The decision of the court changes the landscape in relation to international accountability through the ICC. It is a legitimate cause for concern for any state that is not a party to the Rome Statute, and that borders a state party. The court has now set a precedent, which would be wise to heed.
On September 6, 2018, a pretrial chamber of the International Criminal Court (ICC) issued a decision which has far-reaching consequences. The chamber held that the ICC has jurisdiction over the deportation of Rohingyas, as a crime against humanity.
Deportation and jurisdiction of the court: At the crux of the decision is recognition of the jurisdiction of the court over deportations across an international border, between a state party to the Rome Statute (Bangladesh) and a non-state party (Myanmar). The Rome Statute is the treaty establishing the ICC and states agree to be bound by its provisions when they ratify it. Myanmar argued that the court did not have jurisdiction or the legal standing over allegations of mass atrocities, as it has not ratified the Rome Statute. However, due to the nature of the crime of deportation — which continues upon crossing the border, with elements of the crime occurring in the territory of a state party, Bangladesh — the court held that actions in Myanmar can come under the scanner of the court.
The prosecutor will now determine whether there is sufficient merit to commence a formal investigation. As the Security Council has not referred the matter to the ICC so far, this decision is viewed as a significant step towards justice and accountability. Arguably, though, this does not go far enough as it does not include examination of allegations of other serious crimes.
Impact beyond Myanmar: The decision has wider ramifications for the assertion of jurisdiction of the ICC over a non-state party. Essentially, a country that is not a party to the court may still be investigated in the case of the crimes against humanity of deportation and associated crimes. In relation to the civil war in Syria, given Jordan is a state party and has taken in a mass influx of refugees, proceedings at the ICC may be initiated on the basis of the Myanmar precedent. Similar arguments are also made in relation to US actions at the border with Mexico, relating to the repatriation and detention of migrants. While the US is not a state party, Mexico is.
In India, the process of registration, detention and identification of non-citizens in accordance with the National Register of Citizens continues in Assam, which shares a border with Bangladesh. Should a situation of mass violence and border crossings occur due to the fallout of the NRC — which cannot be ruled out — this decision opens up the potential for an ICC investigation on Indian soil.
Overall, the decision of the court changes the landscape in relation to international accountability through the ICC. It is a legitimate cause for concern for any state that is not a party to the Rome Statute, and that borders a state party. The court has now set a precedent, which would be wise to heed.