ICC PTC authorises investigation in Bangladesh/Myanmar: some thoughts

Big news, came out of the ICC yesterday, a mere few days after the proceedings initiated by Gambia at the ICJ against Myanmar: Pre-Trial Chamber III has authorised the opening of an investigation in the situation of Bangladesh/Myanmar. This decision follows a decision in September 2018 where PTC I found that the Court could theoretically exercise jurisdiction in such a situation, despite Myanmar not being a State Party (I commented on that decision here) and the Prosecutor’s request last summer (which I reflected upon here).

There are a number of interesting takeaways from the decision which I want to briefly address here.

1) Assessment of evidence

Back in July, I raised the point that the OTP request did not contain an explanation of how it assessed available information. I found that problematic, especially given the challenges that exist when using open source material, such as NGO and UN reports.

Apparently, this is not a problem for the PTC, which provides no indication of its understanding of the standard of proof during a preliminary examination, nor does it provide any methodological explanation of how it independently assessed available information. Essentially, the PTC seems to have taken any “finding” in a human rights report at face-value, which, even at such an early stage of the proceedings, cannot be an adequate approach for a criminal court. 

2) The territorial exercise of jurisdiction question

In order to deal with the central issue here (the fact that the alleged incidents all took place on the territory of a non-State party, with the involvement of nationals of a non-State party), the PTC had to discuss several matters. I found this part of the decision actually quite pleasant and intellectually stimulating to read, but I must confess, I did not always get how its different parts fit one with another. It is as if several really interesting preparatory memos were copied and pasted together in the final decision without the final polishing work on making sure that it all fit in a coherent argumentation.

For example, the PTC had to decide what “conduct” in Article 12(2)(a) meant, which was important in order for the ICC to be able to satisfy the territorial precondition to the exercise of jurisdiction. Article 12(2)(a) of the Rome Statute provides that:

the Court may exercise its jurisdiction […] if The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

The PTC felt the need to discuss how the words “conduct” and the words “crime” in Article 12(2)(a), with the conclusion that “the notions of ‘conduct’ and ‘crime’ in article 12(2)(a) of the Statute have the same functional meaning” (par. 48).

This might be true, but it is not clear how this in fact helps us to understand what “conduct” actually means. More specifically, it does not really explain how the PTC immediately jumps to the conclusion in the next paragraph: ” For these reasons, the word is used in a factual sense, capturing the actus reus element underlying a crime subject to the jurisdiction ratione materiae of the Court”. Why should “conduct” and “actus reus” be equated in this way? This is not explained clearly.

Neither is there any explanation for the extraordinary logical leap from conduct, to actus reus, to consequences in par. 50-51:

50. Further, depending on the nature of the crime alleged, the actus reus element of conduct may encompass within its scope, the consequences of such conduct. For instance, the consequence of an act of killing is that the victim dies. Both facts concerning the act and the consequence (i.e. the killing and the death) are required to be established.

51. In respect of certain crimes within the Statute, the particular consequence may be that the victim behaves, or is caused to behave, in a certain way as a result of conduct attributable to the alleged perpetrator. The negative corollary is that, should those consequences not follow from the conduct of the perpetrator, the crime cannot be said to have occurred (although the suspect’s conduct may constitute attempt).

There is for me a counter-intuitive finding here, which flows from the automatic conflation between “conduct” and “actus reus”: that the consequences of a conduct should also be considered as conduct, through the magical mediation of “actus reus”. But this is far from obvious. Conduct, in any traditional meaning of the term, is what you actually do (or don’t do in the case of omissions), not its consequences. The fact that a certain consequence might be part of the actus reus elements of a crime does not automatically mean that it is technically “conduct” for the purposes of Article 12(2)(a).

