A/HRC/42/CRP.5 discriminatory laws and policies of this nature were highlighted in the Nuremburg Judgement of Goering et al, where the Court found defendants guilty of inhumane acts and persecution for, among other acts, their role in issuing and implementing a series of discriminatory laws which restricted the “family life [of Jews] and their rights of citizenship”.478 217. The Mission also concludes on reasonable grounds that the Myanmar Government is continuing its concerted efforts to keep Rohingya off the land from which they were uprooted and forcibly displaced. These efforts cause the type of “serious mental harm” that, in the words of an ICTY Appeals Chamber, invariably occurs in situations of “forced departure from the residence and the community, without guarantees concerning the possibility to return in the future”.479 The Mission concludes that Rohingya face suffering and anguish because the Government continues to prevent them from accessing their property and living in their homes. In the Mission’s view, this suffering and anguish are comparable to the suffering caused by the forcible transfer or deportation, both of which are crimes against humanity. It constitutes a crime against humanity of “other inhumane acts” because “other inhumane acts” must be as serious and grave as other crimes against humanity. In other words, the Government’s systematic denial of Rohingya’s return to their lands through destruction, confiscation and construction is causing great mental suffering analogous to forcible transfer or deportation and, therefore, amounts to the crime against humanity of “other inhumane acts”.480 218. The cumulative impact of restrictions on movement and denial of humanitarian access is also inflicting great suffering tantamount to a crime against humanity. Their access to food through farming is limited and in some cases nearly eliminated due to movement restrictions and confiscation of property. Government-imposed restrictions on access to humanitarian aid are also depriving the remaining Rohingya population of access to food. This physical and mental distress and suffering is compounded by the continued 478 479 480 ICTY, Prosecutor v. Naletilić & Martinović (IT-98-34-T), Trial Chamber Judgement, 31 March 2003, para. 246; ICTY, Prosecutor v. Gotovina et al. (IT-06-90-T), Trial Chamber Judgement, 15 April 2011, para. 1791; ICTR, Prosecutor v. Nyiramasuhuko et al. (ICTR-98-42-T), Trial Chamber Judgement, 24 June 2011, para. 6127; ICTY, Prosecutor v. Perišić (IT-04-81-T), Trial Chamber Judgement, 6 September 2011, para. 111; SCSL, Prosecutor v. Taylor (SCSL-03-01-T), Trial Chamber Judgement, 18 May 2012, paras. 418-421; ICTY, Prosecutor v. Haradinaj et al. (IT-0484bis-T), Trial Chamber Judgement, 29 November 2012, para. 422; ICTY, Prosecutor v. Lukić (IT98-32/1-A), Appeals Chamber Judgement, 4 December 2012, para. 631; ICTY, Prosecutor v. Tolimir (IT-05-88/2-T), Trial Chamber Judgement, 12 December 2012, para. 853; ICTY, Prosecutor v. Prlić et al. (IT-04-74), Trial Chamber Judgement, 29 May 2013, paras. 77 and 148; ICTY, Prosecutor v. Karadžić (IT-95-5/18-T), Trial Chamber Judgement, March 24, 2016, para. 504; Extraordinary African Chambers, Ministère Public v. Habré, Trial Chamber Judgement, May 30, 2016, paras. 15901593; Extraordinary Chambers in the Courts of Cambodia, Case 002/01 (Case File No. 002/19-092007-ECCC/SC), Supreme Court Chamber Appeal Judgement, November 23, 2016, para. 580; ICTY, Prosecutor v. Mladić, (IT-09-92-T), Trial Chamber Judgement, November 22, 2017, para. 3233. The situation is slightly different under the ICC Statute where the war crimes of inhumane treatment and cruel treatment have the same level of 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 under articles 8(2)(a)(ii)-2, 8(2)(a)(iii) and 8(2)(c)(i)3. The United States of America, the French Republic, The United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics against Hermann Wilhelm Goering et al. p. 10 and p.78. See also conviction of Frick at page 127: “rick drafted, signed and administered many laws designed to eliminate Jews from German life and economy…. These laws paved the way for the “final solution”. ICTY, Prosecutor v. Krajsnik (IT-00-39-A), Appeals Chamber Judgement, 17 March 2009, para. 331. In 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, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, Pre-Trial Chamber Decision, ICC-RoC46(3)-01/18, 6 September 2018, para. 77. 69