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Decision on the “Prosecution's Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute” (Int'l Crim. Ct.)

Published online by Cambridge University Press:  07 March 2019

Sarah Freuden
Sarah Freuden*
Affiliation:
Attorney Adviser, U.S. Department of State. The views expressed herein are the author's own and are not necessarily those of the U.S. Government.
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Extract

On September 6, 2018, Pre-Trial Chamber I of the International Criminal Court (Court) issued its “Decision on the ‘Prosecution's Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute.’” The decision is notable both for the procedural posture—the Prosecution submitted its request prior to opening a preliminary examination—and the majority's conclusion that the Court may exercise territorial jurisdiction over alleged deportation from Myanmar, a nonstate party to the Rome Statute of the International Criminal Court (Rome Statute or Statute), to a state party, Bangladesh.

Type
International Legal Documents
Information
International Legal Materials , Volume 58 , Issue 1 , February 2019 , pp. 120 - 159
Copyright
Copyright © 2019 by The American Society of International Law 

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References

ENDNOTES

1 Rep. of the Independent International Fact-Finding Mission on Myanmar, UN Doc. A/HRC/39/64, at 8 (Sept. 12, 2018).

2 Human Rights Council Res., UN Doc. A/HRC/39/L.22 (Sept. 25, 2018), available at http://undocs.org/A/HRC/39/L.22 (taking note of the Court's decision here).

3 Rome Statute of the International Criminal Court art. 19(3), July 17, 1998, 37 ILM 1002 (1998); 2187 UNTS 90 [hereinafter Rome Statute]. Pursuant to Regulation 46(3), if there is no situation assigned to a Pre-Trial Chamber, then the request is directed by the president of the Pre-Trial Division to a Pre-Trial Chamber according to a roster established by the president.

4 Prosecution's Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute, ICC-RoC46(3), ¶ 2 (Apr. 9, 2018) [hereinafter Request].

5 Id. ¶ 7. These sources included, inter alia, the work of several UN bodies and the independent fact-finding mission on Myanmar established by the UN Human Rights Council, as well as human rights organizations such as Human Rights Watch, Amnesty International, and the International Refugee Commission. Id. ¶¶ 7, 9–10.

6 Id. ¶ 1.

7 See Rome Statute, supra note 3, art. 15; ICC Office of the Prosecutor, Policy Paper on Preliminary Examinations (Nov. 2013), https://www.icc-cpi.int/iccdocs/otp/OTP-Policy_Paper_Preliminary_Examinations_2013-ENG.pdf.

8 See Rome Statute, supra note 3, art. 15(3)–(4); Decision on the “Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute,” ICC-RoC46(3)-01/1-Anx-ENG, Partially Dissenting Opinion of Judge Marc Perrin de Brichambaut, ¶ 1 (Sept. 6, 2018) [hereinafter Dissent] (noting that the Prosecution's request “comes at a highly unusual juncture before even a preliminary examination of a situation has been initiated by the Prosecutor”).

9 Rome Statute, supra note 3, art. 12(2)(a).

10 If an alleged crime occurs on the territory of a state that is not party to the Rome Statute, then the Court typically may not exercise jurisdiction in the absence of that state's consent, unless the acts in question were committed by a national of a state party to the Rome Statute, or the case was referred to the Court by the UN Security Council. Rome Statute arts. 12(2)–(3), 13(b).

11 Request, supra note 4, ¶¶ 13–50. The Prosecutor also contemplates that deportation would occur without entry into another territory if the individual were deported to the high seas. See id. ¶ 16 n.32.

12 Decision on the “Prosecution's Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute,” ICC-RoC46(3)-01/1-Anx-ENG, ¶¶ 3, 6 (Sept. 6, 2018) [hereinafter Decision].

