myanmar, Myanmar Takes Note of ICJ Decision. There Was No Genocide in
Rakhine, (23 Jan. 2020), https://www.facebook.com/mofamyanmar/posts/press-statement-
on-the-decision-by-the-icj-on-provisional-measures-in-the-case-b/1367204723479819/.
153. ICC-02/05-01/09-1, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Warrant of Arrest
for Omar Hassan Ahmad Al Bashir (4 Mar. 2009).
154. In Sudan, ICC Prosecutor Says al-Bashir must be Tried Over Darfur, Al Jazeera (20 Oct.
2020), https://www.aljazeera.com/news/2020/10/20/icc-prosecutor-talks-on-al-bashir-
case-in-historic-sudan-visit.
155. Id.
156. The Myanmar government seem to be a deterrable actor, at least to some extent. When
the US, Canada, and the EU sanctioned Myanmar general Maung Maung Soe, who has
allegedly led the ethnic cleansing campaign against the Rohingya people, Myanmar fired
the general, albeit due to poor performance and not for the human rights violations. See
Hannah Ellis-Petersen, Myanmar Fires General who led Violence Against Rohingya, The
Guardian (26 June 2018). https://www.theguardian.com/world/2018/jun/26/myanmar-fires-
general-who-led-violence-against-rohingya; Rohingya Crisis: Myanmar General hit by
US Sanctions, BBC (21 Dec. 2017), https://www.bbc.com/news/world-asia-42447510.
deter third-party states from cooperating with Myanmar in a way that could
exacerbate the situation.
If an ICC arrest warrant is issued, it would mean that the suspects’ inter-
national travels would be severely restricted. As the de-facto head of state,
Min Aung Hlaing would face extreme difficulties in conducting diplomatic
interactions should an arrest warrant be issued against him. ICC states par-
ties have an obligation to cooperate with the ICC in executing arrest war-
rants.157 Although compliance with the request of the Court is not always
the case with all countries, countries that refuse to do so would be subject
to international condemnation.158
B. Possible Application to the Crime of Genocide
Another future issue is whether this decision on the jurisdiction over the
crime of deportation could apply to the crime of genocide. The Pre-Trial
Chamber III decision explicitly authorized the investigation of any Rome
Statute crime with the requisite jurisdictional nexus, which means that the
Prosecutor may investigate to establish that genocide had occurred.159
One potential theory to bring the crime of genocide under the Court’s
jurisdiction would be under Article 6(c), genocide by deliberately inflicting
conditions of life calculated to bring about physical destruction. If deportation
inflicts conditions of life calculated to bring about physical destruction in a
state party to which the victims were deported, it may be said that a part of
the crime had been committed in that state. The suffering of the Rohingya
in Bangladeshi refugee camps160 may satisfy this element. Nevertheless, if
157. Rome Statute, supra note 2, art. 86,

