COX’S BAZAR, BANGLADESH – NOVEMBER 02:

On April 9, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, asked the Pre-Trial Chamber for an advisory opinion declaring that the Court has jurisdiction over the alleged deportation of some 670,000 Rohingya people from Myanmar to Bangladesh. The issue arises because Myanmar is not a State Party to the Rome Statute, and therefore the ICC would not ordinarily have jurisdiction over crimes committed on the territory of Myanmar by Myanmar nationals absent the specific consent of the state or a referral from the U.N. Security Council, neither of which is likely to happen anytime soon. The ICC Prosecutor argued, however, that with respect to the crime of humanity of deportation, the crime is only complete once a population is forced over an international border into another country. Since deportation requires being sent to somewhere, an essential element of the crime occurs in the state of arrival which, in this case, is Bangladesh, a State Party to the ICC.

The Prosecutor’s substantive arguments for jurisdiction are compelling, though not everyone is persuaded, and it has been noted that if the Court found jurisdiction, it would only be for the crime of deportation, and not for the myriad of other international crimes, including genocide, that the Rohingya people have allegedly suffered in Myanmar. Less attention has been focused, however, on the procedure by which the Prosecutor is raising this issue in the first place. Because this is the first time that the Prosecutor has sought an advisory opinion, the Pre-Trial Chamber will establish important precedent in this case regarding whether the Prosecutor has the authority to seek an advisory opinion, and the process that the Pre-Trial Chamber will follow if such a path exists. Both the Prosecutor and the Pre-Trial Chamber should consider focusing more attention on these important questions.

Ordinarily, questions of jurisdiction arise within the context of a “situation,” when the Prosecutor seeks to open an investigation into a particular conflict, or of a “case,” when the Prosecutor seeks to charge individual perpetrators. Here, for the first time, the Prosecutor is relying on a little-discussed sentence in Article 19(3) of the Rome Statute that simply states that “[t]he Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility.” (“Admissibility” references the question of whether a national jurisdiction is already prosecuting the cases targeted by the Court.) Because this provision contains no apparent restriction regarding when the Prosecutor may seek such a ruling, the Prosecutor argued that she may do so at any time, even absent a pending situation or case.

Before reaching the merits of the Prosecutor’s arguments regarding the Court’s jurisdiction over the Rohingya deportation, therefore, the Pre-Trial Chamber will first have to decide whether she is right about being able to seek an advisory opinion on this issue at all without initiating a request to open a situation or case. And here there are arguments going both ways. Regarding the Statute’s text and structure, the Prosecutor is correct that Article 19(3) itself contains no explicit limitation regarding timing, but the provision is contained within a lengthy Article that is otherwise entirely devoted to challenges to jurisdiction or admissibility within a situation or case. In context, therefore, it might seem that the Prosecutor is only authorized to raise a challenge in such circumstances. Moreover, given that the Rome Statute nowhere else appears to permit the Prosecutor to seek, or the judges to issue, an advisory opinion, it is odd that the Statute would permit such a procedure here in a single sentence without any elaboration whatsoever. The Prosecutor may “seek” a ruling, but is the Pre-Trial Chamber required to give one? Are there procedures for developing the issues before the judges? Is there any right of appeal? What is the status of the decision if the Prosecutor later opens an investigation and brings charges? If the Pre-Trial Chamber finds that there is jurisdiction, can later defendants challenge that ruling? It is surprising that none of these questions are addressed in the Statute.

Regarding functionalist arguments, there are generally good reasons to avoid advisory opinions. The existence of a case or controversy ensures that legal issues will be litigated by parties with a vested interest and that they will be argued and decided in a context that is concrete. Furthermore, there may be prudential value in limiting the Court to decisions that it must take rather than running the risk of using up precious legitimacy capital on resolving abstract matters. On the other hand, the Court’s resources are extremely limited, and therefore there may be instances where a preliminary ruling on jurisdiction could save the Prosecutor and the Court significant resources. The question of jurisdiction over the Rohingya deportation is just such a case: If the Court rules that there is no jurisdiction, the Prosecutor will not proceed with commencing a preliminary examination or investigation.

In the event the Pre-Trial Chamber agrees with the Prosecutor that Article 19(3) permits her to seek rulings on jurisdiction and admissibility outside of a situation or case, both the Prosecutor and the judges should give further thought to when such an advisory opinion would be appropriate, and the procedures that should be followed when one is sought. In her filing, the Prosecutor says with respect to the use of Article 19(3) that it is solely within her discretion to decide when to seek such a ruling, and that she will be “guided only by the particular circumstances and the nature of the issue in question.” Without binding herself, she might consider elaborating further on the factors that might cause her to seek a ruling in other circumstances. She could begin with the considerations that seemed to be important in this case, including her contention that the issue presented is sufficiently concrete for the judges to decide and the determinative nature of this decision to any future preliminary examination or investigation. Providing some guidance will also help the Prosecutor address the future demands, which are sure to come, that she seek rulings on other questions of jurisdiction or admissibility.

Further, the judges should focus on the procedures that they will follow when the Prosecutor makes an Article 19(3) request. In this case, the judges quite appropriately issued an invitation to Bangladesh to submit written observations on the Prosecutor’s jurisdictional arguments. But the judges should go further and solicit as well the views of the government of Myanmar, which has already expressed “serious concern” about the Prosecutor’s request. In addition, the judges should consider appointing an independent counsel to present views that are contrary to those presented by the prosecution. The Prosecutor has argued for a finding of jurisdiction, but there will not necessarily be anyone on the other side arguing against such a ruling. Admittedly, this would be a problem as well if the Prosecution simply sought authorization to open an investigation in the situation, also an ex parte procedure, but if a thorny legal issue arose in such a context, appointment of an independent counsel might be appropriate there as well. The problem of having just one side to these proceedings was highlighted last week when the Pre-Trial Chamber scheduled a closed, ex parte hearing with the Prosecution on its jurisdiction request to be held next month, a move that has been questioned by Kevin Jon Heller. As Heller points out, it seems odd to have a closed hearing on what should be a purely legal question. However, assuming there are good (but unknown) reasons to have a closed hearing, it would certainly add to the legitimacy of the proceedings and the ultimate outcome if an independent counsel were also present at the closed hearing to offer arguments in opposition to the prosecution. There is little doubt that the Prosecutor would welcome the appointment of an independent counsel to ensure that the judges heard all views on the jurisdiction question to be decided.

It may very well be that the issue of jurisdiction over the Rohingya deportation lends itself very well to a pre-situation, pre-case determination by the judges. But this case will establish important precedent for the Prosecutor’s ability to seek advisory opinions on jurisdiction or admissibility in the future. To that end, the Prosecutor and judges at the ICC should ensure that the procedures are sufficiently robust to help guarantee the best and most legitimate outcomes.