14.1 Reflection: The Situation in Bangladesh/Myanmar
Introduction
This sub-chapter provides a critical reflection on the feminist reimagining of two selected decisions from the situation in Bangladesh/Myanmar at the ICC. It begins by providing background to the 2016 ‘clearance operation’ carried out by the government of Myanmar, as well as the procedural history of the situation at the ICC. It goes on to summarise the key facts and outcome of the ICC proceedings, before discussing how the authors of the reimagined decisions have departed from the original in adopting a feminist perspective. The sub-chapter considers what makes each decision ‘feminist’ and reflects upon how gender justice might be effected if we were to act beyond the existing rules of international criminal law.
Background to the Conflict
From 9 October 2016 until 9 February 2017, the government of Myanmar carried out what it labelled ‘clearance operation’ in northern Rakhine State, in response to an attack by insurgents on three border guard posts.Footnote 1 During this period, according to a report by the United Nations Office of the High Commissioner for Human Rights, government forces carried out a series of atrocities against local populations.Footnote 2 The military, known as the Tatmadaw, used helicopters to fire bullets and drop grenades on villagers as they worked on their farms, shopped in markets, or fished. On the ground, soldiers burned and looted villages, raped and tortured the inhabitants, and summarily executed imams, religious scholars, and community leaders. Tens of thousands of people fled over the border into Bangladesh.Footnote 3
The targets of the 2016 operation were known as the Rohingya, an ethnic and religious minority within the majority Buddhist, predominantly ethnic Bamar population.Footnote 4 The Rohingya follow Islamic faith practices, speak Chittagonian dialect, and are not recognised as one of the ethnic groups entitled to citizenship under Myanmar law.Footnote 5 They have been marginalised, discriminated against, and oppressed by successive governments. In the 1970s and 1990s, pogroms displaced hundreds of thousands of Rohingya. In 2012, following sectarian violence, government forces participated in the burning of Rohingya villages and the murder of hundreds of Rohingya men, women, and children. Many Rohingya people were displaced and herded into ghettos, where they were denied the ability to work or to access adequate food, water, medical care, education, or humanitarian assistance.Footnote 6
Against this backdrop, the brutality and scale of the 2016 attacks led United Nations officials and some of Myanmar’s Southeast Asian neighbours to accuse the Tatmadaw of carrying out a campaign of ethnic cleansing against the Rohingya.Footnote 7 In April 2017, the United Nations Human Rights Council resolved to establish an Independent International Fact Finding Mission (IIFFM) to investigate allegations of arbitrary detention, torture and inhuman treatment, rape and other forms of sexual violence, extrajudicial, summary, or arbitrary killings, enforced disappearances, forced displacement, and unlawful destruction of property.Footnote 8
In August 2017, as the IIFFM prepared to begin its work, the Tatmadaw carried out a second and more extensive campaign against the Rohingya. In response to another coordinated attack by Rohingya insurgents, the Tatmadaw mobilised forces across a broad geographic area of Rakhine, encompassing hundreds of predominantly Rohingya villages. Soldiers carried out similar procedures in each village. They approached at dawn, while families slept, and opened fire indiscriminately. Some people were killed while fleeing their homes. The elderly, people with disabilities, and young children, who were unable to escape, were forced back into burning houses, or locked in buildings which were then set on fire.Footnote 9 In at least ten village tracts, soldiers perpetrated large-scale gang-rapes, often in public spaces and in front of families and the community.Footnote 10 Following the rapes, many women and girls were killed.Footnote 11 Pregnant women were among those specifically targeted, and rapes were accompanied by language such as: ‘We are going to kill you this way, by raping you.’Footnote 12 Men and boys were also subjected to rape, genital mutilation, and sexualised torture.Footnote 13
In October 2017, the military declared that the clearance operation was complete.Footnote 14 By that time, 10,000 people had been killed, 392 villages had been totally or partially destroyed, and 750,000 Rohingya had fled across the border to Bangladesh,Footnote 15 many of whom remain there at the time of writing in June 2023.
The IIFFM published its final report into the violence in September 2018. It concluded that there was sufficient information to warrant the investigation and prosecution of senior Tatmadaw officials for the international crimes of genocide, war crimes, and crimes against humanity. In relation to genocide, the IIFFM stated that the Rohingya had been subjected to four of the five prohibited genocidal acts (killing; causing serious bodily or mental harm; inflicting conditions of life calculated to bring about the physical destruction of the group in whole or in part; imposing measures intending to prevent births).Footnote 16 The IIFFM considered that the critical element of ‘genocidal intent’ was likely to be present, given the manner in which the crimes were perpetrated, their similarity, and their gravity and scope.Footnote 17 The IIFFM considered the possible argument that the Tatmadaw’s intention may not have been to commit genocide – the ultimate destruction of the Rohingya, in whole or in part – but merely to drive the Rohingya out of Rakhine State.Footnote 18 The IIFFM rejected this argument because of the scale and scope of the violence, the intensity and brutality of the attacks, and the mass demolition of Rohingya villages and homes.Footnote 19 The only possible conclusion that could be drawn from the facts, in the view of the IIFFM, was that the Tatmadaw intended to obliterate the Rohingya, at least in part.
In 2019 the IIFFM published a second report, titled ‘Sexual and Gender-Based Violence in Myanmar and the Gendered Impact of Its Ethnic Conflicts’.Footnote 20 The report described a situation of sexual and gender-based violence perpetrated by the Tatmadaw against Rohingya (and other ethnic minority) women and girls, men and boys, and people from the transgender community. The IIFFM amassed ‘a vast amount of information about incidents of mass gang rapes, rapes, sexually humiliating acts, sexual slavery and sexual mutilations’.Footnote 21 The gravity and brutality of the violence was striking. The Mission concluded that the sexual violence perpetrated against women and girls was a factor that indicated the Tatmadaw’s genocidal intent to destroy the Rohingya people, including by means of killing female members of the Rohingya community, causing Rohingya women and girls serious bodily or mental harm, deliberately inflicting on the Rohingya women and girls conditions of life calculated to bring about the destruction of the Rohingya in whole or in part, and imposing measures that prevented births within the group. The killing of women and girls was widespread and systematic, women and girls of reproductive age were targeted for rape, pregnant women and babies were attacked, the reproductive organs of girls and women were mutilated and injured, there was physical branding of bodies by bite marks on their cheeks, neck, breasts, and thighs, and victims were so severely injured that they may be unable to have sexual intercourse with their husbands or to conceive or carry children.Footnote 22
Myanmar is not a party to the Rome Statute and therefore not directly subject to the jurisdiction of the International Criminal Court (ICC). The IIFFM recommended that the Security Council refer Myanmar to the ICC or that the Security Council create an ad hoc international tribunal to investigate and prosecute international crimes carried out in Myanmar. Practically and politically, however, Security Council action was unlikely. Two of the Council’s permanent members, China and Russia, routinely blocked action against Myanmar.Footnote 23 The following section explains how the jurisdictional issue was addressed and the Prosecutor was granted authorisation to proceed with an investigation.
Situation in Bangladesh/Myanmar
The Rome Statute of the International Criminal Court confers jurisdiction in cases where the conduct that gives rise to the crime occurs on the territory of a state on the territory of a state party, inter alia.Footnote 24 In April 2018, the ICC Office of the Prosecutor (OTP) requested a ruling on whether the ICC could exercise jurisdiction over the displacement of the Rohingya across the border separating Myanmar and Bangladesh.Footnote 25 The Prosecutor argued that the crime against humanity of deportation may have occurred.Footnote 26 The crime of deportation, argued the Prosecutor, involves conduct that takes place on the territory of two states: the state from which the victim population is displaced and the state into which the victim population is moved. In the case of the Rohingya, this may mean that part of the crime of deportation took place on the territory of Bangladesh. Bangladesh signed the Rome Statute in 2010. Thus, argued the Prosecutor, the Court has jurisdiction to investigate the crime against humanity of deportation in relation to the Tatmadaw’s treatment of the Rohingya.
On 6 September 2018, Pre-Trial Chamber I delivered its opinion. The Chamber agreed with the Prosecutor that the crime of deportation involves the victims’ displacement across an international border.Footnote 27 For this reason, the ‘conduct’ of the crime necessarily takes place in two different states. In cases where coercive acts that instigate deportation are initiated in a state that is not party to the Statute and are completed in a state that is a party to the Statute, then the Court has jurisdiction. It was the drafters’ intention, the Chamber held, to allow for the exercise of the Court’s jurisdiction where one element of the crime is committed on the territory of a state party.Footnote 28 Therefore, in relation to the alleged deportation of Rohingya civilians across the Myanmar–Bangladesh border, the Court had jurisdiction to investigate.
The Chamber emphasised that the Rome Statute definition of deportation specifies that displacement takes place by means of ‘expulsion or other coercive acts’.Footnote 29 Deportation is therefore an ‘open-conduct crime’, meaning that ‘several different conducts can amount to expulsion or other coercive acts’.Footnote 30 The relevant conduct can include deprivation of fundamental rights, killing, sexual violence, torture, enforced disappearance, destruction, and looting. The Chamber held that examination of evidence relating to all these acts, which may have occurred solely on the territory of Myanmar, was within the Court’s jurisdiction.
The Chamber also emphasised that the cross-border rationale which provided jurisdiction for the crime of deportation might apply to other international crimes as well. The Chamber provided two examples. One was the crime against humanity of persecution.Footnote 31 The Rome Statute defines ‘persecution’ as ‘the intentional and severe deprivation of fundamental rights contrary to international law’. The Chamber noted that under international human rights law, no one may be arbitrarily deprived of the fundamental right to enter their own country. The Rohingya, forced to endure appalling conditions in the refugee camps of Bangladesh while the authorities of Myanmar impeded their return home, may have been deprived of their fundamental right to enter their own country, contrary to international law. Part of this conduct, which could amount to the crime against humanity of persecution, may also have taken place on the territory of Bangladesh. The other example provided by the Chamber was the catch-all crime against humanity provision of ‘[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’.Footnote 32 Such acts, the Chamber noted, were also potentially inflicted on the Rohingya when they were uprooted from their homes and forced to leave their country and seek refuge in Bangladesh. The overall conclusion was that in circumstances where victims are made to flee to the territory of a state party, or victims languish on the territory of a state party and are prevented from returning to their homes, then the jurisdiction of the Court may be invoked.
