The Problem with the Crime of Forced Migration as a Loophole to icc Jurisdiction

the ptc’s Decision on Myanmar and the Risk to Vulnerable Populations

In: Journal of International Humanitarian Legal Studies
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  • 1 University of Saskatchewan, Assistant Professor, Department of Political Studies, Saskatchewan, Canada

Abstract

In November 2019, the icc’s Pre-Trial Chamber authorized the Prosecutor to proceed with an investigation based on a previous decision that the Court may exercise jurisdiction over the alleged deportation of Rohingya from Myanmar to Bangladesh. While the crime of deportation occurred in Myanmar, which is not a State party to the icc and therefore not within the jurisdiction of the Court without unsc referral, the deportation ended in Bangladesh, which is a State party. Once the Court determined that the State that receives the forcibly displaced can confer jurisdiction, the ground seemed to shift drastically in regards to the possible jurisdictional reach of the icc. This paper explores how this Pre-Trial Chamber decision, reasonably read as extending the Court’s geographic jurisdiction beyond what was intended by the drafters of the Rome Statute, could have negative implications, particularly how this extension could further threaten some of the world’s most vulnerable.

Abstract

In November 2019, the icc’s Pre-Trial Chamber authorized the Prosecutor to proceed with an investigation based on a previous decision that the Court may exercise jurisdiction over the alleged deportation of Rohingya from Myanmar to Bangladesh. While the crime of deportation occurred in Myanmar, which is not a State party to the icc and therefore not within the jurisdiction of the Court without unsc referral, the deportation ended in Bangladesh, which is a State party. Once the Court determined that the State that receives the forcibly displaced can confer jurisdiction, the ground seemed to shift drastically in regards to the possible jurisdictional reach of the icc. This paper explores how this Pre-Trial Chamber decision, reasonably read as extending the Court’s geographic jurisdiction beyond what was intended by the drafters of the Rome Statute, could have negative implications, particularly how this extension could further threaten some of the world’s most vulnerable.

1 Introduction

While many humanitarian crises are beyond the reach of the International Criminal Court (hereafter icc or ‘the Court’), the Court recently adopted a novel approach to extending its reach. This approach could be seen as better realizing global justice and the protection of vulnerable persons globally, but could also have devastating effects for some vulnerable populations given the statist world in which we live. This article explores this extension of the Court’s reach as well as its potential effects.

On 14 November 2019, Pre-Trial Chamber iii of the icc authorized the Prosecutor to proceed with an investigation into alleged crimes committed in the situation termed by the Court “the People’s Republic of Bangladesh/Republic of the Union of Myanmar.”1 This authorization followed a request to open an investigation, submitted on 4 July 2019 by the Court’s Chief Prosecutor. Her request to open an investigation was only possible because on 6 September 2018 Pre-Trial Chamber i of the icc decided that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.2 The November decision authorizing the opening of an official investigation permitted the Prosecutor not only to investigate forced migration but other crimes against humanity, including the persecution of the Rohingya people.3

The decision taken by Pre-Trial Chamber i recognized a seemingly new and unexpected (and definitely unprecedented) way for the icc to claim jurisdiction for crimes that would not otherwise fall within its jurisdiction. Because the Court has a unique foundation that has seemingly drawn its legitimacy simultaneously from two conflicting theoretical grounds, it struggles to fulfill cosmopolitan aspirations of denying impunity for atrocity crimes and deterring future crimes while at the same time being limited in its reach by State acceptance. At its core, it is an institution that, some argue, draws its moral authority from a cosmopolitan understanding of the need to protect and promote the basic human rights of individuals globally, and draws its legal authority from a treaty that only States can sign.4 As a treaty-based institution, the icc can investigate and prosecute only situations connected to Member States that have submitted to its jurisdiction or situations referred by the United Nations Security Council (unsc).5 This leaves many humanitarian disasters beyond the reach of the Court if the unsc does not resolve to refer them. The jurisdictional limitations to the Court, I and others have argued elsewhere, contribute to its legitimacy problems.6

One of the many humanitarian disasters that could arguably benefit from international intervention and possibly international criminal law intervention is the situation faced by the minority Rohingya population in Myanmar. The Rohingya, a Muslim minority living in majority-Buddhist Myanmar, an area they have called home for centuries, have ‘faced decades of systemic discrimination, statelessness and targeted violence in Rakhine State,’7 and have been called ‘the most persecuted people on earth.’8 As the United Nations Office for the Coordination of Humanitarian Affairs described the situation, August 2017:

Triggered by far the largest and fastest refugee influx into Bangladesh. Since then, an estimated 745,000 Rohingya—including more than 400,000 children—have fled into Cox’s Bazar. In Myanmar, entire villages were burned to the ground, families were separated and killed, and women and girls were gang raped. Most of the people who escaped were severely traumatized after witnessing unspeakable atrocities. These people found temporary shelter in refugee camps around Cox’s Bazar, Bangladesh, which is now home to the world’s largest refugee camp.9

By March 2019, an estimated over 900,000 stateless Rohingya refugees were living in Ukhiya and Teknaf Upazilas in Southern Bangladesh. The vast majority lived (and still live) in 34 extremely congested camps, including ‘the largest single site, the Kutupalong-Balukhali Expansion Site, which is host to approximately 626,500 Rohingya refugees.’10

The crimes committed against the Rohingya – the indiscriminate shooting, forced disappearances, sexual violence, and the ‘orchestrated campaign of systematic burnings’ targeting Rohingya villages – rise to the level of crimes against humanity. ‘“The evidence is irrefutable – the Myanmar security forces are setting northern Rakhine State ablaze in a targeted campaign to push the Rohingya people out of Myanmar. Make no mistake: this is ethnic cleansing,” said Tirana Hassan, Amnesty International’s Crisis Response Director.’11 In September 2018, a UN Fact-Finding Mission released a report outlining its account of mass human rights violations and a call for the investigation and prosecution of named top military leaders in Myanmar for war crimes, crimes against humanity, and genocide.12 This report was again confirmed a year later, in September 2019.13 The Prosecutor of the icc noted the following:

More specifically, the information available provides a reasonable basis to believe that, in the context of the 2017 wave of violence, the following crimes were committed, in part on the territory of Myanmar and in part on the territory of Bangladesh.

