ICC prosecutor seeks to investigate Myanmar for crimes against humanity

ICC prosecutor Fatou Bensouda arrives at the Global Summit to End Sexual Violence in Conflict in June 2014. Photo: Foreign and Commonwealth Office

International Criminal Court (ICC) prosecutor Fatou Bensouda asked the court yesterday to decide whether it has jurisdiction to investigate Myanmar’s mass expulsion of Rohingya.

If the court rules in her favor, Bensouda may be able to prosecute Myanmar for violating Article 7(1)(d) of the ICC’s Rome Statute, which outlaws “deportation or forcible transfer of population” as a crime against humanity.

The question of jurisdiction arises from the fact that Myanmar is not a party to the Rome Statute. Bensouda argues that the ICC’s jurisdiction would derive from the cross-border nature of the crime of deportation and Bangladesh’s membership in the court.

“This is not an abstract question but a concrete one, affecting whether the court may exercise jurisdiction…to investigate and, if necessary, prosecute,” read Bensouda’s request for jurisdiction, which is the first of its kind the court has seen.

She also asked for a hearing on her request so that arguments from various interested parties could be considered. Congolese judge Antoine Kesia-Mbe Mindua is assigned to decide on Bensouda’s petition.

However, even if the court decides it can investigate Myanmar’s alleged crimes against the Rohingya, the government and military are unlikely to cooperate. While the United Nations and several world leaders have described Myanmar security forces’ actions against the Rohingya as genocidal, Myanmar maintains that it has been waging a legitimate campaign against “extremist Bengali terrorists.”

The United Nations estimates that around 700,000 Rohingya have fled Myanmar since August 2017.

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