THE ICC’S JURISDICTION OVER THE ASSUMED GENOCIDE IN MYANMAR: THE EXPANSION OF TERRITORIAL JURISDICTION
Name: Weichen Tang
Supervisor: Professor Goran Sluiter
Master track: International and Transnational Criminal Law Date of submission: 1 July 2020
Abstract
While an investigation into the alleged crimes against humanity in the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar Bangladesh/Myanmar situation (“Bangladesh/Myanmar situation”) has been authorized by the International Criminal Court (“ICC”), a crime against humanity designation ignores the genocidal intent of the perpetrators to destroy the whole or part of the Rohingya group. The crime of genocide appears to be a more appropriate characterization. However, it remains questionable whether the ICC can exercise territorial jurisdiction over genocide committed in the territory of Myanmar, a non-State party. In this case, the principle of objective territoriality and the effects doctrine can be considered as feasible theoretical bases for the establishment of an extended territorial jurisdiction. This paper argues that the alleged offences amount to
prima facie crime of genocide. As for the justifications of the ICC’s jurisdiction, first, the principle of objective territoriality requires the occurrence of one element of genocide in the territory of Bangladesh, and the result of genocide should be considered as one element based on an expansive interpretation of article 12(2)(a) of the Rome Statute. Second, the application of the effects doctrine requires certain thresholds. The conduct committed in Myanmar has caused significant effects in Bangladesh and the effects test have been fulfilled. As a result, the effects doctrine can be used to justify territorial jurisdiction. Therefore, The ICC can claim territorial jurisdiction over genocide committed in Myanmar under article 12(2)(a) basing on the principle of objective territoriality and effects doctrine.
Key words: Genocide ICC Objective territoriality Effects doctrine
Table of Contents 1. Introduction 4 1.1 Background 4 1.2 Purpose 7 1.3 Methodology 7 1.4 Structure 8
2. The Bangladesh/Myanmar Situation 9
2.1 Introduction to the assumed genocide committed in Myanmar 9
2.2 Necessity to use the term “genocide” 10
2.2.1 Crimes against humanity fails to describe the nature of the alleged acts 10 2.2.2 The alleged acts amount to a prima facie crime of genocide 12 2.2.2.1 Existence of conducts of genocidal character 12 2.2.2.2 Rohingya as a distinct ethnic and religious group 13 2.2.2.3 Intent to destroy the Rohingyas in whole or in part 14 2.2.2.4 Satisfaction of the contextual element 15 2.2.2.5 Dissenting opinions of the judges of International Court of Justice 16 2.2.3 The Rohingya people are still under serious risk of genocide 17
2.3 Conclusion 18
3. The Interpretation of Article 12(2)(a) of the Rome Statute 20
3.1 Introduction 20
3.2 Drafting history of the Rome Statute 20
3.3 Rules of interpretation 23
3.4 An extensive interpretation of article 12 (2)(a) 24
3.5 Conclusion 26
4. The Principle of Objective Territoriality 28
4.1 Expansion of territorial jurisdiction 28
4.2 Territorial jurisdiction of the ICC 29
4.3 Objective territorial jurisdiction 29
4.4 Application of objective territoriality in the Bangladesh/Myanmar situation 31
4.4.1 Elements of crime of genocide 31
4.4.2 Territorial connections between Bangladesh and the alleged crime of genocide 32
4.4.3 Conclusion 33
5. The Effects Doctrine 34
5.1 Introduction 34
5.2 The effects test 36
5.3 The application of the effects doctrine in the Bangladesh/Myanmar situation 37
5.4 Conclusion 40
6. Conclusion 41
Bibliography 43
The ICC’s Jurisdiction over the Assumed Genocide in Myanmar: The Expansion of Territorial Jurisdiction
1. Introduction
1.1 Background
On 14 November 2019, the Pre-Trial Chamber III of the ICC authorized opening of an investigation into the Bangladesh/Myanmar situation for the alleged crimes of deportation, persecution, and any other crimes within the ICC jurisdiction. For the crime against humanity of deportation, the Rohingya people were forcibly deported from the Rakhine State Myanmar where they are lawfully present to Bangladesh. Although Myanmar is not a party to the ICC Statute, Bangladesh has1 ratified the Statute in 2010. The Chamber concluded that there exists a reasonable 2 basis to believe that the coercive acts committed could qualify as crimes against humanity of deportation and persecution. The Chamber agreed with the decision of 3 Pre-Trial Chamber I that “the Court may assert jurisdiction pursuant to article 12(2)(a) of the Statute if at least one element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party to the Statute”. 4 Based on the facts that those crimes have been partially committed on the territory of Bangladesh, the Court may assert jurisdiction over those crimes. 5
1 Elements of Crimes, article 7(1)(d).
2 United Nations Treaty Collection, ‘Rome Statute of the International Criminal Court’ <
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-10&chapter=18&clang=_e n> accessed 1 July 2020.
3 Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar , ‘Decision
Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar’ ICC-01/19-27 PTC III (14 November 2019), para 110.
4 ‘Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the
Statute’ ICC-RoC46(3)-01/18-37 PTC I (6 September 2018), para 72.
5 Ibid, para 114.
However, the Chamber decided to focus on the assessment of crimes against humanity of deportation and persecution and if the threshold under article 15 of the Rome Statute is met, there is no need to assess the possible commission of other crimes within the Court’s jurisdiction, which significantly limits the scope of6 investigation and further prosecution. However, crimes against humanity fail to depict the whole and actual situation past or ongoing in Myanmar. Reports and investigations of United Nations (“UN”) and other organizations have shown that the attacks and violence targeted the Rohingyas were carried out with a genocidal intent. There is reasonable basis to believe that those acts of violence could qualify as crime of genocide. Rohingya people, as the vulnerable ethnic and religious minority in Myanmar, are in great danger and in need of justice and further help.
The call for prosecution of genocide is demonstrated in the forms of State complaint in the ICJ and the universal jurisdiction of the courts of other States. On 11 November 2019, the Republic of The Gambia filed a case against Myanmar before the International Court of Justice (“ICJ”), alleging that the “mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages” during the “clearance operation” have violated the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”). 7 On 23 January 2020, provisional measures were indicated for the protection of the Rohingyas. What’s more, on 22 December 2020, Burmese Rohingya Organization8 UK (“Brouk”) filed a complaint to Argentinian court based on its universal jurisdiction. On 29 May 2020, the court decided to pursue a case against Myanmar’s leader Aung Sang Suu Kyi and relevant senior officers for genocide and crimes against humanity against the Rohingyas. 9
6 Ibid, para 96.
7Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia
versus Myanmar) ‘Application Instituting Proceedings and Request for Provisional Measures’ (11
November 2019), para. 6; Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) A/RES/3/260 (Genocide Convention)
8Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia
versus Myanmar) ‘Order of 23 January 2020: Request for the indication of provisional measures’ (23 January 2020), para. 76.