The Pre-Trial Chamber decision on jurisdiction caused significant controversy. Some critics feared that in providing a ‘backdoor to the Hague’Footnote 33 the Chamber had overreached, and that the Court’s legitimacy, already precarious, may be undermined.Footnote 34 Others were concerned with the practical question of how the ICC would prosecute cases for crimes committed by Myanmar officials on Myanmar territory without the support of the Myanmar government. The Court’s track record in states not party to the Statute, for example, in Sudan in relation to the arrest warrants issued against former President Omar al-Bashir and in Libya in relation to the arrest warrant against Saif al-Islam Gaddafi – provided little ground for optimism.Footnote 35 There were also concerns about the legal foundations of the decision, because the Chamber seemed to blur the line between ‘conduct’ and ‘consequence’ in relation to a particular action.Footnote 36 Other commentators noted that the Chamber’s decision did not address (although nor did it rule out) the possibility of jurisdiction extending to the crime of genocide.Footnote 37 It seemed arguable that certain forms of genocide, such as genocide ‘by deliberately inflicting conditions of life calculated to bring about physical destruction’,Footnote 38 could – similar to the crime of deportation – be thought of as involving several elements, some of which might occur on the territory of a country that was not a party to the Rome Statute, while other elements occurred on the territory of a state that was. In the Rohingya case, the difficulty would be in establishing that the dolus specialis of genocide – an intention to destroy – was not incompatible with the mens rea of deportation – an intention to displace.Footnote 39
The Prosecutor faced unpalatable choices. Investigating crimes other than genocide, even serious crimes against humanity such as deportation, might be viewed as only partial or inferior justice for the victims. Those who defended the Chamber’s decision answered that surely partial justice was better than no justice at all.Footnote 40 But an outcome of ‘no justice at all’ was also a possibility, and even a likelihood, given that Myanmar was not a party to the Rome Statute, was not cooperating in the case, and the Prosecutor was unlikely to be able to execute any arrest warrants.
In July 2019, following the decision on jurisdiction, the Prosecutor requested authorisation to investigate crimes in which at least one element took place on the territory of Bangladesh, and which occurred within the context of the 2016 and 2017 waves of violence in Rakhine State. The Prosecutor submitted that there was reasonable basis to believe that since 9 October 2016, members of the Tatmadaw, with the border guard police and the Myanmar police force, committed the crime against humanity of deportation; other inhumane acts; and persecution on the grounds of ethnicity and/or religion. Other crimes, submitted the Prosecutor, might also come to light once an investigation commenced. Pre-Trial Chamber III authorised that investigation on 14 November 2019, and parts of that decision have been re-written from a ‘feminist’ perspective in this volume [Editors’ note: in 2024, the Prosecutor applied for an arrest warrant for Myanmar's acting President, General Min Aung Hlaing, in connection to alleged crimes against humanity of deportation and persecution against Rohingya people committed in part in Myanmar, and in part in Bangladesh].
Feminist Reimagining of Select Judgments and Decisions
Judges Emma Palmer and Phyu Phyu Oo
The rewritten judgment by Judges Palmer and Oo examines the ‘coercive acts’ which forced the Rohingya to leave Bangladesh. The judges employ devices that allow the reader to appreciate the historical and contextual background to the violence perpetrated on the Rohingya, and the impact of intersecting grounds of persecution. The opening of the judgment, for example, is striking. The authors use direct quotations from Rohingya refugees to signal to the reader that it is the concrete person before the Chamber, rather than the abstract legal person. Palmer and Oo also describe in detail the long-term oppression and dispossession suffered by the Rohingya, and the climate of impunity in which the specific violence of 2016 and 2017 took place. For many decades, the Rohingya were denied citizenship, limits were set on the number of children they could have, and they were prohibited from marrying, working, and receiving education or medical care.Footnote 41 When the immediate violence commenced, the Rohingya knew from the experience of generations of persecution that if they wished to save their lives, then they must flee. Those who fled, Judges Palmer and Oo note, were not an abstract mass, but hundreds of thousands of individuals.Footnote 42 Palmer and Oo also draw attention to the wretched conditions that awaited those who fled to the refugee camps of Bangladesh, and they also note the absences – those who did not arrive in the refugee camps of Bangladesh but who lost their lives in Rakhine or along the way. They ask future Trial Chambers or other Chambers to inquire specifically into what happened to people of different genders, including Hijra people (see below), to children, and to disabled persons, who suffered violence and coercion in Rakhine, and whose experiences of terror and pain will be distinct.
In their reasoning, the approach adopted by Judges Palmer and Oo pursues a feminist method in that it assists a deeper and more nuanced understanding of the complex history of Rohingya suffering. The authors make clear that the setting in which interactions take place must be considered in depth and detail, including the background of ‘racial, patriarchal, repressive, environmental, discriminatory, economic, or other structures upon individuals and communities’.Footnote 43 The authors set out the wretched history of the Rohingya in Rakhine State and the long-term misery of their existence in a country where they were not recognised as citizens. The authors might have added that Myanmar society – which existed under British colonial rule for more than 100 years and then under military rule for almost half a century – was profoundly militaristic and heteronormative in nature. In its Report on Sexual and Gender-Based Violence, the IIFFM notes the larger problem of extreme gender inequality in Myanmar and that Myanmar ranks 148 of 189 countries in the United Nations’ Gender Inequality Index.
Rakhine was under a state of emergency from 2013 to 2016. There are long-term societal effects to existence under conditions of colonial and military oppression, and to subjection to continual arbitrary exercises of power and denigration. For more than a century, ‘race’, ‘sex’, ‘ethnicity’, and ‘religious association’ were viewed as calcified categories by those who held power in Rakhine State. By 2016, the potential for choice or self-determination over any aspect of the lives of Rohingya women was close to non-existent. How they married, raised families, gathered food and fuel, provided shelter, and survived was severely circumscribed.
One important contribution of Palmer and Oo’s judgment is that it clarifies, where the original decision does not, that the jurisdictional question addressed in relation to the crime against humanity of deportation may also apply to the crime of genocide. This, again, is a ‘feminist’ contribution in the sense that the conclusion gives voice to what victims themselves experienced as happening. Rohingya people believe that the military was trying to wipe them out.Footnote 44 In Palmer and Oo’s discussion of the crime of genocide, they appropriately leave it for a later court to clarify whether the ‘special intent’ to destroy, necessary for the crime of genocide, has a sufficient nexus with the acts and consequences that took place.
An alternative feminist judgment might have delved more deeply into issues around the nature of harm. Linear and dichotomising conceptions of time (acts/consequences) used in the reimagined judgment preclude more multi-layered, complex, interactive, and cyclical notions of time that encompass longer-term and intergenerational pain. Judges Palmer and Oo might at least have called for the need for further evidence of harm at later stages of the case. In their discussion about the consequences of violence and deportation, they do note some longer-term, complex consequences of sexual violence.Footnote 45 But at times the language used is clinical and objective: for example, ‘negative coping strategies’ is used as a term to describe consequences of sexual violence such as forced labour and forced prostitution.Footnote 46 Judges Palmer and Oo might have drawn attention, as did the IIFFM, to self-harm and suicide as a result of sexual violence.Footnote 47 The isolation and disconnection bound up in the crime of deportation, and the psychological trauma that accompanies the rupture to routine daily life, also warrants attention. There is an established body of literature on social and geographical embeddedness,Footnote 48 on the psychological and social effects of displacement,Footnote 49 and on the ways in which the effects of deracination are not gender-neutral.Footnote 50 Deportation punctuates the concrete practices of daily existence (in Rohingya villages, these include collecting firewood, attending the mosque, fetching water, shopping at the market, readying children for school) in ways that disproportionately impact women. The need for emotional and caring labour, also provided by women, is acute. Dislocation manifests in a myriad of quotidian traumas, which feminist jurisprudence must speak to.
Judge Claerwen O’Hara
The central problem Judge O’Hara wrestles with in their decision is whether it is possible, given the Rome Statute’s definition of ‘gender’, for the crime of persecution to apply to Hijra persons. Hijra people are third-gender persons from the region of South Asia. Some Hijra people follow Hindu faith practices, and may choose to undergo a castration ceremony as part of Hindu ritual; others follow the Muslim faith. The common characteristic most Hijra people share is communal life with other Hijra people, removed from wider society. Following the attacks on the Rohingya in Myanmar, some Rohingya Hijra reported to the IIFFM that they believed they had been targeted for sexual violence due to a combination of their non-conformity with gender norms and their Rohingya ethnicity.Footnote 51
Persecution on the basis of gender is a crime against humanity under Article 7(1)(h) of the Rome Statute. The difficulty with applying this provision to the persecution of Hijra people is that the Rome Statute defines gender restrictively. Article 7(3) of the Statute states: ‘For the purposes of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.’ On one reading of the text, the definition of gender in the Rome Statute includes only the two sexes – male and female – as recognised targets for persecution.
