Uluslararası Ceza Mahkemesi’nin Yargı Yetkisi: Bangladeş/Myanmar Kararı Sonrası Hukuki Manzara
Muhammet Celal Kul, Hasan Basri BülbülUluslararası Ceza Mahkemesi (UCM), Birleşmiş Milletler Güvenlik Konseyi havalesi olmadığı halde Roma Statüsü’ne taraf olmayan bir devletin vatandaşlarını yargılayabilir mi? Bangladeş/Myanmar meselesinde UCM Ön Yargılama Dairesi, Rohingyalara karşı sınır dışı etme suçunun işlendiğinden bahisle Myanmar Statü’ye taraf olmamasına rağmen yargı yetkisinin olduğunu kabul etmiştir. Etnik ve dini bir azınlık olan Rohingya halkı uzun yıllar çok ciddi şiddet ve zulme maruz kalmış, nihayet 2017 yılının Ağustos ayında kitlesel halde Bangladeş’e göç etmeye zorlanmıştır. Bu durum karşısında harekete geçen UCM’nin yargı yetkisine ilişkin kararında sınır dışı suçunun bir kısmının taraf devlet olan Bangladeş’te tamamlanmış olması kritik bir rol oynamıştır. Bu Karar uluslararası hukuk camiasında ciddi tartışmalara yol açmıştır. Karar bir yandan uluslararası suçların cezasız kalmaması ve evrensel yargı yetkisine ulaşma idealine bir adım daha yaklaşmak açısından memnuniyetle karşılanmıştır. Diğer yandan, kararın devletlerin egemenliği ve pacta tertiis (bir antlaşma sadece tarafları bağlar, üçüncü bir devlet için yükümlülük yaratmaz) gibi uluslararası hukukun en temel ilkelerine aykırılığı gerekçesiyle endişelerini dile getirenler de olmuştur. Mahkeme’nin genişletici bir yorumla yargı yetkisinin sınırlarını Roma Statüsü’nde açıkça belirtilen hallerin ötesine taşıması ciddi sonuçlar doğurma potansiyeline sahiptir. Bu makalede, kararın yaratabileceği hukuki sonuçlar yer, konu, kişi ve zaman bakımından yetki çerçevesinde incelenmekte, yargı yetkisinin hangi hal ve şartlarda daha da genişleyebileceği ortaya konmaktadır. Daha sonra ise bu yönde bir genişlemenin uluslararası ceza adaleti sistemi açısından yaratacağı fırsatlar ve sorunlar analiz edilmektedir.
The Jurisdiction of the International Criminal Court: Examining the Legal Landscape Post Bangladesh/Myanmar Decision
Muhammet Celal Kul, Hasan Basri BülbülCan the International Criminal Court (ICC) prosecute nationals of states non-State parties to the Rome Statute in the absence of the United Nations Security Council referral? In Bangladesh/Myanmar, the Pre-Trail Chamber I of the ICC held that it has jurisdiction over the nationals of Myanmar, a state not party to the Rome Statute, for the crime of deportation. The Rohingya people, an ethnic and religious minority, have been subjected to serious forms of violence and persecution for decades and were finally forcibly displaced en masse to Bangladesh in August 2017. The fact that part of the crime was completed in Bangladesh, a state party, played a critical role in the Chamber’s decision on jurisdiction. This novel interpretation created an immense debate among international law circles. It has been hailed by some as a step closer to achieving the objectives of universal jurisdiction and putting an end to impunity. On the other hand, some have raised concerns as the ruling seemingly goes against fundamental principles of international law such as the sovereignty of states and pacta tertiis (a treaty only binds parties). Extending beyond what the Rome Statute originally and explicitly set out, the ruling will have serious implications. This article analyses the legal consequences of the judgement by focusing on jurisdiction ratione loci, materie, ratione personae, and temporis. Presenting the circumstances where the jurisdiction of the Court may further expand, it then addresses some risks and opportunities that such an expansion would pose for the development of the international criminal justice system.
The idea of the establishment of a permanent international criminal court has been encountered by hesitations and even objections by many States. Nevertheless, in 2002, the International Criminal Court (ICC) began to operate when the 60th State party lodged its ratification documents as prescribed by the Rome Statute. As a turning point in international criminal law, the Rome Statute of the International Criminal Court (the Rome Statute) aimed to end impunity for crimes of international concern. States that hesitated or raised objections to protect State sovereignty have not become a party to the Rome Statute. Nevertheless, the ICC has developed a tool to assert jurisdiction over the nationals of non-State parties, circumventing the need for a United Nations Security Council referral. This was established with the jurisdictional ruling in the Bangladesh/Myanmar situation in 2018.
