Territorial Jurisdiction at the International Criminal Court for Deportation Across the High Seas

There is a lacuna in the International Criminal Court’s (ICC) jurisprudence on jurisdiction for the transboundary crime against humanity of deportation. The issue is whether the deportation of victims across the high seas into the territory of a Rome Statute state party falls within the ICC’s territorial jurisdiction. The ICC’s leading decisions —arising from Bangladesh/Myanmar— appear to point in different directions. It is unclear whether deportation is completed upon entry into the high seas, on arrival into the first receiving State’s territory or whether deportation constitutes a continuing crime which occurs in both locations. This issue came to a head in requests (by the Tamil Rights Group and Global Rights Compliance) to open “a preliminary examination into crimes against humanity of deportation and persecution committed against Eelam Tamils within the territories of state parties to the ICC.” More broadly, the lacuna affects any putative victims of crimes against humanity of deportation fleeing island states and coastal states that are not party to the Rome Statute across the high seas into the territorial waters of a Rome Statute state party.

This post first establishes the issue and analyses different plausible rationalisations of the ICC’s jurisprudence. It then critically examines the different positions which hold that deportation is completed on the high seas and outlines why the special nature of the maritime environment supports construing deportation as a crime which continues into the territorial waters of the receiving state.

The issue

The ICC may exercise its jurisdiction under Article 12(2)(a) if “the State on the territory of which the conduct in question occurred is a party to the Rome Statute”. However, it has been held that only “one element of a crime within the jurisdiction of the Court or part of such a crime” (emphasis) must be committed on Rome Statute state party territory (Myanmar/Bangladesh Article 15, para. 43). This is particularly significant in investigations initiated by the Office of the Prosecutor (OTP) for the crime against humanity of deportation (Rome Statute, Articles 13(c) and 5(b)). For putative victims fleeing on stateless vessels across the high seas, the question is whether any of the conduct of deportation occurs on the receiving state’s territory.

The ICC’s decisions on the Myanmar/Bangladesh situation reflect two requirements for the conduct element of deportation. First, “the two-state requirement” in Myanmar/Bangladesh Article 19(3) necessitates the expulsion or coercion of victims into another State to complete the crime of deportation. Second, “the international-border-crossing requirement”, emphasised in Myanmar/Bangladesh Article 15, requires the expulsion or coercion of victims out of the State across an international border.

In Myanmar/Bangladesh Article 19(3), Pre-Trial Chamber (PTC) I held that “the conduct related to…[deportation] necessarily takes place on the territories of at least two States” (para. 71, emphasis). This reflects an implicit rejection of the OTP’s position that “a victim may potentially be deported to the high seas” because the decisive element is crossing “the international border […] of the originating State” (footnote 32). However, in Myanmar/Bangladesh Article 15, PTC III did not explicitly affirm the necessity of the two-state requirement. Focussing on the border-crossing aspect, it held that the actus reus of the crime “involved victims crossing [the] Myanmar-Bangladesh border”—this element established a “territorial link” (para. 62).

In respect of land borders, the two-state and international-border-crossing requirements are not incongruous. Expulsion out of a state is necessarily equivalent to expulsion into another state. Nonetheless, the two requirements arising from the ICC’s decision on Myanmar/Bangladesh come apart in the context of international maritime borders:

(a) If deportation necessitates entry into another state, then it is incomplete upon entry into the high seas but complete on arrival into the territorial sea of the receiving State. If the receiving state is party to the Rome Statute, then the ICC may exercise its territorial jurisdiction (provided there are no other barriers to jurisdiction).

(b) If deportation merely requires crossing an international border (per the OTP’s suggestion), then it is completed upon entry into the high seas. There remains no conduct element of the alleged deportation which can occur in the receiving state’s territory (Rome Statute party or not) and, accordingly, no possibility for the ICC to exercise territorial jurisdiction.

Rationalising the ICC’s Jurisprudence

There are at least three ways to interpret the ICC’s jurisprudence.

First, that the two-state requirement prevails. Whereas Myanmar/Bangladesh Article 15 does not explicitly necessitate another State as the destination, it does not exclude the possibility that entry into another State is a legal element of the crime of deportation. Indeed, it determined that the “actus reus” of the alleged deportation was “the crossing into Bangladesh by the victims” (para. 62, emphasis).

