The Prosecutor’s Request for a Ruling on the ICC’s Jurisdiction over the Deportation of Rohingya from Myanmar to Bangladesh: A Gender Perspective

On 9 April 2018, the ICC’s Office of the Prosecutor requested a ruling of a pre-trial chamber on the ICC’s jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

While Geoff Curfman in his Just Security post has already aptly commented on the Prosecution’s approach, this post seeks to examine the Prosecution’s request from a different angle, namely a gender perspective.

Background: Sexual violence against Rohingya

Documentation efforts in refugee camps in Bangladesh are exposing the grave nature and vast scale of sexual violence perpetrated against Rohingya in Myanmar, forcing many to flee. Human Rights Watch, for example, stated that it “found that Burmese security forces raped and sexually assaulted women and girls […]”. The report of the OHCHR’s Fact-finding Mission on Myanmar declared that there is “ample and corroborated information on brutal gang rapes and other forms of sexual violence against women”. Finally, Special Representative on Sexual Violence in Conflict, Pramila Patten, told the Security Council that every woman or girl she had spoken with during her visit to Rohingya encampments in Bangladesh “ha[d] either endured or witnessed sexual violence”, including seeing women literally being raped to death. Approximately 80% of those forced into Bangladesh since 25 August 2017 are women and children, and while sexual violence has not be limited to women and girls, it is understood they appear to comprise the majority of victims of sexual violence in this context.

Sexual violence and the Prosecution’s Request: Deportation as a blessing in disguise for gender justice

The Prosecution argues that the Court has jurisdiction over the deportation of Rohinyga from Myanmar to Bangladesh for two reasons: First, and in contrast to the crime of forcible transfer, the crime of deportation is only completed when the victim has been forced across an international border (paras 15-27). Second, “Article 12(2)(a) [Rome Statute] requires at least one legal element of an article 5 crime to have occurred on the territory of a state party” (paras. 28-50). In short, the Prosecution’s case hinges on the point that, while the crime “began” in a non-State Party to the Rome Statute (Myanmar), it was completed in a State Party to the Rome Statute (Bangladesh).

Consequently, the Prosecution’s request does not capture crimes committed in Myanmar only. While this seems an obvious point to make, its consequences are wide-ranging. Notably, sexual and gender-based crimes against Rohingya by Myanmar officials are territorially limited to Myanmar and do not extend into Bangladesh. As such, and despite the credible and consistent accounts of sexual violence against Rohingya as outlined above, sexual and gender-based crimes committed in their entirety on Myanmar territory cannot be brought as individual charges.

First, the ICC Elements of Crimes readily accommodate sexual violence. In the definition of deportation or forcible transfer, the Elements provide that deportation and forcible transfer involve “expulsion or other coercive acts”. Footnote 13 elucidates that the term “’[d]eported or forcibly transferred’ is interchangeable with ‘forcibly displaced’”. Footnote 12 specifies that “[t]he term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment”. These terms may be read to accommodate sexual violence: For example, with a view to Article 31 VCLT and the ordinary meaning of the term “violence” in its context, “sexual violence”, by its very denomination, is a type of violence. Sexual violence is also a form of coercion: Oxford dictionary defines coercion as “the action or practice of persuading someone to do something by using force or threats”. The Elements of Crimes require, inter alia, the presence of coercive circumstances both for rape and sexual violence. Thus, sexual violence is ipso facto coercive. It follows that sexual violence, including rape, constitutes a forcible act within the meaning of the Elements of Crimes.

Second, case law shows that sexual violence may be a factor in establishing the coercive element of the crime of deportation. Pre-Trial Chamber II held in its decision on the confirmation of charges in the case against Ruto and Sang that “deportation or forcible transfer of population is an open-conduct crime”, meaning that “the perpetrator may commit several different conducts which can amount to ‘expulsion or other coercive acts’, so as to force the victim to leave the area where he or she is lawfully present […]” (para 244). Further to this, and more specifically, Pre-Trial Chamber II considered in its decision on the confirmation of charges in the Kenyatta case that rape, together with the destruction of homes and brutal killings and injuries, as well as specific public announcements, amounted to coercion within the meaning of the Elements of Crimes (see para 244). These holdings also align with the jurisprudence of the ad hoc tribunals: The ICTY’s Trial Chamber in Stanišić and Simatović found that acts of sexual violence in combination with other acts may cause duress and fear of violence such that they create a coercive environment where persons have no choice but to leave, thereby establishing forcible displacement (paras 1094-1095). This holding was not challenged on appeal.