9 Md. Kamruzzaman, ‘Argentinian Court Decision Brings Hope for Rohingya: In a Significant
Nonetheless, it is challenging for the ICC to justify its jurisdiction. The proposal of universal jurisdiction for the ICC was explicitly rejected by negotiating parties during the Rome Conference.10 There are three ways for the ICC to exercise jurisdiction. First, the United Nations Security Council (“UNSC”) can refer situations to the ICC concerning non-states parties according to article 13(b) of the Rome Statute, but chances are that one or more of the permanent members will veto such resolution. The second approach based on the anticipation that Myanmar will accept jurisdiction of the ICC, which is not likely in the current case. Third, the territorial and personal jurisdiction require the identified conduct was committed either on the territory, or perpetrated by a national, of a State party. Myanmar is not a party to the 11 Rome Statute, and the alleged acts were committed by the Burmese, which hinder the territorial jurisdiction of the ICC.
For the crime against humanity of deportation, crossing the Myanmar-Bangladesh border is seen as an essential part for the completion of the crime. The territorial link 12 between Myanmar and Bangladesh constitutes one element of the actus reus of the crime, which is in accordance with the principle of objective territoriality and provides legal basis for the territorial jurisdiction of the ICC.13 Similarly, the jurisdiction regarding crime of genocide can be established through objective territoriality based on the facts that the outcome of genocide occurred within the
Development, Buenos Aires Court Admits Petition to Probe Myanmar Leaders’ Role in Rohingya
Genocide’ (2 June 2020) <
https://www.aa.com.tr/en/americas/argentinian-court-decision-brings-hope-for-rohingya/1861967> accessed 13 June 2020.
10Philippe Kirsch and John T. Holmes, ‘The Rome Conference on an International Criminal Court, The
Negotiating Process’ (1999) 93 American Journal of International Law 2.
11 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July
2002) U.N. Doc. A/CONF.183/9 (Rome Statute) art 12(2)
12Robert Cryer, Darryl Robinson and Sergey Vasiliev,An Introduction to International Criminal Law
and Procedure (4th edn, CUP 2019) 245.
13 Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, ‘Decision
Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar’ ICC-01/19-27 PTC III (14 November 2019), para 53.
territory of Bangladesh. Furthermore, the crime of genocide committed against the Rohingya people has imposed detrimental effects on Bangladesh, raising the discussion that whether the effects doctrine can be used to justify the jurisdiction of the ICC.
1.2 Purpose
While an investigation into the alleged crimes against humanity in the Myanmar/Bangladesh situation has been authorized by the ICC, a crime against humanity designation is not sufficient enough to characterize the genocidal intent of Burmese military to destroy the Rohingyas as a group. As for the debate whether the ICC can exercise jurisdiction over crimes committed in the territory of a non-State party. in this case, objective territorial jurisdiction and the effects doctrine appear to be feasible theoretical bases. Based on the assumption that the alleged offences in Myanmar have constituted the crime of genocide, the research question of this paper is that in which way can the ICC exercise jurisdiction over the alleged genocide committed in Myanmar. Are the current facts able to prove the existence of an element of the conduct in Bangladesh and justify objective territorial jurisdiction in accordance with article 12(2)(a)? Moreover, under what circumstances can the ICC claim jurisdiction over alleged acts of genocide committed in Myanmar, making use of an extended effects doctrine?
1.3 Methodology
This paper uses doctrinal research as the main research methodology. Discussion on the territorial jurisdiction of the ICC is based on the analysis of article 12(2)(a) of the Rome Statute, article 31 and article 32 of the Vienna convention. The research into relevant regulations in international legal documents, legal principles, and concepts provides the possibility for an expansive interpretation of the ICC’s territorial jurisdiction. Besides, this paper takes empirical investigation, taking into consideration the need for justice to prosecute the responsible individuals for the crime of genocide, the unwillingness of Myanmar government to protect the Rohingyas, and the infeasibility of inter-governmental resolutions. Case study and
literature review are largely used in this paper. In the end, this paper reviews international and domestic practice and reach the conclusion on the basis of case law study.
1.4 Structure
Part 2 of this article gives a general introduction to the alleged offences against the Rohingya people in the Bangladesh/Myanmar situation and stresses the necessity to charge those most responsible with crime of genocide; Part 3 reviews the drafting history of the Rome Statute to explore the possibility of an expansive interpretation of article 12(2)(a); Part 4 discusses whether the ICC can claim jurisdiction in view of the principle of objective territoriality while examining the territorial link between Bangladesh and the alleged acts; Part 5 analyses the potential application of the effects doctrine and whether the current case has passed the required effects test.
2. The Bangladesh/Myanmar Situation
2.1 Introduction to the assumed genocide committed in Myanmar
The Rohingyas have been discriminated and persecuted in Myanmar in history. In recent years, the long-standing ill-treatment has been exacerbated. On 9 October 2016, the Arakan Rohingya Salvation Army (“ARSA”) armed group launched three coordinated attacks in the Rakhine State. Following those attacks, the armed forces 14 of Myanmar Tatmadaw commenced so-called “clearance operations” jointly with other Security Forces and non-Rohingya civilians against the Rohingya group. Ever15 since then, the continuous persecution against the Rohingya population as a group escalated dramatically. The Myanmar military proceeded to systematically burn and destroy entire Rohingya villages, with an intention to destroy the group in whole or in part.
In her request for authorization of an investigation, the Prosecutor submits that there is reasonable basis to believe that “members of the Tatmadaw jointly with the Border Guard Police (“BGP”) and the Myanmar Police Force (“MPF”), with some participation of non-Rohingya civilians, and other Myanmar authorities” have committed crimes against humanity of deportation, persecution and other inhumane acts. Although the Prosecutor mentioned that further crimes maybe discovered in the16 following investigations, the Chamber decides to only focus on the alleged crimes of17 deportation and persecution. Neither in the Prosecutor’s request or the Chamber’s18
14International Crisis Group, ‘Myanmar: A New Muslim Insurgency in Rakhine State’ <
https://www.crisisgroup.org/asia/south-east-asia/myanmar/283-myanmar-new-muslim-insurgency-rakh ine-state> assessed 1 July 2020.
15 Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar , ‘Request for
Authorization of an Investigation Pursuant to Article 15’ ICC-01/19-7 OTP (4 July 2019), para 67.
