Legal Concepts

What is genocide?

Genocide, along with crimes against humanity and war crimes, are considered serious international crimes. Genocide is defined as committing any one or more of five types of acts when the act is done with the intent “to destroy, in whole or in part, a national, ethnic, racial or religious group, as such”.

The five prohibited acts are: 1) killing members of the group, 2) causing serious bodily or mental harm to members of the group, 3) deliberately inflicting conditions of life on the group intended to physically destroy its members in whole or in part, 4) imposing measures that prevent births within the group and 5) forcibly transferring children of the group to another group.

The crime of genocide does not require a plan or policy, though the existence of either may be evidence of the intent to destroy the group. There is no minimum number of victims necessary to establish genocide, but the part of the group targeted for destruction must be significant enough that its destruction will impact the group as a whole.

What is a war crime?

War crimes, along with crimes against humanity and genocide, are considered serious international crimes. A war crime is defined as an act carried out during armed conflict that violates the international rules of war, also known as international humanitarian law. International humanitarian law regulates how wars are conducted. It is based on fundamental principles, including the prohibition of military actions that may cause excessive injury, death or damage in relation to the anticipated military advantage; the distinction between combatants and civilians; and the avoidance or minimisation of harm to the civilian population. An act that violates these principles is a war crime.

War crimes can be committed against civilians, civilian property, combatants and combatants no longer directly involved in fighting during an international or non-international armed conflict. An international armed conflict happens when a state uses force against another state. A non-international armed conflict is a domestic conflict involving one or more armed groups fighting each other or the forces of the state.

What is a non-international armed conflict?

International humanitarian law (IHL) is also known as the laws of war. Because IHL only applies in situations of an armed conflict, it is important to determine whether an armed conflict exists in the first place. It is also important to distinguish between an international and non-international armed conflict. An international armed conflict is a conflict between two or more States. A non-international armed conflict is a conflict between a State and a non-governmental armed group, or between non-governmental armed groups. IHL rules which are applicable to international armed conflicts may not always apply to non-international conflicts. In other words, what may constitute a war crime in an international armed conflict does not necessarily constitute a war crime in a non-international armed conflict.

For an armed conflict to be characterised as a non-international armed conflict, certain requirements must be met. First, the armed conflict must reach a certain level of intensity. The hostilities or fighting needs to be more than sporadic or isolated. Factors that can be taken into account include the seriousness of the attacks, any increase in armed attacks, as well as how attacks are spread over a territory and across a period of time. Second, the non-governmental armed group must have a sufficient degree of organisation. It must have the ability to plan and carry out military operations.

For crimes that are committed during an armed conflict to be considered war crimes, there must be a connection between the crime and the armed conflict. This is known as the “nexus” requirement. Determining whether there is a nexus can be complex, but at a minimum it is important to establish that the crime is closely related to the hostilities or committed in conjunction with the hostilities. One of the central goals of IHL is to protect civilians and civilian objects from attack. Any type of attack that is intentionally directed at a civilian population is considered a war crime.

What are crimes against humanity?

Crimes against humanity, along with war crimes and genocide, are considered serious international crimes. A crime against humanity is defined as an act committed as part of a widespread or systematic attack on a civilian population in a single location or across a territory. Any act of violence or serious mistreatment of a civilian population can be considered an attack for this purpose.

The attack must be either widespread or systematic. An attack is widespread depending on the scale of the attack and the number of victims, as well as the cumulative effect of the criminal acts or the impact of a single act of extraordinary magnitude. The geographical scale, temporal scope, and number of targeted persons are all relevant in determining if an attack was widespread.

An attack is systematic if it involves organised acts of violence, which did not occur randomly such as when security forces act in a coordinated manner across the country.

What is the crime against humanity of imprisonment?

The crime of imprisonment involves the arbitrary deprivation of a person’s liberty or the detention of a person without due process of law.

Whether the deprivation of liberty is arbitrary will depend on a number of factors such as whether: 1) the detention was based on a valid detention order; 2) the detainee was informed of the reasons for her/his arrest; 3) the detainee was promptly and properly informed of any charges against her/him and/or formally charged; 4) the detainee was informed of her/his procedural rights, including access to a lawyer; and 5) the detainee was brought before a court that is independent, impartial and objective.

