Application Of The International Criminal Court To The Principle Of Objective Territorial Jurisdiction Based On Rohingya Case

On April 9,2018,the Prosecutor of the International Criminal Court submitted a request to the Pre-Trial Chamber of the Court in accordance with Article 19(3)of the Rome Statute,requesting the Chamber to rule whether the relevant facts about Rohingya refugees fall within the territorial jurisdiction of the International Criminal Court.On August 24,2018,the United Nations Myanmar Independent International Fact-Finding Mission released a report stating that the Myanmar military had launched a "clean-up operation" against the Rohingya and called on the international community to investigate chief of the Myanmar Army Min Aung Lai and five other senior generals.To end impunity,the international community hoped that the international judiciary would be able to exercise jurisdiction over the situation in Rohingya.Though Myanmar is not a party to the Rome Statute,the United Nations Security Council didn't refer the case to the court,the Prosecutor of the International Criminal Court believed that although Myanmar was not a party to the Rome Statute,the deportation was completed on the territory of Bangladesh,a party to the Rome Statute.In accordance with Article 12(2)(a)of the Rome Statute,the Prosecutor concluded that the International Criminal Court had jurisdiction over the Rohingya case.On September 6,2018,the Pre-Trial Chamber of the International Criminal Court issued a ruling,finding that the International Criminal Court had jurisdiction over the case and called on the prosecutor to investigate as soon as possible.This is the first time that the International Criminal Court has explicitly applied the objective territorial jurisdiction principle.This is also the first time that the Prosecutor has invoked Article 19(3)to submit a request to the Court.In determining the principle of territorial jurisdiction in the Rohingya case,the International Criminal Court cited five types of territorial jurisdiction principles summarized from national practice in various countries,namely objective territorial jurisdiction,subjective territorial jurisdiction,the principle of ubiquity,the constitutive element theory as well as the effects doctrine.Article 12(2)(a)of the Rome Statute sets out the principle of territorial jurisdiction of the court.Prior to the Rohingya case,the application of this principle was uncontroversial,the territory covered by the cases were mostly limited to one state party.However,the facts underlying the Prosecutor's request in that case made it necessary for the chambers of the Court to further explain its principle of territorial jurisdiction,and in particular whether the Court could deal with crimes that occurred partly in the territory of a state party and partly in a non-state party.This article is divided into four parts.The first part gives an introduction to the case and sorts out the views of all parties.It also sorts out the principle of territorial jurisdiction in international law.Part two and part three analyze the application of the principle of territorial jurisdiction by the International Criminal Court in this case from procedural and substantive perspectives respectively,concluding that in this case,despite the prosecutor's request in accordance with Article 19(3),the territorial jurisdiction under Article 12(2)(a)of the Rome Statute should be interpreted as the principle of objective territorial jurisdiction.The fourth part analyzes the significance of applying the principle of objective territorial jurisdiction in the case by the International Criminal Court.In addition to the International Criminal Court,in November 2019,Gambia submitted a case against Myanmar to the International Court of Justice on behalf of the Islamic Cooperation Organization,which is still pending.The Rohingya refugee crisis has aroused widespread concern in the international community.The application of the objective territorial jurisdiction principle by the International Criminal Court in this case can not only promote the settlement of the Rohingya refugee crisis,but also provide reference for other situations.In referring to procedural differences and issues related to relations with non-state parties in this case,this article suggests that when applying the principle of objective territoriality in the future,the court should pay attention to the timing of prosecutors' rights under Article 19(3)of the Rome Statute as well as refining the provisions of the Rome Statute concerning relations with non-state parties.