International Criminal Court at 21: controversy still remains

18 July 2019

Yesterday, 17th July, as the anniversary of the adoption of the Rome Statute, is celebrated as International Criminal Justice Day. The Rome Statute led to the formation of the International Criminal Court (ICC), which tries the most serious international crimes of genocide, war crimes, crimes against humanity, and the crime of aggression.

The Court has, over its 21 year life, been subject to a certain amount of controversy. Some of this has been due to presentational issues – including, for example, the perception that the Court may be implementing a neo-colonial agenda due to prosecutions being brought primarily against individuals from African countries.

A further issue which continues to present the ICC with difficulties is the fact that not every state is subject to the Court’s jurisdiction. The Court has jurisdiction over States Parties which have signed and ratified the Rome Statute. There are significant absences from the list of States Parties, including Russia, China and the United States. The colour-coded map which features on the ICC’s website shows that member states create a broken patchwork across the globe.

This means that it is quite possible to have neighbouring states where one is a member of the ICC whilst the other is not. A stark example of this is Bangladesh which is a party to the Rome Statute, but which is surrounded by states which are not. The patchwork nature of the Court’s membership can cause difficulties in carrying out investigations where alleged wrongdoing has taken place across a border between member and non-member states.

This is an issue being dealt with by the ICC at the date of writing. A delegation of the Court are at present in Dhaka in order to discuss the Rohingya crisis with senior Bangladeshi government officials and representatives of other international organisations. The Prosecutor of the ICC filed a request last year with the Court for a ruling on the question of jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The judges decided by majority that the Court’s jurisdiction could be exercised, as an element of the alleged crime (ie the crossing of the border into Bangladesh) occurred on the territory of a state party to the Statute.

The basis of the judges’ positive ruling on jurisdiction was twofold:

1) Article 119(1) of the Rome Statute, which says, “Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.”

2) The principle of la compétence de la compétence, which is a principle of international law according to which any international tribunal has the power to determine the extent of its own jurisdiction.

Further to a preliminary examination, the Prosecutor has now determined that there is a reasonable basis to believe that at least 700,000 Rohingya people were deported through coercion and that great suffering or serious injury has been inflicted on the Rohingya. The specific acts, amounting to crimes against humanity under the Rome Statute, which are alleged to have been committed in part on the territory of Myanmar and in part on the territory of Bangladesh are: deportation, persecution, and other inhumane acts. The Prosecutor has asked the ICC to authorise an investigation.

The difficulty here is that any authorisation to investigate, if granted, will have to be limited only to crimes allegedly committed in part on the territory of Bangladesh. However, investigating the offences will inevitably mean carrying out some sort of investigation into the alleged violence in Myanmar which forced the Rohingya into crossing the border.

The Statute allows the Court to exercise its jurisdiction when either the state on whose territory the alleged crimes occurred is a party to the Statute, or the person accused of the crime is a national of a state which is party to the Statute. Only one of these conditions need apply, which means that the ICC can in theory prosecute an individual who is a national of a non-party state. The practicability of doing so is another question, as non-party states are not bound by any obligation under the Statute to surrender individuals to the Court.

In their judgment on jurisdiction however, the Court  observed that there is a relationship between the ICC and the UN, and explained that a UN Member State is duty bound to cooperate with the ICC if the UN Security Council requires them to do so. The Security Council have publicly and strongly condemned the widespread violence resulting in the displacement of hundreds of thousands of people from Myanmar, which is a Member State. It will be interesting to see, therefore, should the ICC Prosecutor’s investigation be authorised, whether she may be assisted by the Security Council in obtaining Myanmar’s cooperation. Watch this space.

About the author

Anna Holmes is an Associate in Kingsley Napley's Criminal Litigation team. She is an experienced criminal law practitioner who has represented clients in respect of a wide range of offences and has extensive experience in dealing with vulnerable clients.

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

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