  1. Deportation under article 7(1) (d) of the Statute. Although the coercive acts forcing the Rohingya population to flee took place on the territory of Myanmar, the victims crossed the border—an essential element for the crime of deportation—by entering into the territory of Bangladesh;
  2. Other inhumane acts under article 7(1)(k) of the Statute, namely, the infliction of great suffering or serious injury by means of intentional and severe violations of the customary international law right of displaced persons to return safely and humanely to the State of origin with which they have a sufficiently close connection;
  3. Persecution on ethnic and/or religious grounds under article 7(1)(h) of the Statute by means of deportation and intentional and severe deprivation of the customary international law right to return.14

In 2019, The Gambia instituted proceedings against Myanmar before the International Court of Justice (icj) alleging violations of the Genocide Convention and requesting that the icj indicate provisional measures to safeguard the Rohingya and ‘any evidence related to the events described in the Application.’15 On 23 January 2020, the Court issued provisional measures ordering Myanmar to take ‘all measures within its power’ to prevent genocide against Rohingya,16 which many saw as recognition of the vulnerability of and violations against the Rohingya.17

Members of the international community have called for a unsc referral to prompt icc intervention into the Myanmar situation.18 A unsc referral is unlikely, however, given the composition of the unsc and self-interests of the permanent States of the council. Therefore, it would seem to many familiar with the foundational treaty of the icc, the Rome Statute, that this particular situation is beyond the jurisdiction of the Court, despite some global desire that it not be. Seemingly recognizing this and attempting to manoeuvre around the expected interpretation of the statist nature of Rome Statute jurisdiction, the icc’s Office of the Prosecutor (otp) requested that the icc Pre-Trial Chamber consider that jurisdiction could be established ‘because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).’19 In response, as mentioned above, on 6 September 2018, the Court’s Pre-Trial Chamber i decided that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.20 While the crime of deportation occurred in the territory of Myanmar, which is not a State Party to the statute and therefore not within the jurisdiction of the Court without unsc referral, the movement of the deportation ended in Bangladesh, which is a State Party. Once the Court determined that the State that receives the forcibly displaced can confer jurisdiction, the ground seemed to shift dramatically in regards to the possible jurisdictional reach of the Court.

The situation faced by the Rohingya is, unfortunately, not unique, and there are many other situations in which groups of individuals face persecution and are forced from their homes, across international borders. Novel as this approach adopted by the icc Prosecutor and Pre-Trial Chamber judges may be, it could be seen as a solution to problems of jurisdiction for a variety of situations; in fact, any situation in which refugees are being forced from their homes and across borders because of persecution within States which are not Member States of the icc. It might then be seen as a way to bridge the gap between hopes for a more universal objective reach for the Court and a statist system that supports State prerogative to the detriment of citizens.

This article progresses by first exploring the current conditions regarding icc jurisdiction by way of briefly looking to past international criminal tribunals with a focus on the inherent tension between the hopes for objective global criminal justice and the power of self-interested States (or State leaders) over each iteration of international criminal tribunal or court. It will then turn to the recent decision made by the icc Pre-Trial Chamber with regards to Myanmar, which could be read as extending the geographic jurisdiction of the Court beyond what was ever intended by the drafters of the Rome Statute, but which could be welcomed as a necessary extension of a Court hampered by statist self-interest. Finally, this article will explore some possible negative implications of such an extension, particularly how this extension could further threaten some of the world’s most vulnerable. In particular, it focuses on how a selective approach to investigating crimes committed against Rohingya refugees could have the unintended consequence of incentivizing States to prevent refugees from fleeing and, instead, commit further atrocities against them within their borders.

2 The icc and its Statist Limitations

The icc is an institution seemingly created out of hope; hope that global morality paired with political needs (for States to be seen as subscribing to global norms and as citizens of good standing within the global order) could overcome some of the more challenging limitations of international criminal law’s reach as a protection of individuals globally.21 With its permanence, independence, and global scope, it is a bold step beyond previous iterations of international criminal tribunals that were established to address particular situations and only particular responsible perpetrators.22 However, in the two decades since the establishment of the Court, it has become clear that the reach of the Court is hampered by the priority of State prerogative within the contemporary statist global order as well as the power politics of the order that allow particular States to wield considerable (often self-interested) influence over the operations of the Court. While the Court attempts to address criticisms and operate within this environment,23 it has also attempted to demonstrate its relevance as being able to stretch its reach based on the acceptance shown to it by non-violating States which are also non-unsc members.

Before we explore the conditions of the icc, the contemporary institution of international criminal law (icl), it is important to examine the core tenets on which this and historical institutions of icl pivot, and the global politics and moral debates that preceded the creation of the icc and led to the current situation. At the core of the icc are two competing foundations: a moral justification arising from a cosmopolitan position that there are certain harms for which impunity cannot be accepted; and a statist global order that promotes (at least in theory) the Westphalian notion of sovereignty that (again, in theory) is valuable in being able to protect nation States from the interference of other States.24 In line with the first was a faith, among some, in icl and the seemingly urgent post-wwii moral sentiment of ‘never-again’.25 This aspirational position required a reconciliation with the statist global order.26 A brief genealogy of international criminal tribunals shows the evolution of attempts to overcome the challenges of limited jurisdiction based on State sovereignty and global politics.

One of the challenges that the new permanent institution was arguably meant to rectify was the historic politicization of icl that diminished its genuine and perceived legitimacy as an objective purveyor of legal justice. Previous international tribunals were rightly criticized for equating jus ad bellum (the right reasons to engage in war) or even simply victory with jus in bello (appropriate wartime conduct). Despite the fact that in particularly horrific conflicts it is often the case that both sides to the conflict commit war crimes and crimes against humanity, perpetrators who fought for the losing or ‘bad guys’ side have been historically more likely to be the only ones prosecuted.27 Creating a permanent institution, unlike previous tribunals that were created to address only specific situations with constitutions that outline very particular boundaries of investigation and judgment, was to be able to overcome challenges of selectivity. It would seem that if the charter that grounds a court lays out its jurisdiction over particularly defined crimes and temporal boundaries, there would be fewer obstacles to initiating investigations or throwing a wider net than might be possible if the alleged crimes and sides were known before the jurisdictional boundaries are created. It might then, arguably, be easier to avoid the influence of international politics and the control of particular States that have interests in the situations and outcomes of any legal processes.

Questions of authority (or overreach of particular States or international institutions in a statist global order) and selectivity (the uneven application of ‘objective’ justice) in icl tribunals are endemic and long-standing. They were levelled at the International Military Tribunal at Nuremberg (Nuremberg Tribunal) and the International Military Tribunal for the Far East (Tokyo Tribunal), meant to prosecute the worst perpetrators of atrocities committed during World War ii,28 and at the United Nations-created tribunals that followed nearly half a century later, the International Criminal Tribunals for the former Yugoslavia and Rwanda (icty and ictr).29

While both the icty and ictr, as bodies of the UN, could be seen to possess international authority in a way that their predecessors did not, since the unsc has the limited mandate to maintain or restore international peace and security and its composition includes five permanent members, each of which bears considerable global power and particular interests, its decisions can conceivably be seen to reflect the strategic interests and political motivations of the global elite.30 Decades later, this is an issue that takes on a different nature in regards to the icc, when the issue is not seemingly whether the unsc has the authority to become involved in post-atrocity accountability but whether its involvement should better reflect neutrality and objectivity. When the icty and ictr were established in the early 1990s, the unsc was criticized for overstepping its Chapter vii authority in order to create them. It was seen at the time that the Council ‘came to demonstrate an extraordinarily broad interpretation of its responsibility to maintain international peace and security’ by establishing these courts.31 The tribunals faced charges of politicization that insinuated they lacked grounding in genuine international authority.

