Australian Journal of International Affairs

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Extending the ‘system’ of international criminal

law? The ICC's decision on jurisdiction over alleged
deportations of Rohingya people

Kip Hale & Melinda Rankin

To cite this article: Kip Hale & Melinda Rankin (2019) Extending the ‘system’ of international
criminal law? The ICC's decision on jurisdiction over alleged deportations of Rohingya people,
Australian Journal of International Affairs, 73:1, 22-28, DOI: 10.1080/10357718.2018.1548565

To link to this article: https://doi.org/10.1080/10357718.2018.1548565

Published online: 26 Nov 2018.

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AUSTRALIAN JOURNAL OF INTERNATIONAL AFFAIRS
2019, VOL. 73, NO. 1, 22–28
https://doi.org/10.1080/10357718.2018.1548565

COMMENTARY AND PROVOCATION

Extending the ‘system’ of international criminal law? The ICC’s

decision on jurisdiction over alleged deportations of Rohingya
people
Kip Halea and Melinda Rankin b

a
Legal Advisor, Atrocity Crimes Investigations; bSchool of Political Science and International Studies,
University of Queensland, St Lucia, Australia

KEYWORDS International Criminal Court; Myanmar; international criminal law; Rohingya people; Rome Statute; universal
jurisdiction; legal analytical theory; Australian Foreign Policy

Introduction
Despite its short life of 16 years, the International Criminal Court (‘ICC’ or ‘Court’) is no
stranger to controversy. Indeed, contestation started before the ICC began operations.
Throughout the drafting the Rome Statue, the ICC’s founding treaty, states such as
Germany argued vehemently for the ICC to be granted universal jurisdiction, while the
permanent five members of the United Nations Security Council (‘UNSC’ or ‘Council’)
remained reticent to relinquish full jurisdiction over the core international crimes (Eikel
2018), including war crimes, crimes against humanity, and genocide (collectively ‘atrocity
crimes’). Even after the Rome Statute was passed and the ICC was founded, albeit without
universal jurisdiction, it remained embattled. Not only was it criticised for its ineptness at
the early stages of its establishment, the Court continued to be condemned for its lack of
involvement in global hotspots outside its jurisdiction. For instance, despite being
described as the worst humanitarian disaster since the Second World War (Al Hussein
2017), the ICC does not have jurisdiction over alleged atrocity crimes in Syria –
namely, because Syria is not a State Party to the Rome Statute, but also because Russia
and China as permanent members of the UNSC have blocked attempts to refer it to the
ICC.
Adding to its actual and perceived troubles, the majority of ICC cases concern individ-
uals from African states. This is unsurprising considering that: most African countries are
State Parties to the Rome Statute; the prevalence of armed conflicts on the continent; and
ICC investigations of alleged criminality are at the request of the relevant States. Never-
theless, this Africa-heavy docket has led some observers to claim the ICC serves more
as an ‘African criminal court’.
Furthermore, given that the United States and Israel have not ratified the Rome Statute,
the ICC is criticised for being unable to hold powerful western States accountable. This
includes alleged atrocity crimes committed by US personnel in Iraq and Afghanistan,
and Israeli soldiers’ actions in Palestine.

CONTACT Melinda Rankin melinda.rankin@uq.edu.au

© 2018 Australian Institute of International Affairs
 AUSTRALIAN JOURNAL OF INTERNATIONAL AFFAIRS 23

All of this has begged the question: what is the point of a permanent international crim-
inal tribunal if it is not truly universal?
Against this backdrop of jurisdictional contestation, the ICC’s recent decision on jur-
isdiction over alleged deportations of Rohingya people from Myanmar to Bangladesh
re-establishes the ICC’s importance. Not only did the request made by Fatou Bensouda,
the ICC Prosecutor, to the Pre-Trial Chamber show a willingness to test and reaffirm
her jurisdictional reach, it was also a constructive way to extend the ‘system’ of inter-
national criminal law (Rankin 2017; Rankin 2018a; Hart 2014), and in doing so, appropri-
ately challenge the relationship between state power and the law in the international order
(Rankin 2017).
The arguments outlined below are two-fold. First, the ICC should continue to extend
the system of international criminal law in relation to ‘recognising’ and locating its juris-
dictional reach, including over alleged deportations of Rohingya people from Myanmar to
Bangladesh. Despite the ICC’s acknowledged shortcomings, the recent decision demon-
strated a willingness to use the law as a ‘standard’ and thus ‘fill the gap’ with respect to
de facto impunity (Rankin 2017, 2018a; Hart 2014; Basiouni 1997). Second, while the
ICC remains an important addition to the system of international criminal law, it is
not, in and of itself, the ‘system’. Rather, extending the system of international criminal
law requires a multiplicity of interstate, state, and non-state actors willing to use the
law and to view international criminal law as a ‘standard’ (Rankin 2017, 2018a; Hart 2014).

