INTERNATIONAL HUMAN RIGHTS LAW AND MECHANISMS FOR THE PURSUIT OF JUSTICE.

THE JURIDISCTION OF THE INTERNATIONAL CRIMINAL COURT AND THE SITUATION OF MYANMAR’S ROHINGYA– SOME PRELIMINARY REMARKS

Gabriele Della Morte

1. Introduction The Treaty establishing the International Criminal Court (ICC) was eventually

adopted in Rome on 17 July, 1998, with 120 votes in favour, 21 abstentions and 7 votes against (China, Libya, Iraq, Israel, the United States, Qatar and Yemen).

On 1 July, 2002, after the sixtieth ratification required for the Treaty to enter into

force had been deposited, the fifteen judges sitting in The Hague (The Netherlands), usually thousands of kilometres away from the theatres of war, were empowered to hand down punishments for conduct qualifying as war crimes, crimes against humanity, and crimes of genocide, and this list of crimes could also be expanded to include the crime of aggression. 1

One can begin to get a clearer understanding of the scope of the Treaty adopted in

Rome in 1998 and the operation of the ICC it has instituted by examining the Court’s jurisdiction (paragraph 2) and then the Trigger Mechanism (paragraph 3).

After a concise account of these matters, and to set the scope of this analysis, this

paper will discuss whether, and under what conditions, the Court might exercise its jurisdiction in respect of the destruction of one of the world’s most vulnerable groups, the Rohingya.

1 Concerning the crime of aggression see infra, para. 2.4, and see also ICC Statute, art. 15 bis and art. 15 ter.

2. The Jurisdiction of the ICC Firstly, there are four parameters which define the jurisdiction of the Court: the who,

when, where and what of the criminal offences, and then the jurisdiction ratione personae, temporis, loci and materiae.

2.1 (Who). Its Jurisdiction Ratione Personae Beginning with the jurisdiction ratione personae, the conduct must be attributable to

individuals aged over eighteen years, 2 whether intelligent bayonets or senior hierarchical officials (of various kinds, whether military, civil, religious or whatever).

Looking at the list of the individuals indicted by the Court Prosecutor so far one finds both lower ranking accused (Lubanga: accused, inter alia, of enlisting and conscripting children under the age of 15 years in the context of an armed conflict) and a Head of State (Al Bashir: accused, inter alia, of genocide by killing).

To this must be added the fact that subordinates cannot claim justification that they were only obeying orders (which might be used only in mitigation for the purpose of receiving a shorter sentence);3 and hierarchical superiors can be charged both of the crimes they themselves commit, and those committed by their subordinates. 4 Lastly, the Statute provides the “non-applicability of the statute of limitations” 5 and the “irrelevance of official capacity”.6

2.2 (When) Its Jurisdiction Ratione Temporis From the temporal point of view, the Court's jurisdiction is mainly limited by the

principle of non-retroactivity (nullum crimen sine lege) such that a person shall not be criminally responsible under this Statute unless, at the time it took place, the conduct in question was a crime falling within the purview of the Court.7

2 See ICC Statute, art. 25 and 26. 3 See ICC Statute, art. 33. The second paragraph of this article adds that, “For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful”. 4 In the event that they knew or should have known, of the criminal conduct of their subordinates and have failed to take all necessary and reasonable measures to preempt or prevent their commission. See Rome Statute, art. 28 (Responsibility of commanders and other superiors). With the significant difference that whereas for military commanders it is necessary that they “either knew or, owing to the circumstances at the time, should have known” that the forces were committing such crimes, other superiors “either knew, or consciously disregarded information which clearly indicated”, that the subordinates were committing such crimes. 5 See ICC Statute, art. 29. 6 See ICC Statute, art. 27. 7 See ICC Statute, art. 22.

Apart from what is said below regarding the crime of aggression, the timing is indicated in article 11: the Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute (dies a quo: 1 July 2002). However, if a State becomes Party to this Statute after its entry into force, the next paragraph in that article provides that the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3. This latter provision, has been recently used for the situation in Ukraine. In fact, the Registrar of the ICC has received a declaration lodged by Ukraine accepting the ICC's jurisdiction with respect to alleged crimes committed in its territory from 21 November 2013 to 22 February 2014. The declaration was lodged under article 12(3) of the Rome Statute, the founding treaty of the ICC, which enables a State not party to the Statute to accept the exercise of jurisdiction of the Court.

