A ruling affirming jurisdiction could pave the way for Prosecutor Fatou Bensouda to investigate the deportation of many thousands of Rohingya, a possible crime against humanity.
In a filing published on Monday, Bensouda contended that “consistent and credible reports … indicate that since August 2017 more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh.”
Asking judges to rule whether the ICC has jurisdiction, she said: “This is not an abstract question but a concrete one, affecting whether the Court may exercise jurisdiction … to investigate and, if necessary, prosecute.”
The main reason for doubt over jurisdiction is that, while Bangladesh is a member of the court, Myanmar is not.
Buddhist-majority Myanmar rejects that charge, saying its forces have been waging a legitimate campaign against a Rohingya armed group that attacked government forces.
Myanmar’s government regards the Rohingya as illegal immigrants from Bangladesh despite the ethnic minority living there for generations.
Bensouda argued that, given the cross-border nature of the crime of deportation, a ruling in favour of ICC jurisdiction would be in line with established legal principles.
But she acknowledged uncertainty around the definition of the crime of deportation and limits of the court’s jurisdiction.
Her request is the first of its kind filed at the court.
She asked the court to set up a special tribunal to hear her arguments, urging that it be dealt with in an “expeditious” manner.
Human rights groups have welcomed Bensouda’s request.
Tirana Hassan of Amnesty International called it a “clear message to Myanmar’s military that the international community is exploring all avenues to ensure accountability for the horrific crimes that have been committed”.
Matthew Smith of Fortify Rights, a campaign group, said the move could also have a preventive effect.
“This avenue to accountability could really disrupt the culture of impunity in Myanmar, and it could also prevent the next round of mass killings. It may give generals pause before ordering similar attacks,” he told Al Jazeera.