The icc is a fundamentally different court from the icty or ictr, but it also faces the criticism of being a pawn of politics in an unjust global system. The icc, unlike the tribunals, is a court independent of the UN. The Prosecutor has independent powers, including the ability to request the opening of investigations proprio motu (upon the Prosecutor’s own volition) in situations where the icc already enjoys jurisdiction. Some States, like the US, worry about this independence and have historically sought to ensure that the Court could not investigate citizens of States that have not ratified the Rome Statute and joined the icc. Complicating its independence and cosmopolitan aspirations further is the relationship between the Court and the unsc that has, in recent years, been used to initiate investigations that could not otherwise have been opened.32

The icc is a treaty-based institution that can establish jurisdiction in one of three ways: a Member State can refer a situation, the Security Council acting under Chapter vii of the Charter of the United Nations can refer a situation, or the icc Prosecutor can, as mentioned above, initiate an investigation in accordance with Article 15 of the Rome Statute.33 This arrangement between the icc and its member States lends the Court straightforward legal authority over cases that arise from the Member States, but limits its ability to be a genuine global institution until all States have ratified the Rome Statute. The first and the third options can set in motion only investigations concerning Member States. If the Security Council refers a situation to the icc for investigation, however, the membership status of the State is extraneous. Such a case, then, is theoretically open to the same authority or criticisms that were found with the international tribunals.

The unsc is in the position of affecting the work and reputation of the Court in that the caseload of the Court can be shaped by the concerns and self-interests of permanent members of the unsc, some of whom are not themselves icc Member States. This is in itself a concern for the icc Member States, especially those in Africa, who worry about the potential undue influence of the unsc on the Court and its targeting of weaker States, as well as the interests of global justice more generally.34 It is, however, also important for the cosmopolitan position that there should be global protection of the most basic human rights and there should be global denial of impunity for atrocity crimes,35 and the power given the unsc over icc caseload is perhaps a way of achieving this. Nevertheless, given power politics and the self-interested nature of States on the global stage, this power rarely and inconsistently works in this manner.

Therefore, because of the statist world in which the icc operates, the political compromise that allowed for the establishment of the Court as a permanent criminal court with global reach also left a pretty gaping hole through which international crimes and their perpetrators can escape. The icc has no jurisdiction over crimes that obviously fit based on their nature and severity but are beyond the scope of the Court because the State in which the crimes take place is not a member if the unsc does not choose to intervene (for political reasons or otherwise). Thus, international actors are left only with the option to clamour for unsc referrals if they believe the icc could provide a valuable intervention. Although international actors did just this in regards to the Myanmar situation, by attempting to make appeals for the unsc to refer alleged crimes committed against the Rohingya people in Myanmar, the unsc did nothing and the crimes continued with no real response or remedy.36 The power of the Security Council, written into the Rome Statute, allows the Court more global reach but, as I have argued elsewhere,37 arguably creates its own legitimacy problems and is not a solution to self-interested State influence over the Court’s jurisdiction.

3 Attempting to Overcome Statist Jurisdictional Limitations

The November 2019 authorization to the icc Prosecutor from the Pre-Trial Chamber (ptc) to open an investigation into Bangladesh/Myanmar stems from a novel approach to understanding the Court’s jurisdiction. On 6 September 2018, the Pre-Trial Chamber of the Court decided that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.38 As mentioned in the introduction to this article, while the crime of deportation occurred on the territory of Myanmar, which is not a State Party to the statute and therefore not within the jurisdiction of the Court without unsc referral, the movement of the deportation ended in the territory of a State Party, Bangladesh. Arguably, ‘Given the cross-border nature of the crime of deportation, which is completed upon the displacement of a person to another State or location (see the Elements of crimes, Article 7(1)(d), Element 1), the jurisdiction of the icc over this situation was unclear.’39 As icc Prosecutor Fatou Bensouda saw it, ‘the crime of deportation is analogous to a cross-border shooting: the crime, for example murder, is not completed until the bullet (fired in one State) strikes and kills the victim (standing in another State). In both scenarios, the occurrence on the territory of the second State is not, in legal terms, the mere remote effect of a completed criminal conduct on the territory of the first State—rather, it is a legally required element of the crime.’40

Prior to the otp asking the ptc to decide on jurisdiction or such a decision being made, members of the international community had been angling for icc intervention via a unsc referral.41 The otp’s request regarding a decision on jurisdiction was made of the ptc in April 2018. In May 2018, representatives from the unsc visited Rohingya deportation camps in Bangladesh.42 It seemed unlikely, however, that a unsc referral would occur. As Mark Kersten explains, ‘both China and Russia vetoed an attempted referral of Syria to the icc in 2014. China, with its geopolitical interests in the region, would almost surely veto a resolution referring the situation in Myanmar to the Court.’43 While the utility of a unsc referral has been debated,44 it was clear that many who had real concern for the plight of the Rohingya people believed that the icc (or other international judicial body) should investigate potential crimes committed against them.45 Nevertheless, without a unsc referral or Myanmar accepting the jurisdiction of the Court or even recognizing that crimes against humanity likely were committed within its borders and deciding to conduct its own trials, there seemed to be no chance of justice for the Rohingya. The Office of the Prosecutor (otp) proposed a novel approach to jurisdiction by asking the Court to consider that jurisdiction could be established ‘because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).’46

The ptc decided that the Court did have jurisdiction and the otp opened a preliminary examination focussing on the alleged deportation, which is a crime against humanity as expressed under Article 7 of the Rome Statute of the icc, as well as potentially other crimes under the same article.47 It argued 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.’48

Since the September 2018 ruling, the Prosecutor made a request, on 4 July 2019, to the Pre-Trial Chamber of the icc, as she must do to initiate a formal investigation on a proprio motu basis.49 Her request sought:

Authorisation from the Court’s Judges to open an investigation into alleged crimes within the jurisdiction of the Court in which at least one element occurred on the territory of Bangladesh – a State Party to the Rome Statute – and within the context of two recent waves of violence in Rakhine State on the territory of Myanmar, as well as any other crimes which are sufficiently linked to these events.50

In November 2019, icc Judges granted her request. Arguably, the Prosecutor was able to find a way around the statist limitations of the Rome Statute that allow States to decide whether they will relinquish some of their sovereignty over criminal justice within their borders.

4 Possible Implications of the icc Myanmar Judgment in A Statist Global Order

The importance of the decision to open an investigation into atrocities committed against the Rohingya is relevant – and resonates – beyond Myanmar and Bangladesh. Since it was rendered, the Myanmar decision is being considered as a precedent that might open access to other investigations and situations that would otherwise be outside of the Court’s jurisdiction.51 In March 2019, lawyers representing Syrian refugees who had fled to Jordan made a request to the icc Prosecutor to open an investigation into the regime of Syrian President Bashar Al-Assad for alleged crimes against humanity.52 Because Syria is not a Member State, the only way for icc investigation into potential crimes committed in this situation to be initiated would be by Syria accepting limited jurisdiction of the Court or by means of unsc referral. Despite arguably similar conditions53 to those in Libya for which the unsc unanimously voted to refer the actions of the Muammar el-Gaddafi-led Government to the icc in 2011,54 and 57 States – including the UK, Germany, Botswana, Tunisia, Japan, and Costa Rica – calling for a referral,55 no such referral from the unsc has been forthcoming. The fact that Syria has ties to permanent members of the unsc that possess veto powers and who are also not members of the icc, specifically Russia and China, may go a long way to explaining the lack of a referral.56 The lawyers for the Syrian refugees, then, are relying on the precedent set by the Court ‘in extending jurisdiction to the crime of forcible population transfers’ in the Myanmar decision. Jordan, the receiving State in this case, similar to Bangladesh, is an icc Member State.57 Of course, it would have to be shown that the Syrians fleeing were specifically targeted (as the Rohingya have been), but it seems likely that advocates and legal professionals will try to make this case for affected populations forced by violence to flee into icc Member States.