General Obligation to Cooperate: States Parties shall, in accordance with the provisions of this
Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the
jurisdiction of the Court.
See also ICC, Arresting ICC Suspects at Large: Why it Matters What the Court Does What
States can do (2019), https://www.icc-cpi.int/news/seminarBooks/bookletArrestsENG.pdf.
158. See Tom White, States “Failing to Seize Sudan’s Dictator Despite Genocide Charge,”
The Guardian (21 Oct. 2018), https://www.theguardian.com/global-development/2018/
oct/21/omar-bashir-travels-world-despite-war-crime-arrest-warrant.
159. ICC-01/19 Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of
an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of
the Union of Myanmar, supra note 76, ¶ 126 (14 Nov. 2019).
160. Myanmar Report, supra note 10, ¶ 1404:
[T]housands of Rohingya felt compelled to risk their lives leaving on boats into the Bay of Bengal
and the Andaman Sea. Tens of thousands were displaced by the violence in 2012. Approximately
87,000 crossed into Bangladesh following the 2016 “clearance operations”. Over 725,000 fled
the 2017 “clearance operation” en masse, seeking protection in refugee camps in Bangladesh.
There they live in extremely difficult conditions, including overcrowding and lack of privacy; lack
of employment or livelihood or educational opportunities; limited access to health care; etc. The
Rohingya have been pushed into these conditions through repeated cycles of forced displacement,
causing grave and long-term disadvantage to their ability to lead a normal and constructive life,
and contributing to their destruction as a group.
the conditions of the camps or other places the refugees seek shelter are not
harsh to the extent that it can be considered to be “calculated to bring about
physical destruction,” the Prosecution would fail to establish that genocide
had occurred in this specific manner.
Another potential theory is that the effects of the measures “intended to
prevent births within the group” took effect mainly in the refugee camps in
Bangladesh. Rape, especially gang rape, by the military was widely reported
during the 2017 “clearance operations” and during the 2016 violence that
preceded them, for which the Prosecutor of the ICC sought approval to
open a formal investigation.161 Although the number of rape or other sexual
assaults cannot be identified, 13,500 women sought services for sexual as-
sault victims upon arriving in the refugee camps.162 Considering the stigma
against rape victims in the Rohingya society,163 many cases are suspected to
be unreported. The main target of such violence was women aged thirteen
to twenty-five years,164 who tend to bear children in the near to mid-term
future. Mutilation of genitalia and breasts was also commonplace.165 The
soldiers frequently left bite marks, visible months after the rape, on their
victims’ cheeks, neck, breasts, and thighs.166 The victims, their husbands,
and community members would see them and be constantly reminded of
the violence the victim had to suffer,167 which would have a negative effect
on procreation or finding a partner. In the Rohingya community, unmarried
women who were raped have fewer marriage prospects and hence procre-
ation prospects.168 Some husbands reportedly rejected wives who had been
subject to gender violence.169
Systematic rape, especially in a way that damages the reproductive
capabilities of women or leaves scars on the victims’ body are measures
intended to prevent births. The effect of the sexual violence has occurred
in Bangladesh, a state party to the Statute. Moreover, the act of the military
was concluded in Myanmar, but the measures for the purpose of prevent-
161. See generally id. See also Razia Sultana, Witness to Horror (2017); Razia Sultana, Rape by
Command: Sexual Violence as a Weapon Against the Rohingya (2018).
162. Susannah Savage, “A lot of Shame’: Rohingya Camps Brace for Wave of Babies Con-
ceived in Rape, Wash. Post (22 May 2018), https://www.washingtonpost.com/world/
asia_pacific/a-lot-of-shame-rohingya-camps-brace-for-wave-of-babies-conceived-in-rap
e/2018/05/21/8bf9be3c-45b4-11e8-b2dc-b0a403e4720a_story.html.
163. “[I]n traditional Rohingya Muslim society, rape brings shame to households. Any result-
ing pregnancies are viewed as heaping even more disgrace on families, according to
counselors working in the refugee camps.” When a Baby is an Everyday Reminder of
Rohingya Horror, N.Y. Times (7 July 2018), https://www.nytimes.com/2018/07/07/world/
asia/myanmar-rohingya-rape-refugees-childbirth.html.
164. Savage, supra note 162.
165. Myanmar Report, supra note 10, ¶¶ 920; 926; 1410.
166. Id. ¶ 926.
167. Id.
168. Id. ¶ 1410.
169. Id.
ing births are continuously being imposed in Bangladesh so long as the

indelible scars remain on the women’s bodies. Therefore, the element of the
crime of genocide, i.e., imposing measures to prevent births, is satisfied in
Bangladesh, a state party.
Moreover, the Court may also apply the long-established effects doctrine
to exercise jurisdiction.170 Under that doctrine, a state can exercise jurisdic-
tion for a crime whose effects were felt in that state, even if the act does not
take place there.171 Because the effect of the rape and scarring of women
to prevent births is taking place in Bangladesh, a state party, the Court may
exercise its jurisdiction.
However, the cross-border aspect is not a necessary aspect of the crime
of genocide. Therefore, if the Pre-Trial Chamber jurisdiction decision means
that the element conducted abroad must be an element that can only be
satisfied abroad, the crime of genocide may not be brought under the juris-
diction of the Court even if some of its elements are satisfied abroad. If the
Court meant by the decision that the element satisfied in the territory of a
state party can be any element, the Court may be able to exercise jurisdic-
tion over the crime of genocide with the requisite nexus to a state party.
C. Possible Application to Crimes of Deportation Committed in Other