16 Ibid, para 75. 17 Ibid.
18 Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, ‘Decision
Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar’ ICC-01/19-27 PTC III (14
decision mentioned the potential commission of crime of genocide. However, in my view, there is reasonable ground to believe that genocide has been committed against members of the Rohingya group, a distinct ethnic, rational and religious group that resides primarily in the Rakhine state (known as Arakan State before 1989), of Myanmar. There have been recognizable conducts including killing, causing serious19 bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births targeted the Rohingyas. The genocidal nature of these acts is a prima facie case, which should be considered by the Prosecutor and the Chamber in the future proceedings.
2.2 Necessity to use the term “genocide”
2.2.1 Crimes against humanity fails to describe the nature of the alleged acts Genocide and crime against humanity share similarities. In certain situations, crime of genocide presents the same features as the deportation shows. Global Rights Compliance argued in their submissions that apart from being a specific offence, deportation can be relevant as an underlying act of genocide. 20However, the intent to
destroy the protected group in whole or in part is not covered by crime against humanity. Genocide sabotages the diversity of humankind. “Those who devise and implement genocide seek to deprive humanity of the manifold richness its nationalities, races, ethnicities, and religious provide.” 21
In the situation of Myanmar, a crime against humanity designation is not sufficient enough to depict the whole picture of the ongoing tragedy. The alleged acts have also shown the nature of crime of genocide. Although deportation itself may not be sufficient for genocide as it’s not always equivalent to the destruction of a whole or
November 2019), para 96.
19 Syed S Mahmood, Emily Wroe, Arlan Fuller and Jennifer Leaning, ‘The Rohingya people of
Myanmar: health, human rights, and identity’ (2017) 389 The Lancet 1841.
20Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, ‘Submissions
on Behalf of the Victims Pursuant to Article 19(3) of the Statute’ ICC-RoC46(3)-01/18-9 PTC I (30 May 2018), para 111.
21 Prosecutor v. Krstić, Judgment, IT-98-33-A TC (19 April 2004), para 3
part of the group, it could be used as an additional means to ensure the physical destruction of that protected group. The same goes for the crime against humanity of 22 persecution. Therefore, the alleged acts in Myanmar need to be scrutinized and characterized. In the situation of Myanmar, the genocidal acts and intent to destroy at the root of the abuses against the Rohingya people have been omitted.
The genocidal character of the assumed crime has been affirmed and reiterated by human rights organizations. Latest reports of UN investigations have shown the highly possible existence of the crime of genocide. According to the UN Special Rapporteur, the crimes committed following 9 October 2016 and 25 August 2017 “bear the hallmarks of genocide and call in the strongest terms for accountability”. 23 The UN High Commissioner for Human Rights (OHCHR) labeled the army’s actions as a “textbook example of ethnic cleansing” and possibly genocide. Mr. Adama 24 Dieng, the UN Special Advisor on the Prevention of Genocide also confirmed according to his only fact-finding activities that “Rohingya Muslims have been killed, tortured, raped, burned alive and humiliated, solely because of who they are”. The intent of the perpetrators was to exterminate the Rohingya people in the northern Rakhine state, which would constitute genocide if it got proven.25
22 Prosecutor v. Zdravko Tolimir, Appeals Judgment, IT-05-88/2 AC (8 April 2015), para 209;
Prosecutor v. Krstić , Judgment, IT-98-33-A TC (19 April 2004), para 31; see also, Prosecutor v. Al-Bashir, ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hasan Ahmad Al Bashir’, ICC-02/05-01/09 PTC I (4 March 2009), para 145.
23UN OHCHR, ‘Statement by Ms. Yanghee Lee, Special Rapporteur on the situation of human rights
in Myanmar at the 37th session of the Human Rights Council’ (12 March 2018) <https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22806&LangID=E> accessed 1 July 2020.
24 UN OHCHR, ‘Opening Statement by Zeid Ra’ad Al Hussein, United Nations High Commissioner
for Human Rights’ (11 September 2017) <
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22041&LangID=E> accessed 1 July 2020.
25UN Secretary-General, ‘Note to Correspondents: Statement by Adama Dieng, United Nations Special
Adviser on the Prevention of Genocide’ (12 March 2018)
<https://www.un.org/sg/en/content/sg/note-correspondents/2018-03-12/note-correspondents-statement-adama-dieng-united-nations> accessed 1 July 2020.
2.2.2 The alleged acts amount to a prima facie crime of genocide
In general, the crime of genocide consists of four aspects elements: 1) There exist prohibited acts provided in the Genocide Convention conducted on one or more persons; 2) Such person or persons belonged to a particular national, ethnical, racial or religious group; 3) The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and 4) The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.26 In the Bangladesh/Myanmar situation, the alleged acts have preliminarily satisfied the above requirements, constituting a prima facie crime of genocide.
2.2.2.1 Existence of conducts of genocidal character
Killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births are the five genocidal acts provided in the Rome Statute and the Genocide Convention. Reports of human rights organizations have showed that there have27 been manifest and widespread conducts of genocidal character against the Rohingyas in Myanmar, including killing members of the Rohingya group, raping and inflicting other forms of sexual violence on women and girls within the group, subjecting Rohingya men, women and children to torture, beatings and other forms of cruel treatment for the sole reason that they are members of the Rohingya group, and deliberately destroying or otherwise denying access to food, shelter and other essentials of life in a manner that is calculated to destroy the Rohingya group in whole or in part. “Rohingya Muslims have been killed, tortured, raped, burnt alive and humiliated, solely because of who they are.” 28
26Elements of Crimes, art 6; Genocide Convention, art II. 27 Ibid.
28 UN Secretary-General, ‘Note to Correspondents: Statement by Adama Dieng, United Nations
Special Adviser on the Prevention of Genocide, on his visit to Bangladesh to assess the situation of
Rohingya refugees from Myanmar’ (12 March 2018)
<https://www.un.org/sg/en/content/sg/note-correspondents/2018-0312/note-correspondents-statement-a 12
2.2.2.2 Rohingya as a distinct ethnic and religious group
Ethnic group is a group “whose members share a common language or culture” and a religious group “includes denomination or mode of worship or a group sharing common beliefs”. The Rohingya people are considered as an ethnic and religious29 minority living mainly in the northern region of Myanmar’s Rakhine State and have been described as one of the world’s most persecuted minorities by the UN. They 30 are Muslim minority in a majority Buddhist Myanmar. They have both unique culture and language that distinguish them from the majority population in Myanmar.
Following the coming of Arab traders to the regions of Southeast Asian, the Rohingya people settled down as immigrants from the Middle East in the Rakhine state, which was called “Arakan”. Arakan was an area had not registered in any administration still then and did not belong to Myanmar. However, in 1785, Myanmar started to control it so that the Rohingyas were under the administration of Myanmar. Although Arakan is within the territory of Myanmar, and is under the rule of
31
Myanmar, the Rohingyas are not recognized as Myanmar nationals. On the contrary, the Rohingya population was denied citizenship under the 1982 Myanmar nationality law, and Rohingyas were regarded as “illegal immigrants” rather than lawful citizens by the government of Myanmar. The Rohingya people are not accepted as one of the 32 one hundred and thirty-five recognized ethnic groups in Myanmar. They are also 33
dama-dieng-united-nations> accessed 1 July 2020.
