Press
Release
(Dated:
9 August 2018)
Background
The
International Criminal Court (“the Court” or “ICC”) was established through the
Rome Statute of the International Criminal Court (“the Rome Statute”). The ICC
has the jurisdiction to prosecute individuals for the international crimes of
genocide, crimes against humanity and war crimes. Myanmar is not party to the
Rome Statute and the Court has no jurisdiction on Myanmar whatsoever.
Regardless,
the ICC’s Prosecutor has made a Prosecution’s Request for a Ruling on
Jurisdiction under Article 19(3) of the Statute (“the Request”) to the ICC and
has requested Myanmar to submit its opinion.
Myanmar
has declined to engage with the ICC by way of a formal reply due to the reasons
stated below.
A.
Bad Faith (Mala Fides)
1.
The Request by the Prosecutor may be interpreted as an indirect attempt to
acquire jurisdiction over Myanmar which is not a State Party to the Rome
Statute.
2.
Myanmar, as a non-State Party, is under no obligation to enter into litigation
with the Prosecutor at the ICC or even to accept notes verbales emanating from
their Registry by reference to article 34 of the Vienna Convention on the Law
of Treaties (“Vienna Convention”).
3.
The actions of the Prosecutor, constitute an attempt to circumvent the spirit
of article 34 of the Vienna Convention. By allowing such a contrived procedure,
the ICC may set a dangerous precedent whereby future populistic causes and
complaints against non-State Parties to the Rome Statute may be litigated at
the urging of biased stakeholders and non-governmental organizations and even
then, selectively based on the political current of the times.
4.
The Prosecutor appears to have chosen to ignore the fact that the United
Nations Security Council has issued a Presidential Statement stressing the need
for transparent investigations of alleged human rights abuses while, at the
same time, recognizing Myanmar’s sovereignty and territorial integrity. Respect
for Myanmar’s sovereignty would permit it to continue to investigate all
violations of international humanitarian law whether committed by its own
forces or by elements hostile to the Government authorities such as the forces
of the Arakan Rohingya Salvation Army (“ARSA”).
B.
Procedural Framework Irregularities
5.
It is submitted that the Prosecution has incorrectly applied Article 19(3)
request for a ruling from the Court on jurisdiction when the Court is not
properly seized of the matter. Article 19(3) was intended to allow the
Prosecutor to seek preliminary rulings on matters pertaining to jurisdiction
and admissibility which arise in the normal conduct of proceedings i.e. within
a “situation”. In this matter, the Prosecutor has bypassed important procedural
safeguards and instead used Art. 19(3) to request preliminary rulings on issues
of jurisdiction prior to even initiating proposed cases within a “situation”.
6.
In order to obtain the impartial facts necessary to substantiate a
jurisdictional request, the Prosecutor should have conducted a preliminary
examination, of the sort envisaged in the chapeau of article 53(1) of the Rome
Statute.
Failure
to do so, even if it was in part due to financial reasons, was, in fact, an
abandonment of her mandatory duty to exercise her unique discretion under
article 53(1)(a), namely to evaluate the information to see if it provides a
reasonable basis for believing that a crime within the jurisdiction of the
Court has been or is being committed.
7.
With the benefit of a proper preliminary examination, the Prosecutor would
possibly have dealt with the sources of information forming the basis for the
Request with more circumspection. As it is, the sources on which the Prosecutor
has relied for the purpose of the Request present a completely one-sided and
biased narrative of the events in Rakhine State.
8.
The amendment of Regulation 46 (3) of the Regulations of the Court (“RoC”) on
29 June 2018, in the course of the present proceedings, must be viewed
negatively, as it provides support for the Prosecutor. The effect of the
amendment was to provide the Prosecutor with a short-circuit process to enable
a speedy deliberation of this matter.
9.
The Prosecutor had not sought the opening of an investigation by virtue of her
proprio motu powers under article 15(3) of the Rome Statute. By her actions she
has “put the cart before the horse” by approaching the Pre-Trial Chamber for a
ruling on jurisdiction before conducting a preliminary examination. It is
submitted that the Prosecutor has reversed accepted procedure without legal
justification.
C.
Lack of Transparency
10.
Myanmar is concerned with the lack of fairness and transparency of the ICC
proceedings.
11.