Situations
An ICC investigation into the Myanmar situation could also generally deter
governments of other countries, especially non-ICC states parties, from
conducting crimes with a cross-border component. Considering that many
international crimes nowadays would have an element that is satisfied
abroad, whether by definition or in fact, the ICC has taken a huge step
towards ending impunity.
One question the decision gives rise to is the applicability of this de-
cision in other crises around the world. In particular, the extent to which
the jurisdiction over non-states parties could expand is an important issue.
European countries, many of which are states parties, have received many
refugees. Many Syrian refugees fled to Jordan, a state party.
The Pre-Trial Chamber jurisdiction decision, on a quick reading, seems
to mean that the ICC has jurisdiction over all forced deportation cases in
which the victims landed in one of the ICC states parties. Nevertheless, as
explained below, such is not the case.
Non-states parties’ concerns towards factual adoption of universal ju-
risdiction through statutory interpretation is well-founded in theory. Under
170. S.S. Lotus (Fr. v. Turk.), P.C.I.J. (Ser. A) No. 10 ¶ 60 (7 Sept. 1927).
171. Id.
international law, states are only bound to that which they have consented.
Being brought under the Court’s jurisdiction without an agreement violates
this principle. Moreover, during the drafting process of the Rome Statute,
the framers explicitly rejected some countries’ proposals to grant universal
jurisdiction to the ICC.172
As a policy matter, however, the substance of their argument is regres-
sive in terms of human rights protection and global promotion of the rule of
law. Under the principle of complementarity, if states genuinely investigate
international crimes and prosecute them, the cases would not be admissible
under Article 17 of the Statute. Moreover, ICC prosecutions are limited to
situations with sufficient gravity.173 The states that are opposing an expansive
interpretation of the ICC’s jurisdictional clauses are, in short, arguing for
a right not to hold perpetrators of grave international crimes accountable.
Furthermore, rejecting this case and any other cases that may follow
would do grave injustice to the victims and the good conscience of the
international community for the sake of shielding criminals from factually
any criminal prosecution. In contrast, bringing the defendants under the
ICC jurisdiction does not seem to do substantial injustice to the defendants.
Defendants will be given an opportunity to argue against the underlying
factual findings174 and have their crimes proven beyond reasonable doubt
before being convicted. Moreover, at the time of the crime, they had been
put on actual or constructive notice that they would be, at least theoretically,
held accountable under domestic law for ordering or conducting illegitimate
killings and other acts of violence.
Nevertheless, as a matter of statutory interpretation of the existing Statute,
the travaux préparatoires suggest that a line must be drawn between cases
that could be prosecuted under a reasonable interpretation of the law and
cases with a relationship that is too attenuated with any state party to the
extent that the exercise of jurisdiction over them would, in fact, come too
close to the Court having universal jurisdiction.
In the author’s view, the application of the Pre-Trial Chamber jurisdiction
decision is limited to cases with a sufficiently strong connection between
the state party and the crime so that they satisfy the gravity requirement
under the Rome Statute vis-à-vis the state party.175 Technically speaking, an
element of the crime of deportation against one person is satisfied when
she reaches another state. The crime, therefore, is partly committed in the
172. Triffterer & Ambos, supra note 118, at 675-77.