Judge O’Hara overcomes the restrictions of the Article 7(3) definition using a process of reasoning that emphasises the significance of the phrase ‘in the context of society’. O’Hara reasons that the inclusion of this phrase means that ‘male and female’ cannot be understood solely to refer to the narrow biological categories denoted.Footnote 52 ‘Male and female’ must, O’Hara argues, encompass the social context, dynamics, and interactions that give those dyadic categories meaning. O’Hara draws support for this interpretation from debates about the definition of gender at the time of the Statute’s drafting. States rejected a non-social definition of gender, insisting on the inclusion of the phrase ‘in the context of society’ as part of the definition.Footnote 53 Judge O’Hara also notes developments in the jurisprudence of UN human rights treaty bodies and human rights instruments that support a broad contextual and social interpretation of gender, such as the definition of gender in the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence.Footnote 54 O’Hara notes that the Rome Statute must be interpreted in a manner consistent with international human rights law.Footnote 55
Applying the broader understanding of gender to Hijra people in Rakhine State, Judge O’Hara finds (i) that some Hijra people may have been targeted on the basis of their non-conformity with norms and expectations that have formed around sex-based categories of male and female, which may constitute gender-based persecution for the purposes of Article 7(1)(h) of the Statute; (ii) that some Hijra people who are intersex may have been subjected to persecution because they do not conform with expected bodily appearances of males and females;Footnote 56 and (iii) that other Hijra people may have been targeted for rape and sexual violence because they do not conform with expected bodily appearances of males and females.Footnote 57 O’Hara concludes that ‘to the extent that the Hijra people who were allegedly targeted for rape and sexual violence were also Rohingya, the persecution may have been based on the intersecting grounds of gender, ethnicity, and religion’.Footnote 58
Judge O’Hara succeeds in reinterpreting the definition of gender in a way that encompasses gender as a social construction – which in Western law and society generally is the more common way in which ‘gender’ is now understood. The Office of the Prosecutor confirmed this interpretation in its 2022 policy paper on the crime of gender persecution:
As for all forms of persecution, persons may be targeted for gender persecution because of sex characteristics and/or because of the social constructs and criteria used to define gender roles, behaviours, activities and attributes. For example, persons may be targeted for gender persecution when they are perceived to have or carry (gender) criteria prohibited by the perpetrator; or are perceived to not have or carry (gender) criteria required by the perpetrator.Footnote 59
On Judge O’Hara’s argument, not only is persecution on the grounds of male or female sex criminalised, but also discrimination that takes place because perpetrators have gendered ideas about males and females, including towards intersex, non-binary, inter-gender, and transgender people, and Hijra persons. Judge O’Hara thus brings the discrimination and harm suffered by Hijra people in Myanmar within the scope of the Rome Statute. Following O’Hara’s redefinition of gender, the relevant issue is whether one of the reasons the Tatmadaw inflicted pain and suffering on Hijra people is because the victims were not a ‘man or woman’ as traditionally, biologically understood. O’Hara’s judgment has the salutary effect of advancing the jurisprudence on recognition of impermissible persecution. O’Hara follows a line of scholarship that lays the foundation for this interpretation, which includes the work of Grey,Footnote 60 Suhr,Footnote 61 Leddy,Footnote 62 and Oosterveld.Footnote 63
One question Judge O’Hara might have asked a future Trial Chamber to consider is whether all or most Hijra people believed they were persecuted because they are something other than male or female. It might be, for example, that some Hijra people feel that atrocities were committed against them for a different reason – not because of what they are not, but perhaps because of what they are – which is an altogether different thing to just an ‘absence’ of male or female biological attributes.Footnote 64 The distinction in this regard is not trivial. One of the points of a feminist interpretation is to reflect, speak to, and recognise harm as it is experienced by the victim. Reliance on the negative (‘Hijra people were persecuted on the basis that they did not conform to the male/female binary’) runs the danger of drawing us into to the very tendency that a feminist approach might wish to avoid: the constitution of the subject through negation of the gender categories male and female. In O’Hara’s decision, Hijra and others are constructed to mirror the male/female binary. This approach replicates traditional (colonialist) gender hierarchies and accepts difference as relational, rather than upholding the fluid potential that inheres in the intersubjective constitution of gender.
Judge O’Hara’s negation of the binary as a basis for advancing an interpretation of how Article 7(3) might apply to Hijra persons matters because the language of the Rome Statute has a constructive aspect. Our concern with O’Hara’s judgment is that in using an interpretive technique that bends the law into a more favourable shape to do justice in the immediate case,Footnote 65 a seemingly progressive decision may disqualify, repress, and absorb counter-discourses that may have more affinity with the truth as it is experienced by those who are persecuted. In Judge O’Hara’s decision, value is attributed to the socially constructed roles of man and woman at the expense of the unmentioned ‘Other’. A more expansive feminist method, in contrast, would attempt to favour that which most severely disrupts identity-bound thought. The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity affirm that ‘each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom’.Footnote 66
The OTP’s Policy on Gender Persecution confirms that ‘all persons can be subjected to gender persecution because all persons have gender identities just as all persons have racial and ethnic identities’.Footnote 67 Women, girls, men, boys, and LGBTQI+ persons may be discriminated against on the basis of their roles, behaviours, activities, and attributes. O’Hara’s judgment makes a salutary contribution to jurisprudence by demonstrating what is possible within the law as it stands – but from our perspective, this should not be the end of the story. Reform of the Statute is required, to recognise ‘gender’ without any constraining definition. The preservation of the word ‘gender’ within the text of the Rome Statute, without any caveats as suggested by the feminist lawyers involved in its drafting, would signal acceptance of the mutability, fluidity, and ambiguity of ‘gender’. Such reform would do more to honour the particularised harm experienced by victims than adopting the perpetrator’s view that harm was inflicted because the victim was not what they ought to be. ‘Gender’ standing alone would affirm the discursive openness of the term, including its gaps and the possibility of multiple meanings and ways of being.
Conclusion
Hospodaryk observes that the pre-trial ICC proceedings in the Rohingya case represent an incomplete attempt to elevate the voices of victims (the point made by Judges Palmer and Oo), and that the proceedings fail to capture the full range of sexual crimes, particularly against gender-diverse people (the point made by Judge O’Hara).Footnote 68 Hospodaryk suggests that one reason why the Court fails to present a more inclusive picture of what happened to Rohingya people is because of structural limitations to the capabilities of the Victims Participation and Reparations Section (VPRS) of the OTP. In this reflection we have suggested that feminist reimaginings such as those provided by Judges Palmer and Oo and by Judge O’Hara function as a reminder of law’s potential to expand the possibilities for justice, even within the confines of the existing statutory framework and limited evidentiary resources.
14.2 Deportation as a Gendered Crime in the Bangladesh/Myanmar Investigation
In 2019, Pre-Trial Chamber III authorised the Prosecutor to commence an investigation into the situation in Bangladesh/Myanmar in accordance with Article 15(4) of the Rome Statute.Footnote 69 The Chamber held that the Prosecutor could reasonably believe that coercive acts towards the Rohingya forced them to leave Bangladesh, which may amount to the crimes against humanity of deportationFootnote 70 and persecution on the ground of religion and/or ethnicity.Footnote 71 In establishing jurisdiction, the Chamber was satisfied that the alleged crimes had been committed at least partially on the territory of Bangladesh, which ratified the Statute on 23 March 2010.Footnote 72 The Chamber held that the scope of the investigation extended to acts committed on at least part of the territory of other states which would accept the jurisdiction of the Court, insofar as they were sufficiently linked to the situation.Footnote 73 Furthermore, the Chamber expanded the scope of the investigation beyond the crimes alleged by the Prosecutor in the request to any crimes sufficiently linked to the situation, stressing that limiting the incidents to be investigated at the preliminary stage would be contrary to the obligation under Article 54(1)(a) to ‘cover all facts and evidence … [i]n order to establish the truth’.Footnote 74
In this reimagined decision, Emma Palmer and Phyu Phyu Oo explore the underlying crime of deportation from a gendered perspective by expanding the definition of ‘coercive acts’ in a way that considers the lived experience of women and girls. Palmer and Oo employ a historical perspective that investigates the structural nature of violence and lasting legacies of colonialism in Myanmar. Their decision considers whether there is scope to elevate the findings on deportation to constitute the crime of genocide. In doing so, they ultimately reach the same conclusion as the Court in authorising the investigation.
Decision pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar No.: ICC-01/19
Date: 14 November 2019
Original: English
PRE-TRIAL CHAMBER III(B)
Before: Judge Emma PALMER
Judge Phyu Phyu OO
SITUATION IN THE PEOPLE’S REPUBLIC OF BANGLADESH/REPUBLIC OF THE UNION OF MYANMAR
Judgment
Deportation
1. The Chamber recalls again that one victims’ representation noted: ‘We lost our family members. We survive with [gunshot] wounds. We lost our property, our houses, our lands and cattle and everything. Kicked out from our motherland and made us refugee. Destroyed our everything.’ Another representation, submitted on behalf of women, also states that the ‘atrocities of August 2017 were the turning point of the Rohingya crisis, after this date none of the women represented could return to their motherland Myanmar’. A representation submitted on behalf of alleged victims living in the same refugee camp in Bangladesh similarly states that victims ‘decided to escape and save our lives from the extra-judicial killings […] the people had just one way to save their lives. [It] was to come to Bangladesh’.Footnote 75
Applicable Law
2. The Chamber now turns to the question of whether, based on the facts, a reasonable prosecutor could believe that coercive acts towards the Rohingya forced them to flee to Bangladesh, which may amount to the crime against humanity of deportation.
3. The Chamber notes that, under international law, deportation of a state’s nationals as well as the arbitrary or collective expulsion of aliens is generally prohibited.Footnote 76 There is a long history of instruments that have aimed to prevent or ensure accountability for forcible displacement.Footnote 77
4. Article 21 of the Rome Statute sets out a hierarchical list of sources of interpretation: firstly, the Statute, its Elements of Crimes, and its Rules; secondly, applicable treaties and principles of international law; and thirdly, principles of law derived from national and other international criminal courts and tribunals.
5. Article 21(3) provides that the ‘application and interpretation of law … must be consistent with internationally recognized human rights’. In that context, we note that crimes that may appear apparently ‘gender neutral’ can have differently gendered effects,Footnote 78 intersecting with other cultural, social, and economic issues.
6. Article 7 of the Rome Statute addresses crimes against humanity: ‘any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: … (d) Deportation or forcible transfer of population’.