The effect of the Myanmar/Bangladesh decision authorizing an official investigation is the extension of the jurisdiction of the Court to include crimes that fall within the subject matter and temporal jurisdictions of the Court but not what would be regarded obviously as the geographic jurisdiction (if the unsc does not refer the situation), and therefore provide broader protection from the most devastating and violent of human rights violations. In a press conference in February 2020, Phakiso Mochochoko, Director of Jurisdiction in the Complementary and Cooperation Division of the icc Office of the Prosecutor, claimed that the ‘authorisation to open an investigation is a significant development for the pursuit of justice and the establishment of the truth, in particular for the victims of alleged crimes of this situation.’58 While extending the jurisdiction of the Court does have some clear positive dimensions in that there is a possibility of moving beyond jurisdictional blockages and holding those responsible for certain human rights violations to account, there are also possible negative consequences. Indeed, this ruling might in fact be negative to the Court and, more worryingly, to vulnerable populations.

Catherine Savard argues that despite the decision of the icc declaring its jurisdiction over this situation being ‘saluted as an important step in the fight against impunity for international crimes,’ major setbacks could be expected, including because ‘Myanmar will consistently refuse to cooperate with the Court’ and delays in the Prosecutor’s mission ‘are likely to be encountered, therefore giving rise to lashing critics of the icc.’59 It may be the case that such criticisms would flow from the Prosecutor’s decisions no matter what she does or does not do. But Savard makes a valid point here as outside forces and lack of cooperation with the Court has already negatively affected the Court’s reputation in other situations. Of course, this is not to say that the pursuit of justice should not be based on principles of justice, nor that pragmatism should be a deciding factor. However, it is reasonable to at least acknowledge that such conditions can in fact lead to negative outcomes for specific cases, and also have negative effects on the Court’s reputation itself. Such negative effects on the Court’s reputation are particularly damaging as the institution and particularly its legitimacy continues to be attacked by critics – thus reputational damage would provide them with further ammunition for attacking it and the work that it does. Indeed, the icc came under fire for its inability to adequately follow through with cases when the charges against Kenya’s Uhuru Kenyatta were withdrawn in December 2014 due to insufficient evidence.60 To some, the Court looked ineffectual and weak, especially as it is believed that Kenya blocked the Court’s ability to gather evidence effectively.61 It was argued that the Court lacked efficacy in ‘enforcing compliance and positively influencing behavior.’62 In a New York Times article, journalist James Verini claimed that ‘the Kenyatta case has come to define the court and, many would say, has permanently discredited it.’63

It is also notable that the Court itself has regarded the likelihood of cooperation as a factor in determining whether a situation should be pursued or not. The Court initially rejected a request by the Prosecutor to open an investigation into Afghanistan that satisfied straightforward geographic jurisdiction requirements by basing its rejection on “the interests of justice” in relation to the success of the investigation.64 In this ruling, ‘interests of justice’ were understood, at least partly, in relation to the likelihood of necessary cooperation. In their 32-page ruling on 12 April 2019, the judges of the Pre-Trial Chamber concluded that an investigation and prosecution would not likely be successful for two reasons. The first reason is that there were low ‘prospects of securing meaningful cooperation from relevant authorities for the future, whether in respect of investigations or of surrender of suspects.’65 Second, they cite the lack of ‘likelihood that both relevant evidence and potential relevant suspects might still be available and within reach of the Prosecution’s investigative efforts.’66

In March 2020, however, the Appeal’s Chamber reversed course and unanimously decided to authorize the opening of an official investigation into Afghanistan. The Judges found that the initial Pre-Trial Chamber decision had wrongly considered the ‘interests of justice factor’ and should have only assessed whether there was a reasonable factual basis to proceed with an investigation: whether crimes under the jurisdiction of the Court had been committed and whether the potential cases arising from an investigation into Afghanistan would fall within the jurisdiction of the icc.67 The Appeal’s Chamber noted that these elements were satisfied by the Prosecutor and thus authorized the opening of an investigation.

Had the Court rejected an investigation into Afghanistan, it likely would have had more to do with global politics than a genuine concern for interests of justice. It would have rejected an investigation of alleged crimes that included those committed by the Taliban and other armed groups, such as attacks by gunmen and bombers resulting in murders and injuries of civilians gathered in mosques, hospitals, and schools. It would have also shielded alleged crimes committed by US forces and the Central Intelligence Agency, such as causing severe physical and mental pain or suffering, torture, and rape for the purposes of ‘forcing confessions, obtaining information or retaliating for the attacks suffered on 11 September 2001 on US territory.’68 Legal scholars criticized the judges’ initial decision and their interpretation of ‘interests of justice.’69 Some argued that this judgment implied political calculations and the influence of bullying tactics by the US.70 It is probably true that the judges of the ptc were looking for a reason to reject the request to open this particular preliminary examination. It still seems telling that the judges chose to highlight the need for cooperation as a predictor of the likelihood of success in a situation and viability of a requested investigation.

It seems here, when the requests to open investigations for situations in Afghanistan and Myanmar are compared, that it is not always and simply the objective application of international law that drives the Pre-Trial Chamber’s rulings regarding jurisdiction and opening preliminary examinations. Perhaps inevitably, these rulings also reflect political considerations of a global nature beyond those appropriate for an institution concerned with the objective application of international law. If the icc is going to take politics into account, however, it should also consider the effects of its decisions on relevant political situations and communities. The Myanmar assessment, however, appears to miss an even greater concern. They do not take into account the potential negative consequences of the decision to open an investigation into the forced displacement of the Rohingya which could have serious and detrimental consequences beyond simply harm to the reputation of the Court.

As Catherine Savard suggests, the initiation of icc scrutiny of alleged atrocities can have, and may even be intended to have, consequences beyond the initiation of legal proceedings before the Court.

It has to be mentioned that [preliminary examinations] serve additional purposes. According to the otp, more than simply assessing whether there is sufficient basis to open an investigation, pes also contribute to two overarching goals of the Statute … . First, they contribute to ending impunity since they encourage national proceedings. Past experiences have shown that States often seek to avoid the exercise of the Court’s jurisdiction by initiating judicial prosecutions at a national level. When they do so, pursuant to Article 17(1)(a), the situation becomes inadmissible before the icc, since the Court is complementary to national jurisdictions. Second, pes also deter the prevention of future crimes, thus limiting the need for the Court’s intervention. The openings of pes are very public and widely publicized, including through international and national media.71

However, this article contends that in situations, such as that of Myanmar, which open the Court’s jurisdiction by what may be considered a loophole or which stretch the intentions of the statute’s drafters, the consequences may not be positive or beneficial to vulnerable populations. In fact, the consequences of this ruling to those most vulnerable may be quite negative. Even with efforts by some States and international organizations to address the suffering of refugees and migrants and despite most States signing up to the Refugee Convention, millions of displaced and vulnerable individuals continue to experience difficulties fleeing often horrific conditions.72 Even if they are able to move across a border to a safe haven State, they are often subject to desperate conditions, as State actors (and non-State actors) decide whether or how to accept them into their society. Often, as is the case with the Rohingya, they are required to live in displaced persons camps or informal settlements that are, in their own right, often atrocious.73