2.3 (Where) Its Jurisdiction Ratione Loci The spatial scope of the Court's jurisdiction largely depends on the preconditions for

the exercise of jurisdiction.8 We shall therefore address the Court’s trigger mechanism.9 But we can note at once

that apart from the case in which the Court is activated by the Security Council, it is necessary, in general terms, that the conduct occurred on the territory of a State Party (or, if the crime was committed on board a vessel or aircraft, in a State party of registration of that vessel or aircraft). Alternatively, the Statute provides active nationality as an alternative condition to the territorial criterion. If the conduct did not occur in the territory of a State Party, the Court can at all events exercise its jurisdiction in the event that the conduct can be attributed to a citizen of the State Party.

2.4 (What) Its Jurisdiction Ratione Materiae Notwithstanding what is said in the following paragraph dealing with aggression,

the Court's jurisdiction ratione materiae covers the crime of genocide,10 crimes against humanity,11 and war crimes.12

8 See ICC Statute, art. 12. 9 See infra, para. 3. 10 See ICC Statute, art. 6. For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. 11 See ICC Statute, art. 7. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian

Put simply, the first – genocide – is defined in terms of an actus reus material conduct (such as killing members of the group, or causing serious bodily or mental harm to members of the group), and mens rea qualified by the special intention to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.

The second – crimes against humanity – refers to a series of acta, such as murder,

extermination, deportation or other inhumane acts intentionally causing great suffering, typically committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.13

population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1 […] (g) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity […].

12 See ICC Statute, art. 8. For the purpose of this Statute, "war crimes" means:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention [inter alia]: (i) Wilful killing; (ii) Torture […]; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly […];

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts [inter alia]: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives [...].

(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause [inter alia]: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment […].

(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

13 Paragraph (2) of art. 7 provides that “An attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”.

Lastly, war crimes cover a wide variety of different acts, ranging from serious injury

to body or health, to attacks against the civilian population.14 Such conduct occurred both in the course of an international armed conflict, and a non-international conflict. What is important is that the actions were not committed simply in situations of internal disturbances and tensions (such as riots, isolated and sporadic acts of violence or other acts of a similar nature), and that the acts are in particular committed as part of a plan or policy or as part of a large-scale commission of such crimes.15 What has been said so far with regard to the crimes falling within the material scope of the Court is more complicated in the case of aggression, because this crime, suspended between ius in bello and ius ad bellum (that is to say the rules protecting fundamental right in the course of a conflict and those which legitimise the use of force in international relations), is partly different from and more complex than the others.16

This being so, one can easily understand how difficult it is to define this crime. The shelling of Serbia by NATO in 1999, the terror attack on the Twin Towers on 11 September, 2001, or the latest armed actions led by the United States in Afghanistan and Iraq are still widely debated hypotheses.

In 1998, at the end of the negotiations leading up to the adoption of the Statute of the International Criminal Court, the compromise agreed-upon was to establish a “dormant jurisdiction over the crime of aggression”,17 meaning that this would fall within the jurisdiction ratione materiae of the International Criminal Court, but at the same time the complex task of defining it and convening a subsequent review conference would be deferred to some future date. That review was carried out in Kampala in 2010, and produced a definition of the crime based on a non-binding resolution of United Nations General Assembly adopted in 1974.18 But the result of the compromise achieved in

14 See ICC Statute, art. 8 (2)(b)(iv): For the purpose of this Statute, “war crimes means […] intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”. 15 See ICC Statute, art. 8, para. 1. 16 On the one hand, it can be a crime committed by senior political and military leaders, and brought within the purview of the court; on the other hand, as an act of aggression it meets one of the three conditions – the others being an ascertained “threat to the peace” or a “breach of the peace” – giving the United Nations Security Council the power to declare the use of force in international relations lawful (United Nations was established on 26 June, 1945 to “save succeeding generations from the scourge of war”, and one of its main purposes is “the suppression of acts of aggression”). United Nations Charter, respectively, Preamble and art. 1. 17 For example, KIRSCH and ROBINSON, Reaching Agreement at the Rome Conference, in Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court – A Commentary, Oxford, 2002, vol. I, p. 78. 18 Cf. Res. 3314 (XXIX) adopted by United Nations General Assembly on 14 December, 1974. For the purpose of the ICC Statute, a “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military