Mere “suspicion” is therefore not a lawful basis to justify the deprivation of liberty. Similarly, an individual cannot be detained because she/he is a political activist, a family member or associate of a political activist or affiliated with a certain religion, nationality or ethnicity.

What is the crime against humanity of enforced disappearance?

The crime of enforced disappearance involves the deprivation of a person’s liberty through arrest, detention or abduction, followed by the refusal to give information as to the whereabouts or fate of the person, or to acknowledge that the deprivation of liberty has occurred. Enforced disappearances are carried out by, or with the authorisation, support or acquiescence of, a state or an organisation with state-like powers.

An initially lawful arrest or detention can turn into an enforced disappearance if information about the whereabouts of the detained person is withheld. Giving false information about the whereabouts or fate of a person may also constitute a refusal to provide information. Under such circumstances, a detainee has no access to legal remedies or procedural guarantees and her/his loved ones do not know where the victim is or what has happened to her/him.

What is the crime against humanity of torture?

The crime of torture involves the infliction, by act or omission, of severe pain or suffering upon a person. This can be mental or physical, and does not have to result in permanent harm, but must cause more than temporary unhappiness, humiliation or embarrassment. Whether an act constitutes torture will depend on a number of factors such as: 1) the duration of the suffering; 2) the physical or mental condition of the victim; 3) the effects on the victim; 4) the nature and context of the pain caused; and 5) the manner or method used. Examples of acts that have been found to amount to torture include physical beatings, electric shocks, burnings, deprivation of sleep or food for a long period of time, threats to kill a person’s relatives, and forced witnessing of harm committed against others. Rape and sexual violence are considered, by their nature, to constitute severe pain and suffering.

The definition of the crime of torture can vary depending on the jurisdiction. For example, the Rome Statute of the International Criminal Court requires that the intentional infliction of severe pain or suffering is committed upon a person in the custody or under the control of the alleged torturer. At other international courts, the severe pain or suffering must be carried out in order to attain a certain result or purpose, such as obtaining information or a confession from the victim or for any reason based on discrimination. Some domestic jurisdictions limit the crime of torture to situations where the severe pain or suffering is intentionally inflicted by a public official or a person acting in an official capacity.

What are the crimes of deportation and forcible transfer?

Forcing persons to leave the area where they reside can be a crime against humanity, a war crime or both.

If they occur in the context of a widespread or systematic attack again the civilian population, deportation and forcible transfer are crimes against humanity. Deportation and forcible transfer occur when individuals are forced by expulsion or coercion from the place they were lawfully present, and there was no basis under international law for their displacement. When persons are displaced across an international border, it is called deportation. When such displacement occurs within a national boundary, it is called forcible transfer. Forced displacement does not require physical force and can be caused by the threat of force or coercion, duress or psychological oppression. A person is lawfully present in an area if they have a right under domestic or international law to be there, including refugees and stateless persons. International law allows the involuntary removal of persons only where it is strictly for the security of the persons or for imperative military reasons, but only for as long as the removal is necessary.

Unlawful deportation or transfer can also be a war crime when occurring in the context of an international armed conflict or a non-international armed conflict.

What are sexual and gender-based crimes?

Sexual and gender-based crimes (SGBC) is a broad term used to describe crimes that have a sexual or gender-based component to them. SGBC is sometimes also referred to as sexual and gender-based violence (SGBV). Sexual crimes include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, forced sexual acts, threats and attempts of any form of rape or other sexual violence. They also include conduct that is carried out in a sexualized manner and is of comparable gravity, such as forced nudity, unwanted or coerced touching or contact, forcing a person to commit or to watch an act of sexual violence, and any form of violence to a victim’s genitals. Under international criminal law, the crime of rape is gender neutral. This means that men, women, girls, boys and transgender people can all be victims of rape.

Gender-based crimes are crimes directed against someone because of their sex at birth or because of their gender. Crimes directed at individuals on the basis of their gender and as part of a widespread or systematic attack against a civilian population may amount to the crime against humanity of persecution.

