ICC judges authorise the opening of an investigation into the situation in Bangladesh/Myanmar
Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an
Investigation into the Situation in the People’s Republic of Bangladesh/Republic of
the Union of Myanmar.
the Chamber accepts that there exists a reasonable basis to believe that since at least 9 October 2016 widespread and/or systematic acts of violence may have been committed against the Rohingya civilian population, including murder, imprisonment, torture, rape, sexual violence, as well as other coercive acts, resulting in their large-scale deportation. Given that there are many sources indicating the heavy involvement of several government forces and other state agents, there exists reasonable basis to believe that there may have been a state policy to attack the Rohingya.
ICC-01/19-27
14 November 2019 | Pre-Trial Chamber III | Decision
Case: None (Situation only)
Situation: Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar
On 14 November 2019, Pre-Trial Chamber III of the International Criminal Court (“ICC” or the “Court”) authorised the Prosecutor to proceed with an investigation for the alleged crimes within the ICC’s jurisdiction in the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (“the situation in Bangladesh/Myanmar”).
ICC Pre-Trial Chamber III is composed of Judge Olga Herrera Carbuccia, Presiding, Judge Robert Fremr, and Judge Geoffrey Henderson.
This authorisation follows the request submitted on 4 July 2019 by the Prosecutor to open an investigation into alleged crimes within the ICC’s jurisdiction committed against the Rohingya people from Myanmar.
The Chamber also received the views on this request by or on behalf of hundreds of thousands of alleged victims. According to the ICC Registry, victims unanimously insist that they want an investigation by the Court and many of the consulted alleged victims ‘believe that only justice and accountability can ensure that the perceived circle of violence and abuse comes to an end’. The Chamber recognised all the individuals and organisations that assisted, guided and advised alleged victims throughout this process.
The Chamber concluded that the Court may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party. While Myanmar is not a State Party, Bangladesh ratified the ICC Rome statute in 2010. Upon review of the available information, the Chamber accepted that there exists a reasonable basis to believe widespread and/or systematic acts of violence may have been committed that could qualify as the crimes against humanity of deportation across the Myanmar-Bangladesh border and persecution on grounds of ethnicity and/or religion against the Rohingya population. The Chamber found no need to assess whether other crimes within the Court’s jurisdiction may have been committed, even though such alleged crimes could be part of the Prosecutor’s future investigation.
Noting the scale of the alleged crimes and the number of victims allegedly involved, the Chamber considered that the situation clearly reaches the gravity threshold. According to the supporting material, an estimated 600,000 to one million Rohingya were forcibly displaced from Myanmar to neighbouring Bangladesh as a result of the alleged coercive acts. Noting the victims’ views, the Chamber agreed with the Prosecutor that there are no substantial reasons to believe that an investigation into the situation would not be in the interests of justice.
Consequently, Pre-Chamber III authorised the commencement of the investigation in relation to any crime, including any future crime, as long as: a) it is within the jurisdiction of the Court, b) it is allegedly committed at least in part on the territory of Bangladesh, or on the territory of any other State Party or State accepting the ICC jurisdiction, c) it is sufficiently linked to the situation as described in the present decision, and d) it was allegedly committed on or after the date of entry into force of the Rome Statute for Bangladesh or other relevant State Party.
Regarding alleged crimes that have a continuous nature, the Prosecutor may extend her investigation even when such crimes commenced before 1 June 2010 (or the date of entry into force of the Statute for any other relevant State Party) in so far as the crimes continued after this date.
Statement of ICC Prosecutor Karim A.A. Khan KC: Application for an arrest warrant in the situation in Bangladesh/Myanmar
Next steps: The Office of the Prosecutor will start collecting the necessary evidence from a variety of reliable sources, independently, impartially, and objectively. The investigation can take as long as needed to gather the required evidence. If sufficient evidence would be collected to establish that specific individuals bear criminal responsibility, the Prosecutor would then request Judges of Pre-Trial Chamber III to issue either summonses to appear or warrants of arrest. The responsibility to enforce warrants of arrest issued by an ICC Chamber remains with States. States Parties to the Rome Statute have a legal obligation to cooperate fully with the ICC. Other States may be invited to cooperate with the ICC and may decide to do so on a voluntary basis.
Since 14 November 2019, we have been investigating alleged crimes committed during the 2016 and 2017 waves of violence in Rakhine State, Myanmar, and the subsequent exodus of Rohingya from Myanmar to Bangladesh.
After an extensive, independent and impartial investigation, my Office has concluded that there are reasonable grounds to believe that Senior General and Acting President Min Aung Hlaing, Commander-in-Chief of the Myanmar Defence Services, bears criminal responsibility for the crimes against humanity of deportation and persecution of the Rohingya, committed in Myanmar, and in part in Bangladesh.
My Office alleges that these crimes were committed between 25 August 2017 and 31 December 2017 by the armed forces of Myanmar, the Tatmadaw, supported by the national police, the border guard police, as well as non-Rohingya civilians.
This is the first application for an arrest warrant against a high-level Myanmar government official that my Office is filing. More will follow.
Today’s application draws upon a wide variety of evidence from numerous sources such as witness testimonies, including from a number of insider witnesses, documentary evidence and authenticated scientific, photographic and video materials.
In collecting this evidence, the Office has benefitted from the crucial support of States, civil society partners and international organisations. In particular, the cooperation, the confidence and the steadfast commitment from the Rohingya community, the support of the Government of Bangladesh, and excellent cooperation from the United Nations Independent Investigative Mechanism for Myanmar have been essential to advancing this investigation.
I wish in particular to express my deep, profound gratitude to the Rohingya. More than a million members of their community have been forced to flee violence in Myanmar. We are grateful to all those who provided testimony and support to my Office, those that have shared their stories, those that have given us information and material.
In my visits to the Kutupalong refugee camp in Cox’s Bazar over the last three years, including just yesterday, I met with Rohingya women who spoke with clarity and purpose about the need for accountability. I sat with youth activists who wanted to play their own role in seeking justice. And I spoke with men of all ages including the old and the sick, who were united in demanding to be seen and to have accountability for what befell them. Our work, the work of the International Criminal Court, seeks to vindicate their resilience and their hope in the power of the law.
It is now for the judges of the International Criminal Court to determine whether this application meets the necessary standard for the issuance of an arrest warrant. In the event that the independent judges of the ICC issue the requested warrant, we will coordinate closely with the Registrar of the Court in all efforts to arrest the named individual.
When I first travelled to Bangladesh, I announced that we would seek to accelerate our investigations, and we committed to providing additional resources in that effort. Since then, we have reinvigorated our activities in line with that promise. Today marks a culmination of this renewed focus in relation to this situation.
We will continue this focus in the coming weeks and months as we submit additional applications in this situation.
In doing so, we will be demonstrating, together with all of our partners, that the Rohingya have not been forgotten. That they, like all people around the world, are entitled to the protection of the law.
For further information, please contact Fadi El Abdallah, Spokesperson and Head of Public Affairs Unit, International Criminal Court, by telephone at: +31 (0)70 515-9152 or +31 (0)6 46448938 or by e-mail at: fadi.el-abdallah@icc-cpi.int