7. ‘Deportation or forcible transfer of population’ is defined as ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’.Footnote 79
8. The terms ‘expulsion’, ‘coercive acts’, ‘lawfully present’, ‘grounds permitted under international law’, and ‘territory’ have been elucidated in the jurisprudence of international courts and tribunals, including the International Criminal Tribunal for Rwanda (ICTR),Footnote 80 the Extraordinary Chambers in the Courts of Cambodia (ECCC) (forced transfers were charged as a crime against humanity of ‘other inhumane acts’),Footnote 81 and the International Criminal Tribunal for Former Yugoslavia (ICTY).Footnote 82
Deportations or Forcible Transfers
9. While the Rome Statute defines deportation or forcible transfer as forced displacement, after some contradiction and, arguably, confusion,Footnote 83 ICTY jurisprudence indicates that forcible transfers do not necessarily have a trans/cross-boundary nature,Footnote 84 although deportations might encompass forcible transfers.
10. The Prosecutor chose to argue that the crime of deportation requires or ‘inherently’Footnote 85 involves the crossing of a boundary,Footnote 86 given the need to establish this Court’s jurisdiction, based in this situation upon territoriality.
11. However, we see no need to minimise potential intersections between deportation and forcible transfers, including, for example, for womenFootnote 87 and others who may flee to a range of places as part of their deportation/displacement.
‘Expulsion or Other Coercive Acts’
12. Forced displacement must be perpetrated ‘by expulsion or other coercive acts’.Footnote 88 The Elements of Crimes do not define these terms, but international courts and tribunals have considered the meaning of ‘forced’ alongside the concepts of coercion and expulsion.Footnote 89
13. The Elements of Crimes at Article 7(2)(d) notes that the 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’.
14. This definition is supported by other international criminal tribunals’ jurisprudenceFootnote 90 and is the same wording adopted in the Elements of Crimes for the commission of the crime against humanity of rape, for example.Footnote 91
15. The ICTR Trial Chamber observed, in the context of sexual violence, that ‘[c]oercive circumstances need not be evidenced by a show of physical force’ but can ‘be inherent in circumstances like armed conflict or military presence of threatening forces on an ethnic basis’.Footnote 92 International crimes can (and should) be understood within their dynamic contexts, including or especially when analysing the coercive environments underlying allegations.
16. Coercive acts can include shelling, burning property, and other acts designed to terrify the population into leaving,Footnote 93 such as sexual and gender-based violence.
17. However, those specific acts are not necessarily required, as confirmed in the Ruto case at the ICC.Footnote 94 The attacks should also not ‘be viewed in isolation, but must be seen in the context of the pattern of excessive use of force’, which may also provide evidence of criminal responsibility, intention (to change the ethnic composition of an area, for example),Footnote 95 and other elements of the crime (such as the ‘chapeau’ elements of crime against humanity).
‘By’/Causation
18. To show that displacement was really ‘forced’ and not voluntary, and occurred by expulsion or other coercive acts or ‘as a result of the force’, some courts have required a ‘link’ between the ‘threat of force or coercion’ and the displacement.Footnote 96
19. To do so, in the Simic case ICTY Trial Chamber II suggested that it ‘should look beyond formalities to all the circumstances surrounding the person’s displacement’ to determine whether the person was ‘faced with a real choice’.Footnote 97 The Chamber analysed the ‘intention’ of the person, despite noting that this is difficult given the potential ‘lack of genuine choice’ in ‘circumstances of discrimination or persecution’. The Chamber proposed that: ‘whether a person would have wished to leave the area absent circumstances of discrimination or persecution may also be considered as indicative of a person’s wish.’Footnote 98
20. However, determining what anyone’s intention might have been ‘absent’ the circumstances is incredibly difficult within situations of long-term structural and intersecting discrimination, violence, and other human rights violations. The need for any examination of the ‘leaving’ person’s subjective intent is undermined by the reality also recognised at the ICTY that, ‘[w]hile those displaced may consent to, or even request to be removed, that consent must be given voluntarily and as a result of the individual’s free will, assessed in the light of the surrounding circumstances’.Footnote 99 We consider that the ‘trier of fact must consequently consider the prevailing situation and atmosphere, as well as all relevant circumstances, including in particular the victims’ vulnerability, when assessing whether the displaced victims had a genuine choice to remain or leave and thus whether the resultant displacement was unlawful’.Footnote 100
21. It is hard to see what assistance would be gained from requiring evidence of the actual, subjective intention of the person(s) fleeing – or what that intention might have been in different circumstances. This is particularly important for marginalised (rather than necessarily ‘vulnerable’) communities, including women, who may have had multiple changing reasons to consider, or even dream of, leaving a particular social setting, even before the immediate circumstances that led to their displacement. These reasons may result from the impacts of (for instance) racial, patriarchal, repressive, environmental, discriminatory, economic, or other structures upon individuals and communities.
‘Lawfully Present’
22. The wording about individuals transferred being from ‘the area in which they were lawfully present’ should be given its ‘common meaning and should not be equated to the legal concept of lawful residence’.Footnote 101
23. As the ICTY Trial Chamber opined in 2010:
The clear intention of the prohibition against forcible transfer and deportation is to prevent civilians from being uprooted from their homes and to guard against the wholesale destruction of communities. In that respect, whether an individual has lived in a location for a sufficient period of time to meet the requirements for residency or whether he or she has been accorded such status under immigration laws is irrelevant. Rather, what is important is that the protection is provided to those who have, for whatever reason, come to ‘live’ in the community – whether long term or temporarily.Footnote 102
24. This broad understanding of ‘lawful presence’ is consistent with the Elements of Crimes mens rea requirement that the ‘perpetrator was aware of the factual circumstances that established the lawfulness of such presence’. This wording indicates that it is only awareness of the ‘factual circumstances’ of individuals or communities living or having their home in a particular place that must be established – even ‘temporary homes after being uprooted from their original community’.Footnote 103
25. We agree with Pre-Trial Chamber I’s observation that the ‘legal interest commonly protected by the crimes of deportation and forcible transfer is the right of individuals to live in their area of residence. However, the legal interest protected by the crime of deportation further extends to the right of individuals to live in the State in which they are lawfully present’.Footnote 104 While (as noted) there is overlap between the crimes of deportation and forcible transfers, deportation outside of one’s state may have particular impacts (for different people, including, for example, for displaced children and children born of rape) denied the right to live in their home state. Those deported across borders may lack documentation, become stateless, be at risk of further displacement (including trafficking and other intersecting harms), and be adversely affected by their engagement with various ‘regimes of care’, including access to health and education, all affected by the fragility of their residence within other states.
‘Without Grounds Permitted’
26. There are situations where evacuations might be permitted, but this should be ‘an exceptional measure’.Footnote 105 Examples of grounds that might permit forced displacements under international humanitarian law include where the transfer is of prisoners of war out of combat zones and into internment facilities the text inside the round brackets should be Article 19 of Geneva Convention III or where conducted for the security of those involved ‘or for imperative military reasons’ the text inside the round brackets should be Article 49 of Geneva Convention IV and Article 17(1) of Additional Protocol IIthe text inside the round brackets should be Article 49 of Geneva Convention IV and Article 17(1) of Additional Protocol IIthe text inside the round brackets should be Article 49 of Geneva Convention IV and Article 17(1) of Additional Protocol IIthe text inside the round brackets should be Article 49 of Geneva Convention IV and Article 17(1) of Additional Protocol II Footnote 106 – including intensive bombing.Footnote 107
27. If evacuations do take place, those affected must be properly provided for in terms of accommodation, hygiene, health, safety, and nutrition.Footnote 108 This would include responding to the particular needs of women and other genders, including, for the avoidance of doubt, Hijra and trans/intersex persons, children, and for intersecting cultural needs.
28. It follows from these exceptions that the evacuation should last only while the circumstances warranting evacuation persist, after which the transferred population should (be able to) return home.Footnote 109 The Chamber considers that it would therefore be relevant to consider the medium- and longer-term ongoing effects of any displacement when assessing this element.
29. However, the ICTY consistently held that it ‘is not necessary for the Accused to intend to displace the victims on a permanent basis’.Footnote 110
30. For the purposes of this section, we note that although it is for the Prosecutor to establish that the exceptions were not met,Footnote 111 it is sufficient to observe that the ordinary meaning of the wording concerning ‘exceptional measure[s]’ and ‘imperative’ reasons suggests that these exceptions are limited.
31. Further, these exceptions do not apply where the humanitarian crisis that caused the displacement resulted from the perpetrators’ unlawful activity.Footnote 112
Deportations and Other Crimes
32. The Chamber notes that there is scope to consider forcible displacements as part of other international crimes beyond crimes against humanity (including persecution and other inhumane acts as discussed elsewhere in this Decision). These include war crimes most explicitly in the Rome Statute (see Articles 8(2)(a)(vii), (b)(viii)), but also, in particular circumstances, genocide.
33. During the drafting of the Genocide Convention in 1948, Syria presented a proposal to include ‘imposing measures intended to oblige members of a group to abandon their homes’ as a form of genocide.Footnote 113 This was not taken up, resisted by the Allies apparently ‘out of fear that it might imply the ethnic cleansing perpetrated against German minorities in Europe following the war’,Footnote 114 which had involved sexual violence,Footnote 115 could be captured by that crime.
34. Nevertheless, deportation could be charged under Article II(a), (b), or (e) of the Genocide Convention if other requirements, including the presence of genocidal intent, are met,Footnote 116 as recognised by later ICTY and ICTR cases finding that practices of forced displacement might cause ‘serious bodily or mental harm’,Footnote 117 or ‘conditions of life … calculated to bring about’ a group’s destruction.Footnote 118
35. The Chamber considers that the underlying practice of forcible displacements could therefore in principle – subject of course to other admissibility, jurisdiction, and chapeau requirements, and the requirement for the special intent to destroy the group in whole or in part – in some circumstances also fall within at least Article 6(b) of the Rome Statute as causing ‘serious bodily or mental harm’, (c) deliberately inflicting conditions of life calculated to bring about the relevant group’s physical destruction in whole or in part, or (e) forcibly transferring children. At least it remains open to this Court to determine that the intent behind these crimes is not mutually exclusive, since (for instance, as noted) both displacement and genocide could potentially involve an intent to impose intolerable conditions that destroy a group, and it seems plausible that attempts to perpetrate genocide could be associated with displacements, given our discussion about ‘coercive acts’. The Chamber recalls the victims’ representation that victims ‘decided to escape and save our lives from the extra-judicial killings […] the people had just one way to save their lives. [It] was to come to Bangladesh’.Footnote 119
36. In addition, where displacement appears gendered, in the sense that more women and children are recorded as being deported, there may be a suggestion that men were possibly targeted for other crimes, including killings. Especially when considered alongside intersectional cultural considerations (including in patriarchal or patrilineal societies), in such circumstances displacements would also seem consistent with an attempt to destroy a group in whole or in part.Footnote 120
37. Therefore, this Chamber considers that there is no in principle legal barrier to investigations of certain practices associated with deportation being considered as part of an investigation of other crimes, such as genocide (persecution is addressed elsewhere in this Decision).
