Saif Ansari is a recent graduate of New York University, School of Law. He has previously served under Judge Nonkosi Mhlantla at the Constitutional Court of South Africa and Judge Nicola Lettieri at the Special Tribunal for Lebanon.
Introduction
In April this year, the Office of the Prosecutor at the International Criminal Court filed a motion seeking something akin to an advisory opinion from the Pre-Trial Chamber on whether the Court enjoys jurisdiction over the deportation of Rohingya Muslims from Myanmar to Bangladesh. The issue has given rise to significant debate and inspired no less than eight excellent amicus briefs, as well as a consolidated response by the OTP, largely because it raises important principles for the Rohingya crisis as well as for the functioning of the Court more generally.
According to the OTP, the ICC may assert jurisdiction over the deportation of Rohingya Muslims from Myanmar to Bangladesh despite the fact that Myanmar is not a party to the Rome Statute, “because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).”[1] In contrast, critics have argued that deportation and forcible transfer are fused into a single crime in the Rome Statute, such that crossing an international border is not an essential element of the offense, depriving the Court of jurisdiction.
In this, our first of two posts on the topic, we wonder whether an “essential” element that all sides adopt in this discussion sets too high a standard for determining jurisdiction. We argue that an element need not be essential to a crime in order to ground the Court’s jurisdiction over an offense. Not only does Article 12(2)(a) not require that an essential element of an offense take place on the territory of a state party, adopting this standard would deprive the Court of the ability to prosecute what we call disjunctive crimes in many very ordinary situations.
By “disjunctive crimes,” we mean offenses, like deportation and forcible transfer, that are either included as alternate ways of perpetrating a single offense, or multiple, distinct offenses contained in one and the same provision of the Rome Statute. Torture, for instance, offers an example of a single offense that can be perpetrated in more than one way, since it criminalizes the infliction of mental or physical pain. The prohibition on “[u]nlawful deportation or transfer or unlawful confinement”[2] provides an illustration of multiple crimes in a single provision. We call these crimes disjunctive because their use of “or” creates alternatives as to how they can be perpetrated.
In a subsequent post, we argue that deportation and forcible transfer remain distinct and separate crimes within the Rome Statute. We will not rehearse the various arguments for that view presently, principally because we believe that the issue may be irrelevant for the purposes of jurisdiction in the Rohingya case. To our minds, far better substitutes for the “essential” element test employed throughout these discussions include: (a) whether any element of the offense was perpetrated within a state party; or, (b) whether a particular manifestation of a crime was completed within a state party. Said differently, if the “essential” element requirement leads to plainly perverse outcomes for disjunctive crimes in the Rome Statute, we should adopt a standard focused on any element of the crime or the element that completes a particular manifestation of the offense. As we will see, if we adopt either of these alternative tests, debates about whether deportation and forcible transfer are one offense or two fall away in significance.
Several caveats are necessary before we begin our discussion. First, we have not addressed the term “conduct” in Article 12 of the Rome Statute, partly because discussions about essential elements have focused on the deportation/forcible transfer dyad exclusively, but mainly because we profess to have no real expertise on questions of jurisdiction. By contrast, we are now completing a multi-year project on deportation and forcible transfer, so thought to offer these thoughts on that aspect of the wider legal issue. Second, we take no position here on whether deportation and/or forcible transfer might be ongoing crimes as advanced in several amici briefs.[3] Although we do not explore this argument here, we note that it would also transcend much of the debate. Finally, we remain agnostic about whether the ICC should intervene in Myanmar/Bangladesh. That decision raises complex moral and political issues, which extend well beyond our expertise.
Deconstructing the Essential Element Standard
We begin by noting our lack of certainty about the origins of the essential element standard. The Rome Statute does not require that an “essential” element of an offense take place on the territory of a state party in order to establish jurisdiction. Article 12, which defines jurisdiction, is silent on the issue. Of course, the Statute does not indicate that an essential element is not necessary or that a lesser standard, including those we posit as more coherent here, would be sufficient. Nevertheless, one might anticipate that a requirement that would restrict the court’s jurisdiction over and above the terms already set out in the Statute would require explicit legal authority.
As we say, we are far from expert in questions of jurisdiction in public international law or before the ICC, but from our preliminary inquiries, we have found no basis in statute, custom or caselaw for this added “essential element” requirement. On its face, then, there is real ground for skepticism that an element of an offense must be “essential” to the commission of the crime in order for the ICC to acquire jurisdictional authority over the crime. Moreover, as we argue below, we are concerned that the requirement would have a major and unjustifiable impact on the Court’s ability to try disjunctive crimes.
