Since the last few months, hundreds of thousands of Rohingyas have been intentionally deported across the international border into Bangladesh. The UN High Commissioner for Human Rights has described this crisis as “a textbook example of ethnic cleansing”.

Serious charges have been levelled against the Myanmar authorities for perpetuating several atrocities. Due to the enormity of the crime, there are continuing suggestions that the situation be referred to the International Criminal Court. Though the alleged acts of the Myanmar authorities clearly fall within the definition of crimes, the stumbling block is that Myanmar is not a party to the statute.

The question now before the Court is whether it may nonetheless exercise jurisdiction because an essential legal element of the crime of deportation, i.e. crossing an international border, has occurred on the territory of Bangladesh which is party to the Rome Statute.

The Prosecution has now sought a ruling on the ICC’s jurisdiction under article 12(2)(a) to verify that the Court has territorial jurisdiction when persons are deported from the territory of a State which is not a party to the Statute directly into the territory of a State which is a party to the Statute.

The preamble of the statute of the International Criminal Court declares the purpose of establishing an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole.

Under Article 12 (Preconditions to the exercise of jurisdiction) of the statute the Court may exercise its jurisdiction if the State is a Party to the Statute or has accepted the jurisdiction of the Court or if it is the State on the territory of which the conduct in question occurred. The vexed question is whether article 12(2)(a) requires all the elements of the crime to be committed on the territory of a State Party, or whether it is sufficient for just one of them to have been committed thereon.

“Deportation or forcible transfer of population” means forced displacement of persons by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.

Deportation is clearly proscribed under various laws. There are a multitude of rights against deportation. Article 12 of the International Covenant on Civil and Political Rights declares that everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Also no one shall be arbitrarily deprived of the right to enter his own country.

Again Article 13 states that an alien lawfully in the territory of a State that is party to the Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

The Preamble of the Universal Declaration of Human Rights also recognises the inherent dignity and of the equal and inalienable rights of all members of the human family which is the foundation of freedom, justice and peace in the world.

Article 12 declares that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation and everyone has the right to the protection of the law against such interference or attacks. Everyone has also the right to freedom of movement and residence within the borders of each State (Article 13).

Deportation and forcible transfer are two related but distinct crimes. Deportation is distinguished from forcible transfer by the legal requirement that the victim is forced to cross an international border. There are cases where ICC Pre-Trial Chambers have confirmed charges only of forcible transfer and not deportation, making it clear that the two crimes are distinct in their legal elements.

Deportation has “an additional element” i.e. the crossing of a border compared to forcible transfer. Since crossing an international border is the element distinguishing deportation from forcible transfer, it can follow that the crime of deportation is not completed until the victim has been forced to cross a de jure or de facto international border. By way of contrast, the crime of forcible transfer is completed at such time as the victim is displaced from the place where they are lawfully present to another location.

There are certain requirements to be satisfied for the offence of deportation to be complete. In the case of Prosecutor v. Samoei Ruto, Kiprono Kosgey and Sang (ICC Pre-Trial Chamber, 2012) the Chamber observed that according to the Elements of Crimes, the first element of the crime against humanity of deportation or forcible transfer of population requires that the perpetrator deported or forcibly transferred one or more persons by expulsion or other coercive acts.

A literal interpretation of the wording used by the Elements of Crimes to define the actus reus of the crime leads to the conclusion that deportation or forcible transfer of population is an open-conduct crime.

The perpetrator may commit several different conducts which can amount to “expulsion or other coercive acts”, so as to force the victim to leave the area where he or she is lawfully present, as required by article 7(2)(d) of the Statute and the Elements of Crimes.

Accordingly, in order to establish that the crime of deportation or forcible transfer of population is consummated, the Prosecutor has to prove that one or more acts that the perpetrator performed produced the effect to deport or forcibly transfer the victim.

Absent such a link between the conduct and the resulting effect of forcing the victim to leave the area to another State or location, the Chamber may not establish that deportation or forcible transfer of population pursuant to article 7(2) (d) of the Statute has been committed. Clearly this requirement is satisfied in the present case.

In the case of Prosecutor v. Jovica Stanišic & Franko Simatovic (International Criminal Tribunal for the former Yugoslavia) (2013) the Trial Chamber held that as a result of the take-over of a town and a combination of numerous incidents, namely, the dismissal of Muslims and Croats from their jobs and destruction of their businesses; the torture and sexual violence; the attacks and destruction of a mosque and a church in the town; the curfew established for Muslims and Croats and the misappropriation of Croat and Muslim property, thousands of Croats and Muslims left the town.

These acts were committed by members of the police. The Trial Chamber found that these acts caused duress and fear of violence such that they created an environment where Muslims and Croats had no choice but to leave. Consequently, the Trial Chamber found that the thousands of Muslims and Croats were forcibly displaced.

Where the enforced border-crossing takes the victim directly into the territory of another State (Bangladesh) whether the legal element is completed in that second State so as to invite the jurisdiction of the Court takes us also to the extraterritorial application of criminal law which is a contentious issue. Jurisdiction is certainly territorial.

In the leading case of S.S. Lotus (France v. Turkey) (PCIJ, 1927) a collision occurred between the French mail steamer Lotus, proceeding to Constantinople and the Turkish collier Boz-Kourt which sank and eight Turkish nationals died. The question before the Permanent Court of International Justice was whether Turkey could rightfully prosecute the French officer of the watch on board the Lotus.

Commenting on the extraterritorial applicability of criminal law, the Court observed that the first and foremost restriction imposed by international law upon a State is that failing the existence of a permissive rule to the contrary, it may not exercise its power in any form in the territory of another State.

Jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.

But the Court also observed that it does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law.

Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law.

Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; in other cases, every State remains free to adopt the principles which it regards as best and most suitable.

For the United States position, according to § 402 of the Restatement (Third) of Foreign Relations Law of the United States a state has also jurisdiction to prescribe law with respect to conduct outside its territory that has or is intended to have substantial effect within its territory and certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interest.

Jurisdiction with respect to activity outside the State, but having or intended to have substantial effect within the state’s territory, is an aspect of jurisdiction based on territoriality, although it is sometimes viewed as a distinct category.

The effects principle is not controversial with respect to acts such as shooting or even sending libellous publications across a boundary. It is generally accepted with respect to liability for injury in the state from products made outside the state and introduced into its stream of commerce.

As per the Restatement, a state may exercise jurisdiction based on effects in the state, when the effect or intended effect is substantial and the exercise of jurisdiction is reasonable. When the intent to commit the proscribed act is clear and demonstrated by some activity, and the effect to be produced by the activity is substantial and foreseeable, the fact that a plan or conspiracy was thwarted does not deprive the target state of jurisdiction to make its law applicable.

Even Bangladesh has enacted The International Crimes (Tribunals) Act, 1973 in response to the 1971 War of Independence under which deportation has been made a crime against humanity. Also, the International Criminal Court’s jurisdiction is complementary to national criminal jurisdictions.

The ICC Prosecutor has reasoned that since article 12(2)(a) itself functions to delegate to the Court the States Parties’ own sovereign ability to prosecute the crimes, this intention would be entirely frustrated if territorial jurisdiction under article 12(2)(a) were to be interpreted more narrowly than a national court would interpret the State’s own territorial jurisdiction for the purpose of domestic proceedings for the crimes.

The question whether the culprits of the atrocities perpetuated against the Rohingyas can be tried before the International Criminal Court will surely have significant implication in preventing serious abuses in future.

The writers are Mumbai-based advocates and legal consultants.