The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) on Thursday requested authorization to conduct a formal investigation into alleged crimes against ethnic Rohingya in Myanmar and Bangladesh. The request marks the end of the OTP’s preliminary examination, which was opened in September 2018 following the court’s review of communications from alleged victims.
The situation involving the Rohingya raises a key jurisdictional question because Myanmar is not a party to the ICC’s founding treaty, the Rome Statute. Examining the issue last fall, an ICC pre-trial chamber held that the court may exercise jurisdiction over acts of deportation initiated on the territory of a non-state party where those acts are completed on the territory of a state party. The chamber further held that the ICC may be able to adjudicate other crimes “if it were established that at least an element of another crime…is committed on the territory of a state party.” Bangladesh became a state party to the Rome Statute in 2010. Therefore, it appears the ICC may exercise jurisdiction at least with respect to the deportation of Rohingya from Myanmar to Bangladesh.
In its submission to the court on Thursday, the OTP referred to alleged crimes against humanity perpetrated by multiple actors, including the Myanmar armed forces, border police, and national police. The OTP’s submission specifically focused on evidence of alleged acts of deportation, unlawful killing, and sexual violence committed during one period beginning in October 2016 and another beginning in August 2017.
On the question of whether the alleged crimes have been or are being properly investigated by the national authorities, the OTP wrote that Myanmar has refused to provide any information in this regard. According to the OTP, public reports indicate that “a few inquiries, investigations, or prosecutions may have been initiated” in Myanmar; the OTP added, however, that “the information currently available suggests that there are extremely limited prospects that senior officials of the [Myanmar armed forces] and other security forces will be held accountable” for the crimes that form the basis of its submission to the court.
In support of its 146-page request, the OTP submitted chronologies, maps, and other documentation relating to the alleged crimes in ten separate annexes, six of which are public.