The ICC pre-trial chamber decision on jurisdiction over the situation in Myanmar

ABSTRACT

The transfer and deportation of ethnically Rohingya people from Myanmar into Bangladesh is a crime against humanity demanding an international response. What role, however, should the International Criminal Court (ICC) play? On 6 September 2018 an ICC Pre-Trial Chamber ruled that the Court has jurisdiction to investigate and prosecute such crimes as they are completed on the territory of a State party, Bangladesh. Myanmar is not a party to ICC Statute and has invoked the principle that treaties do not bind third parties without their consent. The case put in this commentary is that while the Pre-Trial Chamber’s approach to the law was arguable as an interpretation of the ICC Statute, it was unwise as a matter of policy. The argument is threefold. First, the Pre-Trial Chamber’s ruling is as a matter of legal method only the first-move in a process of norm-creation and persuasion. Second, it does not follow that because territorial jurisdiction in international law includes ‘objective’ jurisdiction over transboundary acts completed on a State’s territory that such jurisdiction was delegated by member States to the ICC in all cases. Finally, it is argued that international criminal tribunals do not succeed when the cooperation of necessary territorial governments (here, Myanmar) is withheld. Proceeding in this case risks becoming a quagmire of the ICC’s own creation at a time when it can little afford further risks to its legitimacy.

KEYWORDS:

• International Criminal Court
• Bangladesh
• Myanmar
• Rohingya
• crimes against humanity
• jurisdiction
• international law
• norms

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Dr Douglas Guilfoyle is Associate Professor of International and Security Law at the University of New South Wales Canberra (from 3 December 2018). Previously, he has worked as a Professor of International Law at the Faculty of Law, Monash University, and Reader in Law at University College London. His principal areas of research are international criminal law, the international law of the sea, and maritime security. He has acted as a consultant to governments and international organisations. He tweets at @djag2.