173. Rome Statute, supra note 2, art. 17(1)(d).
174. The Pre-Trial Chamber did not make any factual findings as to whether the deportation
in question has actually occurred; it merely decides on the jurisdictional aspect. Pre-
Trial Chamber Jurisdiction Decision, supra note 1, ¶ 50.
175. Rome Statute, supra note 2, art. 17(1)(d) Issues of admissibility: Having regard to paragraph
10 of the Preamble and article 1, the Court shall determine that a case is inadmissible
where . . . [t]he case is not of sufficient gravity to justify further action by the Court.
destination state in the strict sense, and that state should be able to prosecute
that crime. Nevertheless, the Court, unlike domestic courts, exists for the
purpose of prosecuting grave crimes. The crime of deportation committed
against that specific person who fled to that state party does not satisfy the
gravity requirement for the Court to prosecute. It follows that a destination
state that could refer the situation to the ICC would be limited to countries
with a sufficient number of victims, thereby satisfying the gravity require-
ment. Admittedly, this limitation does not result in a clear, bright-line rule,
but the ambiguity is inherent in the gravity requirement under the Rome
Statute and is inevitable.
Another criterion that could be used to distinguish cases over which the
ICC may exercise jurisdiction under the current Statute and which they may
not is the mental state of the perpetrators. Generally, the requisite mental state
for the crime of deportation is intent and knowledge of all the elements176 of
the crime.177 In relation to conduct, intent means to engage in that conduct
that constitutes the crime.178 In relation to a consequence, intent exists when
a person “means to cause that consequence or is aware that it will occur
in the ordinary course of events.”179 Knowledge means “awareness that a
circumstance exists or a consequence will occur in the ordinary course of
events.”180 For the purpose of the crime of deportation, the perpetrator must
at least know that the deportation to that country would occur in the ordinary
course of events as a consequence of the intentional acts.
An example of conduct that would likely meet the mental state require-
ment is the former Soviet Union’s forcible deportation of ethnic minorities
across national borders.181 Although this crime cannot be prosecuted under
the Rome Statute because this happened long before the Statute came into
176. ICC, Elements of Crimes, supra, note 87, art. 7(1)(d), (Crime against humanity of deporta-
tion or forcible transfer of population):
Elements
1. The perpetrator deported or forcibly transferred, without grounds permitted under international
law, one or more persons to another State or location, by expulsion or other coercive acts.
2. Such person or persons were lawfully present in the area from which they were so deported
or transferred.
3. The perpetrator was aware of the factual circumstances that established the lawfulness of such
presence.
4. The conduct was committed as part of a widespread or systematic attack directed against a
civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a
widespread or systematic attack directed against a civilian population.
177. Rome Statute, supra note 2, art. 30(1).
178. Id. art. 30(2)(a).
179. Id. art. 30(2)(b).
180. Id. art. 30(3).
181. Campana Aurélie, The Soviet Massive Deportations: A Chronology, SciencesPo, (5 Nov.
2007), https://www.sciencespo.fr/mass-violence-war-massacre-resistance/fr/document/
soviet-massive-deportations-chronology.
effect, a situation with a similar fact pattern could be prosecuted if it hap-

pens in the future even if the deporting country is not a state party, as long
as the refugees’ destination is one.
On the other hand, if the fleeing happens as a consequence of domestic
persecution and it was unlikely that the persecuted population would be
able to leave the country, the conduct would not be prosecutable because
the responsible individuals lack the requisite intent or knowledge for the
crime of deportation. For example, the Nazi regime had forbidden Jewish
emigration since October 1941.182 If similar situations occur in the future,
the ICC would not be able to exercise jurisdiction over the persecuting
non-state party even if the target population flees to a state party because
of the lack of knowledge that deportation would happen in the ordinary
course of events.
This result might be unfair in some cases—in the abstract, the policy of a
government to exterminate a protected group without giving them a chance
to escape seems worse than a policy to expel them from the country. This is
the consequence of requiring a jurisdictional hook to prosecute cases. An
amendment of the Rome Statute to expand the Court’s jurisdictional reach
is necessary to achieve fairness among victims of international crimes com-
mitted in different contexts.
If the situation is somewhere in the middle of the two extremes of willful
deportation and absolute prohibition of leaving the country, the outcome
of the jurisdictional issue depends on whether the persecutors knew that
deportation would happen in the ordinary course of events among other
relevant factors. An example of such a situation is Eritrea, which is not an ICC
state party.183 Eritrea has forced mandatory national service upon its people
as well as “enslavement, imprisonment, enforced disappearances, torture,
other inhumane acts, persecution, rape and murder,”184 which resulted in a
total of 459,000 Eritrean refugees remaining abroad as of 2016.185 A large
number of refugees are in Germany, a state party.186 The Eritrean govern-
ment had been reportedly operating a shoot-to-kill policy on its borders to
182. German Jewish Refugees, 1933–1939, Holocaust Encyclopedia, https://encyclopedia.

