A/HRC/42/CRP.3 by-case basis, taking into consideration various factors including the nature of the act or omission, the context in which it occurs, its duration and/or repetition, and its physical and mental effects on the victim. The harm inflicted does not need to be permanent and irremediable; it must, however, have more than a short-term or temporary effect on the victim.312 131. Where international courts have found that forcible transfer amounts to a crime against humanity of “other inhumane acts”, they have explained the inherent suffering that it produces.313 The tribunals have found consistently that the rights violated by deportation and forcible transfer are the “right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location”.314 The Appeals Chamber in Prosecutor v. Krnojelac expanded on the underlying harms of forced displacement when it explained that it is the “forced character of displacement and the forced uprooting of the inhabitants of a territory” that entails criminal responsibility, as opposed to the destination to which these victims are sent. 315 The Krajsnik Appeals Chamber endorsed the Trial Chamber’s finding that “suffering serious mental harm” invariably occurs in situations of “forced departure from the residence and the community, without guarantees concerning the possibility to return in the future”. 316 132. The value of safeguarding the right and aspiration of individuals to live in their communities and homes, and the conditions of suffering outlined above apply to the Rohingya’s inability to return to their homes. Inability to access one’s property and live in one’s own home results in serious mental suffering comparable to that of forcible transfer or deportation, and therefore, under the category of “other inhumane acts”, it is as serious and grave as those classes of crimes against humanity. 317 133. The Mission recognizes the sovereign right of States to secure, manage, and maintain their borders. They must not, however, do so in a manner contrary to international law, including in a manner that constitutes or contributes to a crime under international law. In its investigation into the human rights situation of the Rohingya, based on the totality of the following circumstances, the Mission has concluded on reasonable grounds that the barrier fence, in conjunction with other measures undertaken by the Myanmar Government and the Tatmadaw, has the purpose of preventing the displaced Rohingya from accessing their 312 313 314 315 316 317 46 suffering as torture, namely severe, while the war crime (in international armed conflicts) of willfully causing great suffering had the lower level of suffering, namely great, see the ICC Elements of Crimes document under articles 8(2)(a)(ii)-2, 8(2)(a)(iii) and 8(2)(c)(i)-3. Judgment, Blagojević & Jokić (IT-02-60), Trial Chamber, 17 January 2005, § 586; Judgment, Tolimir (IT-05-88/2-T), Trial Chamber, 12 December 2012, § 854; Judgment, Stanišić and Župljanin (IT-0891-T), Trial Chamber, 27 March 2013, § 59; Judgment, Prlić et al. (IT-04-74), Trial Chamber, 29 May 2013, §§ 78 and 119; Judgement, Case 002/01 (Case File No. 002/19-09-2007/ECCC/TC), Trial Chamber, 7 August 2014, §§ 438-439. Judgement, Case 002/01 (Case File No. 002/19-09-2007/ECCC/TC), Trial Chamber, 7 August 2014, §§ 450-455; Judgment, Karadžić (IT-95-5/18-T), Trial Chamber, March 24, 2016, § 494 (re forcible transfer). Judgement, Simic (IT-95-9-T), 17 October 2003 at paragraph 130, upheld on appeal. Milosevic Decision on motion of Acquittal at para 69; Simic para 130. See also Krajsnik: When finding that specific acts of forcible transfer amount to “other inhumane acts” under Article 5(i) of the [1993 ICTY] Statute, a Trial Chamber has to be convinced that the forcible transfer is of a similar seriousness to other enumerated crimes against humanity. This condition is satisfied in the present case. The acts of forcible transfer were of similar seriousness to the instances of deportation, as they involved a forced departure from the residence and the community, without guarantees concerning the possibility to return in the future, with the victims of such forced transfers invariably suffering serious mental harm Appeal Judgement para 331. Judgement, Krajsnik (ICTY IT-00-39-A), Appeals Chamber, 17 March 2009, paragraph 331. The Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” concerning the situation of Bangladesh and Myanmar similarly suggested that inhumane acts were present; however, the Pre-Trial Chamber relied on the right of return whereas the Mission draws on the same rights as those protected by the crimes against humanity of deportation and forcible transfer. (ICC-RoC46(3)-01/18 at paragraph 77).