The ICC’s decision was controversial, but necessary

In keeping with its short history, the recent ICC decision was controversial. On 6 Septem-
ber 2018, the Pre-Trial Chamber of the ICC, decided by 2–1 majority,1 that the Court may
exercise jurisdiction over alleged deportations of Rohingya people from Myanmar to Ban-
gladesh. Although Myanmar is not a State Party to the Rome Statute, the ICC Pre-Trial
Chamber recognised that the cross-border nature of the crime against humanity of depor-
tation included the territory of Bangladesh, a State Party. Specifically, the Chamber
confirmed that the ‘element of the crime of deportation is forced displacement across
international borders, which means that the conduct related to this crime necessarily
takes place on the territories of at least two States’ (ICC 2018, 42–43). The Pre-Trial
Chamber also made clear that the ICC had jurisdiction over other crimes against human-
ity under the Rome Statute and customary international law other than deportation, such
as the crime against humanity of persecution (ICC 2018, 35, 42-44).2 It also determined
that any such preliminary investigation initiated by the Prosecutor should be concluded
in a reasonable time, irrespective of the complexity of the assessment (ICC 2018, 46).
Three important observations can be made in response to the decision by the Pre-Trial
Chamber.
First, this request made by the Prosecutor to the Pre-Trial Chamber was an important
testing of the waters, so to speak, in terms of establishing not only her juridical reach, but
her legal obligation or ‘responsibility to prosecute’ (Rankin 2017). In this respect, the Pre-
Trial Chamber appreciated that the attempt by the Prosecutor to extend the jurisdiction of
the Court was contentious. Article 19 (3) under ‘Challenges to the jurisdiction of the Court
or the admissibility of a case’ of the Rome Statute states that the ‘Prosecutor may seek a
ruling from the Court regarding a question of jurisdiction or admissibility’ (ICC 1999).
24 K. HALE AND M. RANKIN

In this respect, Pre-Trial Chamber (ICC 2018, 10–11) acknowledged that the ‘position
advanced’ by the Prosecutor was:
quite controversial based on the different readings of the Court’s statutory documents and
the literature interpreting this provision. The Chamber recalls that the core question
raised by the Prosecutor is a question of jurisdiction, i.e. “whether the Court may exercise
jurisdiction under article 12(2)(a) over the alleged deportation of the Rohingya people
from Myanmar to Bangladesh.”

Second, and following from the above, the Pre-Trial Chamber’s decision to confirm juris-
diction was similarly contentious and demonstrated a view that the law is a ‘standard’
(Rankin 2017; Hart 2014), as opposed to the traditional vertical concept of law where it
is enforced in a hierarchical manner through the use of coercion or force (Hobbes 2008;
Bentham 1970; Austin 1954). In other words, it demonstrated the Pre-Trial Chamber’s
commitment to the law – irrespective of any potential geopolitical impact – in relation to
discerning the Court’s jurisdiction. While the Pre-Trial Chamber (ICC 2018, 12) recognised
that ‘jurisdiction of the Court is clearly subject to dispute with Myanmar’ (ICC 2018, 11), it
also asserted its uncontroversial right and obligation under international law to determine
its own jurisdiction (under la compétence de la competence or Kompetenz-Kompetenz).
In this regard, the Pre-Trial Chamber’s decision was another sign that the Court is fully
adherent to the dictates of the Rome Statute when examining its judicial reach and carry-
ing out its respective obligations created therein. In doing so, it also signalled that
Myanmar leaders were not fully immune to core international crimes. In fact, the Pre-
Trial Chamber (ICC 2018, 26) maintained that Myanmar was not exempt from the
non-derogable legal obligations placed on all states, as well as individuals, to prevent
and punish atrocity crimes that has formed, in part, from treaties and ‘well established
judicial interpretations’ from tribunals such as the World War Two trials and the
ICTY. These universal obligations included, among other things, the prohibition against
deportation as a crime against humanity (ICC 2018, 32–33).
Third, the Prosecutor’s attempt to test the jurisdictional waters showed both her unwa-
vering commitment to carry out her mandate wherever legally justified and irrespective of
politics, and as a consequence, implicated other instances where atrocity crimes have spilt
over international borders. Specifically, the Myanmar examination in combination with
similar inquiries by the Office of the Prosecutor (‘OTP’ or ‘Office’) in Afghanistan,
Georgia, and Palestine is compelling evidence that the Prosecutor’s attention has always
been global, not African. In this respect, the OTP’s request and Pre-Trial Chamber’s
decision has repercussions in other conflicts around the world, such as the influx of
Syrian refugees in Jordan, a State Party to the Rome Statute.