ushmm.org/content/en/article/german-jewish-refugees-1933-1939.
183. ICC, The States Parties to the Rome Statute , https://asp.icc-cpi.int/en_menus/asp/states%20
parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.
184. Eritrea: UN Commission has Urged Referral to the International Criminal Court
(28 Oct. 2016), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.
aspx?NewsID=20779&LangID=E.
185. United Nations High Commissioner for Refugees (UNHCR), Global Trends: Forced Displacement
in 2016, at 19 (2016), https://www.unhcr.org/5943e8a34.pdf.
186. “The main host countries of Eritrean refugees were Ethiopia (164,600), Sudan (108,200),
Germany (49,300), Switzerland (30,900), Sweden (27,200), and Israel (22,000).” Global
Trends 2017, supra note 20, at 15. Ethiopia and Sudan are both non-states parties, but
Germany, Switzerland, and Sweden are. See supra note 183.
prevent fleeing.187 Whether the ICC may exercise jurisdiction over the case
is questionable because the Eritrean government has been unsuccessful in
fact at preventing the escape. The officials responsible for the crime probably
realized at some point in time that many of the victims had been fleeing
abroad. Hence, proving the officials’ intent and knowledge that the deporta-
tion was likely to happen in the ordinary course of events seems possible.
The mens rea analysis would be fact-specific, but if previous armed
conflicts have resulted in deportation (as was the case with the Rohingya
crisis) or if the persecution continues despite the continuous flow of refugees
abroad (also the case with the Rohingya crisis), it would be hard to argue
that the persecutors, especially the senior leaders who would be held ac-
countable at the ICC, did not know that deportation would likely happen
as a result of their conduct.
Vast potential implications exist on whether the Court can exercise its
jurisdiction over other situations currently happening around the world.
The Prosecutor seems keen to apply the new judicial precedent to other
situations; the Prosecution’s Request points out the significance of this case
of first impression “at a time when many States . . . are wrestling with the
. . . problems posed by enforced migrations across international borders.”188
For example, holding the Syrian leaders accountable for crimes under
the Rome Statute was impossible prior to the Pre-Trial Chamber jurisdiction
decision because Syria is not a party to the Statute,189 and Russia and China
vetoed the draft Security Council resolution to refer the case to the ICC.190
Nevertheless, Jordan, Syria’s neighbor, is a state party, and many Syrian refu-
gees fled there.191 Therefore, the Bangladesh/Myanmar decision gave hope
to refugees and international criminal lawyers, who called upon the ICC to
187. UN Rebukes Eritrea “Shoot to Kill” Policy, Al Jazeera (26 Oct. 2013) https://www.aljazeera.
com/news/2013/10/26/un-rebukes-eritrea-shoot-to-kill-policy.
188. Prosecution’s Request, supra note 65, ¶ 25.
189. The Guernica Center for International Justice, Briefing Note: Article 15 Communication
to the Prosecutor of the International Criminal Court in Relation to the Forced Deporta-
tion of Syrian Civilians to Jordan ¶ 1.7 (2019), http://opiniojuris.org/wp-content/uploads/
Microsoft-Word-190306-Syria-Briefing-Note-on-ICC-Filing.docx.pdf; Rome Statute, supra
note 2, 15(1), provides that “[t]he Prosecutor may initiate investigations proprio motu
on the basis of information on crimes within the jurisdiction of the Court.”
190. All other thirteen members of the Security Council voted in favor of the resolution. Owen
Bowcott, Syrian Refugees Launch Legal bid to try Assad for Crimes Against Humanity,
The Guardian (7 Mar. 2019, 8:00 AM), https://www.theguardian.com/law/2019/mar/07/
syrian-refugees-launch-legal-bid-to-try-assad-for-crimes-against-humanity. If the Syrian
government refers the case to the ICC, the Court will have jurisdiction over this situa-
tion. Rome Statute, supra note 2, art. 12(2)-(3). But given that the Syrian government is
the main perpetrator of the alleged crimes, the likelihood of it voluntarily subjecting its
leaders to international criminal liability is close to zero, unless a regime change occurs
in Syria.
191. Mark Kersten, Filling the Vacuum: Syria and the International Criminal Court, Justice in
Conflict (19 Mar. 2019), https://justiceinconflict.org/2019/03/19/filling-the-vacuum-syria-
and-the-international-criminal-court/.
exercise its jurisdiction over the alleged international crimes in Syria based
on Jordan’s membership in the ICC.192 The Prosecutor of the Court has not
made any decision as to whether she would start her preliminary examination
on the case. According to the Report on Preliminary Examination Activities
(2020), the Office of the Prosecutor is finalizing its response towards the
senders of communications with respect to Syria.193 But her earlier victory
in the Bangladesh/Myanmar case probably made it significantly easier for
her to pursue the Syria/Jordan case, or any other cases in which the crime
of deportation is committed by non-states parties.
The United States is concerned about the situation in Afghanistan under
the Prosecution and the Pre-Trial Chamber’s expansive approach towards
jurisdiction as displayed in the Myanmar case as well as the Palestine case.194
The Afghanistan situation concerns war crimes that the US forces and the
US Central Intelligence Agency possibly committed.195 Unlike the Myanmar
situation, Afghanistan is a state party.196 United States personnel are partly
immunized from extradition due to the so-called “Article 98 agreement”197
in which the US and Afghanistan agreed not to extradite US personnel to
the ICC,198 but such an agreement cannot prevent the ICC from prosecuting
the case. If arrest warrants are issued, the fugitives could be arrested in a
third country with which the US does not have an Article 98 agreement.
The Pre-Trial Chamber rejected the Prosecutor’s Request to open an inves-
tigation in April 2019, but the Prosecutor appealed that decision and the
Appeals Chamber reversed, authorizing the Prosecutor to commence an
investigation.199 Following the decision, the Trump Administration imposed
192. Id.
193. ICC, Office of the Prosecutor, Report on Preliminary Examination Activities (2020) ¶
35 [hereinafter Report on Preliminary Examination Activities 2020].
194. See generally, ICC-01/18-143, Pre-Trial Chamber I, Decision on the Prosecution Request
Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine,
(5 Feb. 2021); ICC Rules it has Jurisdiction Over Palestinian Territories, Clears way for
Probe of Israeli Actions, France 24 (5 Feb. 2021) https://www.france24.com/en/middle-
east/20210205-icc-rules-it-has-jurisdiction-over-palestinian-territories-clears-way-for-
probe-of-israeli-actions.
195. ICC, The Prosecutor of the International Criminal Court, Fatou Bensouda, Requests Judicial
Authorisation to Commence an Investigation Into the Situation in the Islamic Republic
of Afghanistan (20 Nov. 2017), https://www.icc-cpi.int/Pages/item.aspx?name=171120-
otp-stat-afgh.
196. Asia-Pacific States, https://asp.icc-cpi.int/en_menus/asp/states%20parties/asian%20states/
Pages/asian%20states.aspx.
197. Diplomatic Note No. 202, Embassy of the United States of America (Afghanistan) (26
Sept. 2002), https://guides.ll.georgetown.edu/ld.php?content_id=38317158.
198. Id.; International Criminal Court: Article 98 Agreements Research Guide, Georgetown
Law Library, https://guides.ll.georgetown.edu/c.php?g=363527&p=2456099.
199. ICC-02/17-138, Judgment on the Appeal Against the Decision on the Authorisation of
an Investigation into The Situation in the Islamic Republic of Afghanistan (5 Mar. 2020);
ICC-02/17, Situation in the Islamic Republic of Afghanistan (n.d.), https://www.icc-cpi.
int/afghanistan.
sanctions on ICC officers.200 Although the jurisdictional aspect of the Pre-

