The lawful presence element in the International Criminal Court: why Myanmar’s domestic laws should not be relied upon in a case for deportation or forcible transfer.

The Prosecutor of the International Criminal Court (ICC) is currently investigating allegations of crimes against humanity for deportation or forcible transfer of the ethnic Rohingya population from Myanmar. For this crime to be established, the Prosecution must prove that the victim Rohingya population were ‘lawfully present’ on the territory they were removed from. Given the state’s strong position that the Rohingya are ‘illegal Bengali immigrants’, it may be argued that the Rohingya population were not lawfully present in Myanmar’s territory under Myanmar’s domestic law. Drawing from both legal and socio-legal perspectives, this article critically examines Myanmar’s domestic laws, highlighting the problematic aspects of relying upon them for establishing the Rohingya’s unlawful presence. First, Myanmar’s domestic laws are inconsistent with the applicable rules of international law as they strip the Rohingya of their nationality. Second, the term ‘lawful presence’ should be read in its common meaning, which concerns many factors, rather than a sole focus on residency or citizenship status. Third, Myanmar’s domestic laws are based on a discriminatory rhetoric to remove the Rohingya from Myanmar’s territory. Asserting the Rohingya’s unlawful presence affirms the longstanding narrative that the Rohingya are ‘illegal Bengali immigrants’. [ABSTRACT FROM AUTHOR]