29 Prosecutor v. Jean-Paul Akayesu, Trial Judgment, ICTR-96-4-T TC I (2 September 1998), paras
512-515; Prosecutor v. Kayishema,Trial Judgment, ICTR-9S-l-T TC II (21 May 1999), para 98.
30UN OHCHR, ‘Human Rights Council opens special session on the situation of human rights of the
Rohingya and other minorities in Rakhine State in Myanmar’ (5 December 2017) < https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22491&LangID=E> accessed 1 July 2020.
31Maung Zarni and Alice Cowley, ‘The Slow-Burning Genocide of Myanmar’s Rohingya’ (2014) 23
Washington International Law Journal 683.
32 Sarah Gibbens, ‘Myanmar's Rohingya Are in Crisis - What You Need to Know’ (June 10, 2018)
<https://newsnationalgeograi~hiccom/2017/09/rohingya-refugee-crisis-myanmar burma-spd/> accessed 1 July 2020.
33 CNN, ‘The Rohingya Crisis’ (June 10, 2018) <https://edition.cnn.com/specials/asia/rohingya>
restricted from freedom of movement, state education and civil service jobs. These ill-treatments have led to continuous repression and discriminatory acts against the Rohingya people from other non-Muslim ethnic groups in the Rakhine state.
The Rohingya are in a situation of “continuous, severe, systemic and institutionalized oppression from birth to death”. Their extreme vulnerability is a 34 consequence of State policies and practices implemented over decades. Rohingya ethnic residents, before the conflict that seized much of the world’s attention in 2012, have often experienced acts of violence from both the government of Myanmar, and from other ethnic civilians in Myanmar that are mainly Buddhist. In addition to acts of violence, the Rohingyas have also suffered administrative difficulties because they were not recognized as citizens of any country. UN OHCHR concluded, based on analysis of “testimonies as well as the satellite imagery analysis from three independent sources,” that Myanmar security forces had “deliberately targeted the entire Rohingya population in the area.” Under such circumstance, the Rohingya 35 group has met the requirement of the protected group.
2.2.2.3 Intent to destroy the Rohingyas in whole or in part
The crime of genocide requires the existence of genocidal intent apart from the mental element provided in article 30 of the Rome Statute. The genocidal intent to destroy the Rohingya group in whole or in part held by security and military forces of Myanmar has been presented and emphasized by several human rights organizations, among which UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar (“UN Fact-Finding Mission”) is particularly important and noteworthy. UN Fact-Finding Mission disclosed in its September 2018 Report that “the factors allowing the inference of genocidal intent are present.”36 It found evidence of genocidal intent in the “existence of discriminatory plans and policies.” 37
accessed 1 July 2020.
34Human Rights Council, ‘Report of the independent international fact-finding mission on Myanmar’
(12 September 2018) A/HRC/39/64, para 20.
35 UN OHCHR, Flash Report (2017), pp. 41-42. 36 Supra note 34, para 1441.
37 Ibid, para 1425.
“The crimes in Rakhine State, and the manner in which they were perpetrated, are similar in nature, gravity and scope to those that have allowed genocidal intent to be established in other contexts.” Furthermore, the Mission underscored the existence 38 of genocidal intent in its September 2019 report, which says that “the evidence that infers genocidal intent on the part of the State against the Rohingya, identified in its last report, has strengthened”. It also demonstrated that Myanmar continues to39 harbor genocidal intent and as a result the Rohingya people are in serious risk of genocide. 40
2.2.2.4 Satisfaction of the contextual element
According to the contextual element of genocide, “the crime of genocide is only completed when the relevant conduct presents a concrete threat to the existence of the targeted group, or a part thereof”. The genocidal conducts concerned took place in 41 the context of a manifest pattern of similar conduct directed against the Rohingya group. The conducts have widespread nature and systematic pattern, far beyond the level of isolated crimes. The violence and attacks against the Rohingya people were conducted by security forces, military forces, and non-Muslim civilians of Myanmar in a broad context. The government of Myanmar launched extermination plans such as the “clearance operation”, creating a persecution background which would unite violence conducted in different periods and make it amount to genocide. Rohingya villages were burnt and destroyed, food and other essential supplies were cut. The alleged acts have denied the existence of Rohingyas at the source. Though a concrete threat to the whole group is not required, these offences have already threatened the roots of Rohingya group. 42
38 Ibid, para 85.
39Human Rights Council, ‘Detailed findings of the Independent International Fact-Finding Mission on
Myanmar’ (16 September 2019) A/HRC/42/CRP.5, para 58.
40 Ibid, para 140; see also Ibid, para 213. 41 Supra note 22, para 125.
42 Claus Kreß, ‘The Crime of Genocide and Contextual Elements: A Comment on the ICC Pre-Trial
Chamber’s Decision in the Al Bashir Case’ (2009) 7 Journal of International Criminal Justice 297.
2.2.2.5 Dissenting opinions of the judges of International Court of Justice
In the Gambia v. Myanmar before the ICJ, there are dissenting opinions of the judges stating that the alleged acts haven’t reached the level of genocide. Vice-President Xue considered the alleged acts to be ill-treatment of ethnic minorities, claiming that the official statements of the Bangladeshi government showed that “the nature of its subject is the issue of national reconciliation and equality of ethnic minorities”.43 However, chances are that the original ill-treatments towards the Rohingyas turn into genocide with the escalation of ongoing attacks and violence. Furthermore, Bangladesh’s effort to seek a “durable solution” doesn’t exclude the possible existence of genocide. Even though there exists genocide, there could still be mutual efforts between Myanmar, the accused State and Bangladesh, the injured State. Intergovernmental cooperation comes from political concern, while the determination of commission of genocide is a pure legal issue which is based on the satisfaction of elements of crimes. One cannot deduct the existence of genocide from political activities. Despite the opposing opinions, Vice-President Xue has voted in support of the present Order of Provisional Measures of Protection. Although it is not required to ascertain whether Myanmar has violated its obligations under the Genocide Convention at the current stage, in the Court’s view, at least some of the alleged acts can fall within the provisions of the Genocide Convention. Furthermore, 44 the ICJ concluded that it was necessary to indicate certain provisional measures to protect the rights claimed by The Gambia. ICJ’s response demonstrates the potential 45 existence of genocide which needs to be further ascertained and the necessity to take an action towards the extreme violations of human rights of the Rohingyas.
43Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia
versus Myanmar) ‘Order of 23 January 2020: Request for the Indication of Provisional Measures - Separate Opinion of Vice-President Xue’ (23 January 2020), para. 3.
44Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gambia
versus Myanmar) ‘Order of 23 January 2020: Request for the indication of provisional measures’ (23 January 2020), para. 30.
45 Ibid, para. 76.
2.2.3 The Rohingya people are still under serious risk of genocide
Despite rising public awareness of the people being persecuted and universal condemnation by the international community, the persecution towards the Rohingya people continues and the Rohingyas remain under grave danger of genocide. On 24 October 2018, Mr. Darusman, the Chairman of the UN Fact-Finding Mission, stated that the situation in Myanmar is an “ongoing genocide.” “There is a serious risk that 46 genocidal actions may occur or recur, and that Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalizing and punishing genocide.” 47
The government of Myanmar has shown unwillingness in resolving the ethnic conflicts and ending the violence against the Rohingyas. Myanmar “continues to harbor genocidal intent”. Although Myanmar claims to have ceased its most recent48 wave of “clearance operations”, the UN Fact-Finding Mission’s September 2019 report found that the Rohingyas “remain the target of a Government attack aimed at erasing their identity and removing them from Myanmar”. Myanmar’s continuing49 attacks on the Rohingya group and ongoing destruction of Rohingya villages are accompanied by other efforts to make life for the Rohingya impossible, including denying access to food, shelters and farmland resources which they have been working on for ages. “Since the ‘clearance operations’ began on 25 August 2017, the Government has severely restricted access to food for Rohingya in Rakhine State.” 50
The approximately 600,000 Rohingya people who remain in Myanmar are in “real and significant danger” of further genocidal acts at the hands of the government of Myanmar. “Many of the factors that contributed to the killings, rapes and gang rapes, torture, forced displacement and other grave human rights violations by the 46UN News, ‘Accountability for atrocities in Myanmar “cannot be expected” within its borders – UN
investigator’ (24 October 2018) < https://news.un.org/en/story/2018/10/1024062> accessed 9 April 2020.
47 Ibid.
48 UN Fact-Finding Mission, Report of the Detailed Findings (2019), paras 140, 213. 49 Ibid, para 2.
50 Ibid, para 156.
Tatmadaw and other government authorities that the Mission documented in its 2018 report are still present”.51 The Mission found that “grave violations against the Rohingya continue” and that there is a “real and significant danger of the situation deteriorating further.” Current situation is need of immediate intervention. Despite52 the worsening living conditions of the Rohingya people, Myanmar government has been prohibiting humanitarian assistance from the international society to the lockdown zone, which further exacerbated the humanitarian crisis faced by the Rohingya people. 53
2.3 Conclusion
The alleged acts against the Rohingyas amount to a prima facie crime of genocide. The Rohingya group remains under grave danger, and the situation is in need of outside intervention from the international community. The United Nations General Assembly (“UNGA”) expressed “grave concern at the findings of the independent international fact-finding mission on Myanmar that there [was] sufficient information to warrant investigation and prosecution so that a competent court may determine liability for genocide in relation to the situation in Rakhine State”. As the 54 existing independent and impartial international court, the ICC is competent to bring those most responsible to justice. The commission of genocide falls within the jurisdiction of the ICC. One thing needs to be considered in the current case is whether the ICC can establish jurisdiction over genocide committed in the territory of Myanmar, the non-State Party. However, there is close territorial connection between the alleged crime and Bangladesh, which is party to the ICC Statute. First, Myanmar and Bangladesh are neighboring countries and Bangladesh has territorial proximity to the alleged crime. Therefore, the ICC can claim objective territorial jurisdiction if the requirements under article 12(2)(a) of the Rome Statute are met. Second, the alleged 51Ibid, para 2.
52 Ibid, para 58.
53Human Rights Council, ‘Detailed findings of the Independent International Fact-Finding Mission on
Myanmar’ (16 September 2019) A/HRC/42/CRP.5.
54 United Nations General Assembly, ‘Resolution adopted by the General Assembly on 22 December
2018’ A/RES/73/264 (22 January 2019) < https://undocs.org/en/A/RES/73/264> accessed 1 July 2020. 18
acts have caused grave effects on Bangladesh. As a result, the effects doctrine may be applied to justify the ICC’s jurisdiction.
3. The Interpretation of Article 12(2)(a) of the Rome Statute
3.1 Introduction
The principle of objective territoriality is an expansion of territorial jurisdiction. To justify objective territorial jurisdiction of the ICC, the first step is to examine the ICC’s territorial jurisdiction provided in article 12(2)(a) of the Rome Statute and analyze content and purpose of this article. Article 12(2)(a) provides that for “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 ICC may exercise jurisdiction if the State is party to the Statute or the State has accepted the ICC’s jurisdiction. Territorial jurisdiction is one of the main implications of State sovereignty, and the demise of territorial jurisdiction is seen as erosion of it. For this reason, negotiating parties were sensitive about this issue and 55 tended not to yield a step. As a result, the drafting process of article 12(2)(a) consisted of intense debate among participating States. The interminable negotiations resulted in an article with compromises and limitations. Besides, the content of article 12(2)(a) is controversial. For example, there lacks clear explanation of the word “conduct” in question. Therefore, article 12(2)(a) needs further scrutinization to find expansion of territorial jurisdiction. Article 31 of the Vienna Convention, preparatory work and article 21(3) of the Rome Statute are the three main instruments in interpreting of article 12(2)(a). This paper will start from the drafting history of the Rome Statute,56 exploring the purpose of the drafters and political concerns behind the content of the article.
3.2 Drafting history of the Rome Statute
After the World War II, war criminals from Germany and Japan were tried in Nuremberg Trials and International Military Tribunal for the Far East (“IMTFE”). At
55 Malcolm N. Shaw, International Law (5th edn, CUP 2003) 579.
56 Michail Vagias, The Territorial Jurisdiction of the International Criminal Court (1st edn, CUP 2014)
97.
that time, the United Nations made an effort to set a permanent court, but this proposal failed. The Genocide Convention was adopted57 in 1948 by the UNGA for criminals to be tried “by such international penal tribunals as may have jurisdiction”. In the meantime, International Law Commission (“ILC”) was invited “to study the desirability and possibility of establishing an international judicial organ for the trials of persons charged with genocide.”58The establishment of International Criminal Tribunal for the former Yugoslavia (“ICTY”) and International Criminal Tribunal for Rwanda (“ICTR”) demonstrated the feasibility and need for the establishment of a permanent international criminal court, and codified international criminal law which was later incorporated in the Rome Statute. The ILC submitted its final version of draft Statute in 1994. Despite insufficient support for intergovernmental negotiations, the UNGA still set the Ad Hoc Committee on the Establishment of an International Criminal Court and then the Preparatory Committee on the Establishment of the ICC. After six sessions of the UN Preparatory Committee, 160 countries participated in the Rome Conference from 15 June to 17 July 1998 in Rome. 59
Unlike Statutes of ICTY and ICTR which were adopted by resolutions of the United Nations Security Council (UNSC), Rome Statute was adopted as a treaty after years of negotiations with the participations of States. `from the lack of support for diplomatic conference from the beginning. Besides, two of the world’s most powerful countries, the United States and China, voted against the Rome Statute. The jurisdiction of the ICC became the most controversial issue during the Rome Conference and was solved on the very last day. 60The Rome Statute was drafted in a limited time. In order to obtain supports from the participating States and make the Statute signed by as many States as possible, some compromises were reached after intense discussion. One concession is the
57United Nations International Law Commission,Yearbook of the International Law Commission 1993
(A/CN.4/SER.A/1993/Add.l) Vol.II, Part 1, p24.
