The prosecutor of the international criminal court has asked it to rule on whether it has jurisdiction over the deportations of Rohingya people from Myanmar to Bangladesh, a possible crime against humanity.
A ruling affirming jurisdiction could pave the way for an investigation into the deportation of many thousands of Rohingya, though Myanmar is unlikely to cooperate.
In a filing published on Monday, the court prosecutor, Fatou Bensouda, listed the well-documented mistreatment of Rohingya and cited the UN special envoy for human rights who described it as bearing the “hallmarks of genocide”.
She argued that although Myanmar was not a member of the court, the fact that part of the alleged crime took place on the territory of Bangladesh, which is a member, meant the court could seek powers of jurisdiction.
“The prosecution seeks ... to verify that the court has territorial jurisdiction when persons are deported from the territory of a state which is not a party to the statute directly into the territory of a state which is a party to the Statute,” the filing says.
“This is not an abstract question but a concrete one, affecting whether the court may exercise jurisdiction ... to investigate and, if necessary, prosecute.”
Bensouda argued that, given the cross-border nature of the crime of deportation, a ruling in favour of ICC jurisdiction would be in line with established legal principles.
But she acknowledged uncertainty around the definition of the crime of deportation and limits of the court’s jurisdiction.
Her request is the first of its kind filed at the court. She asked the court to call a hearing so that her arguments could be considered, as well as those of other interested parties.
The magistrate assigned to consider the request, Congolese judge Antoine Kesia-Mbe Mindua, will have considerable leeway in determining how to proceed.
According to the United Nations, some 700,000 mostly Muslim Rohingya fled their homes into Bangladesh after militant attacks in August last year triggered a military crackdown that the United Nations has said constitutes ethnic cleansing.
Myanmar, which has a majority Buddhist population and government, rejects that charge, saying its forces have been waging a legitimate campaign against Rohingya who attacked government forces. Many in Myanmar regard the Rohingya as illegal immigrants from Bangladesh.
Published on The Guardian on April 10, 2018