Revisiting the International Criminal Court process

The world is watching with dismay the crime of "ethnic cleansing" and "genocide" being committed in Myanmar on members of the Rohingya Muslim community in the country's western Rakhine Province. This act of violence has resulted in the entry of more than 600,000 Rohingyas into Bangladesh. The large majority of them are women, children and elderly persons. This latest influx has taken the total number of Rohingyas who have entered Bangladesh over the last three decades to nearly one million. This is a massive burden under any definition. It is true that some token relief has arrived in Bangladesh from several countries but it can address only the tip of the iceberg of the evolving crisis.

In the meantime, on 18 October, UN Special Adviser on the Prevention of Genocide Adama Dieng and Special Adviser on the Responsibility to Protect Citzens Ivan Simonovich called on the government of Myanmar to take immediate action to address the commission of 'atrocity' crimes that are taking place in the Northern Rakhine State. They have also alleged that discriminatory practices have worsened the situation against the Rohingyas. They have also suggested that those committing these crimes which are tantamount to genocide need to be held accountable despite their status.

It is this circumstance that has persuaded some representatives from different quarters to suggest as to whether this brewing humanitarian crisis originating in Myanmar, affecting nearly a million Rohingyas, can be the subject matter of reference to the International Criminal Court (ICC).

Before moving on, it would be useful to trace some details about the Rome Statute.

After years of deliberations, both in New York and in Geneva, the UN General Assembly finally convened a conference in Rome in June 1998, with the aim of finalizing the treaty to serve as the Court's statute. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining.

The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States and Yemen. Following 60 ratifications, the Rome Statute entered into force on 1 July 2002 and the International Criminal Court was formally established. The first bench of 18 judges was elected by the Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on 11 March 2003. The Court issued its first judgment in 2012 in which it found Congolese rebel leader Thomas Dvilo guilty of war crimes related to using child soldiers.

As it stands today, only 124 States have ratified or acceded to the Rome Statute. Bangladesh signed on 16 September 1999 and ratified and acceded to it on 23 March 2010. Israel, Russia, Sudan, Iran and the United States have signed but not ratified the Statute. Non-Party members among others include India, Myanmar, China, Pakistan and Saudi Arabia. On 19 October 2016 South Africa notified that they wanted to withdraw from the obligations of the Statute, but later on in March 2017 rescinded the withdrawal notice. Burundi, this October, informed the relevant authorities that they decided to quit the International Criminal Court Statute paradigm, alleging that it is biased against Africans.

There are three jurisdictional requirements in the Rome Statute that must be met before a case may begin against an individual or a Party. The requirements are (1) subject-matter jurisdiction (what acts constitute crimes), (2) territorial or personal jurisdiction (where the crimes took place or who committed them), and (3) temporal jurisdiction (when the crimes were committed).

The Court's subject-matter jurisdiction refers to the crimes for which individuals can be prosecuted as listed in the Statute. The primary crimes are mentioned in Article 5 of the Statute and defined in later articles-Genocide (defined in Article 6), Crimes against humanity (defined in Article 7), War crimes (defined in Article 8), and Crimes of Agression (defined in Article 8 bis)- which is not yet within the jurisdiction of the Court. In addition, Article 70 defines offences against the administration of justice, which are also crimes for which individuals can be prosecuted.

Article 6 defines the crime of Genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group". There are five such acts which constitute crimes of genocide under article 6: (a) Killing members of a 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; (d) Imposing measures intended to prevent births within the group; and (e) Forcibly transferring children of the group to another group.

The definition of these crimes is identical to those contained within the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.

Article 7 defines Crimes against humanity as acts "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". The article lists 16 such as individual crimes: Murder, Extermination, Enslavement, Deportation or forcible transfer of population, Imprisonment or other severe deprivation of physical liberty, Torture, Rape, Sexual slavery, Enforced prostitution, Forced pregnancy, Enforced sterilization, Sexual violence, Persecution, Enforced disappearance of persons, Apartheid and any other act that may be adjudged by the Court as inhumane.

