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1. In preparing to decide the Prosecution’s request for a ruling on jurisdiction,
the Pre-Trial Chamber has received written submissions from the Government of
Bangladesh, various amici curiae who were granted leave, and on behalf of certain
victims seeking participation.
2 The Pre-Trial Chamber also publicly invited the
Government of Myanmar to file submissions,3 but its diplomatic and consular
representatives declined service of that invitation.4 The 27 July 2018 deadline elapsed
without communication with the Myanmar authorities. However, on 9 August 2018,
the Myanmar authorities published a five-page statement concerning the
proceedings at the Court.5 Notwithstanding its content, this statement expressly
acknowledged that “Myanmar has declined to engage with the ICC by way of a
formal reply”.
2. In the interest of candour and transparency, and consistent with its practice in
these proceedings,7
the Prosecution draws these matters to the attention of the PreTrial Chamber while submitting that the Public Statement should be disregarded in
its entirety. This is consistent with the informed choice by the Myanmar authorities
not to participate in these proceedings. As the Prosecution has previously observed,
“[t]he [G]overnment of Myanmar would have to file something” with the Court for
its views to be heard in these proceedings.8
It has deliberately decided not to do so.
3. The principle that only submissions ‘on the record’ may be considered and
addressed in judicial decision-making is important because Chambers of the Court
must be in a position to control their own proceedings. They cannot countenance
efforts (by any person or entity) to intervene in such matters without submitting
themselves to the Court’s procedural supervision by ‘appearing’ before it, if only in
writing. This principle underpins article 71 of the Statute,9 and is expressly set out in
rule 103—which requires “observation[s]” by a “State” to be “filed with the
Registrar”10 and demonstrates the Court’s authority by requiring such a State to have
the “leave” of a Chamber.11 A formal ‘filing’ process of this kind is also necessary to
ensure that other Parties and participants receive adequate notice of the arguments
placed before the Chamber, so they can meaningfully exercise their own rights of
participation.12 Filing submissions before the Court, by the proper procedure, does
not mean accepting the substantive jurisdiction of the Court over any particular
matter, but is merely a procedural condition which must be satisfied in order for a
State or person to be ‘heard’.
4. The Prosecution further stresses its view that Myanmar’s Public Statement is
inaccurate in its understanding of these proceedings, and in the legal conclusions it
purports to draw. Accordingly, should the Pre-Trial Chamber nonetheless be
minded to take the Public Statement into consideration, the Prosecution seeks leave
to file brief observations in response.