Kampala was that… before the definition of a crime of aggression can be made operational, a large number of conditions must be met. 19

3. The Trigger Mechanism of the ICC Bearing the foregoing in mind, must now focus on the modus operandi of the

institution which depends primarily on the scope of the treaty establishing it. The jurisdiction of the court, which is potentially very wide ranging, is actually

limited by a number of rules governing complementarity and preconditions to the exercise of jurisdiction.

The first point to be noted here is that the Court has complementary jurisdiction to

the national courts: the only cases in which the international prosecutor may take action when the domestic courts are unable, or unwilling, to prosecute (and the court decides on this point, according to the principle of jurisdiction over its own jurisdiction).20

action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations (see ICC Statute, art .8 bis, para. 1). More specifically, an “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. An example of act that could represent an aggression is the “bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State” (see ICC Statute, art .8 bis, para. 2.b) 19 The main conditions are that there must be a minimum of thirty ratifications by the Member States that have accepted the amendment to incorporate this crime, secondly that a further resolution must be adopted with at least a two-thirds majority of the States parties after 2017; and, lastly, if the trigger mechanism is not activated by the Security Council, consent is required from the aggressor state. A restriction of this kind is not provided for any other crimes: for example, in order for the prosecutor to investigate the crime of aggression acting on his or her own initiative after 2017, it will not be sufficient for the territorial State to have accepted the amendment, but it will also be necessary to secure the consent of the aggressor (and this is highly improbable). 20 The complementary system of the ICC is generically referred to in article 1 and in the Preamble to the Statute, but it is governed by article 17 on “Issues of Admissibility”. Under the first paragraph of this article, when deciding whether a case is inadmissible, the Court takes into account: (a) if the case is being investigated or prosecuted by a State which has jurisdiction over it (unless the State is unwilling or unable genuinely to carry out the investigation or prosecution); b) if the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) if the person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article the bis in idem principle (art. 20, para. 3); (d) if the case is not of sufficient gravity to justify further action by the Court. Paragraphs 2 and 3 that follow deal, respectively, with defining the concepts of “unwillingness” an “inability”. The latter mainly means the total or substantial collapse or unavailability of a national judicial system, while the concept of “unwillingness” is more complex, and for this reason the Statute provides that the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist: (a) the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal

With this complementary character, the court’s capacity to act moves in two main directions.

If action is triggered by the United Nations Security Council, acting under Chapter VII of the United Nations Charter (action with respect to threats to the peace, breaches of the peace, and acts of aggression), the Court's jurisdiction extends worldwide, as in the case of Al Bashir, or Gaddafi, both of which have been charged in The Hague, and both of whom are Heads of State of countries – Sudan and Libya – which have not ratified the ICC founding treaty.21 Differently, in the cases in which the Prosecutor can initiate an investigation on the basis of a referral from any State or proprio motu22, unlike referral from the Security Council, the crime must have been committed in the territory of a State Party to the Treaty or by one of its citizens. Furthermore, in addition to the right to trigger the jurisdiction of the court in cases in which would otherwise be impossible to act, the Security Council also has also the to suspend the activity of the public prosecutor for a period of 12 months, which it may also renew, if this is required by the requirements of keeping the peace.23 Within the normative architecture of the Statue, the highest political organ of the international community is therefore the sole custodian of two different special keys, enabling it to activate or to stay judicial action in more complex cases. And the owner of these keys are the permanent members of the Security Council with the power of veto (the United States, China, Russia, France and the United Kingdom) . So far, only two of these have proceeded to ratify the Treaty establishing the Court (France and the United Kingdom).