Alleged Facts
Deportation
38. The Chamber now turns to the specific situation involving Myanmar and Bangladesh. The Chamber has noted the breadth of relevant conduct and importance of appreciating dynamic contexts and ‘vulnerability’ when assessing both ‘expulsion’ or ‘coercive acts’ in relation to deportation, and whether ‘victims had a genuine choice’. It follows that the so-called waves of ‘clearance operations’ in 2016 and 2017 cannot be disaggregated as separate events and assessed in semi-isolation, but rather form part of a pattern of violence and a ‘coercive environment’ that in this case has a long and difficult history.Footnote 121
39. The emergence of Rohingya movements within and since the post-colonial independence era in Myanmar demands recognising the ‘Rohingya’ as an ethic national identity, and the cultural formation of Muslims as an important part of the fabric of the country.Footnote 122 Instead, Rohingya people have endured, and continue to endure, multiple forms of oppression from the military regime in Myanmar and discrimination from many Buddhist communities in Rakhine State, who have promoted Buddhist nationalism in Rakhine since the early 1950s. The adoption of the 1974 Emergency Immigration Act and subsequent implementation of ‘Operation Nagamin’ in 1977 involved an effort to filter out those labelled or perceived as foreigners prior to a national census and reportedly forced over 200,000 Rohingya to flee to Bangladesh.Footnote 123 These events were reportedly accompanied by human rights violations perpetrated against Rohingya by the Burmese army.Footnote 124 In addition, the 1982 Citizenship Law and accompanying registration process clearly denied the citizenship rights of Rohingya. Individuals already holding citizenship cards (pink or green) as assigned by the former regime were no longer eligible to receive those cards, but instead were issued ‘white cards’.Footnote 125 White cards as defined under the 1951 Union Residents Registration Rules are understood as an interim form of documentation, and a substitute for permanent identification documents, and nearly a million Rohingya people in Myanmar held white cards.Footnote 126
40. Following the transition towards democracy and civilian government in 2011, the government created different pathways for Rohingya to claim their identity without success. For instance, in 2011, the government cancelled the white cards and offered a pathway to register and verify their national identity for those who had lost ‘white cards’, although it was soon suspended due to public opposition.Footnote 127
41. Beyond these successive processes that have complicated Rohingya’s entitlement to secure formal citizenship, the government has also imposed several measures restricting Rohingya people’s activities, including restricting their movement between villages and townships. Such measures applied to men and women, but affected all aspects of the lives of women and girls, and non-binary persons, differently,Footnote 128 including by limiting their access to medical care, food, adequate housing, and involving forced labour and restrictions on marriages and pregnancies.Footnote 129 For instance, women seeking emergency obstetric care have been required to secure approval and pay fees to the local authority before they can access the appropriate medical care, increasing the risk of maternal death. In addition, Rohingya women do not have equal access to registering births.
42. The Chamber observes that systematic state-based discrimination intersects with other experiences to exacerbate coercive circumstances. For instance, gendered social norms and stereotypes within the Rohingya communities compounded the effects of discriminatory laws and institutions. In Rohingya society, we understand that women and girls and non-binary persons are often expected to remain in the domestic realm and take up traditional gender roles, such as housework and childcare.Footnote 130 Women mainly interact with women in their own household, family members, and their closest neighbours and rely on the women in their households for religious knowledge and information about women’s health and reproductive issues,Footnote 131 access to which was then further restricted by state-based discrimination. Women generally do not work outside the home, and thus marriage is the only form of financial security for them. Consequently, early and forced marriage is a common practice among the Rohingya population, not only as an element of culture but also as an adaptation for economic security.Footnote 132 The Chamber observes that the United Nations High Commissioner for Refugees (UNHCR) reports that over 40 per cent of Rohingya girls who have fled Myanmar since 2012 were married before the age of eighteen,Footnote 133 without legal protection.Footnote 134
43. The Myanmar government appears aware of the impact of its discriminatory policies within this cultural context and indeed particular decisions seem designed to exacerbate these effects. In the late 1990s, a local order was issued in North Arakan requiring Rohingya communities to seek permission from the local authority before couples can get married (unlike other groups in Myanmar) and to sign a document agreeing to limit the number of children, violating the reproductive rights of women.Footnote 135 Marriage authorisations are granted on the payment of fees and bribes and the process can be prolonged.Footnote 136 Those requirements of seeking approval for marriage and the lengthy process increase the risk of exposing women and girls to multiple harms. For instance, women who become pregnant without official marriage authorisation often undergo unsafe abortions, an illegal practice in Myanmar, contributing to the number of maternal deaths. Some women register their newborn child with another legally married couple, or with their own parents, while many children born are reportedly unregistered. In some cases, young couples, unable to obtain permission to marry, flee to Bangladesh to live together.Footnote 137
44. Furthermore, the adoption of Race and Religion Protection Laws in 2015 presented a clear threat to Rohingya women, compounded with these other violations. The Religious Law discriminates against women by restricting their ability to marry men of other religions. The Population Control Law also restricts the reproductive rights of women. For example, and in the context of publicised fears about Rohingya population growth,Footnote 138 the Population Law provides the regional governments an authority ‘to request a presidential order limiting reproductive rates if it is determined that population growth, accelerating birth rates, or rising infant or maternal mortality rates are negatively impacting regional development’, or that there exists an ‘imbalance between population and resources, low socio-economic indicators and regional food insufficiency because of internal migration’.Footnote 139
45. The combined effect of these discriminatory policies was to restrict Rohingya’s population growth and ability to move and engage in social life, generating a pattern of excessively discriminatory policies openly aimed at changing the ethnic composition of the area.
46. In addition to these state-directed oppressive policies over many decades, communal tensions between largely Buddhist communities and the Rohingya persisted and were encouraged in the Rakhine State region. The creation of the ‘969’ campaign in early 2012 led by Buddhist extremists fuelled these communal tensions between Muslims and Buddhists across different parts of the country. The campaign specifically aimed to increase hatred against Muslims in Myanmar by calling upon followers to boycott Muslim-owned businesses, displaying 969 logos in businesses owned by Buddhists to show their solidarity with the campaign, and leading to multiple forms of violence against Muslims, while encouraging anti-Muslim feelings across the nation.Footnote 140 In the same year (2012) two violent outbreaks between Rakhine and Muslim groups, in June and October, were triggered by the reported rape and killing of a Buddhist woman by Rohingya men, followed by the killing of Muslim Rohingya by Buddhist mobs, driving 125,000 Rohingya and other Muslims to internally displaced camps.Footnote 141 Instead of protecting the population, the government further repressed Muslims by preventing their access to markets, livelihoods, and humanitarian assistance. Furthermore, responses from the national and local government promoted anti-Rohingya hatred and encouraged the departure of Rohingya from the area.Footnote 142 For example, the then president, Thein Sein, called for ‘illegal’ Rohingya to be sent to ‘third countries’, stressing their lack of legal status in the country and implying that the majority of Rohingya did not belong in Myanmar.Footnote 143
47. Rohingya communities have for many years witnessed crimes committed against their family members and suffered from sexual and gender-based violence (including perpetrated by military officers without commensurate accountability),Footnote 144 a lack of adequate food, shelter, education for their children, and medical care. These have wider consequences for families, for instance women are direct victims of human rights violations, but also suffer indirectly as family members of those who were killed and disappearedFootnote 145 and may be forced to become the breadwinners in addition to, or affecting, their culturally promoted family and home-focused roles.Footnote 146 These factors illustrate the violence, and its gendered effects, in the period prior to the so-called waves of violence, which already presented multiple intersecting factors that had in the past led to mass forcible displacement of Rohingya refugees into Bangladesh on several occasions.
48. We note that these factors of historic violence against the Rohingya are so serious that they are alleged to amount to genocide at the International Court of Justice. To be clear, we do not think that such a high threshold of contextual violence as is found in this situation is required to establish that there may be ‘coercive acts’ in relation to deportation. We observe again that acts such as shelling, burning property, and others including sexual violence, are sufficient to amount to ‘expulsion or other coercive acts’ leading to forcible displacement. These acts also occurred, among them the killing of babies and young children and sexual violence, as detailed elsewhere in this Decision, including in paragraph 86 noting that ‘Hijra’ individuals, non-binary, transgender, and intersex persons were reportedly targeted for sexual violence.Footnote 147
49. While enmeshed within earlier contexts and structures of violence and dispossession, events in 2016 resulted in a further intensification of oppressive measures against the Rohingya inside Myanmar, forcing 87,000 Rohingya people, some of whom would have been carrying or leaving family members as well as homes, cultural lives, and livelihoods, to flee to Bangladesh – although we note there is a lack of available gender-disaggregated data. In addition to existing restricted movements, security forces, camps, and checkpoints were increased, with even more extreme restrictions on movement.Footnote 148 During these security searches, women are disproportionately affected, including the intruders strip searching their bodies for valuables and possible weapons.Footnote 149
50. The scale, brutality, and systematic nature of sexual and gender-based violence indicate that rape and sexual violence formed part of a deliberate strategy to intimidate, terrorise, or punish a civilian population, and were used as a tactic to generate a violent environment.Footnote 150 In many cases, sexual violence was accompanied by degrading behaviour, including insults and spitting, as recounted in numerous victims’ representations.Footnote 151 However, the national government defended the acts of the military and denied the allegations of the crimes, responding to the misconduct in official press statements as ‘fake rape’ claims.Footnote 152 This degree of normalisation and dismissal of sexual violence reflects the climate of long-standing impunity, including for military perpetrators of violence – across Myanmar as well as, or especially, in Rakhine State.Footnote 153
51. Many internally displaced Rohingya from the 2016 and earlier events remained in precarious situations and even temporary accommodation in 2017. The events of 2016 alone had internally displaced more than 23,000 individuals, over half of them women and girls.Footnote 154 The protracted displacement with limited access to international humanitarian aid, restrictions of movement, and overcrowded shelters with no privacy led to increased pressure on families, increasing the various forms of gender-based violence towards women and children. Adolescents have had limited access to youth services and other opportunities, further increasing the incidence of child marriage, child labour, and risky migration.Footnote 155
52. Those remaining in Myanmar ‘lived’ there, and were in that sense ‘lawfully present’.
53. The further violence in 2017 represented a continuation, albeit of greater scale (see elsewhere in this Decision), of the violent and allegedly genocidal context and appears to be a culmination of long-term efforts to change the ethnic composition of Rakhine State by removing, through multiple discriminatory policies and violent acts, the Rohingya population.
