ICC PTC issues advisory opinion (yes, yes) on ICC jurisdiction over Rohingya deportation

Today, 6 september 2018, PTC I issued a decision finding that the ICC can have jurisdiction over the deportation of Rohingya from Myanmar to Bangladesh, despite the fact that Myanmar is not a State party, because at least one element of the crime of deportation (the crossing of a border) took place on the territory of a State party (Bangladesh).

While I would tend to disagree with the “you put a toe on a border” theory of territorial jurisdiction, I will leave my more knowledgeable colleagues on the definition of the crime of deportation to debate whether the PTC is really convincing on this point. I wanted to briefly address a few other issues that arise from the decision and which I find interesting.

  • The procedural framework

I have been skeptical from the start on the use of Article 19(3) to allow the OTP to address a Chamber at such an early stage with a question of jurisdiction and the decision just issued does not convince me.

Article 19(3) is situated in Article 19 entitled “Challenges to the jurisdiction of the Court or the admissibility of a case” and it should be read in this context. This clearly suggests that there needs to be a “case” (or at least a “situation”, if we accept the expansive definition of “case” in the practice of the Court). Moreover, we find similar language in the second sentence of Article 19(3) itself, which refers to a State which has refered the situation.

We have neither here. If the drafters had wanted to create a possibility for the OTP to obtain a ruling on jurisdiction as early as the PE phase, it would have more likely created a distinct provision on this. As things stand, I find it unlikely that Article 19(3) can be interpreted in this way.

I am equally unconvinced by the Compétence de la Compétence argument, which seems entirely beside the point. The question here was not whether the Court can determine its own competence (which does not seem an issue) but when. In that respect, I don’t see how invoking the principle helps in any way in determining at what stage of the proceedings the Judges come into play (see the very interesting dissent of Judge Brichambaut on this point).

As for Article 119, it should not be able to create a new procedure out of thin air…

[UPDATE: I hadn’t taken the time to analyse in detail the dissent of Judge Perrin de Brichambaut earlier, but I must say that I fully agree with him on these issues.

The contextual interpretation of Article 19(3) is clearly contrary to what the Prosecutor has argued and this is clearly demonstrated by the dissenting Judge.

As for Article 119(1), the Judge is equally convincing. The Majority’s definition of a “dispute”, based on a press release by a Myanmar governement official is laughable. By that token, the Prosecutor could use Article 119(1) whenever anyone (why just a State?) expresses disagreement with a position held by the OTP. I am regularly in “dispute” with the OTP when I comment on this blog. Let’s merrily go before the Chambers to resolve it !

Moreover, Article 119(3) is in a totally different part of the Statute, the “final clauses”, which in no way relate to the powers of the Prosecutor or create a specific procedure. In this sense, while the dissenting Judge is cautious in saying that “uncertainty remains as to knowing whether the “dispute” must arise between States or from a disagreement among the parties to judicial proceedings or even third parties”, I would not show such restraint: I think it is pretty obvious Article 119(3) relates to inter-State disputes only]

I believe that the decision is merely an advisory opinion at this stage. It is only when a PTC considers jurisdiction as part of a formal request to open an investigation will the Judges truly be in a position to issue a binding decision on such matters. As an aside, if such request where filed, I would suggest that the two Judges who ruled on the issue be disqualified from sitting on a PTC constituted to deal with the matter.

From a policy perspective, I’m not entirely sure the OTP made a smart move here. I’ve often argued that there is an underlying power struggle between Judges and the OTP to take control of the procedure at the Court. The OTP has essentially let the Judges in to what was arguably the last remaining bastion of discretion it has under the Statute, allowing them to dictate the OTP’s conduct during PEs. This is apparent from the decision itself, where the Judges take the opportunity to lecture the OTP on the way it defines a PE and warn her on the fact that she should proceed swiftly (based on the Comoros decision). You would have expected the OTP to learn the lessons of the Comoros litigation, but they took the shortsighted view here in my opinion, and I believe that Judges will continue to eat into the OTP’s discretion at the PE phase…

  • The objective legal personality of the Court

In the decision, the PTC engages in a lengthy discussion on whether the ICC has an objective legal personality (while admitting that such finding is irrelevant to determine the question of jurisdiction, which begs the question of why they delved into this issue as well).

I will not bore the readers with a detailed explanation of why every example the PTC gives to justify their position is unconvincing. Ultimately, the PTC relies on the ICJ Reparations case (where the ICJ proclaimed that the UN had an objective personality solely on the fact that it had a lot of member states…) and, paraphrasing unashamedly the ICJ Judgment, declares (par. 48):

In the light of the foregoing, it is the view of the Chamber that more than 120 States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity called the “International Criminal Court”, possessing objective international personality, and not merely personality recognized by them alone, together with the capacity to act against impunity for the most serious crimes of concern to the international community as a whole and which is complementary to national criminal jurisdictions. Thus, the existence of the ICC is an objective fact. In other words, it is a legal-judicial-institutional entity which has engaged and cooperated not only with States Parties, but with a large number of States not Party to the Statute as well, whether signatories or not.

This could be called the “Bully theory” of the objective personality international organizations: “there’s a lot of us, and we think we’re Morally Superior, so you have to objectively recognise us. Sorry? the Relative effect of what? treaties? No, not important. Haven’t you been listening? we’re morally superior, and that trumps everything else” (This, for some, applies mutadis mutandis to immunities, but that will be for another time). Needless to say this is far removed from serious legal argumentation.