Before we engage with that concern more squarely, we should also point out our uncertainty about what an essential element is. Up until this point, the term has served as fulcrum for much of the debate about jurisdiction in this case, although it has escaped explicit definition throughout. From these discussions, we take it to mean that an element must be necessary to the commission of the crime for the ICC to enjoy jurisdiction over that offense. According to this argument, in the case of deportation/forcible transfer of the Rohingya Muslims to Bangladesh, crossing a border is not necessary because the offense could be legally and was factually completed at the point the victims were forced from their homes in Myanmar, well before they reached Bangladesh.
Thus, given that crossing a border is a contingent and not necessary element of what some view as a fused crime of “deportation and forcible transfer,” the essential element standard arguably operates to preclude jurisdiction when Myanmar is not a state party. So, because of this essential element requirement, whether deportation and forcible transfer really are a single unified offense or two separate crimes, and whether a cross-border element is required for one or both has real world implications for both the Rohingya Muslims and the Court.
We contest the salience of those questions by doubting that the essential element requirement can bear the weight placed upon it. To illustrate our thinking, we use the first disjunctive offense we pointed out by way of introduction, namely, torture. We employ torture because it is clearly a single offense, so by selecting it as an analogy we isolate the debate about whether deportation and forcible transfer are separate or unified crimes. As mentioned, our subsequent post argues that forcible transfer and deportation are separate offenses as a matter of law, but for argument’s sake, we assume the contrary here. The torture analogy is also useful because, to reiterate, torture is made disjunctive by the possibility of perpetrating the offense by inflicting only mental or only physical pain (for analytical purposes, we leave aside the truism that in real life, neither disjunct in torture can likely be perpetrated without impacting the other).
If the essential element standard deprives the ICC of jurisdiction where only a contingent element of a crime is satisfied, the standard would preclude the prosecution of just mental torture in a state party. This is true even if one strips the Myanmar/Bangladesh example of the controversial non-state party/state party aspect—the essential requirement standard would have this effect if all of the acts constituting mental torture occurred in a single state party, say New Zealand. Analytically, because mental suffering is not a necessary element of torture (physical suffering will suffice), the Court could not have jurisdiction over the offense because the case of purely mental suffering involves a contingent, not essential, element of the crime. Consequently, if there was widespread mental torture constituting a crime against humanity in New Zealand, the ICC would not have jurisdiction because mental suffering is not essential.
This position is both absurd and far reaching. It would preclude jurisdiction over disjunctive crimes in many far simpler scenarios. This is because even in instances where all elements are satisfied in a single state party (i.e. physical and mental suffering was inflicted in New Zealand), the disjunction makes each of the disjuncts unnecessary for the commission of the crime.
We return to Myanmar/Bangladesh to observe different illustrations of the absurdity an essential element requirement brings about. Employing the torture analogy in the Myanmar/Bangladesh situation, if a group of victims were physically tortured in Myanmar, then mentally tortured in Bangladesh, one could hardly argue that the ICC’s jurisdiction over the mental torture in Bangladesh is precluded because these victims suffered a different manifestation of the same crime in Myanmar. The mental torture in Bangladesh may not be legally essential to the commission of the crime, but it is likely sufficient to ground jurisdiction over a distinct manifestation of the crime that takes place there.
Or, to explore a different variant by employing the crimes(s) deportation/forcible transfer, if an essential element of the crime(s) were the standard in a situation where Myanmar was a state-party to the Rome Statute, the ICC might still not be able to prosecute acts of forcible transfer in Myanmar because even forcible transfer is not a necessary element of the crime(s) of “deportation or forcible transfer”—the Elements of the Crimes indicate that “deported…to another State” is an alternative means of establishing the same offenses.
We believe that the foregoing shows how all sides should dispense with the essential element standard. In its place, we posit that any element of the offense should be sufficient for purposes of jurisdiction, or alternatively, an element that completes a particular manifestation of the offense. For reasons that follow, we think it clear that the deportation of the Rohingya Muslims from Myanmar to Bangladesh satisfied either of these two alternative standards.
The Rohingya Muslims were Unequivocally “Deported…to Another State”
Having dispensed with the essential element requirement, it remains to be determined if and how deportation to Bangladesh satisfied: (a) any element of the crime(s); or (b) whether it completed a particular manifestation of an offense in Bangladesh. Here, we begin by noting that much of the argument thus far has referred to the “cross-border” element of deportation, “crossing a border” and “crossing an international border.” This language may be implicit from wording in the relevant aspect of the Elements of Crimes, but it is not a verbatim replication of the provision that is binding on the Court in this case, so we set out then analyze the literal language in the Elements of Crimes that define deportation and forcible transfer. These Elements of Crimes read as follows:
Article 7(1)(d)
Crime against humanity of deportation or forcible transfer of population
Elements
- The perpetrator deported or forcibly [footnote 12] transferred, [footnote 13] without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts.