The regulations governing the conduct of ICC proceedings stipulates that
reasons should be given for derogating from the default rule, namely that its
hearings be conducted in public. Regulation 20 states among others, that when a
Chamber orders that certain hearings be held in close or private session, the
Chamber shall make public the reasons for such an order. In this matter, the
Pre-Trial Chamber held an ex parte Prosecutor only status conference on 20 June
2018. It also debated issues placed, at the time, on a confidential agenda in a
closed hearing without written justification and in blatant violation of its
own regulations.
12.
All issues discussed at the closed hearing would be of crucial importance and
the fact that the Prosecutor’s responses to some of these issues still remain
confidential is both inexplicable and prejudicial.
13.
The lack of transparency was further manifested when Bangladesh chose to file
its observations with the Court confidentially. The Court has the ability to
require a participant in the legal proceedings to present its submissions in a
public manner or, at the very least, in a partially redacted fashion in order
to safeguard vital interests. This was not done and, as a consequence, Myanmar
could not reasonably have been expected to make an appropriately informed and
formal response when it was denied the submissions of the very country on the
territory of which jurisdiction is sought.
D.
Amici Curiae – prejudicial vs probative value
14.
The Court has permitted organizations to file amicus curiae submissions without
consideration of their identity or the beneficial scope of their proposed
contributions. Several of the briefs submitted did not address legal issues,
but instead presented allegations consisting of mostly charged narratives of
harrowing personal tragedies calculated to place emotional pressure on the
Court.
E.
Victims (irregular application)
15.
Furthermore, the Court has allowed unsolicited victims’ applications (something
which, to date, has only ever happened in the context of a pre-existing
“situation”) which is a totally new development. This is worrying, because the
Court appears to have predetermined or, at least, acquiesced to a procedural
mechanism which would normally be subject to due process. Article 68(3) states
that the Court shall permit views and concerns [of victims] to be presented and
considered at stages of the proceedings … in a manner which is not prejudicial
to or inconsistent with the rights of the accused and a fair and impartial
trial…”
16.
It has been made known that several groups have de facto joined the legal
process and have filed detailed observations, without the Court even ruling
whether their participation is appropriate under regulation 86 of RoC. The
unauthorized and unsolicited submission of observations by these groups has had
the effect of placing the Court in a difficult emotional bind. Rejection of their
submissions on the grounds of a flagrant procedural irregularity would have
left the ICC judges exposed to a charge of callousness.
F.
Preconditions to the exercise of jurisdiction – Article 12(2)(a) of the Rome
Statute
17.
Myanmar categorically rejects the proposition that the Court has jurisdiction
as proposed by the Prosecutor in the Request. Myanmar also disagrees with the
Prosecution’s assertion that population displacement across a national boundary
is an essential objective element of the crime of deportation set out in
Article 7(1)(d).
18.
Furthermore, there is no organizational policy of the kind required for proving
crimes against humanity under the Rome Statute. Such a policy would be hard to
reconcile with the repatriation agreement signed between Myanmar and Bangladesh
in November 2017, whereby both countries agreed on a short time frame for the
voluntary return of all those who had left Rakhine State as a result of
hostilities in the region. Myanmar and Bangladesh also signed the Terms of Reference
for the Joint Working Group (JWG) and Physical Arrangement for Repatriation of
Displaced Myanmar Residents from Bangladesh (“the Physical Arrangement”). All
these bilateral agreements are aimed to facilitate repatriation of verified
residents of Rakhine State who crossed over to Bangladesh following the
terrorist attacks in October 2016 and August 2017. There is no cap on the
number to be repatriated and the process was to have commenced on 23 January
2018.
19.
The Myanmar Government has recently signed a Memorandum of Understanding
(“MOU”) with UNDP and UNHCR on 6th June 2018. The MOU seeks UN participation in
coordinating and harmonizing humanitarian and development action in Rakhine
State, and in assisting the GoM in the voluntary, safe and dignified return of
the displaced persons from Rakhine State who have been duly verified as
residents of Myanmar according to the Arrangement.
G.
Complementarity
20.
The Myanmar government has on 30th July 2018 established an independent
Commission of Enquiry. The Commission consists of four members: two
international members (one is the Chairperson of the Commission) and two
national members. The Commission will investigate the allegations of human
rights violations and related issues following the terror attacks by the Arakan
Rohingya Salvation Army (ARSA).
Conclusion
21.
For all the reasons cited above, Myanmar submits that the Prosecution’s Request
for a Ruling on Jurisdiction under Article 19(3) of the Statute is meritless
and should be dismissed.
Ref;
The Global New Light of Myanmar
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