It is an honour for Bangladesh to host the Prosecutor of the International Criminal Court Barrister Karim Khan QC as he visits a country on the frontlines of international criminal justice. With over a million refugees from Myanmar being sheltered in Bangladesh, the visit of the ICC prosecutor is an opportunity to shed light on the victims of ethnic cleansing in our neighbourhood.
His visit comes at a time when the world grapples with the Russian invasion of Ukraine -- the largest invasion of a sovereign state since World War II. In his first statement on the Ukrainian crisis, the Prosecutor remarked: “While on mission in Bangladesh, I have been closely following recent developments in and around Ukraine with increasing concern. My office may exercise jurisdiction over and investigate any act of genocide, crime against humanity or war crime committed within the territory of Ukraine since February 20, 2014 onwards.”
Even though Ukraine and Russia are not parties to the Rome Statute, Ukraine accepted the jurisdiction of the ICC for atrocities committed in its territory since 2014. In line with the precedent set by the ICC in the Bangladesh/Myanmar case, the court can authorize an investigation in any territory over which it has jurisdiction even if the accused countries are not members of the court. Russia is accused of committing the crime of aggression, as well as potential violations of jus in bello (the laws of war).
The Bangladesh/Myanmar case itself continues to be under investigation. The Victims Participation and Reparations Section (VPRS) of the ICC has obtained the testimony of many Rohingya refugees. In 2019, the ICC Pre-Trial Chamber authorized an investigation on whether the crime against humanity of deportation was committed as a result of the Rohingya exodus from Myanmar. Even though Myanmar is not a member of the court, the influx of Rohingya refugees into Bangladeshi territory allowed the court to exercise jurisdiction because Bangladesh is a member of the court.
The Rome Statute defines the crime of deportation as “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.” Proving any criminal offense involves two elements, including the act itself (actus rea) and the intent to commit the crime (mens rea).
The actus rea for proving deportation is based on the displacement of refugees from a territory in which they were lawfully residing. The threshold for determining lawful residence will be judged in accordance with the international law of human rights and nationality. A domestic law which violates the principles of international law can be treated as enabling the crime of deportation. The history of discriminatory citizenship laws in Myanmar can therefore be judged in light of international standards.
The mens rea for proving deportation concerns the intent to prevent the return of refugees. This was held by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the cases of Prosecutor v Naletilic and Martinovic, Prosecutor v Brdanin, and in Prosecutor v Blagojevic and Jokic.
Bangladesh holds Myanmar responsible for putting up obstacles to the return of refugees. While Myanmar has signed a repatriation agreement with Bangladesh, it has not implemented the requisite human rights reforms to allow the safe, voluntary, and dignified return of Rohingya refugees.
The Rohingya, therefore, have a strong case concerning unlawful deportation. The Pre-Trial Chamber considered the question of ethnic and religious persecution. Myanmar is also accused of apartheid against the Rohingya. The Rome Statute deals with the prohibition of apartheid. It would be interesting to see if the ICC addresses accountability for apartheid and genocide, in addition to unlawful deportation and ethnic and religious persecution.
The key challenge facing the ICC is how to indict members of the Myanmar military. In November 2013, the Rules of Procedure and Evidence were amended to allow a trial without the physical presence of the defendant in court. The case concerned allegations against Kenyan President Uhuru Kenyatta.
The question to the esteemed Prosecutor is whether those responsible for the exodus of Rohingya refugees can be tried in the ICC without their physical presence. If such a precedent is set for individual criminal responsibility, then we can also consider the possibility of indicting Vladimir Putin for his invasion of Ukraine.
I hope the ICC Prosecutor has a fruitful visit to Bangladesh. We wish him well in his leadership of the global penal court.
Umran Chowdhury is a Researcher at the SOAS School of Law.