Legal developments concerning the crimes committed against the Rohingya – which could easily be classified as genocide – have accelerated. As I indicated a few days ago, an inter-state case has been filed against Myanmar before the International Court of Justice. Furthermore, yesterday, the International Criminal Court announced its decision to authorize the Prosecutor to conduct an investigation into the matter. Consequently, formal indictments may be issued; in addition to the aforementioned inter-state case, specific criminal proceedings could now take place before this other judicial body in The Hague.
A notable aspect of this case is that it marks the first time in the history of ICC that a state affected by the investigation is not a party to the Rome Statutue of 1998 (the founding treaty of the ICC) that governs the court’s operations. Moreover, the investigation was not initiated by the UN Security Council – as was the case previously with Sudan and Libya – but rather at the initiative of the court’s own prosecutor (which is why a judicial decision was required to grant approval). Until now, such actions had only involved states that were parties to the treaty; logically, as the founding treaty cointans no provision for such proceedings being possible regarding non-party states. The crux of the matter is the Prosecutor’s argument that the international crimes committed against the Muslim Rohingya minority – who lived within the territory of Myanmar – do also affect Bangladesh, a state party – and in the border region it is not even entirely clear, where the acts were actually committed. In essence, consequently, the ICC is now is exercising its jurisdiction in relation to Bangladesh, a state party.
While this is certainly a very extensive interpretation of the scope of the jurisdiction of the ICC, the fact of the authorisation of the Pre-Trial Chambermakes it to become a reality. For those who study or observe international criminal law – especially those focused on its impact on international relations – the next question will be: when will this interpretation find its way to the Israeli-Palestinian conflict?