58William A. Schabas, Genocide in International Law: The Crimes of Crime (2nd edn, CUP 2009) 376. 59 ‘History of the Rome Statute of the International Criminal Court’ (3 December 2015)
<http://humanrightscommitments.ca/2015/12/history-of-the-rome-statute-of-the-international-criminal-court/> accessed 1 July 2020.
60Philippe Kirsch and John T. Holmes, ‘The Rome Conference on an International Criminal Court, The
Negotiating Process’ (1999) 93 American Journal of International Law 2. 21
restricted territorial jurisdiction of the ICC. During the Rome Conference, different modes of jurisdiction were proposed by negotiating States. For example, Germany proposed that universal jurisdiction should be included and this proposal was supported by many States and a large amount of NGOs. The Korean proposal was also widely acknowledged, which is that the ICC may claim jurisdiction as long as one of the four States, i.e. territorial State, the custodial State, the State of nationality of the accused or the victim is State Party. While the Korean proposal received some criticism for its similar nature to quasi-universal jurisdiction. The automatic jurisdiction that the State must accept the ICC’s jurisdiction after ratification without further case-by-case analysis was less controversial as for the crime of genocide. In the end, the Korean approach was adopted for the crime of genocide. On the 61 contrary, negotiating parties explicitly rejected the proposal to institute universal jurisdiction. As the article concerning the yield of State sovereignty, article 12(2)(a)62 derives completely from the mutual consent of the negotiating States. Therefore, the explanation of article 12(2)(a) should be in conformity with currently binding interpretation principles. In order to maintain the complementary role of the ICC and to gain the support of States, any expansive interpretation should be justified and confined within a certain sphere.
In conclusion, lengthy negotiations during Rome Conference were largely caused by political concern and the achievement of consensus was hindered. The territorial jurisdiction of the ICC in article 12(2)(a) is especially disputed because it requires the demise of State sovereignty. As a result, the final version of Rome Statute leaves many gaps, which may be filled by further interpretation. What’s more, the content63 of article 12(2)(a) remains ambiguous in respect of the interpretation of the “conduct in question”. As one of the most damning international crime, the jurisdiction over genocide appears to be more expansive and acceptable to State Parties. In the situation of Myanmar, in order to bring those most responsible for the genocide committed against the Rohingya people to justice, there should be room at least to expand
61 Ibid.
62 Ibid.
63 Kai Ambos,Treatise on International Criminal Law. Volume 1, Foundations and general part (1st
edn, OUP 2013) 68.
territorial jurisdiction or interpret the content article 12(2)(a) in a broader manner in the end.
3.3 Rules of interpretation
ICC case law has noted that “interpretation of treaties, and the Rome Statute is no exception, is governed by the VCLT, specifically the provisions of Articles 31 and 32”.64 Article 31 and 32 of the Vienna Convention provide rules and means of interpretation. Article 31 requires that the terms should be given ordinary meaning “ in their context and in the light of its object and purpose”. Article 32 stipulates that 65 interpretation can recourse to supplementary means “including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure, or (b) leads to a result which is manifestly absurd or unreasonable”. 66
Article 21 of the Rome Statute sheds light on the sources of law. In cases of statutory ambiguity, the following materials can be used as references: 1) the text of the Statute; 2) Elements of Crimes; 3) Rules of Procedure and Evidence; 4) “applicable treaties and the principles and rules of international law” and; 5) “failing that, general principles of law” derived from national legal systems, including the laws of “States that would normally exercise jurisdiction over the crime.” Article 67 21(3) set a limitation, namely “application and interpretation of law pursuant to this
64 Situation in the Democratic Republic of the Congo, ‘Judgment on Extraordinary Review’
ICC-01/04-168 OA3 Appeals Chamber (13 July 2006), para 33;Prosecutor v. Kantanga & Ngudjolo,
Judgment on the Ngudjolo’s Joinder Appeal, ICC-01/04-01/07-573 OA6 Appeals Chamber (9 June 2008), para 5.
65 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January
1980) 1155 UNTS 331 (Vienna Convention) art 31.
66 Ibid, art 32.
67 Rome Statute, art 21(1).
article must be consistent with internationally recognized human rights” and “without any adverse distinction”. 68
Interpretation methods of a treaty can be pragmatic, logical, teleological, axiological etc. Teleological interpretation is to use the object and purpose of a treaty to interpret. When the ordinary meaning of the treaty is vague, the object and69 purpose is used to make the meaning of the content more precise. A general view is that the objects and purposes concerned are those conferred to the treaty by the treaty parties. The object and purpose of the Rome Statute is to end impunity and bring70 those responsible for the most incriminating crimes to justice in accordance with the principle of complementarity. As will be discussed below, teleological approach will 71 be adopted to interpret article 12(2)(a) in a rationally broader manner.
3.4 An extensive interpretation of article 12 (2)(a)
According to the ICC’s discretionary power regarding jurisdiction, it’s an inherent power of the ICC to decide its jurisdiction, but how far it can reach should be based on the interpretation of the Statute. Article 21 of the Rome Statute indicates 72 that “the Court plays a significant role in interpreting the law in the international spectrum”. In the situation in the Islamic Republic of Afghanistan (“Afghanistan73 situation” , ever since the Office of the Prosecutor (”OT“P) asserted jurisdiction over American forces in Afghanistan, there have been opposing views stating that article
68 Rome Statute, art 21(3).
69Ulf Linderfalk,On the Interpretation of Treaties: The Modern International Law as Expressed in the
1969 Vienna Convention on the Law of Treaties (1st edn, Springer Science & Business Media 2007) 204.
70 Ibid. 232.
71 Amnesty International, ‘International Criminal Court: US efforts to obtain impunity for genocide,
crimes against humanity and war crimes’ (2003) <
https://www.amnesty.org/download/Documents/120000/ior400252002en.pdf> accessed 1 July2020.
