By Tiran Rahimian
Over the past twelve months, Myanmar’s armed forces, known as the Tatmadaw, have driven over 670,000 Rohingya Muslims into Bangladesh in what has been described by UN sources as a “textbook example of ethnic cleansing” bearing the “hallmarks of a genocide.” The campaign of atrocities, euphemized by Myanmar’s authorities as a counter-insurgency “clearance operation,” has been characterized by widespread and systematic murder, torture, rape and destruction of property. Given that Myanmar is not party to the Rome Statute of the International Criminal Court (ICC), the crimes committed against the Rohingya have been conspicuously absent from the Court’s docket. But on September 6, 2018, the Pre-Trial Chamber (PTC) of the ICC issued a ruling asserting the Court’s jurisdiction over the mass-exodus of the Rohingya on the basis that, while originating in Myanmar, the crimes were completed on the territory of a state party—Bangladesh. The decision, which realists decried as judicial overreach and activism, represents a monumental shift in global justice, marking a Grotian moment of jurisdictional expansion with repercussions extending beyond Myanmar. It also marks the first time, twenty years after the ICC’s establishment, that the Court is poised to interpret one of the most controversial terms in its statute: gender. Reflective of political compromises and a tendentious negotiating history, the Rome Statute’s highly disputed definition awkwardly sits somewhere between a sociological and biological conception of gender: “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.” But this constructive ambiguity also leaves room for creative lawyering. As much as the conservative side might emphasize the exclusivity of ‘the two sexes,’ proponents of a broader and more progressive understanding could weaponize the phrase “within the context of society” to potentially extend to LGBTQ people. Given that sexual and gender-based violence have been a defining and dominant theme of the campaign against the Rohingya, the PTC’s ruling paves the way for a much-needed clarification of these crimes.
Sexual Violence and Gender-based Violence Against the Rohingya
Women and girls, seen as the custodians and propagators of Rohingya identity, have been disproportionately affected by the Tatmadaw’s campaign of violence. It is estimated that over 80% of those forced into Bangladesh since August 2017 are women and children. Pramila Patten, the Special Representative of the United Nations Secretary-General on Sexual Violence in Conflict, reported to the Security Council after her visit to the Rohingya refugee camps in Cox’s Bazar that every women she had spoken with “had either endured or witnessed sexual violence,” including seeing other women being “literally raped to death.” According to UN Secretary-General António Guterres, “[t]he violence is linked with an inflammatory narrative alleging that high fertility rates among the Rohingya community represent an existential threat to the majority population.” Similarly, the OHCHR’s Fact-finding Mission on Myanmar found that there is “ample and corroborated information on brutal gang rapes and other forms of sexual violence against women.” Against this backdrop, the investigation into the atrocities is likely to raise, for the first time in the history of international criminal law, charges pertaining to gender-based persecution.
The PTC’s Decision: Well-reasoned or Jurisdictional Overreach?
Perhaps unsurprisingly, the ruling has stirred significant controversy amongst diplomats and commentators alike. Absent a UN Security Council referral, which is currently considered unfeasible due to Russian and Chinese opposition, Article 12(2) of the Rome Statute states that the ICC can only exercise jurisdiction where the “conduct in question” was committed on the territory of a member state (the territoriality principle), or if the alleged perpetrator is a national of a member state (the nationality principle). Be that as it may, the majority in the Rohingya decision held that regardless of whether an Article 5 crime (genocide, crimes against humanity, war crimes) was initiated or primarily committed on the territory of a non-state party, the ICC has jurisdiction. Thus, the court may investigate and prosecute alleged perpetrators of those crimes if “at least one element” or “part of such a crime” occurred on the territory of a state party. As such, the Court established its jurisdiction over three categories of crimes against humanity on the basis that they partly took place in Bangladesh: deportation (where the element of “crossing an international border” occurred on Bangladeshi territory); the residual crime of “other inhuman acts” (recognizing the denial of the Rohingya’s right of return return as a crime); and, pertinently, persecution.
The Crime Against Humanity of Persecution on Gender Grounds
Article 7(1)(h) of the Rome Statute recognizes as a crime against humanity “[p]ersecution against any identifiable group or collectivity” on inter alia the ground of gender. Despite its pervasiveness in war and peacetime alike, the crime of gender-based persecution was not recognized in any international instrument prior to the Rome Statute, and has generally received little attention at the ICC. Aside from the initial charge of gender-based persecution in the Mbarushimana case, which then-Prosecutor Luis Moreno Ocampo ultimately omitted, the crime has yet to be prosecuted by any international tribunal. By contrast, persecution on the grounds of ethnicity and religion have been subject to extensive prosecutorial attention.
As such, the ICC Prosecutor’s imminent investigation into the Rohingya atrocities could represent an opportunity not only to develop the Court’s jurisprudence on this crime, but also to clarify its understanding of the term ‘gender.’ Though imperfect, the Rome Statute’s definition leaves plenty of wiggle room between understandings of gender as a social construct, the acknowledgement of intersectionality, and the potential inclusion of crimes against LGBTQ people. In its 2011 annual report, for instance, the United Nations High Commissioner for Human Rights acknowledged that “[h]omophobic and transphobic . . . attacks constitute a form of gender-based violence, driven by a desire to punish those seen as defying gender norms.”
