93 Deportation or Forcible Transfer The crime of deportation or forcible transfer occurs when persons are moved from an area where they are lawfully present by expulsion or other coercive acts, and the transfer is impermissible under international law.342 Commentators agree that the lawfulness of the victims’ presence in a particular area is assessed not just under domestic law but also according to the standards provided by international law.343 “Forcibly” refers not only to physical force but also to “threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power . . . or by taking advantage of a coercive environment.”344 In other words, the victims are “not faced with a genuine choice as to whether to leave or to remain.”345 Deportation refers to movement from one country to another, whereas forcible transfer encompasses transfers within one country.346 While forcible movement for safety or “imperative military reasons” may be permissible, the ICTY has noted that “recourse to such measures would only be lawful in the gravest of circumstances and only as measures of last resort.”347 Although the Myanmar government claims that Rohingya are in the country illegally, there is substantial evidence that the Rohingya are indigenous to what is now Rakhine State.348 Previous Myanmar governments allowed Rohingya to form political parties and vote in multiparty elections in 1990 and 2010 as well as the constitutional referendum in 2008, and the authorities have also maintained lists of Rohingya families for several decades, which the Myanmar government does for all residents.349 The ICTY has found that the “lawfully present” standard encompasses all persons who “have, for whatever reason, come to ‘live’ in the community.”350 The terms “exclude only those situations where the individuals are occupying houses or premises unlawfully or illegally.”351 Thus, it is likely that the Rohingya are lawfully present in Rakhine State under international law, even if Myanmar domestic law is not clear.352 This report and testimony at trafficking trials in Thailand demonstrate that perpetrators coerced or forcibly abducted Rohingya men, women and children from Rakhine State and Bangladesh.353 For example, one Rohingya survivor told the Commission that traffickers abducted him in Myanmar and beat him for failing to pay for his release.354 The traffickers then sold him to a third party in 342 Rome Statute art. 7(2)(d); ICC, Elements of Crimes, art. 7(1)(d). 343 See, Vincent Chetail, “Is There any Blood on my Hands: Deportation as a Crime of International Law,” Leiden Journal of International Law, Vol. 29, Iss. 917, 2016, p. 925. 344 ICC, Elements of Crimes, art. 7(1)(d) n.12. See also, Prosecutor v. Krnojelac, ICTY, Case No. IT-97-25-T, Judgment, March 15, 2001, para. 179. 345 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-T, Judgment (Trial), August 2, 2001, para. 147. 346 Id. at 521. 347 Prosecutor v. Simic, Tadic, and Zaric, ICTY, Case No. ICTY-95-9-T, Judgment (Trial), October 17, 2003, para. 125, n. 218. 348 See, Maung Zarni et. al., “The Slow-Burning Genocide of Myanmar’s Rohingya,” Pacific Rim Law & Policy Journal, Vol. 23, No. 3, June 2014 (listing several historical sources, including Buchanan, A Comparative Vocabulary of Some of the Languages Spoken in the Burma Empire (noting in 1799 that the “Rooinga” had “long settled” in Rakhine State)). 349 See, Benjamin Zawacki, “Defining Myanmar’s Rohingya Problem,” Human Rights Brief, Vol. 20, No. 3, 2013, p. 18-25. 350 Prosecutor v. Popovic, ICTY, Case No. IT-05-88-T, Judgment, June 10, 2010, para. 900. 351 Ibid. See also, Prosecutor v. Dordevic, ICTY, Case No. IT-05-87/1-T, February 23, 2011, para. 1616 (“Inhabitants or residents of an area can be accepted readily as lawfully present in it.”) 352 See, Chetail, “Is There any Blood on my Hands: Deportation as a Crime of International Law,” Leiden Journal of International Law, p. 925-26 (noting that even undocumented persons can be lawfully present when “their undocumented status results from arbitrary deprivation of nationality.”) 353 Fortify Rights, internal report on human trafficking case, testimony of M. Salim, trial monitoring notes, Rachada Criminal Court, Human Trafficking Division, Bangkok, Thailand, May 10, 2016. Fortify Rights, internal report on human trafficking case, testimony of Umarsoleeha, trial monitoring notes, May 12, 2016. 354 The Commission interview with W9.