The Radically Routine Rohingya Case

Abstract

Abstract The campaign of atrocities against Myanmar’s Rohingya minority is among the most pressing human rights challenges of our times. However, since Myanmar is not a party to the Statute of the International Criminal Court (ICC), proponents of international justice have been forced to pursue accountability through creative means. On 6 September 2018, the Pre-Trial Chamber of the ICC ruled that the Court had jurisdiction over some of the atrocities. Despite having been initiated in the territory of a non-state party (Myanmar), the Court held that the crime of deportation — that is, forced displacement across an international boundary — has been completed on the territory of a state party, namely Bangladesh. This unprecedented backdoor to The Hague has stirred considerable controversy, both in diplomatic and academic circles. Yet, just how radical is the deportation theory upheld in this Decision? It would seem that the exercise of territorial jurisdiction over crimes with transboundary elements is a rather routine and unremarkable practice among states and, by extension, with respect to the ICC. It is trite law that deportation — like human trafficking and similar crimes — is initiated in the territory of one state and completed in the territory of another state. Considered in this light, the so-called Rohingya case at the ICC is radically routine.