Nevertheless, such mistreatment of refugees is not within the purview of the icc, which is limited to only investigating and prosecuting abuses against migrants that fit within its definitions of war crimes, crimes against humanity, genocide, or the crime of aggression. That leaves many, if not most, harms committed against migrants outside of the icc’s scope, and there is some cost to only investigating a small, albeit egregious, part of the spectrum of abuses committed against them. Listed under each of the icc’s four core crimes are the criminal acts that can constitute elements of the commission of, for example, a crime against humanity. Specific acts of purposefully forcing individuals to migrate from their homes are included. As we know, there are different forms of forced displacement (some man-made; others not). For example, people may be forced to leave a region because of destruction from a natural disaster (an earthquake, for example), or people may flee violence or they may be purposefully forced to leave. The icc has jurisdiction over the forced displacement of a population understood as a crime against humanity. Article 7 of the Rome Statute expresses that the chapeau crime of Crime Against Humanity includes ‘the deportation or forcible transfer of population’ when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.74 Article 7 further clarifies that ‘Deportation or forcible transfer of population’ means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.’75

Despite the fact that refugees often face bad and even dire conditions that cause them to flee and similar horrific conditions during their journeys, there is the potential for worse. It could be an even greater disaster if would-be refugees found it more difficult than is currently the case to cross borders to relative safety or if government actors decided it was in their best interests to rid themselves of what they consider to be a problem population on their territory, rather than forcing them to flee across international borders. Currently, refugees find it difficult for a number of reasons to flee persecution. In addition to challenges to leaving their sending country, often related to why they want to leave (e.g. war or persecution), receiving States are not often welcoming and may even attempt to obstruct passage to safety.76 What could be an unintended, but disastrous consequence of an icc policy that allows migrated victims to open jurisdiction into States that were otherwise closed to it, is that these States may attempt better protection of their own borders by not permitting individuals to leave. Conditions where refugees flee to may also be dire, as is the case for many Rohingya in Bangladesh, but refugee camps at least offer relative safety and protection from physical extermination. A potential unintended consequence of investigating and prosecuting the forced deportation of the Rohingya could be to limit would-be refugees’ access to even that relative safety by encouraging persecuting actors to ‘trap’ populations inside their States and try to ‘solve their problem’ by other means within their own borders, which could include a greater intensity of crimes against humanity and genocide.

Up until now, forced displacement – particularly over borders – was, in a manner, a way of solving a problem of an unwanted minority population. Closing borders to a fleeing population, because these borders cross to icc Member States, could be a consequence of the cosmopolitan aspirations of the Court that would directly violate the aims of better protection, safer migration, and promoting human lives and rights.77 Evidence seems to support the claim that the Rohingya were the victims of directed attacks conducted purposefully to persuade them to flee. History has other examples of populations that were unwelcome, persecuted, and seemingly faced acts purposefully conducted to persuade them to leave the territories in which they resided.

The Jewish population of Germany in the 1930s and 1940s is an example. As Yehuda Bauer famously explores, there is no evidence of a pronouncement of a Nazi plan of mass execution before 1939. The plan the Nazis had, it seems, was to evict all Jews from Germany.

Although several hundred thousand did leave, those left behind as well as the millions conquered as the Nazis swept through Europe provided a dilemma. Hitler wanted them out. No one wanted them… . The last alternative was the Final Solution, which took form in 1941 with the adoption of the Einsatzgruppen plan for the mass murder of Jews.78

This horrific episode in history can be seen as an example of a situation in which the primary initial goal of the aggressor party was to get rid of an unwanted minority group by evicting them. When ridding their land of the victim group through expulsion (forcible transfer) failed, the Nazi regime turned to another answer, one even more disturbing than the first – mass murder.

Another example can be found in ‘Plan Dalet’ or ‘Plan D’, a general plan for military operations within the framework of which the Zionists launched successive offensives in the Spring of 1948 in various parts of Palestine (prior to the founding of the State of Israel).79 Although the intent of ‘Plan D’ is debated, it seems that it was understood as a set of guidelines by which control of the territory of the Jewish State was to be taken and then defended. Resistance on the part of Arab Palestinians was to be met by force and with the population being expelled beyond the borders of the new State.80 Arguably, these offensives – which entailed the expulsion of Palestinians to neighbouring Arab countries, and pauperization of the bulk of the remaining Palestinians who in turn became Israeli citizens (Israeli Arabs) – were calculated to achieve the military fait accompli upon which the State of Israel was to be based.81 The Dayr Yasin massacre, as well as the bombings and killings during the Operation Bi’ur Hametz in Haifa, demonstrate that more incidences of mass atrocities could have occurred had the majority of Palestinians not left or had they been unable to leave.82 Based on the evidence and arguments available, it seems reasonable to believe that ‘Plan D’ was an operational policy used to target Palestinians and which could have led to a situation of further mass atrocity and killings had the Palestinians not been able to flee to neighbouring States.

These historic examples are more complex than this article can capture, and no previous case offers a perfect comparison to the contemporary situation facing the Rohingya. It is possible too, that States not party to the Rome Statute (and therefore not members of the icc), like Myanmar, may simply not be concerned with whether the Court investigates their officials for the deportation of the Rohingya. However, these examples demonstrate that there can be devastating risks for unwanted populations who are not able to flee in some contexts. The options are meagre: flee and leave everything behind for an uncertain and potentially violent future or face potential extermination. Incentivizing States to foreclose the possibility of targeted and vulnerable populations fleeing atrocity is a real risk. And so, we can see potential negative implications of the icc’s attempt to expand its jurisdictional reach to both the Court itself (as it is called upon to intervene in situations where cooperation is likely absent and success is probably unrealistic) and to vulnerable populations who see their best chances for survival and flourishing as crossing borders.

5 Conclusion

This paper has tried to demonstrate that there may be a significant negative side-effect of the icc trying to enlarge its jurisdiction beyond what we can assume the drafters envisioned and what non-member States accept. While the aim of broader (perhaps even universal) jurisdiction for the protection and promotion of human rights is a lofty one and in line with the cosmopolitan foundations of the institution, given the statist global order and the authority sovereignty entails, such an approach to jurisdiction risks negative effects on the Court as well as possibly devastating ones on the world’s most vulnerable populations.

The plight of the persecuted who are able to become refugees is harrowing enough. States already often do not want to accept refugees into their borders.83 Safe migration is an aspiration that has so far not been broadly realized.84 Refugees flee situations because they see it as the only way to safeguard their own lives and the lives of their loved ones. They leave behind their homes, friends, families, communities, and cultures they know, and flee toward countries where they are often subject to highly challenging conditions such as those faced by the Rohingya in Bangladesh’s Cox Bazar.85 It would be a real tragedy if they found it even more difficult to cross borders or that government actors decided that they had better take different actions to rid themselves of what the government considers to be a problem population, including through greater levels of violence on their own territories.