The Rohingya, an ethnic and religious minority also known as Arakan Muslims, in the Rakhine State of Myanmar have endured various forms of violence, discrimination and persecution for decades. In 2017, the military government of Myanmar started a brutal campaign against the Rohingya that significantly escalated the level of violence. The Rohingya people have become open targets for both the Myanmar armed forces and other armed groups, as well as civilians acting in concert. The attacks against the Rohingya, involving deliberate killings, sexual assaults, enforced disappearances, destruction of homes and villages, looting, and destruction of livelihoods, have reached such dimensions that numerous sources have described the Rohingya people as “the most persecuted people in the world.” Their experiences have been cited as “a textbook example of the crime of ethnic cleansing.”
Only in August 2017, at least 750,000 Rohingya were driven from their homes to seek refuge in Bangladesh. Taking into account previous forced displacement movements, it is estimated that nearly 1 million Rohingya are now refugees in Bangladesh. Cox’s Bazar, a Bengal city on the Myanmar border, swiftly became the host of the world’s largest refugee camp. The Security Council has failed to take appropriate measures to prevent the atrocities committed against the Rohingya because of the veto power exercised by the permanent members.
Against this backdrop, the ICC has taken a step that has come as a surprise to many. 2 Bangladesh is a party to the Rome Statute but Myanmar is not. The Office of the Prosecutor (OTP) declared its intention to investigate the issue on the basis that the events constituted the crime of deportation, prescribed in Article 7(1)(d) of the Rome Statute as a crime against humanity. In April 2018, the OTP requested a preliminary ruling from a Pre-Trial Chamber to resolve doubts regarding the Court’s jurisdiction since Myanmar is not a party to the Rome Statute.
In September 2018, the Pre-Trial Chamber I ruled that the crime of deportation inherently requires crossing an international border. Therefore, the commission of this crime is only possible with the involvement of at least two different countries. While the conduct of the crime of deportation began in Myanmar, a non-State Party to the Rome Statute, it was nevertheless completed in Bangladesh, a State Party. Noting that part of the crime was committed in the territory of a State Party, the Pre-Trial Chamber concluded that the investigation of the crimes committed in Bangladesh falls within the jurisdiction of the Court. This meant that the ICC could prosecute Myanmar’s nationals who committed crimes that started in Myanmar but were completed in Bangladesh.
This novel interpretation created an immense debate among international law circles from the legal and political aspects. Through some interpretation techniques, the Court has shown its willingness to intervene in matters beyond its jurisdictional powers explicitly granted by the Rome Statute. This approach has been hailed by some as a step closer to achieving the objectives of the Court, such as ending impunity for international crimes or achieving universal jurisdiction. Indeed, the Court can extend its territorial jurisdiction to a great extent through the crime against humanity of deportation because almost all States share a border with a State Party to the Rome Statute.
Applying the same logic to additional crimes, such as persecution, the war crime of deportation, forcing protected persons or prisoners of war into the territory of a State Party, or other inhumane acts causing great suffering, particularly the prevention of the right to return, the Court may further expand its jurisdiction over nationals of non-State Parties. Moreover, if the Court wishes to add an extra layer to its jurisdiction, it can further adopt the doctrine of ongoing violation. This would enable the Court to extend its ratione temporis jurisdiction on matters that occurred before the Rome Statute’s entry into force but continue to have a persistent nature. The nationals of non-State Parties would then fall under the jurisdiction of the Court even for the matters that were carried out before the creation of the Rome Statute.
This potential expansion, on the other hand, has raised some concerns as the ruling seemingly goes against fundamental principles of international law such as the sovereignty of states and the principle of pacta tertiis nec nocent nec prosunt (a treaty only binds parties; it does not create obligations for a third state). Sceptics have further criticised the decision for practical and political reasons. Such an expansionist approach opens the Pandorra’s Box while the Court is not capable of coping with a large volume of increased burden. Previous cases show that the Court has not achieved significant progress when a State does not cooperate. Therefore, a potential gain at the expense of the fundamental principles of international law might serve no purpose but to undermine the legitimacy of the Court. The Court already faces legitimacy challenges by criticism of both developed and developing states for various reasons. Adding an extra layer to the legitimacy problem is not a policy that would strengthen the international criminal justice system.
Overall, this article analyses the legal implications of the jurisdictional ruling of the ICC in the Bangladesh/Myanmar situation while addressing some risks and opportunities it poses for the development of the international criminal justice system.