72 Michail Vagias, ‘The Territorial Jurisdiction of the International Criminal Court’, Ph.D thesis of
Leiden University, p106
73 Situation in the State of Palestine, ‘Corrected Version of: COURT’S TERRITORIAL
JURISDICTION IN PALESTINE’ ICC-01/08 PTC I (16 March 2020). 24
12(2)(a) should be interpreted in a manner that enables the ICC to best synergize with domestic criminal jurisdiction, and that the jurisdiction of the ICC should not supersede what was consented by the negotiating States and regulated in the Rome Statute.74 Nevertheless, on 5 March 2020, the Appeals Chamber authorized an investigation into the alleged crimes under the jurisdiction of the Court. Though the 75 Chamber decided that article 12 was irrelevant in the current situation, the manner it interpreted article 15 is worth noticing. The Appeals Chamber started from the function and historical background of article 15, stating that article 15 was “the subject of lengthy debate and the final text reflects a delicate balance regarding” conflicting values. The interpretation fully reflected the concern of the drafters.76 77 There are similarities between the Afghanistan situation and the current case. Article 12(2)(a) is the product of protracted negotiations, which should also be interpreted in a teleological approach while balancing the limitation of the existing content and the concerns of the drafters.
In the situation in Palestine, the Court recognized the necessity for a broad or expansive interpretation of international law in order to “find an appropriate solution for justice for Palestine to prevent impunity”, avoiding rigid adherence and perfunctory application of international standards like national sovereignty and the Montevideo Convention. The ICC works in a multilateral system to end impunity.78 As far as article 21(3) is concerned, the interpretation of the articles should not be conflict with internationally recognized human rights. In practice, it is always crucial 74Mike Newton, ‘Treaty Based Limitations on the Article 12 Jurisdiction of the Int’l Criminal Court’
(23 April 2018) <
https://www.justsecurity.org/55318/treaty-based-limitations-article-12-jurisdiction-icc/> accessed 1 July 2020.
75 ‘Afghanistan: ICC Appeals Chamber authorises the opening of an investigation’ (5 March 2020)
<https://www.icc-cpi.int/Pages/item.aspx?name=pr1516> accessed 1 July 2020.
76 Situation in the Islamic Republic of Afghanistan ‘Judgment on the Appeal Against the Decision on
the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’ ICC-02/17 OA4 Appeals Chamber (5 March 2020), para 26.
77 Ibid, para 34.
78 Situation in the State of Palestine, ‘Corrected Version of: COURT’S TERRITORIAL
JURISDICTION IN PALESTINE’ ICC-01/08 PTC I (16 March 2020). 25
to guarantee the rights of the accused and in the meantime uphold justice for the victims. In terms of article 12(2)(a), on the one hand, it’s mandatory to respect State sovereignty and protect those responsible from unforeseeable jurisdiction. On the other hand, the most inhumane crimes committed should be tried by an independent and impartial court like the ICC. As a result, the interpretation of article 12(2)(a) should not be rigorous or changeless, but need to be interpreted giving enough thought to the specific situation.
It can be seen from the above two examples that it’s the ICC’s tendency to take an expansive approach and case-by case analysis in interpretation while taking full account of the need for justice. Efforts have been made to find any leeway for a broader interpretation in the judicial sense. The interpretation of article 12(2)(a) can be broadened in accordance with the object and the purpose of the Rome Statute that “the most serious crimes of concern to the international community as a whole must not go unpunished” In interpreting the “conduct in question”, one should not only 79 80 look into the alleged acts themselves, but also take into consideration its persistent state and further influence.
3.5 Conclusion
In conclusion, a broader interpretation of article 12(2)(a) should stem from the content itself. Article 12(2)(a) is the outcome of negotiations in order to balance the ICC’s mandate to address international crimes and respect the State sovereignty. As a result, it has certain limitations. The constituent elements may be easily identified in the past, with the deepening of globalization, the boundaries have become blurry. Article 12(2)(a) should be constantly evolving to comply with the new features of international crimes. Therefore, teleological interpretation should be used and there should be room for a broader interpretation of article 12(2)(a). This paper will try to find an expansive interpretation for article 12(2)(a) to answers the following questions: 1) how far “the conduct in question” may extend to acts and criminal results occurring outside the territory of an ICC State Party; and 2) whether the 79 Rome Statute, Preamble para 4.
80 Rome Statute, art 12(2)(a).
“effects doctrine” may extend territorial jurisdiction to States where no element of a crime occurred, but where bad effects of events elsewhere occurred.
4. The Principle of Objective Territoriality
4.1 Expansion of territorial jurisdiction
Territorial jurisdiction refers to the power of a State over events and persons within its geographic territory. Territoriality is one of the fundamental principles in respect of jurisdiction. Extra territorial jurisdiction is an expansion of territorial jurisdiction, which usually requires the existence of connection between the State and the concerned crime. Francis Mann held that “the problem, properly defined, involves the search for the State or States whose contact with the facts is such as to make the allocation of legislative competence just and reasonable”. Accordingly, it is “the legally relevant contact between such legislation and the given set of international facts that decides upon the existence of jurisdiction”. The theory is known as the 81 “Mann doctrine”. In Mann’s view, States may seek jurisdiction over crimes when the acts have certain connections with the concerned territory. Vagias furthered developed Mann’s doctrine with regards to the jurisdiction of the ICC, proposing that “the Court shall have territorial jurisdiction when a crime is sufciently closely connected to the territory of a State Party”. The view of extra territorial jurisdiction 82 was streamlined using a “clear connecting factor” between the State and the conduct concerned. 83
However, pure connection will not render the claimed jurisdiction effective. In most cases, jurisdictional agreement between the custodial State and the external State is needed, or there is a supranational judicial institution and both States accept its jurisdiction. Basing on the connecting factor, activities that are considered occurred outside the territory can be recharacterized as inside the territory, which justifies 84 extra territorial jurisdiction as territorial jurisdiction. The principle of objective
81 Francis.A. Mann, ‘The Concept of Jurisdiction in International Law’ (1964) 111 Recueil des cours
43.
82 Michail Vagias, ‘The Territorial Jurisdiction of the International Criminal Court – A Jurisdictional
Rule of Reason for the ICC?’ (2012) 59 Netherlands International Law Review 43.
83 Malcolm David Evans, International Law (5th edn, OUP 2018) 315.
84 Anthony J. Colangelo, ‘What is Extraterritorial Jurisdiction’ (2014) 99 Cornell Law Review 1313.
territoriality has set a good example. According to this principle, a State is able to exercise jurisdiction over a crime in case one of its constituent element is completed within its territory. For this reason, some kind of territorial connections with the territory should be established to implement territorial jurisdiction. In the Bangladesh/Myanmar situation, at first glance there is no basis for the exercise of extra territorial jurisdiction. However, sufficient connecting factors can be found between the alleged genocide and Bangladesh, either in the aspect of territorial links or the effects of the crime.
