Gender and Forced Displacement at the International Criminal Court

Abstract

Abstract International criminal courts and tribunals have missed opportunities to recognize gendered experiences, including when addressing crimes without a clearly sexual component. The International Criminal Court (ICC) has an opportunity to take a different approach when considering the crime against humanity of deportation in its Bangladesh/Myanmar proceedings. While the prevalence of sexual and other gendered violence, including rape and killings, in Myanmar and perpetrated against the Rohingya is well-documented, and will likely form an important aspect of investigations, there is also scope to explore the gendered nature of displacement. This article reviews the intersection of international criminal law with broader critiques of international law concerned with displacement. It then investigates how ICC Chambers could take a gender-competent approach towards the elements of the crime against humanity of deportation and forcible transfer of population in the Bangladesh/Myanmar proceedings, including when examining the concepts of expulsion and coercion, lawful presence and the purpose of the forcible displacement. It proposes a contextual approach to that analysis, informed by gender-inclusive expert evidence, gender-competent investigation practices and thoughtful integration of victims’ representations