54. While both men and women are affected by this violence, women were (and are) disproportionately traumatised by the gendered forms and severity of crimes, including the incidents of sexual and gender-based violence. The United Nations and other organisations noted an increase in the number of pregnant women and girls in the refugee camps in Bangladesh between May and June 2018.Footnote 156 Recognition of children born out of rape is challenging for women due to the stigma associated with rape and often the resentment of the husband. A survivor of rape described her child born out of rape as ‘not our child – a lost child’.Footnote 157 Further, losing the male household members forced women to become breadwinners, yet many have limited skills and literacy. The circumstances have led them to engage in negative coping strategiesFootnote 158 to overcome economic hardship. After 2017 this continued to include early marriage and selling child brides, as was noted above after 2016.Footnote 159
55. For the purposes of this Decision, it is sufficient to observe that these reported experiences alone illustrate a coercive environment in which, among so many orchestrated oppressive factors, it is arguably pointless to isolate particular subjective motivations for leaving. Indeed, it is correspondingly easy to identify how ongoing forms of displacement and enduring harms were caused by multiple and deliberately intersecting coercive circumstances.
Exceptions and Limitations
56. The Chamber observes that there is no suggestion that any of the limited exceptions potentially applicable to the crime of deportation were present, and that no humanitarian assistance of any kind, let alone of a gender-sensitive nature, was provided by the government to those displaced. Further, the Chamber observes that the Rohingya population largely remains displaced as there has been no meaningful guarantee of their safety upon any return to Myanmar.Footnote 160
57. The displacement was also not temporary.
58. At this point, the Chamber stresses that this ‘Rohingya population’ that fled Myanmar is not an amorphous mass or abstract concept, but many hundreds of thousands of individuals, 80 per cent of whom are women and children,Footnote 161 as well as non-binary people, and all of them have experienced systematic discrimination and direct or indirect forms of violence and displacement.
59. Reports also clarify that this includes ‘single mothers (11%), persons with serious medical condition (4%), older persons at risk (4%), persons with disabilities (4%), child-headed households (3%), older persons with children (2%), separated children (2%), unaccompanied children (1%), single fathers (1%). Increasing gendered isolation and restricted mobility of women and girls limits their access to life-saving assistance, services and information’.Footnote 162 These are individuals who continue to experience the crime of deportation in their daily lives, whether they now live in refugee camps or elsewhere. Victims’ representations also suggest that many still fear further deportation or forced displacement, including back to Myanmar or to other destinations within Bangladesh, such as Bhasan Char.Footnote 163
60. Those who did not arrive include family members – men, children, elderly parents, and others with restricted mobility – many of whom were killed. The fact that 80 per cent of those displaced have been recorded as being women and girls suggests that gender was a factor, and even that numerous men may have been killed. The Prosecutor might further investigate the extent to which gender and intersectional considerations (including ‘hate speech’ concerning population control discussed elsewhere in this Decision) contributed to the non-temporary nature of the displacement, as well as the intent of those behind it.
61. The report issued by an international independent fact-finding mission in 2018 showed a clear pattern of racial discrimination and prohibition of cultural and religious rights, formally and informally, within refugee camps.Footnote 164 This includes unsafe living conditions, high levels of sexual and gender-based violence, risks of trafficking for women and children, income insecurity, challenges in securing culturally appropriate health or education services, children born of rape (and cultural stigma), lack of shelter, and other intersectional issues.Footnote 165
62. Again, the Chamber observes that, although women’s civil society organisations are emerging among refugees, some materials suggest that forcible displacement has exacerbated existing, partly cultural or religious, challenges for Rohingya women. A growing number of domestic violence incidents and child marriages have been reported within the Rohingya community in protracted and overcrowded displaced camps, compounded by the lack of livelihoods (including because of the absence of primary earners and lack of culturally appropriate work opportunities) and increases in poverty.Footnote 166
63. The Chamber considers this context to be relevant to the crime of deportation, even though these circumstances occur outside of Myanmar, since, as noted above, even if met, the exceptions allowing for displacement require the preservation of such rights to the extent appropriate. There is no information suggesting any intention on the part of Myanmar authorities or Tatmadaw to maintain the safety of those displaced, while the long history and ongoing nature of the challenges and risks in refugee camps in Bangladesh was very likely known to them.
64. In light of the above, a reasonable prosecutor could believe that coercive acts towards the Rohingya forced them to flee to Bangladesh, which may amount to the crime against humanity of deportation.
Cultural and Gender Considerations
65. The Chamber takes this opportunity to note that the information provided suggests that the alleged facts occurred in a very complex context involving nuanced and layered forms of harm. We expect that the parties will find it useful to present evidence, including expert evidence, to assist any future Trial Chamber or other Chambers to better understand specific and intersecting gendered, cultural, and religious influences among Rohingya women, those of non-binary genders (including Hijra), children, and other groups such as the disabled.
66. While the crime of deportation may appear gender ‘neutral’ in the sense that it does not directly refer to gendered issues, the Chamber also observes that the ICC Prosecutor’s Policy Paper on Sexual and Gender-Based Crimes has recognised that deportation and forcible transfer of population ‘may also have a sexual and/or gender element’,Footnote 167 although such recognition has not led to convictions on that basis.Footnote 168 The Chamber considers that investigators, prosecutors, and judges also do not operate in ‘gender-neutral’ institutions, and there remain opportunities for the ICC to interpret ‘seemingly gender-neutral crimes in order to reflect the distinct experiences of women and girls’.Footnote 169 At the very least, the Chamber reminds the parties that careful and culturally sensitive approaches to investigation are warranted in international crimes trials.Footnote 170
67. We also reiterate our support for the Registry and other parties to ensure that culturally and gender-appropriate witness protection initiatives, including trauma-informed and psychosocial supports, are in place.
68. Finally, the Chamber invites amicus curiae briefs providing culturally informed analyses of the intersecting effects of the alleged crimes, including upon women and children.
Judge Emma Palmer and Judge Phyu Phyu Oo
14.3 Persecution of Non-Binary People in the Bangladesh/Myanmar Investigation
In 2019, the Pre-Trial Chamber III authorised the Prosecutor to commence an investigation into the situation in Bangladesh/Myanmar in accordance with Article 15(4) of the Statute.Footnote 171 The Chamber held that the Prosecutor could reasonably believe that coercive acts towards the Rohingya forced them to leave Bangladesh, which may amount to the crimes against humanity of deportation,Footnote 172 and persecution on the ground of religion and/or ethnicity.Footnote 173 In establishing jurisdiction, the Chamber was satisfied that the alleged crimes had been committed at least partially on the territory of Bangladesh, which ratified the Statute on 23 March 2010.Footnote 174 The Chamber held that the scope of the investigation extended to acts committed on at least part of the territory of other states which would accept the jurisdiction of the Court, insofar as they were sufficiently linked to the situation.Footnote 175 Furthermore, the Chamber expanded the scope of the investigation beyond the crimes alleged by the Prosecutor in the request to any crimes sufficiently linked to the situation, stressing that limiting the incidents to be investigated at the preliminary stage would be contrary to the obligation under Article 54(1)(a) to ‘cover all facts and evidence … [i]n order to establish the truth’.Footnote 176
In this rewritten judgment, Claerwen O’Hara authorises the investigation into the situation in Bangladesh/Myanmar in a manner which brings the experience of Hijra, transgender, and intersex peoples to the forefront of the decision. Whilst the Chamber’s original decision only briefly references sexual violence against Hijra individuals,Footnote 177 O’Hara discusses in depth the persecution of gender-diverse Rohingya people on the intersecting grounds of gender, ethnicity, and religion. In doing so, O’Hara offers an interpretation of gender under Article 7(3) of the Statute which encompasses gender-diverse people and the socially constructed nature of gender.
Decision pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar No.: ICC-01/19
Date: 14 November 2019
Original: English
PRE-TRIAL CHAMBER III(B)
Before: Judge Claerwen O’HARA
SITUATION IN THE PEOPLE’S REPUBLIC OF BANGLADESH/REPUBLIC OF THE UNION OF MYANMAR
[Extract from the judgment]
The Facts
1. In 2016 and 2017, the armed forces of Myanmar, the Tatmadaw, are alleged to have launched ‘clearance operations’ against the Rohingya civilian population in Myanmar, resulting in waves of violence which forced over 700,000 Rohingya to seek refuge in Bangladesh.Footnote 178
2. Representations submitted on behalf of alleged victims recount frequent occurrence of incidents of rape and other forms of sexual violence during the 2016 and 2017 waves of violence.Footnote 179 Most alleged rapes were reportedly carried out by the Tatmadaw, although members of the border guard police, the Myanmar government, Myanmar police force, and local civilians are also alleged to have committed such acts.Footnote 180
3. The available information suggests that in some instances Hijra individuals, who are third-gender persons, transgender women, and intersex persons in South Asia who were assigned a masculine gender at birth,Footnote 181 were targeted for rape and sexual violence.Footnote 182 In its report on sexual and gender-based violence in Myanmar, the Independent International Fact-Finding Mission on Myanmar found that the gender-diverse people who were allegedly subjected to rape and sexual violence during the ‘clearance operations’ were also largely of Rohingya ethnicity.Footnote 183
Applicable Law
4. Having established that that there exists a reasonable basis to believe that the contextual elements of crimes against humanity may be fulfilled in relation to the 2016 and 2017 waves of violence, the Chamber will now consider whether there is a reasonable basis to believe that the alleged rape and sexual violence perpetrated against Hijra and other gender-diverse people in Myanmar may constitute persecution within the meaning of the Statute.