The next step in the reasoning is equally puzzling in its construction. The PTC have to discuss how much of a “conduct” must take place on the territory of a State party to trigger Article 12(2)(a). Here, the Judges go into an interesting discussion on possible ways to interpret domestic practice on the exercise of criminal jurisdiction, with the ultimate conclusions that (par. 58):

first, under customary international law, States are free to assert territorial criminal jurisdiction, even if part of the criminal conduct takes place outside its territory, as long as there is a link with their territory. Second, States have a relatively wide margin of discretion to define the nature of this link.

In other words, this provides little help to actually interpret Article 12(2)(a), neither does it support the conclusions in the following paragraphs (par. 60-61):

since the States Parties did not explicitly restrict their delegation of the territoriality principle, they must be presumed to have transferred to the Court the same territorial jurisdiction as they have under international law.

The only clear limitation that follows from the wording of article 12(2)(a) of the Statute is that at least part of the conduct (i.e. the actus reus of the crime) must take place in the territory of a State Party. Accordingly, provided that part of the actus reus takes place within the territory of a State Party, the Court may thus exercise territorial jurisdiction within the limits prescribed by customary international law.

But how is there anything “clear” about the “wording of article 12(2)(a)” in that respect? Article 12(2)(a) makes no mention of “part of the conduct” or even “actus reus”! That is the whole point of having the discussion in the first place. If everything was that “clear”, there was no need to spend 8 pages on the matter in the decision…

Ultimately therefore, it is striking to note that there is in fact little support in the decision for the proposition that 1) conduct means actus reus of the crime, which also includes the consequences of conduct and 2) that it is sufficient for part of the actus reus of the crime to be committed on the territory of a State party for Article 12(2)(a) to be triggered.

In this sense, I wonder if there are not in fact strong reasons to have a restrictive understanding of the ICC’s exercise of jurisdiction, whether from the angle of the respect for sovereignty, or, more simply perhaps, from the angle of the application of the principle of strict interpretation of criminal law statutes (Article 22 of the RS). But this is too much to deal with here.

3) The material jurisdiction question

I don’t have much to say on the identified alleged crimes themselves (deportation and persecution).

In relation to deportation, I do note that the PTC chooses to not reopen the debate on whether it is a discrete crime under the Rome Statute (which has as a consequence that crossing a border becomes an element of the crime, which in turn allows for the exercise of territorial jurisdiction). I’m sure this matter will arise again in subsequent proceedings, as it should.

In relation to alleged persecution, the PTC’s way of linking it to Bangladesh (in order to trigger the territorial precondition to the exercise of jurisdiction) is not very developed. It simply states that: “The Chamber is further satisfied that the Prosecutor could reasonably believe that the alleged coercive conduct leading to the Rohingya’s deportation to Bangladesh was directed against an identifiable group or collectivity” (par. 109). This is a very minimalist explanation.

I note more particularly that the PTC stays away from discussing the “right of return” that had bee put forward in the initial request by the OTP. It would be premature at this stage to deduce from that a skepticism on the part of the judges for that argument, but it is interesting nonetheless that they chose not to address it.

Finally, on a broader level, if we accept for the purposes of the conversation that the PTC is right, this approach by the PTC, which particularly equates “consequences” to “conduct” for the purposes of the Article 12(2)(a), actually has an potential impact on the scope of the exercise of jurisdiction by the ICC which is not really explored in the decision. The PTC summarizes its position in the following (par. 124):

The Chamber recalls its determination regarding jurisdiction ratione loci where it found that the Court can exercise jurisdiction where a part of the actus reus of a crime within the jurisdiction of the Court is committed on the territory of a State Party. Consequently, the Chamber authorises the commencement of the investigation for crimes committed at least in part on the territory of Bangladesh.

With the following footnote 254: “For example if a person is shot on the territory of Myanmar and dies, as a result, on the territory of Bangladesh”.

But this logic, 1) bringing in consequences in the framework and 2) accepting that only part of the actus reus must be on the territory of a State Party, actually means that theoretically far more crimes could be brought into the discussion than the ones currently discussed in the decision (deportation and persecution). Indeed, if consequences are taken into account, by definition, the lasting consequences of all crimes will “follow” the victims into Bangladesh.