The strategic value of the prosecutors’ request

Strategically, the request made by Bensouda was a prudent move. Had the Prosecutor
ignored or otherwise avoided an avenue to pursue a measure of justice in a conflict of
this import, the criticism of her inaction would have been more damaging and
(perhaps) more justified, to say nothing of her ethical duty as a lawyer. This point is
even more pertinent when considering that the OTP receives near-constant criticism
for not getting involved in conflicts where its jurisdictional options are non-existent or
 AUSTRALIAN JOURNAL OF INTERNATIONAL AFFAIRS 25

extremely limited like Syria, Yemen, Iraq, North Korea, and Sri Lanka. For better or for
worse, the ICC will often have to face the proverbial ‘damned if you do, damned if you
don’t’ predicament, and Myanmar is proving itself no exception. So, it comes as no sur-
prise that the Prosecutor’s move has been criticised as strategically unwise given that it
pits the Court against another uncooperative state, unreasonably raises victims’ expec-
tations, and gives international bodies like the UNSC a political out from getting more
involved in preventing and addressing atrocity crimes in yet another barbarous conflict.
While the Prosecutor’s request and subsequent Pre-Trial Chamber’s decision does pose
unique challenges and does not provide an adequate forum to address all the criminality
that has occurred and continues to occur in Myanmar, much of the criticism levied against
the Court here is unwarranted. There is significant evidence that Myanmar’s leadership
orchestrated and oversaw atrocity crimes, which demands international action under
the Rome Statute (where applicable) and customary international law. In fact, the ICC
appears to have access to countless affected refugees now based in Bangladesh, as per
the amici curiae submission from ‘Global Rights Compliance’ (see below). At the very
least, the OTP will have potential access to this wealth of information and should be
entrusted to explore this evidentiary opportunity.
In terms of investigative and prosecutorial difficulty, the move to get involved in
Myanmar is not unwise either. By way of background, it is critical to emphasise that all
atrocity crime investigations are often constrained by domestic and international politics,
even in the best of circumstances. A main reason for this difficulty is that governmental
leaders alleged to have participated in atrocity crimes either feign cooperation at best or
stonewall at worst. Rare is the case that an international criminal tribunal can score a pro-
verbial ‘easy win’. Thus, to argue for ICC non-involvement in Myanmar because of the
state’s anticipated non-cooperation with the Court is rather unpersuasive. While
Myanmar will undoubtedly challenge the authority of the ICC, it will not stand out as a
particularly unique situation in the Court’s short history or that of international criminal
justice writ large.

Who should be involved in international criminal law?

There are other ramifications of this ICC decision that may not be theoretically ground-
breaking, but rather offer tangible examples of the multifaceted nature of the ICC, the
broader international criminal justice movement, and the engines behind this dynamic
and evolving field.
The ICC’s decision on Myanmar exemplified how traditional governmental or intergo-
vernmental actors are not the sole proprietor of the Court’s jurisdiction and its role in the
world. In this regard, it can be said that while the ICC and the UNSC are vital international
organisations that play a key role in the ‘system’ of international criminal law, they do not,
in themselves, constitute the ‘system’. In other words, while the ICC is an important
achievement and essential player, it should not be the only actor to adhere to a ‘standard’
of international criminal law or pursue accountability.
In this respect, it could be argued that it takes a multiplicity of actors to extend the
‘system’ of international criminal law. For example, in forming their decision, the Pre-
Trial Chamber (ICC 2018, 4, 7, 9) invited the Bangladesh and Myanmar authorities to
submit observations by request of the Prosecutor, which were received by the Chamber,
26 K. HALE AND M. RANKIN

