International Criminal Court (ICC) [official website] prosecutor Fatou Bensouda on Monday filed a motion [PDF] with the president of the Court’s Pre-Trial Division seeking a ruling on whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh, which Bensouda contends is actionable under Article 7(1)(d) of the Rome Statute [text].

Noting that 670,000 Rohingya lawfully present in Myanmar have been intentionally deported across the border to Bangladesh since August 2017, Bensouda’s office argued that the Court has the necessary jurisdiction under Article 12(2)(a) of the statute “because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).”

Bensouda further highlighted the characterization of the situation by UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein and the UN Special Rapporteur on the situation of human rights in Myanmar Yanghee Lee [official profiles] as “a textbook example of ethnic cleansing” potentially bearing the “hallmarks of a genocide.”

Article 7(1) of the statute defines “crime against humanity” as including, among other things, 1) murder; 2) torture; 3) enforced disappearance; 4) rape, sexual slavery, and enforced prostitution; 5) persecution against any identifiable group on political, racial, national, ethnic, cultural, religious, and/or gender grounds; 6) extermination; and 7) “deportation or forcible transfer of population.”

Much discussion in the motion focused on the distinction between deportation, which involves a cross-border element, and forcible displacement within a nation’s borders. The motion notes that such a distinction is vital to the issue of jurisdiction because “[w]hile both safeguard the right of individuals to ‘live in their communities’ and homes, deportation also protects a further set of important rights: the right of individuals to live in the particular State in which they were lawfully present.”

Emphasizing the broad scope of Article 19(3) empowering the prosecutor to “seek a ruling from the Court regarding a question of jurisdiction or admissibility,” Bensouda stated:

The Prosecution is mindful that this is the first occasion on which it has sought a ruling under article 19(3). This course of action is justified by the exceptional circumstances at hand and it has been decided by the Prosecutor based on the discretion and independence vested in her by article 42 of the Statute. … In the particular circumstances of this situation, and considering the unique nature of the issue in question, the Prosecutor therefore considers it appropriate to seek an article 19(3) ruling.

The motion was submitted to Judge Antoine Kesia-Mbe Mindua [official profile] who is now expected to assign it to a Pre-Trial Chamber based on a pre-established roster, unless its subject matter “‘falls outside the competence of the Pre-Trial Chamber’ or is ‘manifestly frivolous.'”