  • Concluding thought

Whether the PTC is correct in finding that the ICC might have jurisdiction over the deportation of Rohingya or not, I’m not sure how helpful this whole procedure is, either for the OTP (see above) or even “victims”. Even if the Judges go out of the way to try and argue that such jurisdiction over deportation would open the door for the ICC to have jurisdiction over other related crimes (persecution for example), the decision is bound to create unreasonable expectations on the part of victims in relation to the relief that the ICC can effectively bring as regards what is going on more generally in Myanmar, and over which, for the most part, the ICC will not have jurisdiction. Here, as often,  the ICC and its defenders will be quick to challenge those who criticise them, without realising that they are setting themselves up to fail…




10 responses to “ICC PTC issues advisory opinion (yes, yes) on ICC jurisdiction over Rohingya deportation

  1. Any comments on/analysis of the partially dissenting opinion of Judge Perrin de Brichambaut, which seems to share many of these sentiments?

  2. I indeed agree practically in full with Judge Perrin de Brichambaut. I did not enter in an analysis of his position in the post itself, but just updated with a few words, thank you for reminding me!

  3. Dear Dov,

    I disagree with your policy arguments. Judge Perrin de Brichambaut’s views – while a possible reading of the Statute – are not really convincing. It borders on the ridiculous to state that this decision runs the risk of prompting “hypothetical or abstract questions of jurisdiction”, when this investigation relates to thousands of people suffering immensely in a State Party. Talk about an hypothetical and abstract opinion, detached from reality! There is no harm or unfairness to anybody from this decision, which has a basis in the Rome Statute and is reasonable. Maybe not the most well-argued, but a plain reading of Article 19 clearly allows for this. BTW, how can one argue that there is no legal dispute (intended as “disagreement on a point of law or fact, a conflict of legal views or of interests”) in such a matter?

    (Your “Bully theory” is actually a theory of international law about objective personality of international subjects, upon which, for instance, the EU is considered a subject of international law even by its non-Member States. No big deal, it serves to support the argument that Myanmar can try to ignore the existence and authority of the ICC, but the ICC can still do its job. Nothing more, nothing less.)

  4. Interesting , but there is no much of issue here . Article 19(3) states clearly , I quote :

    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.

    End of quotation :

    so , the prosecutor , is seeking ruling regarding a question of jurisdiction or admissibility ( emphasizing : ” question ” ) that is to say , that “case ” or “situation ” , is not yet an issue or not ripe yet ( notwithstanding , it is concerning preliminary investigation , so , yet ahead ) .

    However , concerning the court ( ICC ) as an International personality , this is really baseless all that debate . For, there is a convention ( UN Charter ) and each state , accept the power of the SC that stems from it , the power indeed for imposing sanctions on state members . Combined with the UN referral doctrine ( Article 13 to the Rome statute ) while such UN referral , is made while the SC is sitting under chapter VII ( that is to say among others , the power to impose sanctions ) surly leaves no doubt about the International personality of the ICC ( and this is only one justification or basis ).


  5. @jack: The question for me is not whether there is a “dispute” in a dictionnary sense of the term, but a dispute in a legal and procedural sense. A press release by Myanmar cannot reasonably be construed as creating a legal dispute triggering Article 119 (note that the reaction by Myanmar came AFTER the OTP filed its request).

    As for the objective personality theory, I’m well aware of its existence. I’m simply not convinced by its legal basis in an international legal order still mainly driven by consent.

    @el roam: on 19(3), we’ll just have to disagree about that. For me, while the plain reading of the paragraph is indeed clair, when it is read in the context of the whole Statute, it seems more plausible, for me, to interpret it in the context of a case (or, de minimis, a situation). As for objective legal personality, I’m not sure I get your argument. There is no involvement of the UN in this instance, and even less a UNSC referral. Moreover, recognition of the authority of an organisation by its members is one thing, imposing an objective personality of the organisation on outside members is another entirely.

  6. dovjacobs ,

    Concerning 19 (3 ) you simply don’t explain why ( more plausible looks to you ) while It is well illustrated and based on clear wording of that article ( beyond the statute itself and we don’t have room here for more ) .

    Concerning the legal International personality of the court , it is simple as an apple :

    The SC , can sanction a state , for not cooperating with the court (cooperating with the ICC , all due to Chapter VII ) that is to say , that , when there is a relevant case , a state must recognize the power or objective personality of the ICC. So , the UN referral , renders every potential state , to become potentially subjected to the power of the ICC . What more is needed ? Here it is not UN referral . But in case of , a state is obliged simply . It would be only an issue of concrete jurisdiction ( differentiated from conceptual/ general one ) . It is like let’s say :

    Arizona state in the US , doesn’t reside in the jurisdiction of district federal court of eastern New York . Yet , it does recognize of course , the jurisdiction of the court generally speaking ,and in a potential specific case , which would touch the state of Arizona . The same goes for the ICC , due to the power of the SC , and the UN referral , a state , may become subjected to the power of the court if needed . Simply as that . Not yet fully carried out so , but , legally , objectively , it is so .


  7. So, if a State that does not recognize China invades China, this is not a violation of China’s territorial integrity, because China is not a State for that State? It did not give its consent to the existence of China…

  8. Pingback: You have just entered Narnia: ICC Appeals Chamber adopts the worst possible solution on immunities in the Bashir case | Spreading the Jam

  9. Pingback: ICC OTP requests authorisation to open an investigation into the Myanmar situation: three comments | Spreading the Jam

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