4. The jurisdiction of the ICC over acts committed in Myanmar Having defined the jurisdiction of the International Criminal Court in substantive

responsibility; (b) there has been an unjustified delay in the proceedings […]; (c) the proceedings were not or are not being conducted independently or impartially, […]. 21 Cf. Resolution 1970 adopted by the Security Council on 26 February 2011, and Resolution 1593 adopted by the Security Council on 31 March 2005, respectively. 22 To date (May 2011), three States Parties to the ICC Statute – Uganda, the Democratic Republic of Congo and the Central African Republic – have referred situations occurring on their territories to the Court. In addition, on 31 March 2010, Pre-Trial Chamber II granted the Prosecution authorisation to open an investigation proprio motu in the situation of Kenya. 23 See the ICC Statute, art. 16. The Security Council has only used this power twice in the past: in Resolution 1422 adopted by the Security Council on 12 July 2002, and in Resolution adopted on 12 June 2003 (reiterating the first measure). Since the first Resolution was adopted only 12 days after the entry into force of the Treaty establishing the Court, and therefore almost one year before the judges and the prosecutor were sworn in, the Security Council, as it were, auto-inflicted (instead of determining) “the existence of any threat to the peace” (see art. 39, UN Charter).

and procedural terms, we will now to see how far this is compatible with the crimes discussed during this conference.

First of all, we have to bear in mind that the Myanmar is not part of the ICC Statute.

Moreover, among the 122 countries that are States Parties to the Rome Statute of the International Criminal Court just 18 States come from Asia. 24

In short, in terms of the ICC trigger mechanism, there are essentially three

opportunities for opening an investigation: 25 i) via referral of a situation to the Prosecutor by the United Nations Security Council (without compliance with the territorial and national preconditions); ii) via referral of a situation to the Prosecutor by a State Party to the Rome Statute; or iii) via the Prosecutor acting proprio motu.

Each of these three scenarios encounters objective practical difficulties. In the first case, it would appear highly unlikely that the permanent members with

the right of veto on the Security Council would endorse such a solution. In the second case, apart from the fact that it is quite rare for a third State to decide

to denounce another State, the same problem would arise as in the third case: 26: the territorial State or the State of the nationality of the alleged author of the crimes must have ratified the Treaty establishing the Court. And, as we have already mentioned, Myanmar is not a party to the Treaty instituting the ICC.

Should one therefore conclude that the Court is more an instrument of diplomacy then a court? No, or at least not entirely so. Every transformation in the international legal order requires a very long time, but we are always speaking about a system that include

24 Out of them 34 are African States, 18 are Asia-Pacific States, 18 are from Eastern Europe, 27 are from Latin American and Caribbean States, and 25 are from Western European and other States. Concerning the Asia, the States that are part of the ICC Statute are, in chronological order: 1. Fiji, 29 November 1999; 2. Tajikistan, 05 May 2000; 3. Marshall Islands, 07 December 2000; 4. Nauru, 12 November 2001; 5. Cyprus, 07 March 2002; 6. Cambodia, 11 April 2002; 7. Jordan, 11 April 2002; 8. Mongolia, 11 April 2002; 9. Timor-Leste, 06 September 2002; 10. Samoa, 16 September 2002; 11. Republic of Korea, 13 November 2002; 12. Afghanistan, 10 February 2003; 13. Japan, 17 July 2007; 14. Cook Islands, 18 July 2008; 15. Bangladesh, 23 March 2010; 16. Philippines, 30 August 2011; 17. Maldives, 21 September 2011; 18. Vanuatu, 02 December 2011. 25 V. retro, para. 3.

26 Moreover, in the third case, if the Prosecutor intends to institute an investigation proprio motu (rather than on the basis of a referral from any State Party or from the Security Council), the ICC Statute makes provision for a further (judicial type) filter: authorisation by a Pre-Trial Chamber to the Prosecutor to open an investigation. Consequently, if the Prosecutor concludes, proprio motu, that there is a reasonable basis for proceeding with an investigation, he or she is required to submit a request for authorisation to the Pre-Trial Chamber. After examining the request, the three judges may authorise the investigation to begin, “without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case”, see ICC Statute, art. 15, para. 4.

the principle of rebus sic stantibus (latin for ‘things thus standing’: a legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances)… among the main principles. The International Criminal Court, now, does not have jurisdiction over the crimes committed in Myanmar. I do not know if anything will change in a very short term. But what we can learn from the principle rebus sic stantibus is that everything changes and nothing remains the same in the international legal system.