The Radically Routine Rohingya Case: Territorial Jurisdiction and the Crime of Deportation under the ICC Statute
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The Radically Routine
Rohingya Case
Territorial Jurisdiction and the Crime of
Deportation under the ICC Statute
Payam Akhavan*
Abstract
The campaign of atrocities against Myanmar's Rohingya minority is among the
most pressing human rights challenges of our times. However, since Myanmar is
not a party to the Statute of the International Criminal Court (ICC), proponents of
international justice have been forced to pursue accountability through creative
means. On 6 September 2018, the Pre-Trial Chamber of the ICC ruled that the
Court had jurisdiction over some of the atrocities. Despite having been initiated in
the territory of a non-state party (Myanmar), the Court held that the crime of
deportation - that is, forced displacement across an international boundary -
has been completed on the territory of a state party, namely Bangladesh. This unpre-
cedented backdoor to The Hague has stirred considerable controversy, both in
diplomatic and academic circles. Yet, just how radical is the deportation theory
upheld in this Decision? It would seem that the exercise of territorial jurisdiction
over crimes with transboundary elements is a rather routine and unremarkable prac-
tice among states and, by extension, with respect to the ICC. It is trite law that
deportation - like human trafficking and similar crimes - is initiated in the terri-
tory of one state and completed in the territory of another state. Considered in this
light, the so-called Rohingya case at the ICC is radically routine.
* Professor of International Law, McGill University, Montreal, Canada; Member of the Permanent
Court of Arbitration; former Legal Advisor, Office of the Prosecutor, International Criminal
Tribunal for the former Yugoslavia, The Hague (1994-2000). The author served as counsel to
Bangladesh before the International Criminal Court, but the views expressed herein are only
those in his personal capacity. This article was published with the support of the Social
Sciences and Humanities Research Council of Canada, in particular the grant Strengthening
Justice for International Crimes: A Canadian Partnership led by Professor Fannie Lafontaine
at Universite Laval. The research assistance of Tiran Rahimian Bajgiran is gratefully acknowl-
edged. [payam.akhavan@mcgill.ca]
Journal of International Criminal Justice 17 (2019), 325-345 doi:10.1093/jicj/mqzO2
C The Author(s) (2019). Published by Oxford University Press. All rights reserved. Advance Access publication 5 June 2019
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The Radically Routine Rohingya Case: Territorial Jurisdiction and the Crime of Deportation under the ICC Statute
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