Persecution
5. Persecution, within the meaning of Article 7(1)(h) and (2)(g)Footnote 184 of the Statute, is committed, either through a single act or a series of acts,Footnote 185 when:
1. The perpetrator severely deprived, contrary to international law,Footnote 186 one or more persons of fundamental rights.
2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such.
3. Such targeting was based on political, racial, national, ethnic, cultural, religion, or gender, as defined in Article 7, paragraph 3 of the Statute, or other grounds that are universally recognised as impermissible under international law.
4. The conduct was committed in connection with any act referred to in Article 7, paragraph 1 of the Statute or any crime within the jurisdiction of the Court.Footnote 187
Serious Deprivation of Fundamental Rights
6. Not every infringement of human rights amounts to persecution, but only a ‘severe deprivation’ of a person’s ‘fundamental rights contrary to international law’.Footnote 188 The commission of an act considered to be a crime against humanity will, in principle, result in a sufficiently severe deprivation of fundamental rights to meet the threshold for persecution.Footnote 189
7. As stated above, there is evidence before the Chamber that Hijra and other gender-diverse people were targeted for rape and sexual violence by Tatmadaw soldiers, police, and members of ethnic Rakhine communities during the waves of violence in Myanmar in 2016 and 2017.
8. Alleged victims recount being tied up, beaten, and subjected to anal and oral rape, sometimes by large groups of men.Footnote 190 Some victims have described the sexual violence they experienced as a form of torture. In recounting her experience during the 2016 and 2017 waves of violence, one transgender woman told the Independent International Fact-Finding Mission on Myanmar: ‘They always tortured transgender women like myself. They threatened us and did bad things to us; they forced me to do bad things. They remove our clothes and did bad things if we refused. We were threatened and risked being killed.’Footnote 191
9. The Mission also concluded that these instances of sexual violence amounted to torture or other forms of cruel, inhuman, or degrading treatment or punishment for the purposes of both international human rights law and international criminal law.Footnote 192
10. Further, this sexual violence is alleged to have occurred against a backdrop of general coercion, in which gender-diverse Rohingya people were routinely subject to harassment and arrest by the authorities. According to local activists, Article 377 of the Penal Code, which forbids ‘carnal intercourse against the order of nature’, has long provided legal cover for ill-treatment of gender and sexually diverse people in Myanmar.Footnote 193 One transgender victim described the effects of this ill-treatment on her as follows: ‘I can’t be myself because of fear … Sometimes we are insulted and called names, motherfuckers, all sorts of abusive language.’Footnote 194
11. Rape and other forms of sexual violence of comparable gravity are recognised by Article 7(1)(g) of the Statute as acts that may constitute crimes against humanity. Torture is also designated as such an act by Article 7(f) of the Statute and it is well established that rape can constitute a form of torture in both international criminal lawFootnote 195 and international human rights law.Footnote 196 In addition, deportation by coercive acts is recognised as a crime against humanity by Article 7(1)(d) of the Statute, as are other inhumane acts of a similar character intentionally causing great suffering, or serious injury to the body or to mental or physical health by Article 7(k).
12. As the rape and sexual violence allegedly committed against Hijra and other gender-diverse people in Myanmar in 2016 and 2017, causing many of them to flee to Bangladesh, may amount to such acts, the Chamber finds that there is a reasonable basis to believe that there may have been a sufficiently severe deprivation of fundamental rights to qualify as persecution under the Statute.
Identifiable Group or Collectivity
13. The second element of the crime against humanity of persecution is that the perpetrator must have targeted the person or persons by reason of the identity of a group or collectivity, or targeted the group or collectivity as such.Footnote 197 This requires there to be an identifiable group or collectivity.
14. The separation of elements two and three of the crime against humanity of persecution in the Elements of CrimesFootnote 198 indicates that the identity of the group or collectivity need not be defined according to the political, racial, national, ethnic, cultural, religious, gender, or other impermissible grounds mentioned in Article 7(2)(g) of the Statute. Those grounds constitute the prohibited reasons for targeting an identifiable group or collectivity, rather than the characteristics of the group in question.
15. Pre-Trial Chamber II’s decision confirming the charges against Dominic Ongwen illustrates the separate operation of elements two and three of the crime against humanity of persecution. The identifiable group alleged to have been targeted in that case were civilian residents of certain internally displaced person camps. Mr Ongwen’s alleged targeting of the group was said to have been based on political grounds, as he perceived them to be affiliated with and/or supporting the Ugandan government.Footnote 199
16. In assessing whether a group is identifiable, a mixed approach may be adopted,Footnote 200 considering both objective and subjective criteria.
17. The academic literature indicates that Hijra people have been culturally recognised as a distinct gender or sex-based group in South Asia for millennia.Footnote 201 Encompassing non-binary, transgender, and intersex persons, Hijra people often live together in communal householdsFootnote 202 and have their own myths, rituals, and spiritual practices.Footnote 203
18. In the twenty-first century, several South Asian states have legally recognised Hijra people as having a third gender or sex. In 2014, for example, the Indian Supreme Court ruled that ‘Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution’.Footnote 204 That same year, the Government of Bangladesh published in its Gazette that it had ‘recognized the Hijra community of Bangladesh as a Hijra sex’.Footnote 205 Despite this recognition, Hijra and other gender-diverse people in India and Bangladesh continue to face marginalisation and social exclusion.Footnote 206
19. Hijra people have also been specifically named as having a distinct cultural and gender identity by international human rights courts and bodies, including the Office of the United Nations High Commissioner for Human Rights,Footnote 207 the UN Independent Expert on Sexual Orientation and Gender Identity,Footnote 208 and the Inter-American Court of Human Rights.Footnote 209
20. Although Hijra people are not legally recognised as having a third sex or gender in Myanmar, the academic literature suggests that they view themselves as a distinct group or collectivity. For example, as in other parts of South Asia, Hijra people in Myanmar tend to live together in communities, with their own distribution of labour and communal living practices.Footnote 210 Tight kinship networks are also common amongst transgender and non-binary people living in Myanmar who do not necessarily identify as ‘Hijra’.Footnote 211
21. Further, Hijra and gender-diverse people in Myanmar appear to be viewed as a distinct group or collectivity by others. In early 2016, for example, there were widespread reports of transgender people being targeted by police for arrest, bribes, and sexual violence in Myanmar on account of their gendered appearance.Footnote 212 Further, research reports on the marginalisation and social exclusion of Hijra Rohingya in refugee camps in Bangladesh suggest that gender-diverse people from Myanmar continue to be viewed differently by others, including the wider Rohingya community.Footnote 213
22. In light of the above, the Chamber is satisfied that Hijra and other gender-diverse people in Myanmar may constitute an identifiable group or collectivity and that Hijra and other gender-diverse individuals were targeted for rape and sexual violence during the 2016 and 2017 ‘clearance operations’ by reason of the identity of that group or collectivity. As there is no requirement for the identity of the group to be based on the characteristics mentioned in Article 7(2)(g) of the Statute, it is unnecessary for the Chamber to consider whether, as a group, Hijra and gender-diverse people in Myanmar come within the definition of ‘gender’ in Article 7(g) of the Statute.
The Targeting Was Based on Prohibited Grounds
23. The targeting of the group or collectivity must have been based on political, racial, national, ethnic, cultural, religious, gender – as defined in Article 7, paragraph 3 of the Statute – or other grounds that are universally recognised as impermissible under international law.Footnote 214
24. Article 7(3) of the Statute provides: ‘For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.’
25. According to Article 31 of the Vienna Convention on the Law of Treaties,Footnote 215 treaty provisions are to be interpreted in good faith according to their ordinary meaning in their context and in the light of the object and purpose of the treaty. The ordinary meaning of the term ‘sexes’ is ‘the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions’.Footnote 216 The ordinary meaning of ‘context’ is ‘the situation within which something exists or happens, and that can help explain it’.Footnote 217 The ordinary meaning of ‘society’ is ‘a large group of people who live together in an organised way, making decisions about how to do things and sharing the work that needs to be done’Footnote 218 or ‘an enduring and cooperating social group whose members have developed organised patterns of relationships through interaction with one another’.Footnote 219 A good-faith interpretation of Article 7(3) of the Statute requires reading these words together.
26. When read together, the ordinary meaning of the words ‘sexes’, ‘in the context of’, and ‘society’ suggests that ‘gender’, as defined in Article 7(3) of the Statute, refers to the division of people into two reproductive categories (male and female), as exists within, and which may be explained by, the interactions of groups of people living together in an organised way. There are two implications that can be drawn from this understanding of gender. The first is that the Statute appears to recognise that the division of people into two biological categories based around their reproductive functions is itself socially constructed. This does not mean that biology is irrelevant to the designation of people as ‘male’ or ‘female’. Rather, the combination of the words ‘sexes’ and ‘in the context of society’ in Article 7(3) acknowledges that it is through large-scale group interactions that any bodily differences associated with the sex-based categories ‘male’ and ‘female’ are given meaning.
27. The second implication that can be drawn from reading the words ‘sexes’ and ‘in the context of society’ together is that, for the purposes of the Statute, the term ‘gender’ encompasses not only the division of people into sex-based categories, but also the ‘organised patterns of relationships’ that have formed around, and which help to produce and sustain, those categories. These organised patterns of relationships may include expectations about how people who are assigned ‘male’ or ‘female’ are to interact with one another, as well as norms, behaviours, and social and economic roles associated with each category.
