ICC OTP requests authorisation to open an investigation into the Myanmar situation: three comments

Last Friday, 5 July 2019, the Prosecutor if the International Criminal Court filed a request under article 15 to be able to open an investigation into the situation of Myanmar. This is no surprise, as she had notified her intention to do so on the 12 June 2019, which led to the constitution of a Pre-Trial Chamber to that effect.

I don’t necessarily have too many comprehensive comments on the substance of the request at this points, but having read through the request, I wanted to put forward three initial thoughts I had, which mostly relate to choices in terms of drafting.

  • The jurisdictional issue

As those following these proceedings will know, the current request was preceded by a decision last September, following a request from the Prosecutor under Article 19(3) of the Rome Statute, whereby a majority of PTC I considered, in a nutshell, that even though Myanmar was not a State party, the ICC could exercise jurisdiction in relation to the crime of deportation to the extent that one element of the crime (the crossing of an international border) did take place on the territory of a State party, here Bangladesh. The PTC also found that the ICC could possibly exercise jurisdiction over other Rome Statute crimes if it could also be established that one element of the crime took place on the territory of a State party.

Putting aside my doubts about whether it was appropriate to use article 19(3) like this in the first place (see here), I note that in the current request, the Prosecutor essentially takes the September 2018 jurisdictional decision as a given and does not explain this newly composed Pre-Trial Chamber what exactly what the reasoning of the other PTC was in relation to 1) considering deportation as a discrete crime under the Rome Statute and 2) its understanding of « conduct » in article 12(2)(b).

Given the discussions surrounding the use of 19(3) and the substance of the September 2018 decision, I would have expected the Prosecutor to do a little more explaining (convincing) in this respect, because it cannot be assumed that the new Pre-Trial Chamber will simply follow the prior decision in this respect.

Three additional small points in respect to jurisdiction:

– It is interesting to note how the OTP brings in other « crimes » (such as killings and rape) as evidence of the coercive nature of the displacement. This is quite smart I would say, but it does questions. Indeed, these « crimes » were entirely committed on the territory of a non-State Party and the Court cannot directly exercise jurisdiction over them, which means that any potential Accused cannot be charged for them. However, concretely they would be part and parcel of the discussion of deportation and any pronouncement of the Court on such questions would necessarily involve discussion of individual responsibility. In other words, any potential Accused would in effect be charged and convicted for these acts under the guise of deportation, which could reasonably be construed as an impermissible circumvention of the jurisdictional limitations of Article 12(2).

– At this point in time, the OTP reasoning on the link between these coercive acts and the deportation is quite embryonic. Indeed, logically, you would expect the Prosecutor to demonstrate a link between specific groups of refugees in Bangladesh and the alleged crimes constituting the coercive acts. However, the Prosecutor simply states that: « The coincidence in time between the peak of the violence and large numbers of Rohingya crossing into Bangladesh may, of itself, show a causal link between the coercive acts and the victims’ displacement to Bangladesh » (par. 113). While this might be sufficient at this stage of the proceedings, this should not be sufficient moving forward if an actual investigation takes place because conflating correlation and causation is not an acceptable investigatory methodology.

– Given the Prosecutor’s flexible inclusion of other « crimes » as underlying acts of coercion, I’m genuinely curious why genocide was not discussed. Now, I’m not familiar enough with the current debate going on about this, but there are a lot of claims of genocide being made. It would therefore interesting to know whether the non-inclusion of genocide is due to 1) lack of jurisdictional territorial link given the particular circumstances of this situation, 2) lack of actual evidence of genocide in the evidence provided to the OTP (as opposed to ethnic cleansing for example) and/or 3) a strategic choice to stay away from the issue.

  • The evaluation of the « interests of justice »

The request includes the usual (based on recent practice of the OTP) couple of pages indicating that “The Prosecution has identified no substantial reasons to believe that an investigation into the situation would not be in the interests of justice” (par. 290).

I have no strong views on this either way, but I do wonder whether this question might not have deserved a change of approach, given that this request in the first one to be filed since the Afghanistan decision. This latter decision and the fact that the OTP appealed is only mentioned in passing in a footnote (fn 774).

However, one could have imagined that the Prosecutor would present in more detail than it does here at least its understanding of the legal framework applicable to « interests of justice » determination, especially when it comes to the margin of discretion (if any) afforded to a PTC in reviewing an OTP request, rather than just referring the Judges to its appeals brief.

More discussion would appear all the more justified that this situation seems to fall squarely in the Afghanistan logic, given that it involves alleged conduct that took place entirely (putting the legal nicety of the « crossing of the border » criteria) on the territory of a non-State party by non-State party nationals, with virtually zero chance of cooperation. If there was ever a time to explicitly challenge the Afghanistan understanding of the « interests of justice » in a request, it was now.

Maybe there is a strategic choice here to not insist too much on this, on the double assumption that 1) the current PTC will know what the debate is about and 2) possibly that the Afghanistan decision is and will remain an isolated decision. Time will tell whether it was a good choice.

Of course, logically if I were the current PTC, I would not issue any decision until the Afghanistan appeal has been resolved one way or another.

  • The OTP’s approach to the assessment of available information.

As is well known, during the preliminary examination, the Prosecutor does not have autonomous investigation powers and must rely on publicly available information or information voluntarily shared by various sources (States, NGOs, etc.). This investigatory dependence on outside sources raises the question of what methodology needs to be followed by the OTP in assessing the seriousness of such information.