The statist global order allows States to determine whether to relinquish some of their sovereignty to treaty-based organizations such as the International Criminal Court. This is a challenge to the ideal of universal jurisdiction for ending impunity for atrocity crimes. The pursuit of opportunities to expand the icc’s jurisdiction to cover more actions that shock the conscious of humanity is laudable. However, if such expansion makes non-members feel threatened and has the effect of encouraging agents of atrocity to ‘solve their problems’ in ways that will be less likely to open them up to icc scrutiny, the results may be the opposite of what is hoped: the closing of borders to populations because these borders cross to the territory of icc Member States, and the engaging in more crimes against humanity and genocide.

The author would like to acknowledge and thank Benedicta Arthur and Mounir Rahmoun-Rahwan, graduate students in the Department of Political Studies at the University of Saskatchewan, for their research assistance for this project. She would also like to thank Mark Kersten, Robert Stewart, and the anonymous reviewers for this journal for their constructive comments on earlier drafts of this article.

1

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 Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar) icc-01/19–27 (14 November 2019), 4.

2

Decision on the Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, icc-RoC46(3)-01/18 (6 September 2018) [73].

3

As icc Prosecutor Fatou Bensouda explained of her request, she sought to investigate ‘alleged crimes within the jurisdiction of the Court in which at least one element occurred on the territory of Bangladesh – a State Party to the Rome Statute – and within the context of two recent waves of violence in Rakhine State on the territory of Myanmar, as well as any other crimes that are sufficiently linked to these events.’ International Criminal Court, ‘icc Prosecutor request for authorization to open investigation into Myanmar/Bangladesh situation’ (Press release icc-otp-20190704-pr1465, 4 July 2019) <www.icc-cpi.int/Pages/item.aspx?name=pr1465>.

4

Peter Dixon and Chris Tenove, ‘International Criminal Justice as a Transnational Field: Rules, Authority and Victims’ (2013) 7 International Journal of Transitional Justice 393; Kirsten J. Fisher, Moral Accountability and International Criminal Law (Routledge 2012) 8–29; Antonio Franceschet, ‘Cosmopolitan Ethics and Global Legalism’ (2005) 1(2) Journal of Global Ethics 113; Patrick Hayden, ‘Cosmopolitanism and the Need for Transnational Criminal Justice: The Case of the International Criminal Court’ (2004) 104 Theoria: A Journal of Social and Political Theory 69.

5

Article 13 of the Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 unts 90, expresses the jurisdiction of the Court as follows: ‘The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter vii of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.’

6

Kirsten J. Fisher, ‘Africa’s Role in the Progression of International Criminal Justice: A Moral and Political Argument’ (2018) 56(4) Journal of Modern African Studies 541.

7

UN-ocha, ‘Rohingya Refugee Crisis’<www.unocha.org/rohingya-refugee-crisis>.

8

‘The Most Persecuted People on Earth? The Rohingyas’ (The Economist, 13 June 2015) 37–40 <www.economist.com/asia/2015/06/13/the-most-persecuted-people-on-earth>.

9

UN-ocha (n 7).

10

Ibid.

11

Amnesty International, ‘Myanmar: Scorched-Earth Campaign Fuels Ethnic Cleansing of Rohingya from Rakhine State’ (14 September 2017) <www.amnesty.org/en/press-releases/2017/09/myanmar-scorched-earth-campaign-fuels-ethnic-cleansing-of-rohingya-from-rakhine-state/>.

12

Human Rights Council ‘Report of the Independent International Fact-Finding Mission on Myanmar’ (12 September 2018) A/hrc/39/64.

13

Human Rights Council ‘Detailed Findings of the Independent International Fact-Finding Mission on Myanmar’ (16 September 2019) A/hrc/42/crp.5.

14

International Criminal Court (n 3).

15

International Court of Justice, ‘The Republic of The Gambia institutes proceedings against the Republic of the Union of Myanmar and asks the Court to indicate provisional measures’ (Press Release No 2019/47, 11 November 2019) <www.icj-cij.org/files/case-related/178/178-20191111-PRE-01-00-EN.pdf>.

16

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Provisional Measures) icj General List No 178 (23 January 2020) [86].

17

‘International Court of Justice Orders Myanmar to Prevent Rohingya Genocide’ (The Defense Post 2020) < >; United Nations, ‘Secretary-General Welcomes International Court of Justice Order on The Gambia V. Myanmar Genocide Convention Case’ (23 January 2020) <www.un.org/press/en/2020/sgsm19946.doc.htm>; Government of Canada, ‘Canada welcomes International Court of Justice ruling on interim measures on Myanmar’ (Global Affairs Canada, 23 January 2020) <www.canada.ca/en/global-affairs/news/2020/01/canada-welcomes-international-court-of-justice-ruling-on-interim-measures-on-myanmar.html>.

18

Hannah Ellis-Petersen, ‘Rohingya Crisis: 132 mps across Region Call for Myanmar to be Referred to icc’ (The Guardian, 24 August 2018) <www.theguardian.com/world/2018/aug/24/rohingya-crisis-132-mps-across-region-call-for-myanmar-to-be-referred-to-icc>; Kathleen Harris, ‘mps Unanimously Declare Myanmar Crackdown on Rohingya a “Genocide”’ (cbc: Politics, 20 September 2018) <www.cbc.ca/news/politics/rohingya-myanmar-military-1.4831956>.

19

Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, icc-RoC46(3)-01/18-1 (9 April 2018).

20

Decision on the Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, icc-RoC46(3)-01/18 (6 September 2018).

21

Fanny Benedetti and John L Washburn, ‘Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Rome Diplomatic Conference’ (1999) 5(1) Global Governance 1; Heidi Nichols Haddad ‘After the Norm Cascade: ngo Mission Expansion and the Coalition for the International Criminal Court’ (2013) 19(2) Global Governance 187; Courtney Hillebrecht and Scott Straus, ‘Who Pursues the Perpetrators? State Cooperation with the icc’ (2017) 39(1) Human Rights Quarterly 162, 181.

22

The post-WWII (IMT "Nuremberg Tribunal" and IMTFE "Tokyo Tribunal") and UN ad hoc tribunals (icty and ictr) had quite limited and specific temporal, geographic, subject matter, and even in some cases agent jurisdictions.

23

iba Global Insight, ‘Fatou Bensouda addresses perceived African bias in icc’ (14 July 2016) < www.youtube.com/watch?v=Wb1Yk4JJjic>. On 12 April 2019, icc Pre-Trial Chamber ii unanimously rejected the request of the Prosecutor to proceed with an investigation into alleged war crimes and crimes against humanity committed in the context of the armed conflict in the Islamic Republic of Afghanistan, arguably in light of power politics and the US opposition to this investigation.

24

Immanuel Kant, Perpetual Peace: A Philosophical Sketch (1795) (Fq Classics 2007); George Lawson and Robbie Shilliam, ‘Beyond Hypocrisy? Debating the “Fact” and “Value” of Sovereignty in Contemporary World Politics’ (2009) 46(6) International Politics 657; John Rawls, Law of Peoples (Harvard University Press 1999).

25

Maria C Lomeli, ‘Never Again Again and Again: The International Criminal Court’s Inability to Deter Mass Atrocities and the Security Council’s Failure to Act’ (2014) 31(1) ­Arizona Journal of International and Comparative Law 81.