28. This reading is consistent with the Office of the Prosecutor’s understanding of Article 7(3): ‘This definition acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.’Footnote 220 An interpretation of the term ‘gender’ that emphasises social dynamics also coheres with the Preamble to the Statute, which begins by recognising all peoples as living in a ‘delicate mosaic’ made up of ‘cultures’, ‘shared heritage’, and ‘common bonds’.
29. The ordinary meaning of the second sentence in Article 7(3), which reads ‘[t]he term “gender” does not indicate any meaning different from the above’, is that the first sentence in Article 7(3) exhaustively defines the term ‘gender’ for the purposes of the Statute.
30. To confirm the meaning resulting from the application of Article 31 of the Vienna Convention on the Law of Treaties, Article 32 of that treaty provides that recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion.Footnote 221 The travaux préparatoires to the Statute reveal little about the meaning of ‘gender’ in Article 7(3), other than that some states wished to emphasise the binary categories of ‘male’ and ‘female’ around which the notion of gender is organised.Footnote 222 Some states also queried whether the use of the term ‘gender’ in connection with the crime against humanity of persecution may be broad enough to bring the criminalisation of homosexual acts within the jurisdiction of the Court, but the matter was not resolved.Footnote 223
31. Literature on the circumstances of the treaty’s conclusion indicates that there was some debate about the inclusion of a reference to the social dimension of gender, with several states preferring a biological definition.Footnote 224 However, a majority of states disagreed with that position and the words ‘in the context of society’ were ultimately included in Article 7(3) by consensus.Footnote 225 The fact that a non-social definition of gender was considered and rejected by the states parties supports the conclusion that the words ‘in the context of society’ must be given work to do.
32. Article 21(3) of the Statute provides that the Court’s interpretation of the applicable law, including the Statute itself, must be consistent with internationally recognised human rights. The term ‘gender’ only appears in one international human rights treaty: the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence.Footnote 226 In that treaty, ‘gender’ is defined as ‘the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men’.Footnote 227 This definition is consistent with an interpretation of the term ‘gender’, as defined in Article 7(3) of the Statute, that encompasses the social patterns of relationships that produce and regulate the division of people into two reproductive categories.
33. Although the term ‘gender’ does not appear in other international human rights treaties, some UN human rights treaty bodies have read the notion into their respective treaties. In its General Recommendation 28, the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) stated that although the Convention on the Elimination of All Forms of Discrimination against WomenFootnote 228 only explicitly mentions sex-based discrimination, references to ‘customs and practices’Footnote 229 and ‘social and cultural patterns of conduct’Footnote 230 in the Convention indicate that it covers gender-based discrimination as well.Footnote 231 The CEDAW Committee went on to distinguish between the notions of ‘sex’ and ‘gender’. In the Committee’s view, whereas ‘sex’ refers to ‘biological differences between men and women’, the term ‘gender’ encompasses ‘socially constructed identities, attributes and roles for women and men and society’s social and cultural meaning for these biological differences resulting in hierarchical relationships between women and men and in the distribution of power and rights favouring men and disadvantaging women’.Footnote 232
34. While the Statute does not draw such a clear distinction between the notions of ‘sex’ and ‘gender’, the CEDAW Committee’s comments lend weight to a reading of the term ‘gender’ in the Statute that includes socially constructed norms, behaviours, and roles. Its comments also support the idea that the concept of ‘sex’ must be understood in light of these social patterns because they are, in the words of the CEDAW Committee, what give ‘social and cultural meaning’ to any bodily differences associated with the two dominant sex-based categories.
35. The UN Committee on Economic, Social and Cultural Rights (CESCR) has taken a different approach to the CEDAW Committee. Rather than drawing a clear distinction between the concepts of ‘sex’ and ‘gender’, in its General Comment No. 20, the CESCR provided an expansive reading of the term ‘sex’ in the International Covenant on Economic, Social and Cultural Rights,Footnote 233 which included social elements. It said: ‘Since the adoption of the Covenant, the notion of the prohibited ground “sex” has evolved considerably to cover not only physiological characteristics but also the social construction of gender stereotypes, prejudices and expected roles, which have created obstacles to the equal fulfilment of economic, social and cultural rights.’Footnote 234 These comments confirm that, in contemporary international human rights law, sex and gender should not be construed in ways that overlook social dynamics.
36. Having determined the meaning of ‘gender’, as defined in Article 7(3) of the Statute, the Chamber must now turn to whether the targeting of Hijra and gender-diverse people was based on gender grounds.
37. The UN Committee against Torture has recognised that actual or perceived non-conformity with social gender roles can put people at risk of torture and ill-treatment.Footnote 235 The UN High Commissioner for Refugees has also recognised people whose bodies do not fit with binary perceptions of sex can be exposed to harm.Footnote 236 Given the Statute’s recognition of the centrality of both social dynamics and binary thinking to the notion of ‘gender’, both of these forms of targeting could constitute persecution on gender grounds.
38. As noted above, the term ‘Hijra’ applies to third-gender persons, transgender women, and intersex persons in South Asia who were assigned male at birth.Footnote 237 Some members of this group may have been targeted for rape and sexual violence during the ‘clearance operations’ in 2016 and 2017 due to their non-conformity with gendered behaviours and social roles. For example, the Independent International Fact-Finding Mission on Myanmar reports that transgender women, who are women who were assigned male at birth, face high levels of discrimination in Myanmar because their feminine mannerisms, clothing, and behaviour do not align with social expectations regarding the gender expression of people who are assigned male at birth.Footnote 238 This may also be the case for Hijra and gender-diverse people who identify as non-binary or third gender, rather than as women or men.
39. As the notion of gender, as defined in Article 7(3) of the Statute, appears to encompass the social norms and expectations that have formed around, and which help to produce and sustain, the sex-based categories of ‘male’ and ‘female’, the targeting of Hijra people on the basis of their non-conformity with such norms and expectations may constitute persecution on the grounds of gender for the purposes of Article 7(1)(h) of the Statute.
40. Other Hijra people may have been targeted for rape and sexual violence during the ‘clearance operations’ due to their non-conformity with the very sex binary around which the notion of gender is organised, such as Hijra people who are intersex. The UN Office of the High Commissioner on Human Rights defines intersex people as people who ‘are born with physical sex characteristics that do not fit the normative definitions for male or female bodies’.Footnote 239 These sex characteristics may include sexual anatomy and/or chromosome patterns that do not fall neatly into either of the dominant sex-based categories.Footnote 240
41. According to the UN High Commissioner for Refugees, intersex people can be subjected to persecution because they do not conform with expected bodily appearances of ‘males’ and ‘females’.Footnote 241 To the extent that intersex Hijra people in Myanmar were targeted on a similar basis, this may also constitute persecution on the grounds of gender, as defined in Article 7(3). This is because the social belief that humanity can be divided into two binary sexes would be the motivating force behind the targeting.
42. Earlier in this decision, the Chamber established that there exists a reasonable basis to believe that members of the Tatmadaw, jointly with other security forces and with some participation of local civilians, may have committed acts that qualify as the crime against humanity of persecution on grounds of ethnicity and/or religion against the Rohingya population. To the extent that the Hijra and other gender-diverse people who were allegedly targeted for rape and sexual violence were also Rohingya, the persecution may have been based on the intersecting grounds of gender, ethnicity, and religion.
43. UN human rights bodies have recognised that discrimination based on sex and gender is often inextricably linked with other factors, including race, ethnicity, religion or belief, health, status, age, class, caste, and sexual orientation and gender identity.Footnote 242 In the case of gender-diverse Rohingya people, the Independent International Fact-Finding Mission on Myanmar received reports from transgender women who believed that they had been targeted for sexual violence during the ‘clearance operations’ in 2016 and 2017 due to a combination of their non-conformity with gender norms and their Rohingya ethnicity.Footnote 243 This led the Mission to conclude that, ‘transgender people of Rohingya ethnicity are victimised twice: as Rohingya and as transgender people’.Footnote 244 The actual or perceived identity of Hijra Rohingya people as Muslim may have also contributed to their alleged targeting.
44. In light of the above, the Chamber is satisfied that there is a reasonable basis to believe that the targeting of Hijra and other gender-diverse people may have been based on gender grounds, as well as ethnic and religious grounds in the case of Hijra and gender-diverse Rohingya.
The Conduct Was Connected with a Crime within the Jurisdiction of the Court
45. The final non-contextual element of the crime against humanity of persecution is that the conduct was committed in connection with any act referred to in Article 7, paragraph 1 of the Statute or any crime within the jurisdiction of the Court.Footnote 245
46. Earlier in this decision, the Chamber determined that a reasonable Prosecutor could believe that coercive acts perpetrated against the Rohingya civilian population in Myanmar in 2016 and 2017 forced them to flee to Bangladesh. If established, this may amount to the crime against humanity of deportation under Article 7(1)(d) of the Statute. The Chamber further determined that the Court may assert jurisdiction ratione loci over this alleged crime as Bangladesh is a state party to the Statute and it is possible to conclude that the actus reus of the crime of deportation was completed in the territory of Bangladesh.
47. The rape and sexual violence perpetrated against Hijra and other gender-diverse people in Myanmar during the 2016 and 2017 ‘clearance operations’, causing many of them to seek refuge in Bangladesh, may also amount to the crime against humanity of deportation by coercive acts.
48. As the conduct that allegedly deprived Hijra people in Myanmar of their fundamental rights would be the same conduct that allegedly forced them to flee to Bangladesh, the Chamber is satisfied that there is a sufficient connection between the conduct underlying the persecution and the crime against humanity of deportation under Article 7(1)(d) of the Statute.
Conclusion
49. Upon review of the available information, the Chamber accepts that there exists a reasonable basis to believe that since at least 9 October 2016, members of the Tatmadaw, jointly with other security forces and with some participation of local civilians, may have committed rape and sexual violence that could amount to the crime against humanity of persecution against Hijra and gender-diverse people in Myanmar under Article 7(1)(h) of the Statute on the grounds of gender and, in the case of Hijra and gender-diverse Rohingya, gender, ethnicity, and/or religion.
Judge Claerwen O’Hara
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