“It’s not about Myanmar; it’s about individual’s criminal responsibility”

The Office of the Prosecutor of the International Criminal Court (ICC) conducts independent and impartial preliminary examinations, investigations and prosecutions of the crime of genocide, crimes against humanity, war crimes and aggression.

Since 2003, the Office has been conducting investigations in multiple situations within the ICC's jurisdiction, namely in Uganda; the Democratic Republic of the Congo; Darfur, Sudan; the Central African Republic (two distinct situations); Kenya; Libya; Côte d'Ivoire; Mali; Georgia and Burundi.

Pre-Trial Chamber II is seized of the Prosecutor's request for authorisation to commence an investigation into the situation in the Islamic Republic of Afghanistan. The Office is also conducting preliminary examinations relating to the situations in Bangladesh/Myanmar; Colombia; Guinea; Iraq/UK; Palestine; the Philippines; Nigeria; Ukraine, and Venezuela.

More than 745,000 Rohingyas have fled from Myanmar's Rakhine State to Bangladesh since August 2017, escaping violence in Myanmar.

On March 11, the Office of the Prosecutor of the ICC concluded its six-day first visit to Bangladesh in the context of the on-going preliminary examination concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The purpose of the visit was to engage with relevant stakeholders, explain the preliminary examination process, and travel to the refugee camps with a view to informing the Office's ongoing assessment.

The Office of the Prosecutor does not see any barrier in carrying out "preliminary examination" and subsequent investigation into alleged atrocities committed against Rohingyas by the Myanmar military though Myanmar is not a State Party to the Rome Statute.

"The ICC process is not about Myanmar, it's not about Myanmar as a state. It's about individual's criminal responsibility," said Director of Jurisdiction, Complementarity and Cooperation Division Phakiso Mochochoko while wrapping up their Bangladesh visit.

Explaining further about individual criminal responsibility, he said it is all about the people who are responsible, who have given instructions, who have commanded and the people who did all other things and facilitated to commit these alleged crimes.

Mochochoko said it will not in any way be a hindrance despite the fact that Myanmar is not a State Party and will not cooperate with the Office of the Prosecutor into this.

"If legal criteria are met, the Prosecutor is under an obligation to request authorisation from the chamber to proceed to an investigation. So that is the process and analysis that are ongoing at the moment to determine the legal criteria are met," he said adding that if the legal criteria are met, the Prosecutor has no alternative to carrying out an investigation.

Expecting cooperation from everyone, he said Myanmar's noncooperation might present a little bit of challenge for them in terms of investigation but there is no barrier to go ahead without cooperation from Myanmar.

Mochochoko said this is not the first time they engaged in this kind of process but they had got many other situations where they had been engaged. "Almost all of them have come to fruition - in one way or another."

He said the independent and impartial preliminary examination of the situation in Bangladesh/Myanmar is going on and will follow its course.

"A preliminary examination is not an investigation, but an assessment of the Rome Statute criteria to decide whether an investigation into the situation at hand is warranted," Mochochoko said.

Therefore, during their Bangladesh mission that ended on Monday, he said the delegation did not collect any evidence or perform any other investigative activities as it is the standard practice of the Office.

Earlier, the ICC wanted to know Bangladesh's opinion on whether The Hague-based court has the jurisdiction to run a case on atrocities against Rohingyas.

The pretrial chamber of the ICC sent a letter to Bangladesh in this regard on May 7, 2018 seeking opinion on three specific matters by June 11, either publicly or confidentially. Bangladesh responded to the request of the ICC on Rohingya issue, as the country is seeking a "sustainable solution" to the crisis.

Asked whether ICC Prosecutor Fatou Bensouda will visit Bangladesh, he said it is a normal practice to visit "situation countries" to engage with victims and others.

The purpose of their first visit was to engage with relevant stakeholders, explain the preliminary examination process, and travel to the refugee camps with a view to informing the Office's ongoing assessment.

On behalf of Prosecutor Fatou Bensouda, the delegation expressed its gratitude to the government of Bangladesh for providing its support to this visit and facilitating meetings with the relevant national authorities.

During this past week, the delegation had constructive exchanges with senior officials from the Ministries of Foreign Affairs; Law, Justice and Parliamentary Affairs; and Home Affairs; as well as various law enforcement agencies.

The delegation also had the opportunity to exchange views with representatives of various agencies of the United Nations and members of the diplomatic community, as well as academics from the University of Dhaka's Centre for Genocide Studies.

In Cox's Bazar, the delegation visited the refugee camps and met government authorities, humanitarian agencies and NGOs, as well as a number of victims' representatives.

The delegation listened to their views and concerns, Mochochoko said adding that the insights gained from the visit will continue to inform the Office's ongoing assessment of the situation.

The field visit enabled the Office to hold productive meetings in Bangladesh. Mochochoko said the Office is committed to making continued progress on the preliminary examination process and is grateful to the authorities of Bangladesh and many other partners for their strong support.

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