Trial Chamber jurisdiction decision in Myanmar does not directly influence
the outcome of this case, the expansive interpretation of jurisdiction should
be alarming in the eyes of the US government.
China has also expressed its concerns at the Assembly of States Parties
in 2018.201 It specifically referred to the Pre-Trial Chamber jurisdiction de-
cision and criticized it as being “untenable on legal grounds and [against]
the interest of the legitimacy and credibility of the ICC.”202 Some of China’s
ethnic minorities allege that their government committed grave human rights
abuses against them, which probably made the jurisdictional expansion a
particularly sensitive issue for it.203
Nevertheless, the ICC would not be a threat against sovereignty if the
sovereign in question exercises its power responsibly. It operates based on
the complementarity principle, thus excluding the possibility that the ICC
exercises jurisdiction over cases which the states concerned are willing and
able to investigate and prosecute. Only when a state cannot or does not want
to act may the ICC take action. Even for cases in which citizens of non-states
parties are brought under the Court’s jurisdiction for crimes predominantly
committed in non-states parties because of the alleged crime’s cross-border
nature, the acts prohibited under the Rome Statute are either jus cogens or
customary international law violations or both, and no state can legitimately
or morally claim that they have the right not to punish them. To criticize the
ICC as being a threat to sovereignty is similar to arguing for freedom not to
punish acts that are clearly a violation of international law and likely also
a violation of domestic law.204
200. Michael R. Pompeo, Actions to Protect U.S. Personnel from Illegitimate Investigation by
the International Criminal Court, U.S. Dept of State (2 Oct. 2020), https://2017-2021.state.
gov/actions-to-protect-u-s-personnel-from-illegitimate-investigation-by-the-international-
criminal-court/index.html.
201. Statement by the Chinese Observer Delegation at 17th Session of the Assembly of States
Parties to the Rome Statute of the International Criminal Court, General Debate 2-3 (6
Dec. 2018).
202. Id. at 3.
203. A communication to the Office of the Prosecutor alleged that Chinese officials committed
Rome Statute crimes against the Uyghur, one of its ethnic minorities. The communication
was based on the jurisdiction decision of the Myanmar case. The Prosecutor determined
that there was no basis to assert jurisdiction over the case at this point, and a request
for reconsideration was still pending at the time of the Report. Report on Preliminary
Examination Activities 2020, supra note 193, ¶¶ 70-76.
204. A narrower criticism is that the ICC could interfere with a country’s right to decide what
constitutes genuine investigation and prosecution. This criticism is valid, considering
that the ability of the judicial and executive branches greatly differs from one country
to another, and the standards of professional conduct may also differ from country to
country.
IV. CONCLUSION
The Pre-Trial Chambers’ interpretation of the Court’s jurisdiction was support-