(although Myanmar declined ‘to engage with the ICC by way of a formal reply’). Yet, more
to the point, the Pre-Trial Chamber (ICC 2018, 4) granted a number of non-state actors to
submit amici curiae observations, also at the request of the Prosecutor, including Guernica
37 International Justice Chamber, International Commission of Jurists, Sara Hossain and
the European Center for Constitutional and Human Rights (jointly), Canadian Partner-
ship for International Justice, and the Women’s Initiatives for Gender Justice. With
respect to the allegations of deportation against the government of Myanmar, the Pre-
Trial Chamber (ICC 2018, 4) also received a submission by ‘Global Rights Compliance’
filed on behalf of four hundred Rohingya women and children who were alleged
victims of the crime against humanity of deportation, amongst other crimes. As such,
the Prosecutor and Pre-Trial Chamber, in extending the judicial reach of the Court,
relied upon a multiplicity of state and non-state actors who are ‘willing to use the law’
as a ‘standard’ and to ‘fill the gap’ on impunity.
Furthermore, the ICC was designed to be a court of last resort. In this respect, states can
play an important role in the accountability process of core international crimes. For
example, Germany has enshrined the principle of universal jurisdiction into its consti-
tution (‘Basic Law for the Federal Republic of Germany, Grundgesetz für die Bundesrepu-
blik Deutschland) and Code of Criminal Procedure (Strafprozessordnung, StPO), which
legally permits the German Federal Public Prosecutor General’s Office to investigate atro-
city crimes irrespective of where the crime has occurred or committed by a foreign
national.3 The Pre-Trial Chamber’s decision does not, and should not, prevent other
states with requisite universal jurisdiction to investigate core international crimes, and/
or to share evidence with the ICC.
Like Germany, countries such as Australia should amend domestic laws to enable the
investigation and prosecution of those senior leaders suspected of atrocity crimes. In other
words, Australian should adopt policies and laws that view and apply international crim-
inal law as a ‘standard’ whereby the appropriate judicial authority have the ‘responsibility
to investigate and prosecute’; and whereby the pursuit of core international crimes is not
stymied by political immunity (Rankin 2017, 2018b). A recent example of this issue per-
tains, in fact, to the Myanmar conflict. In March 2018, five lawyers filed a private appli-
cation in Australia (the Melbourne magistrate court) against Aung San Suu Kyi seeking
her prosecution for crimes against humanity. Aung San Suu Kyi had, at that time,
arrived in Australia in her capacity as Foreign Minister and de facto leader of
Myanmar. Christian Porter, the Australian attorney general, granted her immunity
(Doherty 2018), which effectively served to block any further judicial action within Aus-
tralia. Although Australia’s defence and foreign policy supports atrocity accountability
measures and is based upon a ‘rules based global order’ (Australian Defence White
Paper 2016; Bishop 2015), as well as a State Party to the Rome Statute, there is a
glaring gap in Australia’s accountability practice. Like the ICC and Germany, Australia
must consider applying international criminal law as a ‘standard’ to which no one is
immune.

Final remarks
As discussed above, there are many reasons why the ICC’s decision on jurisdiction over
alleged deportations of Rohingya people was and is encouraging. However, most
 AUSTRALIAN JOURNAL OF INTERNATIONAL AFFAIRS 27

important was its normative value – namely that it demonstrated a willingness to adhere to
the law over politics and apply international criminal law as a ‘standard’. Although this
body of law and the ICC as an institution are both fledging in nature, the ICC’s decision
was a justified and promising extension of the ‘system’ of international criminal law.
Nonetheless, the ICC should not be considered the ‘system’, nor the only institution, to
ensure accountability for those most responsible for humanity’s worst crimes. While con-
tinuing to rely on a multiplicity of state, non-state, and interstate actors to help shape the
international criminal justice movement, it behoves sovereigns like Australia to play a
greater role in holding senior leaders accountable for their participation in atrocity crimes.

Notes
1. It should be noted that one Pre-Trial Chamber Judge, Perrin de Brichambaut, filed a partially
dissenting opinion based, in large part, on the Prosecutor’s submission not being procedu-
rally appropriate. While Judge de Brichambaut’s opinion on the technically correct pro-
cedural path is very persuasive, it was appropriate for the Pre-Trial Chamber to decide on
merits of the Prosecutor’s request nonetheless.
2. It should be noted that the Prosecutor did not request for jurisdiction over these additional
crimes against humanity, and so this expansive interpretation of what crimes were within the
jurisdiction of the ICC was forged by the Pre-Trial Chamber.
3. For instance, in June 2018, Germany’s judiciary issued an arrest warrant for Jamil Hassan, the
Syrian Director of Air Force Intelligence, for alleged crimes against humanity following
ongoing monitoring and an investigation that commenced in the early stages of the Arab
Spring in 2011. See, Jorg Diehl, Christoph Reuter, and Fidelius Schmid (2018) ‘Germany
takes aim at Assad’s torture boss.’ Der Spiegel, 8 June. http://www.spiegel.de/international/
world/senior-assad-aid-charged-with-war-crimes-a-1211923.html

Acknowledgements
The authors would like to thank Kevin Walton and Fred Zaumseil, for their discussions and debates
while writing this article.