One objection is that the two-state requirement emanates from and is confined to the context of land-based deportation. Myanmar/Bangladesh Article 19(3), which established the requirement, refers to “national borders”, “a border” and “international borders” interchangeably. If this interchangeability is a necessary condition of the reasoning underlying the two-state requirement, then it is not similarly applicable to the maritime context. Indeed, “national borders” is inapposite to a single state’s border contiguous to the high seas.

Second, that the two-state requirement has been discarded. Here, PTC III’s judgment in Myanmar/Bangladesh Article 15 is read as deliberately omitting the two-state requirement and emphasising that victims must “cross an international border” for the “completion of the crime” of deportation (para. 52). Presumably, then, the reference to “international border” in singular form revives the OTP’s suggestion (above).

However, this position is contested. PTC III mentioned the need to cross an international border as part of the “victims’ behaviour or response as a consequence of coercive environment” (para. 52). Building on this, one could distinguish continental and island-based coercive environments. In the former, the victim’s immediate flight response to coercion plausibly ends upon crossing a border into another jurisdiction as the coercive environment of the originating state (usually) ceases to be an operating cause of any further flight. The islander’s immediate flight response, however, does not similarly end upon crossing into the high seas. Especially for those fleeing on unregistered vessels, the originating state’s coercive environment remains an operating cause of their flight until they arrive at the first receiving state’s territory. After all, unless the victims have boarded a cruise-liner, in their behaviour or response, the high seas are necessarily, and only, a space for transit between states. Hence, the victim-based reasoning in Myanmar/Bangladesh Article 15 does not rule out entry into the receiving state as an element of deportation across the high seas.

Third, that the two-state requirement has been discarded, but the decisions on Myanmar/Bangladesh (given their exclusive focus on land-border deportations) should be distinguished as inapposite to deportation across maritime borders. In land-based deportations, it is possible to arrive at a coherent rationalisation of both Myanmar/Bangladesh decisions as the international-border-crossing requirement, in effect, collapses into a two-state requirement. Since such a rationalisation is ripped apart in cross-maritime deportations, one might confine the precedential value of Myanmar/Bangladesh and examine afresh whether deportation across the high seas into a State Party’s territory satisfies the preconditions of Article 12(2)(a).

The move is not without basis. First, Judge de Brichambaut’s partial dissent forewarned that the Myanmar/Bangladesh Article 19(3)’s pre-emptive ruling on jurisdiction “hazard[s] an inconsistent result with subsequent determinations” (para. 32). In this light, PTC III’s deliberate omission casts doubt on the authoritativeness of the two-state-requirement. Second, as far as territorial jurisdiction over transboundary crimes, the ICC has affirmed the view of Rome Statute State Party delegates “that the interpretation of article 12(2)(a) of the Statute “was best left to be determined by the Court””. Here, the sui generis nature of maritime deportation warrants a fresh determination by the ICC. Indeed, to the extent that the nature of jurisdiction in maritime zones is not mentioned anywhere in the Rome Statute or Elements of Crime (“EoC”), it is appropriate (even necessary) for the Court to “apply…in the second place, applicable treaties and the principles and rules of international law” (Rome Statute, Article 21(2)(b)).

Competing perspectives: a critical examination

Professor Aung Aye submits the most restrictive version of the argument. Aye distinguishes “borders” from “boundaries”—the former being “not necessarily contiguous” (para. 22). He carves out an area between two ‘non-contiguous’ land borders in which victims may be displaced from the ejecting state without entering the receiving state’s “jurisdictional territory” (para. 24). Finally, Aye removes the requirement “to prove transfer across a national boundary” (para. 26) such that the deportation of islanders is complete upon leaving their area of lawful residence.

Aye’s position is incompatible with the ICC’s jurisprudence on deportation and forcible transfer under Article 7(1)(d). First, the ICC does not artificially distinguish “borders” and “boundaries”. Second, drawing the borderline based on state self-definition through “infrastructure such as immigration checkpoints, customs facilities, fencing and patrol roads” (para. 23), risks creating a no-mans-land which does not qualify as either State’s territory. This collapses the distinction between “deportation” (requiring cross-border transfer) and “forcible transfer” (occurring within a state’s borders) which was affirmed in both Myanmar/Bangladesh decisions. As deportation is a well-established crime under customary international law, the Rome Statute cannot be read strictly textually, in a vacuum, to render the crime superfluous.