Moreover, pushing the logic even further, genocide (especially the “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” aspect of it) could be arguably brought into the fray. In that respect, I had already noted the absence of such discussion in the initial OTP request. We will have to see how things progress during the actual investigation, especially given the broader context of the proceedings initiated by Gambia at the ICJ.

4) interests of justice

Obviously, as the first Article 15 decision to follow the Afghanistan decision, it was going to be interesting to see how it dealt with the question of “interests of justice”.

I noted, in relation to the OTP request, that the choice had apparently been made to simply ignore the Afghanistan decision and remarked that:

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.

Well it seems that the OTP adopted the “right” strategy, because the PTC’s handling of “interests of justice” is minimalist at best. The Judges devote juste 7 lines to it in the decision:

As regards the interests of justice, the Prosecutor has stated that she ‘has identified no substantial reasons to believe that an investigation into the situation would not be in the interests of justice’ and the Chamber has no reason to disagree with this assessment. This view is reinforced by the fact that, according to the Registry’s Final Consolidated Report, ‘all victims representations state that the victims represented therein want the Prosecutor to start an investigation in the Situation.

The PTC has therefore also chosen to completely ignore the Afghanistan decision, makes no effort to define the “interests of justice”, the applicable legal and procedural framework, or how it applies to the current situation.

Given the importance of the upcoming appeal, this is quite surprising. In fact, one might wonder whether there should not have been some judicial restraint here and whether it should not have been preferable to not issue the decision until the matter is settled on appeal.

5) the scope of the authorised investigation

On this point there is also a serious departure from the Afghanistan precedent. The PTC makes it very clear that (par. 126):

the Chamber wishes to emphasise that the Prosecutor is not restricted to the incidents identified in the Request and the crimes set out in the present decision but may, on the basis of the evidence gathered during her investigation, extend her investigation to other crimes against humanity or other article 5 crimes, as long as they remain within the parameters of the authorised investigation. Similarly, the Prosecutor is also not restricted to the persons or groups of persons identified in the Request.

I don’t necessarily disagree with that (as I noted in my critique of the Afghanistan decision at the time), but what is striking here is that there is zero reference to the Afghanistan decision. It is simply ignored as if it doesn’t exist. which means that currently, on this point, we have conflicting case law from ICC Pre-Trial Chambers, which is obviously not very helpful for the future practice of the Court.

I also note that from a temporal perspective, the PTC says that “crimes of a continuous nature” can be investigated “even when such crimes commenced before 1 June 2010 (or the date of entry into force of the Statute for any other relevant State Party) in so far as the crimes continued after this date” (par. 132). Given the long history behind the current situation, this temporal expansion of the jurisdiction of the Court could have a serious impact on the scope of the investigation.

6) conclusion

Legally, this decision is not really satisfactory. Its argumentation on a number of key issues is somewhat unconvincing and would have deserved more discussion, especially in such a sensitive situation bringing in a non-State Party.

Whether the PTC is technically right or not, I must admit, from the beginning of this process, some uneasiness at how the Rome Statute framework is here being interpreted in a way that allows, based on an arguably tenuous link to Bangladesh, the Court to investigate events which should normally be beyond the natural jurisdiction of the Court: on the territory of a non-State Party, with the involvement of non-State party nationals.

Beyond the legal issues raised by the decision, one can legitimately raise questions about the opportunity for the OTP (and the Court) to get bogged down in what is likely not to be a very easy situation to navigate, at a time when the Court is regularly criticised for not delivering on its promise for justice (a completely unreasonable promise to be making in the first place, but that is a different matter). Yet, seeing the initial reaction by some NGOs, I realise that the market for hope is still going strong…

On the other hand, this decision does contribute to the “new” narrative that the ICC is moving away from Africa. FIDH for example insists here on the fact that it is the first official investigation in Asia (So, Georgia, while being categorized as an “eastern european state” in UN/ICC regional groupings, is technically in Asia, but we get the point). How successful this move away from Africa will be is another question…