I recently submitted a communication to the OTP on this issue, specifically addressing methodological difficulties arising from relying extensively on human rights reports during a Preliminary Examination, such as the over-use of anonymous hearsay, the unverifiability of sources, the impossibility of assessing the credibility of alleged witnesses or the sometimes less ideal legal analysis put forward.

What is particularly relevant for the current discussion is that in that report I support my claim that the OTP should rigorously assess third-party material partly on the fact that the OTP itself has in the past, both in policy documents and in requests, clearly highlighted its autonomous obligation to assess the credibility and reliability of third-party reports.

For example, in the Afghanistan request, the Prosecutor indicated (par. 29):

The Prosecution has evaluated sources and their information following a consistent methodology based on criteria such as relevance (usefulness of the information to determine the commission of crimes within the jurisdiction of the Court), reliability (trustworthiness of the provider of the information as such), credibility (quality of the information in itself, to be evaluated by criteria of immediacy, internal consistency and external verification), and completeness (the extent of the source’s knowledge or coverage vis-à-vis the whole scope of relevant facts). It has endeavoured to corroborate the information provided with information available from reliable open and other sources.

This paragraph is directly copied from the Burundi request (par. 26) a few months prior.

In a similar fashion, in the Georgia request, the Prosecutor indicated par. 48):

Notwithstanding the low threshold that is applicable at this stage, neither theProsecution nor the Chamber should rely on information that is not credible or reliable. This is clear from the statutory requirement of determining whether the information available establishes a reasonable basis to believe that one or more crimes within the jurisdiction of the Court have been committed. Similarly, the Prosecutor, and the Chamber, must analyse and evaluate the seriousness of the information and the reliability of the source. To hold otherwise would require the Court to take any allegation made by any source at face value.

Given these systematic methodological clarifications in the most recent OTP requests, I was surprised that they have disappeared altogether from the Myanmar request, which simply states that: « The sources relied upon in this Request are amongst those considered by the Prosecution to be sufficiently reliable and credible for the proposition for which they are relied on » (par. 29).

Of course, you might consider that this is just a cosmetic difference and that this does not mean that the OTP did not concretely seriously assess available information. Maybe (although I note that the terms reliable, reliability, reliable, credible, credibility, authenticity, corroborate, corroboration and corroborated appears, taken all together, 13 times in a 146-page request). But I am still young and naive and believe that there is a reason why a party makes certain claims or not. As a result, I wonder why the OTP felt it necessary to explicitly lay down some methodological points in all recent requests, but not in the Myanmar request.

As an aside, I don’t understand why the annex listing information used is not publicly available (at least in redacted form), given that arguably a large number of sources will be public sources.

In conclusion, and generally, this request is a perfect case study in the ongoing debate about the balance that needs to be struck between the aspirational vocation of the ICC and its need to be realistic about what it can achieve (see recently Mark Kersten on this), and the related discussion about managing expectations created by ICC activities among affected communities.

I would think those who consider that the ICC cannot give up on being aspirational will likely think that the balance has been struck adequately here, within the jurisdictional limitations of the Court (although the genocide issue will obviously be a sticking point, given the weight of this issue in public discourse on the situation of the Rohingya).

I’m personally not too sure. The fact remains that both legally (the jurisdictional argument is not as solid as it should be) and practically (irrespective of the legal argument on deportation, this is essentially a situation relating to a non-State party), the ICC could be seen to be straying here on the very periphery, at best, of what it can deal with and the chances of anything concrete coming out of this are very slim.

This does not necessarily mean that the OTP should not have moved forward, but, at the very least, those reporting on this (NGOs and journalists alike) should be careful on how they present this move and its possible outcome, so as not to create unrealistic expectations that,  if they should  not be met, will contribute to plague the Court’s legacy in years to come.

2 responses to “ICC OTP requests authorisation to open an investigation into the Myanmar situation: three comments

  1. Important one . One may assume , that maybe , the cooperation issue , may be treated differently in both cases ( Afghanistan v. Myanmar .By the way , the prosecutor , treats it ,as the situation in Bangladesh / Myanmar ) . This is because , in Afghanistan , we deal with punctual incidents , isolated , and concrete ( like terrorist attacks , tortures in remote and isolated facilities and so forth… ) while in Myanmar , we deal with huge Exodus , in biblical dimensions simply . So , that fact per se , may be sufficient , for it’s hard to believe , that those huge waves of border crossing groups , made it , in free will ( beyond other corroborating evidences).

    Concerning genocide , there is the issue of intent ( with such intent to exterminate the ethnic group) that may cause troubles . Yet , article 6(e) to the Rome statute , provides for the purpose defining the elements of the crime, that genocide may be carried out by:

    (e) Forcibly transferring children of the group to another group.

    So , this may be proven prima facie . But it is hard to prove , that the only target were children of course , and with the intent of extermination of the group . So , the Q is back to the issue.

    One may think of crime of aggression towards Bangladesh. But deportation , is not element of crime in the Rome statute , although it is constituting such result of aggression towards another state. For, Bangladesh , is surly a victim of aggression here . But such broad interpretation , can hardly be reconciled with International norms or custom.

    By the way , I have read very interesting post yesterday ( Opinio Juris ) concerning that issue of statehood and jurisdiction ( touching partly the current case ) . Very recommended:

    http://opiniojuris.org/2019/07/05/the-statehood-of-palestine-and-its-effect-on-the-exercise-of-icc-jurisdiction/

    Thanks

  2. Just forgot to quote the main provision in the Rome statute , concerning genocide, and the ” intent ” elemnet here(article 6):

    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:

    Thanks

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