Sexual and gender-based violence in Myanmar and the gendered impact of its ethnic conflicts in English including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause”.60 The ICRC’s updated commentary explains that this includes applying the article’s due process protections to “members of armed forces who are tried for alleged crimes – such as war crimes or ordinary crimes in the context of the armed conflict – by their own Party”.61 EAOs in Myanmar must therefore comply with Common Article 3 when trying its own members in the context of an armed conflict. Failure to do so is a war crime. 62 40. Myanmar is a State party to the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. Under the Genocide Convention, Myanmar must not commit genocide63 and must prevent and punish genocide.64 It must also enact the necessary legislation to give effect to the convention and, in particular, provide effective penalties for persons guilty of genocide.65 Article II of the Convention establishes that genocide is committed when a person or persons carry out a prohibited act or acts with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such. Prohibited acts are (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.66 The International Criminal Tribunal on Rwanda (ICTR) elaborated on the role that sexual violence can play in genocide. Rape and other acts of sexual violence have been recognized as “causing serious bodily or mental harm”. 67 The Elements of Crimes to the Rome Statute also lists rape and sexual violence as measures that are prohibited as genocidal acts of “causing serious bodily or mental harm”.68 Moreover, the ICTR held that sexual mutilation, separation of the sexes and prohibition of marriages, and deliberately impregnating a woman by a man of another group “with the intent to have her give birth to a child who will consequently not belong to its mother’s group” can all constitute acts of genocide as a means of intending to prevent births within a group.69 The Tribunal also explained that “measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group 60 61 62 63 64 65 66 67 68 69 Common Article 3(1). Jean-Marie Henckaerts, eds., Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded in Armies in the Field, International Committee of the Red Cross, 15 December 2016, paragraph 547. The Commentary also explains that this interpretation is “supported by the fundamental character of common Article 3 which has been recognized as a ‘minimum yardstick’ in all armed conflicts and as a reflection of ‘elementary considerations of humanity’. Jean-Marie Henckaerts, eds., Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded in Armies in the Field, International Committee of the Red Cross, 15 December 2016, paragraph 547. International Criminal Court case law supports this interpretation. See, ICC, Prosecutor v. Bosco Ntaganda, PreTrial Chamber, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06, 9 June 2014, para 77. See ICC Statute, arts. 8 (2)(c)(iv). ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of Genocide, Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro), Judgment, 27 February 2007, para. 166 (“...the obligation to prevent genocide necessarily implies the prohibition of the commission of genocide.”) Genocide Convention, art. I. Genocide Convention, art. V. Genocide Convention, art. II. Akayesu, ICTR-96-4-T, para. [731-734]; Prosecutor v. Musema, Case No. ICTR-96-13-A, Trial Judgment and Sentence, para. [933], Jan. 27, 2000. Rome Statute, Elements of Crime, the footnote to Article 6(b)(1) notes that serious bodily or mental harm to one or more persons may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment. ICTR, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, 2 September 1998, para. 507. 11