Sexual and gender-based violence in Myanmar and the gendered impact of its ethnic conflicts in English 44. To constitute crimes against humanity the acts of sexual violence must be done pursuant to or in furtherance of a State or organizational attack on a civilian population and take the form of one or more acts from an enumerated list of underlying acts that constitute crimes against humanity, such as torture, rape, sexual violence or persecution.82 45. In addition to what is covered above, to constitute an act of genocide, sexual violence must be carried out with the intent of destroying in whole or in part a national, ethnic, racial or religious groups as such and must also take the form of one or more acts from an enumerated list of prohibited acts of genocide, such as causing serious bodily harm to members of a group.83 46. States have a specific duty to investigate and, if there is sufficient evidence, prosecute gross violations of international human rights law and serious violations of international humanitarian law, in particular those that amount to crimes under international law.84 This duty extends to sexual and gender-based violence. Investigations into allegations must always be independent, impartial, prompt, thorough, effective, credible and transparent.85 In addition, accountability encompasses measures to realize the right to know the truth, the right to reparation and guarantees of non-recurrence.86 Reparation can be in the form of restitution, compensation, rehabilitation, satisfaction and guarantee of non-repetition.87 47. Additionally, witnesses of acts of torture or ill-treatment, including sexual and gender based violence, may themselves be victims of severe mental pain or suffering that amounts to ill-treatment or torture.88 The International Criminal Tribunal for the former Yugoslavia (ICTY) has held that “the mental suffering caused to an individual who is forced to watch severe mistreatment inflicted on a relative could rise to the level of gravity required under the crime of torture”.89 The tribunal separately held that being forced to watch sexual attacks on a woman, in particular, a woman whom the witness knew as a friend, caused severe mental suffering.90 IV. Gender equality and sexual and gender-based violence nexus in Myanmar “The son is the master, the husband is god.” – Myanmar proverb 48. The widespread use of sexual violence in Myanmar’s human rights crises and conflicts needs to be framed in relation to the wider socio-economic and political restrictions imposed on women and girls, in particular women and girls from Myanmar’s 82 83 84 85 86 87 88 89 90 See, generally, Rome Statute, art. 7. See, generally, Rome Statute, art. 6. See, also, para 40 above. Additionally, where provided for in an applicable treaty or other international legal obligations, States should facilitate extradition or surrender offenders to other States and to appropriate international judicial bodies. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Basic Guideline and Principle 4 and 5. E.g., Human Rights Committee, General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, paragraph 28. Updated Set of principles for the protection and promotion of human rights through action to combat impunity (E/CN.4/2005/102/Add.1), 2005, principle 1. See paras. 235-237 in Impunity and Accountability. Association for the Prevention of Torture and Center for Justice and International Law, Torture in International Law: A guide to jurisprudence (2008), available at: https://www.apt.ch/content/files_res/jurisprudenceguide.pdf, p. 173. ICTY, Prosecutor v. Kvocka and Others, Trial Chamber Judgment (IT-98-30/1), 2 November 2001, para. 149. The Trial Chamber also noted in paragraph 143 that the “presence of onlookers, particularly family members, also inflicts severe mental harm amounting to torture on the person being raped”. ICTY, Prosecutor v. Furundzija, Trial Chamber Judgement (IT-95-17/1), 10 December 1998, para. 267. 13