July 20, 2019

ICC Prosecutor, Fatou Bensouda, requests judicial authorisation to commence an investigation a Bangladesh/Myanmar

ICC Prosecutor, Fatou Bensouda

The Prosecutor of the International Criminal Court (“ICC” or the “Court”) requested the Court’s Judges to authorise an investigation into alleged crimes against humanity, namely deportation, other inhumane acts and persecution committed against the Rohingya people from Myanmar.

More specifically, the request seeks 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.

The requested authorisation to investigate the situation covers the period since the 9th of October 2016.

The Prosecutor’s request follows her Office’s thorough preliminary examination which, in its assessment, concluded that the legal conditions required under the Rome Statute to open an investigation have been met. 

It may be recalled that on the 9th of April last year, the Prosecutor filed a request with the Court’s judges for a legal ruling on the question of jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

The second phase of the preliminary examination of this situation started last September, following the Judges’ ruling in response to that request, which confirmed 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.”

Following the Office’s preliminary examination process, the Prosecutor has determined that there is a reasonable basis to believe that at least 700,000 Rohingya people were deported from Myanmar to Bangladesh through a range of coercive acts and that great suffering or serious injury has been inflicted on the Rohingya through violating their right to return to their State of origin.

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.

·  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;

·  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;

·  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.

This is without prejudice to other possible crimes within the jurisdiction of the Court which may be identified during the course of any authorised investigation.

As Myanmar is not a State Party to the Rome Statute, but Bangladesh is, it is important to bear in mind that the authorisation to investigate, if granted by the Judges, would not extend to all crimes potentially committed in Myanmar, but will focus on crimes allegedly committed in part on the territory of Bangladesh. 

Investigating deportation will, however, mean taking a close look at the alleged violence that left the Rohingya no genuine choice but to flee Myanmar.

The Office of the Prosecutor has carefully assessed available information on relevant national proceedings. In light of the gravity of the acts committed – the details of which are outlined in the Request – and the absence of relevant national investigations or prosecutions in Myanmar or in relevant third States, against those who appear to be most responsible for the most serious crimes within this Situation, the Prosecutor considers that the potential cases that her Office has identified as likely to be the focus of an investigation in this Situation, would be admissible pursuant to articles 53(1)(b) and 17(1) (a) and (b) of the Statute.

Furthermore, the Prosecutor has determined that there are no substantial reasons to believe that the opening of an investigation would not serve the interests of justice, taking into account the gravity of the crimes and the interests of victims.

Should the Prosecutor’s request be granted, as with all situations under investigation by her Office, that work will be undertaken independently and impartially in the strict service of our mandate under the founding Statute of the Court, and with respect for the principle of complementarity as enshrined in that Statute.

Today, as per the applicable rules, the Prosecutor also notified victims or their legal representatives, of her intention to request authorisation to initiate an investigation in the Situation in Bangladesh/Myanmar informing them that they have until 28 October 2019 to submit representations to the Judges of Pre-Trial Chamber III on her Request. 

The Office of the Prosecutor of the ICC conducts independent and impartial preliminary examinations, investigations and prosecutions of the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Since 2003, the Office has been conducting investigations in multiple situations within the ICC’s jurisdiction, namely in Uganda; the Democratic Republic of the Congo; Darfur, Sudan; the Central African Republic (two distinct situations); Kenya; Libya; Côte d’Ivoire; Mali; Georgia and Burundi. The Office is also currently conducting preliminary examinations relating to the situations in Colombia; Guinea; Iraq/UK; Palestine; the Philippines; Nigeria; Ukraine, and Venezuela.

·         Prosecution’s Request seeking authorisation of an investigation pursuant to article 15 (full version);

·         Summary of the Prosecution’s Request seeking authorisation of an investigation pursuant to article 15;

·         Public Notice of the ICC Prosecutor to the victims of violence committed in the context of the situation in Bangladesh/Myanmar.

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