In the Canadian Partnership for International Justice’s amicus curiae communication to the ICC, the high seas constitute “another location” under Article 7(1)(d), Element 1. This relies on the phrase “to another State or location” in the EoC. Contrasting with Aye, they distinguish deportation from forcible transfer (para. 32). Yet, they posit that the requirements of deportation are met upon “entry into ‘another location’ beyond that international border, be it a State, as explicitly mentioned in the [EoC] [or] the high seas” (para. 33).

This communication misinterprets the terms “or location” as applicable to deportation. Myanmar/Bangladesh Article 19(3)’s reference to the EoC for deportation deliberately omitted the term “or location”. This omission affirms the fact that “another location” is not an objective element of the crime of deportation, but of forcible transfer. The Court is explicit: “‘deported’ is limited to the destination of ‘another State’, while ‘forcibly transferred’ is linked to the destination of ‘another […] location (which specifically entails, a contrario, another location within the same State)” (para. 55).

The OTP contends that crossing “the international border […] of the originating State” is necessary for the crime of deportation but proving “entry to another State” is not (footnote 32). Yet, the OTP falls short of submitting that such a crossing completes the crime of deportation. Ultimately, the position is only speculative: “a victim may potentially be deported to the high seas” (footnote 32, emphasis). Similarly, for Professor Payam Akhavan, forcible displacement to the high seas is “conceivable” (footnote 26, emphasis). At most, the OTP’s position highlights one instance of civilians crossing “an international border without being on the territory of another state”. Nevertheless, its speculative character means it cannot constitute an authoritative statement of the OTP’s position.

At any rate, the OTP’s position is unpersuasive on the substance. The OTP’s position holds only if “an international border is somehow dual territory: [a] the territory of State X and the territory of State Y; [b] the territory of State X and the high seas”. Whereas an international border exists in both [a] and [b], they are not equivalent. The element which internationalises a land border (the territory of another state) is constitutively distinct from the element which internationalises a maritime border (the high seas). To adopt an interpretation of “international border” which does not differentiate between land and sea produces a false equivalence. Accordingly, the sui generis nature of deportation across the high seas warrants, at minimum, a re-examination of the ICC’s approach to territorial jurisdiction over transboundary crimes.

Deportation and the special nature of the maritime environment

It was suggested above that the ICC exercise its discretion to determine jurisdiction over transboundary crimes to provide a fresh examination of deportation across the high seas. Of primary relevance is the nature of the high seas under the UN Convention on the Law of the Sea (UNCLOS). UNCLOS Article 87 provides that the high seas are “open to all States, whether coastal or land-locked”. Further, “no State may validly purport to subject any part of the high seas to its sovereignty” (UNCLOS, Article 89). Since the high seas is neither “another State” nor “another…location” within the same State, it constitutes a unique geographic area between States.

For migrants, refugees and deportees, the high seas are necessarily, and only, a space for transit between States. The “behaviour or response” of victims of entering the high seas is to flee from a “coercive environment” to a safe environment. First, the “coercive environment” of the originating state remains an operating cause of their flight response. For deportees fleeing in unregistered vessels, the high seas do not constitute a safe environment, but an environment comprising residual coercive elements. Indeed, on both the wide and narrow conceptual understandings of jurisdiction over stateless vessels in the high seas—stateless vessels are subject to the enforcement jurisdiction of all States. At minimum, this includes “the right of boarding for the purpose of verifying the ‘no nationality’ of the vessel and in case of further suspicion, the right of search of the vessel” (p.265). At most, the stateless vessel is treated quasi res nullius and subjected to the “full jurisdictional scope of the boarding states” (p.265).

Considering the transitory nature of the high seas, the precarious position of stateless vessels and the deportation behaviour/response of fleeing across the high seas to the first safe receiving state, one cannot conclude that the crime of deportation is completed or exhausted upon entry into the high seas. If deportation is incomplete upon entry into the high seas, it is a continuing crime which is completed upon entry, at a minimum, into first, safe receiving state’s territory.

Conclusion

This post examined a lacuna in the ICC’s jurisprudence: whether the ICC may exercise territorial jurisdiction over deportation across the across the high seas into a Rome Statute state party’s territory. Analysis of the ICC’s decisions on Myanmar/Bangladesh indicated that they are open to conflicting rationalisations which push us towards seeking a fresh examination of territorial jurisdiction in the context of cross-maritime deportation. In this respect, the different positions set out by the OTP, ICC amici and academics do not convincingly establish that the crime of deportation is completed on the high seas. Accordingly, this post submitted, in outline, that the special nature of the maritime environment supports construing the crime of deportation as continuing.