Extension the ICC Jurisdiction; an Achievement of the Ruling on Jurisdiction in the Myanmar Situation

Document Type : Original Article

Author

• Javad Salehi

Associate Professor of Payam-e-Noor University, Tehran, Iran.

https://doi.org/10.22067/irlip.2021.21447.0

Abstract

The ruling on jurisdiction in the Myanmar situation at the request of its prosecutor has a new achievement that has no precedent in the ICC jurisprudence. The prosecutor’s request for the ruling on jurisdiction is based on Article 19(3) of the Statute. However, the exercise of jurisdiction in the Myanmar situation is hampered by its non-membership in the ICC. But Pre-trial seek by establishing a connection between Articles 19(3) and 12(2)(a) of the Statute to provide a new achievement for all non-states party in the ICC, whose dimensions are important and one of the aims and subject of this article. The research method is descriptive-analytical and relies on the provisions of the Statute and the ICC’s jurisprudence to answer the main question of the research. The research question is what is the achievement of the ICC ruling on jurisdiction in the Myanmar situation for the international community? The findings show that the extension of the ICC jurisdiction from the Member State of Bangladesh’s territory to the non-member state of Myanmar’s territory is an achievement of the ruling on jurisdiction in the Myanmar situation, which has been missing in its jurisprudence. Accordingly, the criminal situation of states due to their non-membership in the ICC or non-referral of their situation by the UN Security Council is no longer beyond the ICC jurisdiction if the offense is committed in the ICC state party and non-state party’s territories. In these circumstances, the membership of one state has a positive effect on the non-membership of another state, and its criminal situation puts it before the ICC’s judges.

Keywords

• International Criminal Court
• Myanmar Situation
• Article 19(3) of the Statute
• Ruling on Criminal Jurisdiction
• Development of Criminal Jurisdiction

References

Cryer, R.; Friman, H.; Robinson, D., & Wilmshurst, E. (2014). An Introduction to International
Criminal Law and Procedure, 3rd ed., Cambridge University Press.
Guilfoyle, D. (2019). The ICC pre-trial chamber decision on jurisdiction over the situation in Myanmar.
Australian Journal of International Affairs, 73(1), 1-7.
Hejazi, A., & Solhchi, M. A. (2020). United nations security council and its impact on the establishment
of international security and criminal justice. Journal of Criminal Law Research, 9(33), 9-46. (in
Persain).
International court of justice (2019). Application of the convention on the prevention and punishment
of the crime of genocide (Gambia v. Myanmar). 11 November 2019, Retrieved from:
https://www.icj-cij.org/files/case-related/178/178-20191111-APP-01-00-EN.pdf.
International court of justice (2020). Order on application of the convention on the prevention and
punishment of the crime of genocide (Gambia v. Myanmar). 23 January 2020, Retrieved from:
https://www.icj-cij.org/files/case-related/178/178-20200123-SUM-01-00-EN.pdf.
International criminal court (2018a). Observations on behalf of victims from Tula Toli. Case No. ICC-
RoC46(3)-01/18-26, 18 June 2018.
International criminal court (2018b). Decision on the ‘prosecution’s request for a ruling on jurisdiction
under article 19(3) of the statute. Case No. ICC-RoC46(3)-01/18, 6 Sep 2018.
International criminal court (2018c). Transcript of the status conference. Case No. ICC-RoC46(3)-
01/18-T-1-Red-ENG, 20 June 2018.
International criminal court (2018d). Submissions on behalf of the victims pursuant to article 19(3) of
the statute. Case No. ICC-RoC46(3)-01/18-9, 30 May 2018.
International criminal court (2018e). Prosecution response to observations by intervening participants.
Case No. ICC-RoC46(3)-01/18, 11 July 2018.
International criminal court’s prosecutor (2018). Opening a preliminary examination concerning the
alleged deportation of the Rohingya people from Myanmar to Bangladesh. 18 Sept. 2018, Retrivd
from: https://www.icc-cpi.int/Pages/item.aspx?name=180918-otp-stat-Rohingya.
Kreb, C. (2018). On the activation of ICC jurisdiction over the crime of aggression. Journal of
International Criminal Justice, 16(1), 1-17.
Office of the prosecutor (2018). Prosecution’s request for a ruling on jurisdiction under article 19(3)
of the statute. Case No. ICC-RoC46(3)-01/18-1, 09 April 2018.
Pasha-Bonyad, M., & Mossafa, N. (2016). Application of the doctrine of responsibility to protect in the
international disaster response law (IDRL). Journal of Public Law Studies Quarterly, 46(3), 511-
532. (in Persain).