Article 8 defines War crimes depending on whether an armed conflict is either international (which generally means it is fought between states) or non-international (which generally means that it is fought between non-state actors, such as rebel groups, or between a state and such non-state actors). In total there are 74 war crimes listed in Article 8. The most serious crimes, however, are those that constitute either grave breaches of the Geneva Conventions 1949, which only apply to international conflicts, and serious violations of article 3 common to the Geneva Conventions of 1949, which apply to non-international conflicts.

There are 11 crimes which constitute grave breaches of the Geneva Conventions and which are applicable only to international armed conflicts: Wilful killing, Torture, Inhumane treatment, Biological experiments, Wilfully causing great suffering, Destruction and appropriation of property, Compelling service in hostile forces, Denying a fair trial, Unlawful deportation and transfer, Unlawful confinement, Taking hostages.

One needs to also refer here to the seven crimes which are generally agreed as constituting serious violations of Article 3 common to the Geneva Conventions and which are applicable particularly to non-international armed conflicts: Murder, Mutilation, Cruel treatment, Torture, Outrages upon personal dignity, Taking hostages and Sentencing or execution without due process.

Additionally, there are 56 other crimes defined by article 8. Of them, 35 apply to international armed conflicts and 21 apply to non-international armed conflicts. Such crimes include attacking civilians or civilian objects, attacking peacekeepers, causing excessive incidental death or damage, transferring populations into occupied territories, treacherously killing or wounding, denying quarter, pillaging, employing poison, using expanding bullets, rape and other forms of sexual violence, and conscripting or using child soldiers.

Article 70 criminalizes certain intentional acts which interfere with investigations and proceedings before the Court, including giving false testimony, presenting false evidence, corruptly influencing a witness or official of the Court, retaliating against an official of the Court, and soliciting or accepting bribes as an official of the Court.

The territorial jurisdiction of the Court includes the territory, registered vessels, and registered aircraft of states which have either (1) become party to the Rome Statute or (2) accepted the Court's jurisdiction by filing a declaration with the Court. In situations that are referred to the Court by the United Nations Security Council, the territorial jurisdiction is defined by the Security Council, which may be more expansive than the Court's normal territorial jurisdiction. For example, if the Security Council refers a situation that took place in the territory of a state that has both not become party to the Rome Statute and not lodged a declaration with the Court, the Court will still be able to prosecute crimes that occurred within that state.

The personal jurisdiction of the Court extends to all natural persons who commit crimes, regardless of where they are located or where the crimes were committed, as long as those individuals are nationals of either (1) states that are party to the Rome Statute or (2) states that have accepted the Court's jurisdiction by filing a declaration with the Court. As with territorial jurisdiction, the personal jurisdiction can be expanded by the Security Council if it refers a situation to the Court.

No statute of limitations applies to any of the crimes defined in the Statute. However, the Court's jurisdiction is not completely retroactive. Individuals can only be prosecuted for crimes that took place on or after 1 July 2002, the date the Rome Statute entered into force. However, if a state became party to the Statute, and therefore a member of the Court, after 1 July 2002, then the Court cannot exercise jurisdiction prior to that date.

As universally agreed and followed, the Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt and establishes certain rights of the accused persons during investigations. These include the right to be fully informed of the charges against him or her; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against him or her.

Victims before the International Criminal Court can also claim reparations under Article 75 of the Rome Statute. Reparations can only be claimed when a defendant is convicted and at the discretion of the Court's judges. Reparations can include compensation, restitution and rehabilitation, or other forms of reparations that may be appropriate for individual, collective or community victims.

Rohingya children scramble for relief at a camp in Cox’s Bazar. — Collected Photo

The Srebrenica debacle in Bosnia during the 1990s has also underlined that it would be incorrect for non-Party States to think that cooperation on their part with the International Criminal Court can only be of a voluntary nature. It was clearly decided at that time that even states that have not acceded to the Rome Statute are obliged to cooperate with ICC if a case is referred to the latter by the UN Security Council. In such a situation all UN member-states are obliged to cooperate, not only because its decisions are binding for all of them but also because there is the international obligation to abide by and ensure respect for international humanitarian law as contained in the Geneva Conventions and Additional Protocol

I have tried to present the criminal ramifications of the current Rohingya situation so that the government and the readers can make up their own mind.

Muhammad Zamir, a former Ambassador and Chief Information Commissioner of the Information Commission, is an analyst specialised in foreign affairs, right to information and good governance.

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