- Such person or persons were lawfully present in the area from which they were so deported or transferred.
- The perpetrator was aware of the factual circumstances that established the lawfulness of such presence.
- The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
- The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
[footnote 12] The term “forcibly” is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.
[footnote 13] “Deported or forcibly transferred” is interchangeable with “forcibly displaced”.
If we focus on Element 1 above, we notice immediately that the structure of the offense is divided into multiple disjuncts. We also know from our previous discussion that requiring an essential element of an offense as a prerequisite to jurisdiction will defeat disjunctive offenses like this, because none of “deported”, “forcibly transferred,” “to another State”, “location”, “expulsion” or “other coercive acts” are necessary for the realization of the crime. In other words, there are multiple combinations of these contingent elements that are sufficient to establish the offense(s), even though none of them by themselves are essential for the commission of the crime.
Thus, if we back away from the essential element standard, we soon see that any element, or perhaps the element sufficient to complete a particular manifestation of the crime, are far more compelling bases for thinking about jurisdiction where there are multiple disjunctions within an offense.
This brings us to the permutation of deportation/forcible transfer whereby a perpetrator “deported” victims “to another State.” Even if we concede that deportation/forcible transfer is one unified crime (again, we contest this in our next post), one sufficient means of perpetrating this arguably unified crime would involve a perpetrator who has “deported” victims “to another State.” Clearly, in the Rohingya situation, these phenomena take place in Bangladesh. The Elements of the Crimes mention “deported” in the past tense. This implies having crossed a border already. Plus, the element explicitly states that one of the contingent ways of committing deportation/forcible transfer involves rendering victims “deported…to another State.” Given that this crime is not inchoate, the Rohingya are only “deported…to another State” once they enter Bangladesh. Thus, it seems fairly uncontroversial that one of the ways of perpetrating deportation/forcible transfer occurs in Bangladesh.
And, recalling our earlier torture discussion, we know that this logic holds regardless of whether the disjunctions in the Elements above come together to form a single unified offense (like mental or physical suffering in torture) or whether they constitute separate, distinct crimes housed within one and the same provision of the Statute and Elements (like “[u]nlawful deportation or transfer or unlawful confinement”). We surmise, therefore, that whether deportation and forcible transfer are unified or distinct is irrelevant for purposes of jurisdiction.
This reasoning holds regardless of how we interpret footnote 13 of the Elements of Crimes. In our next post, we explain how equating “deported and forcibly transferred” with “forcibly displaced” in footnote 13 likely borrowed from a habit of using the umbrella term “forced displacement” as a catchall when the distinction between deportation and forcible transfer was factually immaterial. The practice developed first in the Blaškić trial, prior to the drafting of the Elements of Crimes, where the court used “forced displacement” as a term of convenience for deportation and forcible transfer in assessing allegations of persecution. For better or worse, that practice caught on. As we will show in our next post, there is much supporting this view and nothing in the history of the provision suggesting a contrary interpretation. But even if others disagree with this reading of footnote 13, it does not eviscerate the element “deported…to another State,” which is not essential for the commission of the offense(s), but likely adequate to ground jurisdiction.
Conclusion
This initial post acts as a precursor to and qualification of our next post. Momentarily, we will argue that deportation and forcible transfer are separate crimes, more akin to the provision in the Rome Statute that criminalizes “[u]nlawful deportation or transfer or unlawful confinement” than to torture, a single unified offense with disjunctive parts. Nevertheless, this initial post has queried whether the distinction matters for the purposes of jurisdiction, largely by assuming the single unified crime thesis we disagree with, then by critiquing the essential element standard it relies on.
From this analysis, we believe that being “deported…to another State” is an element of a crime against humanity that very clearly takes place in Bangladesh. Likewise, being “deported…to another State” completes a particular manifestation of the deportation/forcible transfer crime in Bangladesh. To our minds, the argument that the crime was complete in Myanmar beforehand misses that many international crimes have different disjunctive elements, and that a particular campaign of terror can and will often involve multiple variations of one and the same offense.
[1] Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, 9 April 2018, para 2.
[2] Art. 8(2)(a)(vii) ICC Statute.
[3] For a helpful summary, see Prosecution Response to Observations by Intervening Participants, paras. 27-31.