Therefore, the sexual violence committed against Rohingya may be considered a coercive factor for purposes of establishing the crime of deportation.

Beyond this, another question that might arise in this context is whether there exists any requirement that sexual violence must be committed with the intent to cause the forcible displacement. While the ICC has not yet had the opportunity to adjudicate this issue, it appears that the answer must be in the affirmative: First, such a requirement would be consistent with Article 30 of the Rome Statute. That provision requires that all material elements be committed with intent and knowledge. The Commentary to the Rome Statute elucidates that “material elements of a crime refer to the specific elements of the definition of the crimes […]” (Article 30, para 6). The Elements of Crimes require that “[t]he perpetrator deported or forcibly transferred, […] by expulsion or other coercive acts.” Consequently, the perpetrator must have the intent, inter alia, to deport by coercive acts. It follows that the perpetrator must commit coercive acts with the intent to effect deportation. Second, ICTY jurisprudence also required a link between the coercive act and the forcible displacement (see, for example, the Trial Judgement in Stanišić and Simatović, para 1097). Third, a nexus between the coercive act and the deportation may be necessary to distinguish crimes underlying deportation from individual charges of sexual violence and other coercive acts. Such distinction may be particularly decisive in the case at hand, given that, as outlined above, sexual and gender-based crimes committed wholly in Myanmar cannot be brought as individual charges under the present circumstances. It remains to be seen how the Court will address this point.

The importance of recognising sexual violence against Rohingya as a coercive act

Not only is it legally permissible to consider sexual violence within the realm of the crime of deportation, but it is also imperative that the Prosecution does so: It may be the only avenue for Rohingya victims of sexual and gender-based crimes to obtain justice, and thus the only way to hold perpetrators accountable. As mentioned above, given that any possible ICC jurisdiction could only extend to crimes that are completed in Bangladesh, crimes of sexual violence that occurred wholly within the territory of Myanmar cannot be brought as individual charges. In addition to this, however, the Myanmar Government’s acts and the domestic legal framework paint a picture where no justice for Rohingya women—and Rohingya generally—can be expected: Although the Myanmar government has recently acknowledged the existence of a mass grave (containing ten corpses), it failed to issue visas for members of a UN fact-finding mission and its own investigation results appear fairly rosy. Another obstacle in achieving justice is the expansive immunity granted to state agents under the 2008 Myanmar Constitution: Pursuant to Section 445, “[n]o proceeding shall be instituted against the [State Law and Order Restoration Council and the State Peace and Development Council] or any member thereof or any member of the Government, in respect of any act done in the execution of their respective duties”. Moreover, the Myanmar Penal Code addresses sexual and gender-based crimes only to a very limited extent: The definition of rape appears narrower than mandated by international law, in that it does not prescribe any presumption of non-consent in certain circumstances (see, eg, the Appeals Judgement in Kunarac et al., para 131), and seems to confine rape to vaginal penetration  (see section 375 of the Penal Code). Finally, other forms of sexual violence are barely, if at all, addressed.

Accordingly, the Prosecution’s legal appraisal of the sexual violence committed against the Rohingya within the ambit of the crime of deportation would be a watershed moment for the recently forcibly displaced Rohingya, enabling a pathway to justice—and, conversely, a necessary step to hold perpetrators accountable.

Conclusion

In brief, there is ample evidence showing that sexual violence has featured to a major extent in the violence against Rohingya. Even if the sexual and gender-based crimes committed thereby do not fall within the Court’s jurisdiction ipso facto, there is ample space for appraising the sexual violence committed against Rohingya in establishing the forcible element of the crime of deportation. Finally, doing so is crucial, for the Prosecution thereby could open up the possibly only avenue to justice for the Rohingya women and girls—and, in turn, the only path to holding perpetrators accountable.