26

Makau Mutua, ‘Never Again: Questioning the Yugoslav and Rwanda Tribunals’ (1997) 11(1) Temple International and Comparative Law Journal 167.

27

A great effort was made by the Special Court of Sierra Leone (scsl) to investigate and prosecute suspected perpetrators on all sides of the conflict.

28

Radhabinod Pal, Military Tribunal for the Far East: Dissentient Judgment of Justice (Sanyal and Co 1953); Brian Feltman, ‘Legitimizing Justice: The American Press and the International Military Tribunal, 1945–1946’ (2004) 66(2) The Historian 300; William Schabas, ‘Victor’s Justice: Selecting “Situations” at the International Criminal Court’ (2010) 43(3) John Marshall Law Review 535; Kirsten Sellars, ‘Imperfect Justice at Nuremberg and Tokyo’ (2010) 21(4) The European Journal of International Law 1085, 1090.

29

David P Forsythe, ‘The UN Security Council and Response to Atrocities: International Criminal Law and the P5’ (2012) 34(3) Human Rights Quarterly 840, 845.

30

Ibid. See also Simon Chesterman, Just War or Just Peace? (Oxford University Press 2001); Kirsten J. Fisher, Moral Accountability and International Criminal Law (Routledge 2012), 121–128.

31

Chesterman (n 30) 121.

32

unsc Res 1593 (31 March 2005) referred the situation in the Darfur region of Sudan to the icc and required Sudan to co-operate fully. On 26 February 2011, the unsc unanimously referred the situation in Libya since 15 February 2011 to the icc in Resolution 1970. See also: Mark Kersten, ‘A Fatal Attraction? The UN Security Council and the Relationship Between R2P and the International Criminal Court’ in Jeff Handmaker and Karin Arts (eds), Mobilising International Law for ‘Global Justice’ (Cambridge University Press 2018), 142–162.

33

UN General Assembly ‘Rome Statute of the International Criminal Court (last amended 2010)’ (17 July 1998), Article 13.

34

Kirsten J. Fisher, ‘Africa’s Role in the Progression of International Criminal Justice: A Moral and Political Argument’ (2018) 56(4) Journal of Modern African Studies 541.

35

Patrick Hayden, ‘Cosmopolitanism and the Need for Transnational Criminal Justice: The Case of the International Criminal Court’ (2004) 104 Theoria: A Journal of Social and Political Theory 69.

36

As mentioned, the Gambia initiated proceedings before the International Court of Justice against Myanmar in 2019, with the assumption that it will be a long process. The icj issued an order indicating provisional measures on 23 January 2020.

37

Fisher (n 34).

38

Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, icc-RoC46(3)-01/18 (6 September 2019).

39

Catherine Savard, ‘Preliminary Examinations and the icc: What hope for the Rohingya? (Part 2 of 3)’ (INTLAWGRRLS, 17 December 2018) < ilg2.org/2018/12/17/preliminary-examinations-and-the-icc-what-hope-for-the-rohingya-part-2-of-3/>.

40

icc ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’ icc-RoC46(3)-01/18-1 (9 April 2018).

41

Hannah Ellis-Petersen, ‘Rohingya Crisis: 132 mps across Region Call for Myanmar to be Referred to icc’ (The Guardian, 24 August 2018) <www.theguardian.com/world/2018/aug/24/rohingya-crisis-132-mps-across-region-call-for-myanmar-to-be-referred-to-icc>. Such calls for unsc referral have continued. See: ‘Statement of Canada to 18th session of the Assembly of State Parties to the Rome Statute of the International Criminal Court’ (2018) <asp.icc-cpi.int/iccdocs/asp_docs/asp18/gd.can.3.12.pdf>.

42

Human Rights Watch, ‘UN Security Council: Refer Myanmar to icc’ (8 May 2018) <www.hrw.org/news/2018/05/08/un-security-council-refer-myanmar-icc>.

43

Mark Kersten, ‘Buyer’s Beware – Is a UN Security Council Referral of Myanmar to the International Criminal Court a Good Idea?’ (Justice in Conflict, 31 August 2018) <justiceinconflict.org/2018/08/31/buyers-beware-is-a-un-security-council-referral-of-myanmar-to-the-international-criminal-court-a-good-idea/>.

44

Ibid.

45

The Human Rights Council established the independent international fact-finding mission on Myanmar which, in 2018, made concrete recommendations, including that named senior generals of the Myanmar military should be investigated and prosecuted in an international criminal tribunal for genocide, crimes against humanity and war crimes: Human Rights Council ‘Report of the independent international fact-finding mission on Myanmar’ (12 September 2018) A/hrc/39/64.

46

Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, icc-RoC46(3)-01/18-1 (9 April 2018).

47

Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (Investigation) icc-01/19 (14 November 2019).

48

Ibid.

49

icc Prosecutor, Fatou Bensouda, requests judicial authorisation to commence an investigation into the situation in Bangladesh/Myanmar’ (Press Release icc-otp-20190704-pr1465, 4 July 2019).

50

Ibid.

51

Kevin Jon Heller, ‘Implications of the Rohingya Argument for Libya and Syria (and Jordan)’ (Opinio Juris, 10 April 2019) <opiniojuris.org/2018/04/10/additional-implications-of-the-otps-rohingya-argument/>.

52

‘Syria Refugees Submit ‘Breakthrough’ Complaint to icc against Assad Regime’ (Middle East Monitor, 7 March 2018) <www.middleeastmonitor.com/20190307-syria-refugees-submit-breakthrough-complaint-to-icc-against-assad-regime/>.

53

Libya and Syria exhibited similar atrocities committed by strong-man governments attempting to repress civilian uprising. See: Andrea Birdsall, ‘The Responsibility to Prosecute and the icc: A Problematic Relationship?’, (2015) 26 Criminal Law Forum 51.

54

unsc Res 1970 (26 February 2011) S/res/1970.

55

Human Rights Watch, ‘UN Security Council: Heed Call for Justice in Syria’ (14 January 2013) <www.hrw.org/news/2013/01/14/un-security-council-heed-call-justice-syria>.

56

United Nations ‘Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution’ (22 May 2014) sc/11407.

57

‘Syria Refugees Submit ‘Breakthrough’ Complaint to icc against Assad Regime’ (n 52).

58

Statement of the Office of the Prosecutor of the International Criminal Court as delivered at the press conference in Dhaka, Bangladesh (4 February 2020) <www.icc-cpi.int/Pages/item.aspx?name=20200204-otp-statement>.

59

Catherine Savard, ‘Preliminary Examinations and the icc: What hope for the Rohingya? (Part 3 of 3)’ (INTLAWGRRLS, 6 January 2019) <ilg2.org/2019/01/06/preliminary-examinations-and-the-icc-what-hope-for-the-rohingya-part-3-of-3/>.

60

Carol J Williams, ‘“Dark Day”: Hague Prosecutors Drop Charges Against Kenyan Leader’ (Los Angeles Times, 5 December 2014) <www.latimes.com/world/africa/la-fg-icc-kenya-kenyatta-charges-dropped-20141205-story.html>.