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

Notes on contributors
Kip Hale currently serves as a legal advisor overseeing various atrocity crimes investigations. Pre-
viously, Kip was director of the American Bar Association’s International Criminal Court Project,
and senior counsel at the American Bar Association Center for Human Rights in Washington, D.C.
Prior to that, he was a prosecuting attorney at Extraordinary Chambers in the Courts of Cambodia
(Khmer Rouge Tribunal), and advised judges and defense work at the International Criminal Tri-
bunal for the former Yugoslavia (ICTY). He is currently a term member of the Council on Foreign
Relations.
Melinda Rankin is postdoctoral research fellow in the School of Political Sciences and International
Studies at the University of Queensland, Australia. Earlier this year, she was Visiting Research
Fellow at the Center for Global Constitutionalism at WZB Social Sciences Center Berlin
(@WZB_GlobCon). She is the author of The Political Life of Mary Kaldor: Ideas and Action in
28 K. HALE AND M. RANKIN

International Relations (Lynne Rienner, 2017). Melinda is also an Associate at Sydney Democracy
Network and lecturer at The University of Sydney.

ORCID
Melinda Rankin http://orcid.org/0000-0002-3323-8969

References
Al Hussein, Zeid Ra’ad. 2017. “Syria Worst Man-Made Disaster Since World War II.” High-Level
Panel Discussion at the Human Rights Council on the Situation of Human Rights in the Syrian
Arab Republic, March 14. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?
NewsID = 21373&LangID = E.
Austin, John. 1954. The Province of Jurisprudence Determined, edited by H. L. A. Hart. New York:
The Noonday Press. First published in 1892.
Basiouni, M. Cherif. 1997. “Organised Crime and New Wars.” In New Wars: Restructuring the
Global Military Sector, edited by Mary Kaldor, and Basker Vashee, 48–49. London and
Washington: Pinter.
Bentham, Jeremy. 1970. Of Laws in General, edited by H. L. A. Hart. London: The Athlone Press.
Substantially completed in 1782.
Bishop, Julie. 2015. “Address to Launch of Australia’s UNHRC Candidacy 2018–20.” Speech at
Department of Foreign Affairs and Trade, Canberra, October 19. http://foreignminister.gov.
au/speeches/Pages/2015/jb_sp_151019.aspx?w = tb1CaGpkPX%2FlS0K%2Bg9ZKEg%3D%3D.
Department of Defence. 2016. 2016 Australian Defence White Paper. Canberra: Commonwealth of
Australia.
Doherty, Ben. 2018. “Aung San Suu Kyi Cannot be Prosecuted in Australia, Christian Porter Says.”
The Guardian, March 17. https://www.theguardian.com/world/2018/mar/17/aung-san-suu-kyi-
cannot-be-prosecuted-in-australia-christian-porter-says accessed 10 October 2018.
Eikel, Markus. 2018. “‘Germany’s Global Responsibility’ and the Creation of the International
Court, 1993–1998.” Journal of International Criminal Justice 16 (3): 1–28.
Hart, H. L. A. 2014. The Concept of Law. 4th ed. Oxford: Oxford University.
Hobbes, Thomas. 2008. Leviathan. Oxford: Oxford University Press. First published in 1651.
ICC (International Criminal Court). 1999. “Rome Statute of the International Criminal Court.”
Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected
by process-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17
January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002.
ICC (International Criminal Court). 2018. “Decision on the ‘Prosecution’s Request for a Ruling on
Jurisdiction under Article 19(3) of the Statute’.” ICC-RoC46(3)-01/18-37, Pre-Trial Chamber,
Decision. 6 September.
Rankin, Melinda. 2017. “Investigating Crimes Against Humanity in Syria and Iraq: The Commission
for International Justice and Accountability.” Global Responsibility to Protect 9 (4): 395–421.
Rankin, Melinda. 2018a. “The Future of International Criminal Evidence in New Wars: The
Commission for International Justice and Accountability (CIJA).” Journal of Genocide Research.
Rankin, Melinda. 2018b. “‘Australia’s Responsibility to Prosecute? Bridging the International
Criminal Law Gap in Syria and Iraq’.” Australian Journal of International Affairs 72 (4): 322–
328.