4.2 Territorial jurisdiction of the ICC
Art 12 of the Rome Statute provides three preconditions for the ICC to exercise jurisdiction: 1) A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5; 2) 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; and 3) The State of which the person accused of the crime is a national. The 85 majority of cases and situations that the ICC has been going through are based on the authority of territoriality. Since it is difficult to obtain the consensus of permanent members the UNSC to refer situations of mass atrocity, territorial jurisdiction will continue to be the main legal basis for the ICC to exercise jurisdiction, and article 12(2)(a) has become the most frequently used legal basis. However, it remains questionable to determine a court’s jurisdiction when only a part of the conduct has occurred within the territory. Are there minimum thresholds for the ICC to exercise jurisdiction over partially committed crime? The principle of objective territoriality holds that the State can claim jurisdiction over a crime as long as one constituent element has taken place within its territory.
4.3 Objective territorial jurisdiction
Acts carried out in a State’s territory will fall within that State’s jurisdiction. There are two situations in the territorial jurisdiction: the first is that the act is initiated 85 Rome Statute, art 12.
in one State, which is the rule of subjective territoriality; the second is that the act is completed, or cause effects in another State, which is called the principle of objective territoriality. The Lotus Case is of significant meaning in establishing the principle of objective territoriality. The Permanent Court of International Justice (“PCIJ”) decided that a State may claim jurisdiction over a crime even though it is committed outside its territory, as long as one constituent element of the crime is committed within that State. In the view of the Court, a state may validly exercise jurisdiction, when an86 effect, in the sense of “a direct physical result which is itself a constituent or essential element in the offence charged” occurs in its territory. The Court asserted that even 87 the courts of countries “which have given their criminal legislation a strictly territorial character” would interpret criminal law in this sense, and the offences should be regarded as having been committed within the national territory. If this is the case, 88 there may be concurrent jurisdiction between the State where the crime is initiated and the State where it is completed.
Objective territoriality enables State to prosecute and punish crimes which commenced outside its territory but consummated within its territory. The presence 89 of one constituent element of the offence is required for the exercise of territorial jurisdiction. Objective territoriality is merely an extension and broader interpretation90 of the principle of territoriality and thus should be limited in some point. Therefore, the establishment of objective territorial jurisdiction should strictly adhere to the scrutinization of constituent elements, otherwise it will go against the essence of territorial jurisdiction and become a ubiquity principle of jurisdiction.91
86 The Case of the S.S. Lotus, France v. Turkey, PCIJ (7 September 1927), Judgment No. 9
87 Robert Jennings, ‘The Limits of State Jurisdiction’ (1962) 32 Nordic Journal of International Law
212.
88 Ibid, para 61.
89 Harvard Law School, Research in International Law, Under the Auspices of the Faculty of the
Harvard Law School. II. Jurisdiction with Respect to Crime (1935) 487.
90 Boaz Barack, The Application of the Competition Rules (Competition law) of the European
Economic Community to Enterprises and Arrangements External to the Common Market (1st edn,
Springer 2013) 16.
91 Ibid, 17.
4.4 Application of objective territoriality in the Bangladesh/Myanmar situation 4.4.1 Elements of crime of genocide
The Genocide Convention regulated the standard definition and elements of crime of genocide for the first time. Statutes of the ad hoc Tribunals and the ICC adopted verbatim the elements of genocide. Myanmar and Bangladesh are both 92 parties to the Genocide Convention. As for the material elements of genocide, article 2 of the Genocide Convention defines genocide as “... any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 1) Killing members of the group; 2) Causing serious bodily or mental harm to members of the group; 3) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4) Imposing measures intended to prevent births within the group; 5) Forcibly
transferring children of the group to another group”. Article 6 of the Rome Statute also has the same provisions. The ICC Elements of Crime have an additional material element, requiring that “the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction”.93
The mental elements of genocide comprise both the requisite intention to commit the underlying prohibited act and the genocidal intent, i.e. the special intent to destroy in whole or in part a protected group. The protected groups are defined as national,
ethnical, racial and religious groups. In the Bangladesh/Myanmar situation, the most
apparent connection between the alleged genocide and the territory of Bangladesh is that a large number of Rohingya people fled to Bangladesh to Myanmar. The flight itself is not an element of genocide but rather crime of deportation. As for the mental
aspect of genocide, the genocidal plan towards the Rohingyas was conceived and
92Robert Cryer, Darryl Robinson and Sergey Vasiliev,An Introduction to International Criminal Law
and Procedure (4th edn, CUP 2019) 206.
93Valerue Oosterveld and Charles Garraway, ‘The Elements of Genocide’ in Roy Lee et al. (eds.), The
International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (New York, 2001) 41, 44, 45.
conspired within Myanmar for the whole time. It needs to be assessed whether one constituent element of the genocidal acts have occurred within the territory of Bangladesh.
4.4.2 Territorial connections between Bangladesh and the alleged crime of genocide
There are sufficient territorial link between the alleged crime of genocide and the territory of Bangladesh. Bangladesh and Myanmar are neighboring countries sharing 168 kilometers of land border. The majority of Rohingya population resides in the districts adjacent to Bangladesh.94 From 1978 onwards, an estimated 200,000 Rohingyas fled to Bangladesh. After that, a new wave of an estimated 250,000 Rohingyas arrived in Bangladesh in 1991. To solve the problem caused by the sudden influx, the government of Bangladesh set up 20 camps in Cox’s Bazar and Bandarban between 1991 and 1992 to provide accommodations for the Rohingya refugees. At present, there are only two remaining camps, Nayapara and Kutupalong, which accommodate estimate 28,000 documented Rohingya refugees. However, Bangladesh has decided to close its borders to future Rohingya refugees despite the repeated advocacy efforts by the United Nations High Commissioner on Refugees (“UNHCR”), civil society and the diplomatic community. 95
A significant level of proximity and coordination is required to justify the territorial link as a constituent element of the offence. The above-mentioned facts 96 build sufficient territorial links between Bangladesh and the alleged crime and ensure Bangladesh is in close proximity to the crime. A ccording to current international criminal law theory, a crime consists of two aspects of elements, namely actus reus and mens rea. The actus reus of crime of genocide refers to the genocidal acts.
Constituent elements of an offence are composed of its beginning, in-between stage
94 Syeda Parnini et al., ‘The Rohingya Refugee Crisis and Bangladesh-Myanmar Relations’ (2013) 22
Asian and Pacific Migration Journal 133.
95 Ibid.
96Cóman Kenny, ‘Prosecuting Crimes of International Concern: Islamic State at the ICC?’ (2017) 33
Utrecht Journal of International and European Law 120. 32