The Mechanism is committed to ensuring that SGBC is integrated into its investigations and the case files it is building. The Mechanism also integrates a gendered perspective throughout its work. This includes looking more broadly at the gendered impacts of conflict and the crimes committed and aiming to ensure that the voices of victims and witnesses of all genders are reflected in its work.

What are crimes against children?

A child means a person below the age of eighteen years. Children can be the victims of all types of serious international crimes, such as killings, torture, sexual and gender-based crimes, deportation and persecution. There are some serious international crimes which are regarded as being “child-specific”. These include the forcible transfer of children of the group to another group, trafficking of children, conscription, enlisting or using children under the age of fifteen years to participate in hostilities, and attacks on buildings dedicated to education and healthcare.

The Mechanism is collecting evidence of crimes against or affecting children, and will include such crimes in the case files that the Mechanism is building for prosecutions in national, regional and international courts. The Mechanism will engage with children as victims and as witnesses.

The “best interests of the child” will be the guiding principle in the Mechanism’s work concerning children. In its interactions with children, the Mechanism will give particular attention to their rights and dignity, recognizing that children can be both vulnerable and capable at the same time. The Mechanism will always prioritise the safety and wellbeing of children when interviewing and engaging with them.

Who authorised the ICC Prosecutor to investigate the Bangladesh/Myanmar situation?

The ICC is one of the various avenues for justice for the Rohingya people. In general terms, any State Party to the Rome Statute (the agreement establishing the ICC), can request the Prosecutor to carry out an investigation. A State not party to the Rome Statute can also accept the jurisdiction of the ICC with respect to crimes committed in its territory or by one of its nationals, and request the Prosecutor to carry out an investigation. The United Nations Security Council may also refer a situation to the ICC for further investigation. Finally, the Prosecutor can also open an investigation on her or his own initiative when ICC crimes may have been committed by nationals of a State Party or of a State which has accepted the jurisdiction of the ICC, or when the crimes were committed in the territory of such a State. In this case, the Prosecutor must, however, obtain permission from the Pre-Trial Chamber.

In the particular situation of Bangladesh/Myanmar, the opening of an investigation was prompted by the initiative of the Prosecutor, who was authorised by Pre-Trial Chamber III on 14 November 2019. In their decision, the Judges concluded that the ICC may exercise jurisdiction over crimes when part of the criminal conduct took place on the territory of a State Party. While Myanmar is not a State Party, Bangladesh ratified the Rome statute in 2010. Accordingly, if part of the alleged criminal conduct takes place on the territory of Bangladesh, this is sufficient to give the ICC territorial jurisdiction. The Judges accepted that there exists a reasonable basis to believe crimes against humanity of deportation, across the Myanmar-Bangladesh border, and of persecution, on grounds of ethnicity and/or religion against the Rohingya population, may have been committed and authorised the Prosecutor to investigate these crimes. The Judges authorised the Prosecutor to also investigate any other crimes, if they are within the ICC’s jurisdiction and are sufficiently linked to the situation described in the Prosecutor’s request.

What is universal jurisdiction and how can crimes committed in Myanmar be prosecuted in courts outside of Myanmar?

Universal jurisdiction refers to the idea that a State can prosecute individuals for serious international crimes, even if the alleged crime was not committed in that State’s territory or by a national of that State. Such crimes can include crimes against humanity, war crimes, genocide and torture.

Universal jurisdiction is based on the principle that some crimes are so serious that they constitute a harm against the international community, and all States have an interest in seeing that the individuals who committed those crimes are held responsible. Universal jurisdiction is usually exercised by States as a last resort when the State in which the crimes were committed is unable or unwilling to investigate and prosecute the crimes.

Under the principle of universal jurisdiction, States, depending on their own laws, may be capable of prosecuting individuals alleged to have committed serious international crimes anywhere in the world, including Myanmar. Some States can only exercise jurisdiction when a perpetrator or the victims of such international crimes are their nationals or present on their territory. Other States, however, do not require any link to their own country, and can exercise jurisdiction solely on the basis that the facts amount to war crimes, crimes against humanity or genocide.