The prospects seem promising. The new Prosecutor has emphasized from the beginning of her mandate that she intends to take gender-based crimes more seriously. Her 2014 Policy Paper on Sexual and Gender-Based Crimes progressively defines such crimes as “those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. [emphasis added]” In 2016, she successfully convinced the Court to issue its first—and to date only—conviction of a sexual crime in the case of Jean-Pierre Bemba, which involved war crimes committed by troops under Bemba’s command in the Democratic Republic of the Congo, though that case was overturned by the Appeals Chamber last June. Similarly, the proceedings she is currently spearheading against Dominic Ongwen include historically overlooked crimes of forced marriage and pregnancy.
The ICC’s appraisal of sexual violence in the Rohingya case could also shape imminent jurisprudence on the matter, given the Pre-Trial Chamber’s impending decision on whether to sanction a prosecutorial investigation into Afghanistan. The Afghanistan probe raises allegations of gender-based persecution, including the denial of education for girls allegedly perpetrated by the Taliban and affiliated groups in territories under their shadow governance. Likewise, the arrest of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud last March promises to produce some jurisprudence on gender. Al Hassan, who is allegedly a member of Ansar Dine (“defenders of religion”), an Islamist armed militant group that controlled the region of Timbuktu, Mali between 2012 and 2013, is believed to have been the de facto chief of the Islamic police that oversaw the group’s brutal imposition of religious rules. The arrest warrant, issued a mere two weeks before his surrender to the Court, mentions inter alia charges of persecution on the grounds of religion alone, as well as religion and gender.
The Prosecutor’s investigation into the Rohingya atrocities could thus mark a significant step forward for gender justice and bring about an important clarification for crimes of sexual and gender-based violence. Specifically if charges of gender-based persecution are filed, the investigation could further fulfill the corollary expressive function of registering worldwide condemnation of a historically overlooked crime, signaling that, like persecution on the traditional grounds of ethnicity and religion, gender-based persecution shocks the conscience of humankind.
 The views and opinions expressed in this article are exclusively those of the author. Tiran Rahimian is a graduating BCL/LLB candidate at the McGill Faculty of Law and is currently a legal intern at the International Justice Department of Human Rights Watch in New York. Parallel to his studies, he clerks for the Chief Justice of the Quebec Court of Appeal, serves on the editorial board of the McGill Law Journal, and works as a research assistant.
 UN human rights chief points to ‘textbook example of ethnic cleansing’ in Myanmar, U.N. News (Sept. 11, 2017); Myanmar: UN expert calls for accountability over violence in Rakhine State, OHCHR (Mar. 12, 2018).
 Myanmar says military operation in troubled Rakhine has ended, Reuters (Feb. 15, 2017); Fact-finding Mission on Myanmar: concrete and overwhelming information points to international crimes, OHCHR (Mar. 12, 2018).
 Decision on the Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18 (Sept. 6, 2018).
 Kevin Jon Heller, Implications of the Rohingya Argument for Libya and Syria (and Jordan), OpinioJuris (Oct. 4, 2018).
 Rome Statute of the International Criminal Court art. 7(3), July 17, 1998, 37 I.L.M. 1002, 2187 U.N.T.S. 90. See also Valerie Oosterveld, Constructive Ambiguity and the Meaning of “Gender” for the International Criminal Court, 16 Int’l Feminist J. of Pol. 563 (2014).
 Gender Profile No.1 for Rohingya Refugee Crisis Response, Inter Sector Coordination Group (Dec. 3, 2017).
 Special Representative of the Secretary-General on Sexual Violence in Conflict, Security Council Briefing on Myanmar (Dec. 12, 2017).
 U.N. Security Council, Report of the Secretary-General on conflict-related sexual violence, ¶ 55, U.N. Doc. S/2018/250 (Mar. 23, 2018).
 Fact-finding Mission on Myanmar, supra note 2.
 Rome Statute, supra note 5, art. 12.
 See generally Decision on Prosecution’s Request for a Ruling, supra note 3.
 Id. ¶ 64.
 Id. ¶¶ 77–78.
 Compare Prosecutor v. Mbarushimana, ICC-01/04-01/10, Prosecution’s Application under Article 58 (Aug. 20, 2010), with Prosecutor v. Mbarushimana, ICC-01/04-01/10, Document de notification des charges présenté par l’Accusation en application de l’article 61-3 du Statut de Rome (July 15, 2011).
 See, e.g., Mandat d’arrêt à l’encontre d’Al Hassan Ag Abdoul Aziz Ag Mohamed Ag
Mahmoud, ICC-01/12-01/18 (Mar. 27, 2018).
 Annual Report of the U.N. High Commissioner for Human Rights, Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, ¶ 20, U.N. Doc. A/HRC/19/41 (Nov. 11, 2011).
 International Criminal Court, Office of the Prosecutor, Policy Paper on Sexual and Gender-Based Crimes 3 (June 2014).
 Prosecutor v. Bemba, ICC-01/05-01/08-424, Decisions Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (June 15, 2009).
 Prosecutor v. Ongwen, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen ¶¶ 102–35 (Mar. 23, 2016).
 Press Release, International Criminal Court, Situation in Mali: Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud surrendered to the ICC on charges of crimes against humanity and war crimes in Timbuktu, ICC-CPI-20180331-PR1376, (Mar. 31, 2018).
 See Mandat d’arrêt, supra note 15.