ed by an expansive yet reasonable reading of the Rome Statute’s jurisdictional
clauses. Such an interpretation is also amenable to the purpose of the ICC,
namely to “put an end to impunity” and “to contribute to the prevention”
of international crimes.”205 Even though trying the alleged perpetrators at the
ICC seems extremely difficult, if not impossible, at this moment, the value
of the expansive reading of the decision extends to future cases, some of
which may be actually prosecutable.
Under the Pre-Trial Chamber jurisdiction decision, more international
crimes would fall under the Court’s jurisdiction. However, the Rome Statute’s
current provisions on jurisdiction are still too narrow to put an end to im-
punity for the perpetrators of the most serious international crimes. Finding
a jurisdictional hook to prosecute some crimes under certain circumstances
is a partial solution at best. But at least for the foreseeable future, achiev-
ing international consensus to grant the ICC universal jurisdiction seems
unrealistic. The Prosecutor is left to prosecute cases for which they find
jurisdictional basis under the Rome Statute as it is, in order to slowly ap-
proach a world where no international crimes would remain unpunished.
To truly end impunity, an amendment to the Rome Statute’s jurisdictional
clauses to grant the Court universal jurisdiction is necessary.
205. Rome Statute, supra note 2, Preamble. Since 1945, only 823 persons were indicted for
violations of international humanitarian law at regional or international courts. Mark S.
Ellis, Sovereignty and Justice 1 (2014).