61

In 2016, the icc Trial Chamber referred the non-cooperation of the Kenyan Government to the Assembly of States Parties to the Rome Statute. See: Prosecutor v Uhuru Muigai Kenyatta (Press Release: icc Trial Chamber V(B) refers non-cooperation of the Kenyan Government to the Assembly of States Parties to the Rome Statute) pr1239 (19 September 2016).

62

Yvonne M Dutton, ‘Enforcing the Rome Statute: Evidence of (non)Compliance from ­Kenya’ (2016) 26(1) Indiana International & Comparative Law Review 7, 7.

63

James Verini, ‘The Prosecutor and the President’ (New York Times Magazine, 22 June 2016) <www.nytimes.com/2016/06/26/magazine/international-criminal-court-moreno-ocampo-the-prosecutor-and-the-president.html?smid=tw-share&_r=0>.

64

Situation in the Islamic Republic of Afghanistan (Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan Pre-Trial Chamber ii, Decision) icc-02/17-33 (12 April 2019).

65

Ibid para 94.

66

Ibid para 91.

67

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-02/17-138 (5 March 2020).

68

Situation in the Islamic Republic of Afghanistan (Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan Pre-Trial Chamber ii, Decision) icc-02/17-33 (12 April 2019), para 23.

69

Dov Jacobs, ‘icc Pre-Trial Chamber Rejects otp Request to Open an Investigation in ­Afghanistan: Some Preliminary Thoughts on an Ultra Vires Decision’ (Spreading the Jam, 12 April 2019) <dovjacobs.com/2019/04/12/icc-pre-trial-chamber-rejects-otp-request-to-open-an-investigation-in-afghanistan-some-preliminary-thoughts-on-an-ultra-vires-decision/>; Kevin Jon Heller, ‘One Word for the ptc on the Interests of Justice: Taliban’ (Opinio Juris, 13 April 2019) <opiniojuris.org/2019/04/13/one-word-for-the-ptc-on-the-interests-of-justice-taliban/>.

70

David Bosco, ‘The icc’s conflict with the Trump Administration Shows Why the Court Must Change’ (The Washington Post, 12 April 2019) <www.washingtonpost.com/opinions/2019/04/12/iccs-conflict-with-trump-administration-shows-why-court-must-change/?noredirect=on>.

71

Catherine Savard, ‘Preliminary Examinations and the icc: What hope for the Rohingya? (Part 1 of 3)’ (INTLAWGRRLS, 12 December 2018) <ilg2.org/2018/12/12/preliminary-examinations-and-the-icc-what-hope-for-the-rohingya-part-1-of-3/>.

72

The 1951 Refugee Convention which defines the term ‘refugee’ and outlines the rights of the displaced and the legal obligations of states to protect them as been ratified by 145 state parties. Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 unts 137.

73

Abul Hasnat Milton et al, ‘Trapped in Statelessness: Rohingya Refugees in Bangladesh’ (2017) 14 International Journal of Environmental Research and Public Health 942; Bayes Ahmed et al, ‘Humanitarian disaster for Rohingya refugees: impending natural hazards and worsening public health crises’ (2018) The Lancet e487.

74

UN General Assembly ‘Rome Statute of the International Criminal Court (last amended 2010)’ (17 July 1998), Article 7(1)(d).

75

Ibid Article 7(2)(d).

76

While there are multiple examples of this (see: Francois Crépeau, ‘Europe Can Stop ­Human Deaths and Suffering, and Regain Control of Its Borders’ (2016) 12(1) Review of International Law and Politics 33; Lucy Hovil, ‘Telling Truths about Migration’ (2019) 13 International Journal of Transitional Justice 199; Carol J. Williams, ‘“Dark day”: Hague prosecutors drop charges against Kenyan Leader’ (Los Angeles Times, 5 December 2014) <www.latimes.com/world/africa/la-fg-icc-kenya-kenyatta-charges-dropped-20141205-story.html>. Also see: Marina Koren, ‘Hungarian Walls: the country will close its border with Croatia at midnight to keep out the thousands of refugees arriving daily’ (The Atlantic, 16 October 2015) <www.theatlantic.com/international/archive/2015/10/hungary-croatia-serbia-refugee-crisis/410932/>; Rick Noack, ‘Paris Terror: what it really meant when France closed its border’ (Independent, 15 November 2015) <www.independent.co.uk/news/world/europe/paris-attack-france-may-have-closed-its-borders-but-in-reality-its-unable-to-control-them-a6735211.html>),the US is a particularly good example, with President Donald Trump building a ‘border wall’, exerting pressure on Mexico to stop Latin American migrants moving north, and pressuring other states to stop the so-called migrant caravans further south in Latin America before they reach Mexico. See: Catherine Shoichet and Natalie Gallon, ‘Why Some Say Mexico Built Trump’s Wall – and Paid For It’ (cnn, 2 November 2019) <www.cnn.com/2019/10/20/americas/mexico-border-wall-trump/index.html>.

77

The precise aim of the International Organization of Migration (iom) is to promote the safe migration of people who want or need to move, including work on ensuring that migration is not stopped but rather made safer. International Organization for Migration, ‘The Global Compact for Safe, Orderly and Regular Migration (cgm)’ (2020) < www.iom.int/global-compact-migration>. See also Jack Goodman, ‘What’s the UN Global Compact on Migration’ (bbc, 20 December 2018) <www.bbc.com/news/world-46607015>.

78

Arguably the circumstances in Europe had changed by 1941. While in 1939 Hitler’s desire was to expel the Jews from Germany into the rest of Europe, by 1941 Germany controlled most of Europe so there was nowhere to which they could be expelled except if they left the continent. Such change meant that an internal solution was necessary. See: Yahuda Bauer, ‘Genocide: Was it the Nazis’ Original Plan?’ (1980) 450 The Annals of the American Academy of Political and Social Science 35.

79

It is important to note that these events are debated and that there is another narrative beside the one offered in this paper that views these events as primarily defensive on the part of the Zionists due to Palestinians committing atrocities against Jewish residents of mandatory Palestine with the same aim of forcing them to leave. The different narratives do not change the value of the example to the argument being made in this paper. On the alternate narrative, had the Palestinians won, arguably the Zionists would have been in the same, very bad situation had they been unable to leave.

80

Ilan Pappé, ‘The 1948 Ethnic Cleansing of Palestine’ (2006) 36(1) Journal of Palestine Studies 6.

81

Walid Khalidi, ‘Plan Dalet: Master Plan for the Conquest of Palestine’ (1988) 18(1) Journal of Palestine Studies 4, 8.

82

Benny Morris, The Birth of the Palestinian Refugee Problem Revisited (Cambridge University Press 2004).

83

Reece Jones, Violent Borders: Refugees and the Right to Move (Verso 2016).

84

Francois Crépeau, ‘Europe Can Stop Human Deaths and Suffering, and Regain Control of Its Borders’ (2016) 12(1) Review of International Law and Politics 33.

85

Victoria Milko, ‘“Conditions Here are Inhumane”: Rohingya in Bangladeshi Camps’ (Aljazeera, 21 August 2019) <www.aljazeera.com/news/2019/08/rohingya-refugees-bangladesh-face-hope-repatriation-190821062348499.html>.

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