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.