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The Scope and Implications of the International Criminal

Court's Jurisdictional Decision over the Rohingya Crisis

Published by Johns Hopkins University Press

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The Scope and Implications of

In September 2018, Pre-Trial Chamber I of the International Criminal Court

II. THE ROHINGYA IN MYANMAR AND THE CURRENT CRISIS

A. The Rohingya as an Ethnic and Religious Group

The Rohingya is an ethnic minority group5 that originates in the Arakan

B. Longstanding Discrimination of the Rohingya in Myanmar

the Rohingya by refusing to issue proof of identity to Rohingya residents,

C. The Latest Crisis

of killings by the ARSA up to that time.31 In response, the Myanmar military

never to be seen again.43 Many Rohingya villages were completely burned

D. International Investigative Efforts and Ongoing Proceedings

The UN Human Rights Council established an Independent International

43. Id. ¶¶ 952-58.

The IIFFMM’s mandate ended in September 2019, and the evidence

52. Human Rights Council, Independent International Fact-Finding Mission on Myanmar,

1. The ICC’s Examination of the Crisis and Myanmar’s Response

2. The ICC’s Jurisdiction Over the Rohingya Crisis

67. Id. ¶ 35.

requested a ruling only for the crime of deportation,78 which is a subcategory

78. Prosecution’s Request, supra note 65, ¶ 1.

Article 7(1)(d) of the Rome Statute defines crimes against humanity to

It states that if Myanmar refuses to allow the Rohingya to return to their

E. Jurisdiction Over Other Article 7 Crimes

The Pre-Trial Chamber jurisdiction decision suggested that “[i]f it were

104. Id. ¶ 77-78; Rome Statute, supra note 2, art. 7(1)(k).

Court’s jurisdiction … in accordance with the present decision” to other

112. Id. ¶ 79.

The ICOE recommended that the Judge Advocate General conduct

135. Executive Summary Final Report, supra note 132, Recommendation 1.

The current situation, however, is not entirely hopeless. Some Rohingya

III. IMPLICATIONS OF THE PRE-TRIAL CHAMBER JURISDICTION

A. Possible Impact on the Situation in Myanmar

Considering that persecutions against the Rohingya have repeated themselves

B. Possible Application to the Crime of Genocide

157. Rome Statute, supra note 2, art. 86,

ing births are continuously being imposed in Bangladesh so long as the

C. Possible Application to Crimes of Deportation Committed in Other

172. Triffterer & Ambos, supra note 118, at 675-77.

effect, a situation with a similar fact pattern could be prosecuted if it hap-

182. German Jewish Refugees, 1933–1939, Holocaust Encyclopedia, https://encyclopedia.

sanctions on ICC officers.200 Although the jurisdictional aspect of the Pre-

The Pre-Trial Chambers’ interpretation of the Court’s jurisdiction was support-

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III. IMPLICATIONS OF THE PRE-TRIAL CHAMBER JURISDICTION

C. Possible Application to Crimes of Deportation Committed in Other