By: Josh Handelman & Christian Rose
In September 2018, a Pre-Trial Chamber of the International Criminal Court (ICC) ruled that the Court has jurisdiction to consider the alleged deportation of the Rohingya people from Myanmar to Bangladesh, and potentially other related international crimes. Since Myanmar is not a party to the Rome Statute, the Court would not ordinarily have jurisdiction without a referral from Myanmar itself (unlikely to happen) or from the U.N. Security Council (which would likely be vetoed by China).
However, deportation has a uniquely transnational element—people cannot be deported into a void. They must go somewhere. The Rohingya people have been forced into Bangladesh, a state party to the Rome Statute. Therefore, part of the crime has occurred in Bangladesh, and, per Pre-Trial Chamber I’s ruling, the Court has jurisdiction and the Prosecutor can use her Article 15 powers to open an investigation. While some have criticized the decision, including the State Counsellor of Myanmar Aung San Suu Kyi, claiming jurisdiction in this manner over such international affairs is far from novel.
For more on this ruling, see Part 1: Pre-Trial Chamber Grant Jurisdiction over Rohingya Deportation: One Step Closer to Accountability for these Atrocities and Part 2: Did the ICC Get it Right? A Look at the Decision to Establish ICC Jurisdiction in Myanmar.
Deportation is the only crime against humanity in the Rome Statute that has, by its definition, a transnational element. But, the national laws of some States include crimes which inherently cross borders and these States sometimes claim the right to prosecute because an element of that crime occurred within the bounds of their jurisdiction.
The Internet has broadened electronic borders and blurred legal lines. In July, Special Counsel Robert Mueller indicted twelve Russian nationals for conspiring to hack U.S. Democratic campaign organizations and disseminate the stolen information. The Russians, members of the Russian intelligence agency GRU, worked from Russia to hack into email accounts and computer networks located within the United States. Unlike Myanmar’s deportation of the Rohingya, however, the victims of the crimes were U.S. citizens on U.S. soil, although the conspirators remained physically in Russia (using a Malaysian server to publish the stolen material).
The United States has also pursued foreigners for committing international crimes that harm non-U.S. actors, but with elements that cross into U.S. jurisdiction. In 2015, the Justice Department charged fourteen international soccer organization officials for wire fraud, money laundering, and racketeering activity under the Racketeer Influenced and Corrupt Criminal Organizations Act (RICO). The defendants were high-level officials of the Fédération Internationale de Football Association (FIFA) and related soccer confederations in Central and South America. They allegedly solicited bribes from marketing companies as far back as 1991. The indictment focused on the officials’ use of the U.S. financial system (by transferring payments between the U.S. and foreign banks), and specified the particular U.S. locations where the conduct occurred (a Citibank in Miami, or an HSBC bank in Buffalo, for instance). All but two of the charged officials were foreign nationals and were arrested in Zurich by Swiss police. Like deportation, international wire fraud inherently has elements on both sides of a border. The U.S.Justice Department thus claimed jurisdiction by focusing on the element of the crime that occurred within U.S. territory.
There are many other crimes that cross borders. For instance, pollution originating in one State may affect neighboring States or even States across the globe. International agreements like the Kyoto Protocol and Paris Climate Agreement have shown the willingness of States to seriously engage in the problem, while U.S. courts and the European Court of Justice have likewise entertained enforcing issues of pollution. International drug and human trafficking also cause harm in more than one State. The United States, in particular, has weighed aggressive options for tackling drug trafficking.
Pre-Trial Chamber I’s ruling, allowing jurisdiction over a crime because a core element of that crime occurred somewhere the Court already has clear jurisdiction, is not so novel after all. Crimes with transnational effects are increasingly common in our interconnected world, and they are not uncommonly litigated – and rightly so. Elements of a crime that pass into a particular State are a burden for that State. When international courts are able to pass judgment on transnational crimes, they relieve some of that burden from affected States and help secure justice for the victims of all crimes.
This series was created and edited under the direction of Harris Institute Fellow Madaline George.