Human rights enforcement at the borders: International Criminal Court jurisdiction over the Rohingya situation

In September 2018, Pre-Trial Chamber I of the International Criminal Court reached a decision that could profoundly impact accountability for transnational human rights violations. In its decision, the Pre-Trial Chamber found that it has jurisdiction over the crime against humanity of deportation as it relates to the government of Myanmar’s treatment of the Rohingya ethnic group. This decision is remarkable for the fact that Myanmar is not a state party to the Rome Statute and therefore not directly subject to the International Criminal Court’s Statute. The Court circumvented this problem by ruling that a portion of the crime was committed in Bangladesh permitting the exercise jurisdiction in this matter. This article endeavours to accomplish two goals. First, it analyses the Pre-Trial Chamber’s ruling to determine whether it complies with the Rome Statute and international law. Second, it will discuss the ramifications of the decision and consider whether it can act as a partial solution for addressing transnational human rights violations being committed in the territory of non-states parties. The article concludes that the decision itself is open to question, creating a danger that it will be susceptible to challenge. The International Criminal Court needs to ensure that these sorts of controversial decisions have a firm legal foundation to better deliver justice to the victims of atrocity crimes and to protect the Court from criticism that it is failing victims.

This is a pre-copyedited, author-produced version of an article accepted for publication in Journal of International Criminal Justice following peer review. The version of record Caleb H Wheeler, Human Rights Enforcement at the Borders: International Criminal Court Jurisdiction over the Rohingya Situation, Journal of International Criminal Justice, Volume 17, Issue 3, July 2019, Pages 609–631, is available online at: https://academic.oup.com/jicj/article-abstract/17/3/609/5549985 and https://doi.org/10.1093/jicj/mqz029