Recent Myanmar/Bangladesh ICC decision reinforces flaws in alleged academics’ presentation to Rulers — Lim Wei JietYesterday, the International Criminal Court’s Pre-Trial Chamber III announced its “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar,” whereby the ICC authorised the Prosecutor to commence investigations into crimes in Myanmar/Bangladesh.
The ICC found that both factors have been fufliled. Consequently, the ICC authorised the Prosecutor to commence investigation propio motu. The ICC’s recent decision, in essence, held that it has territorial jurisdiction over Myanmar’s alleged “deportation” of Rohingya people because the victims crossed into the borders of Bangladesh — the crime may have began in Myanmar but was “completed” when the victims entered Bangladesh.
But even if we accept the academics’ line of reasoning that a State party can only make a reference if a crime occurs within its territory, there is good ground to believe — based on the ICC’s recent decision — that Malaysia does indeed have territorial link to the crime of “deportation” of Rohingya people.
This is highly problematic from the onset. Article 17 of the Rome Statute clearly provides that it is the ICC — and not the Prosecutor — which decides whether the “unable or unwilling” principle has been fulfilled.
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