III. Legal Framework and Analysis 78 Deportation The Rome Statute defines the crime against humanity of deportation or forcible transfer of a population as the “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.”338 The ICC has clarified that the crime of deportation concerns “the displacement of persons lawfully residing in an area to another State,” whereas “such displacement to a location within the borders of a State must be characterised as forcible transfer.”339 However, both crimes are “openconduct crimes,” meaning that “various types of conduct may . . . qualify as expulsion or other coercive acts for the purposes of the crime against humanity of deportation, including deprivation of fundamental rights.”340 The denial of Myanmar citizenship to Rohingya likely constitutes a coercive act as the right to nationality is a fundamental human right.341 The Office of the Prosecutor of the ICC argued as much in her request for a ruling from the ICC on jurisdiction over the crime of deportation, noting that “Members of the Rohingya minority have suffered years of persecution within Myanmar, and during that time they have been increasingly deprived of various fundamental rights, including eventually being stripped of their Myanmar citizenship.”342 A Rohingya refugee in Bangladesh told Fortify Rights, “The only reason why I fled to Bangladesh is because [the Myanmar government] were forcing us to accept NVCs.”343 The 1982 Citizenship Law strips the Rohingya of Myanmar nationality, and the NVC process seeks to facilitate this violation. If proven to the established relevant threshold, both could qualify as “coercive acts” for the purposes of the crime against humanity of deportation. Persecution The Rome Statute defines the crime against humanity of persecution as the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.”344 The crime of persecution may include acts that, on their own, constitute a prohibited criminal act within the crime against humanity framework.345 However, the crime of persecution also requires the targeting of victims based on political, racial, national, ethnic, cultural, religious, or gender grounds, or “other grounds that are universally recognized as impermissible under international law.”346 In addition to the enumerated prohibited criminal acts, other discriminatory acts may constitute persecution when considered cumulatively and in the context that they were committed.347 The Rome Statute also requires that the conduct is committed in connection with another prohibited act or “any crime within the jurisdiction of the [ICC].”348 338 Rome Statute, Art. 7(2)(d). 339 ICC, Decision on the “Prosecution’s Request for a Ruling,” para. 61. 340 Ibid. 341 The Human Rights Council has held that the right to nationality of every human person is a fundamental human right. Human Rights Council, Human Rights and Arbitrary Deprivation of Nationality, U.N. Doc. A/HRC/RES/7/10, March 27, 2008, Art. 1. 342 ICC, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC, Case No. ICC-RoC46(3)-01/18-1, April 9, 2018, para. 9. 343 Fortify Rights interview A.B., Cox’s Bazar District, Bangladesh, November 3, 2018. 344 Rome Statute, Art. 7(2)(g). 345 See, Prosecutor v. Kordic, ICTY, Case No. ICTY-95-14/2-T, Judgment (Trial), February 26, 2001, para. 198; Prosecutor v. Kvocka, ICTY, Case No. IT-98-30/1-T, Judgment (Trial), November 2, 2001, para. 186, 190. 346 Rome Statute of the ICC, Elements of Crimes, 2011, art. 7(1)(h). 347 Prosecutor v. Kupreskic, ICTY, Case No. IT-95-16-T, Judgment (Trial), January 14, 2000, para. 622. 348 Id. at para. 580-81. Rome Statute, Art. 7(1)(h).