13 See id. ¶¶ 11, 13, 16, 28 n.6, 34–35; see also Government of the Republic of the Union of Myanmar, Ministry of the Office of State Counsellor, Press Release (Aug. 9, 2018), http://www.statecounsellor.gov.mm/en/node/2084; Government of the Republic of the Union of Myanmar, Ministry of the Office of State Counsellor, Press Release (Apr. 13, 2018), http://www.statecounsellor.gov.mm/en/node/1884. The Pre-Trial Chamber also permitted responses from victims as well as several human rights organizations and other nongovernmental actors. See Decision, supra note 12, ¶¶ 8–9.

14 Id. ¶¶ 26–27 and n.34.

15 Id. ¶ 28.

16 Id. ¶¶ 30–32. The majority reasoned that the Court had the ability to apply the international law principle of la competence de la competence under Article 21(1)(b) of the Rome Statute. Id. ¶ 29.

17 Id. ¶ 33.

18 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331; see also Decision, supra note 12.

19 Decision, supra note 12, ¶¶ 37–48.

20 Id. ¶¶ 52–61, 71. It did so, however, without addressing the Prosecutor's assertion that it is possible to be deported without entering the territory of another state, which is not necessarily settled law. See, e.g., Kevin Jon Heller, Three Cautionary Thoughts on the OTP's Rohingya Request, OpinioJuris (Apr. 9, 2018), http://opiniojuris.org/2018/04/09/some-thoughts-on-the-otps-rohyingya-request/; Michael G. Karnavas, Revisiting the ICC's Ruling on the OTP's Rohingya Request over Jurisdiction: A More Critical Look. Part 1 – The Majority's Decision, michaelgkarnavas.net/Blog (Oct. 10. 2018), http://michaelgkarnavas.net/blog/2018/10/09/icc-rohingya-ruling-pt1/#more-3355.

21 Id. ¶¶ 64–72.

22 Id. ¶ 66 & n.107–10; see also Restatement (Fourth) of Foreign Relations Law: Jurisdiction §212 TD No 2 (2016).

23 See Decision, supra note 12, ¶¶ 74–79; see also Kevin Jon Heller, The ICC Has Jurisdiction over One Form of Genocide in the Rohingya Situation, OpinioJuris (Sept. 7, 2018), http://opiniojuris.org/2018/09/07/33644/ (highlighting that the Pre-Trial Chamber “notably did not limit the Court's territorial jurisdiction to crimes whose essential elements necessarily take place in two states”).

24 Specifically, Judge Brichambaut analyzed Article 19(3) in the context of Article 19 as a whole as well as Rule 58(2) of the Rules of Procedure and Evidence, concluding that the provision cannot be invoked prior to the existence of a “case,” and cautioned that permitting the Prosecutor to invoke Article 19(3) could lead to a proliferation of abstract or hypothetical requests and/or circumvention of established procedures and appropriate methods of conduct. Dissent, supra note 8, ¶¶ 2, 7, 10–12.

25 Id. ¶ 16.

26 Id. ¶¶ 19–23.

27 See id. ¶¶ 40–41; Decision, supra note 12, ¶¶ 84–86.

28 Myanmar continues to reject the Court's jurisdiction. See, e.g., Myanmar Says International Criminal Court Has No Jurisdiction in Rohingya Crisis, Reuters (Sept. 7, 2018), https://www.reuters.com/article/us-myanmar-rohingya-icc/myanmar-says-international-criminal-court-has-no-jurisdiction-in-rohingya-crisis-idUSKCN1LN22X.

29 See Michelle Nichols, U.N. Security Council Mulls Myanmar Action; Russia, China Boycott Talks, Reuters (Dec. 17, 2018), https://www.reuters.com/article/us-myanmar-rohingya-un/u-n-security-council-mulls-myanmar-action-russia-china-boycott-talks-idUSKBN1OG2CJ.

30 E.g., Douglas Guilfoyle, The ICC Pre-Trial Chamber Decision on Jurisdiction over the Situation in Myanmar, Austl. J. Int'l Aff., 5 (Oct. 29, 2018), https://www.tandfonline.com/doi/pdf/10.1080/10357718.2018.1538316?needAccess=true.