Sexual and gender-based violence in Myanmar and the gendered impact of its ethnic conflicts in English prompt, thorough and effective, independent and impartial, and transparent. 499 In its 2018 report, the Mission made recommendations to the Government of Myanmar, calling for such investigations and prosecutions. 230. The continued lack of accountability has extended the longstanding impunity of the Tatmadaw and other security forces. The Mission is satisfied that the lack of accountability and the consequent impunity has encouraged repeated grave human rights violations in Myanmar and that those violations will continue until and unless impunity is lifted and accountability enforced. 231. In its 2018 report, the Mission noted the inadequacy of Myanmar’s legal framework as one of the contributing factors to the lack of accountability. The constitutional and legal framework of Myanmar protects the Tatmadaw, and other security forces, effectively blocking military accountability.500 The Mission takes particular note that Myanmar is a State party to the Genocide Convention of 1948, but has not enacted the necessary legislation to give effect to the Convention and, in particular, provide effective penalties for persons guilty of genocide or any of the other prohibited acts under the Convention, as required by Article V. Additionally, Myanmar’s Penal Code is not in compliance with internationally accepted definitions of rape due to its restrictive definition of the crime of rape, requiring that there be penile penetration.501 232. In Myanmar, there are limited accountability mechanisms in place for addressing sexual and gender-based violations. There is legislative impunity for sexual assault and other violations perpetrated by the Tatmadaw: soldiers are protected under article 381 of the Constitution, which suspends the right to justice in times of emergency. The Ministry of Defence is not subject to civilian control, meaning that the military operates with very little civilian oversight or accountability. Survivors of sexual and gender-based violence have no recourse to justice. 233. A lawyer who brought several cases against the Tatmadaw identified a number of issues related to the functioning of the military courts: “When cases are tried by a military court, the charges are often not what is expected because the military code is different. For example, in a case of sexual violence, there is no such charge, so a perpetrator was sentenced instead for intoxication during official duty and got a lighter sentence. Sometimes lawyers are allowed to go to military hearings but mostly we are not, we just get informed of the outcome, we never get a written copy, we are just told orally. We also never know whether or not the rulings are implemented.” 502 234. An additional inadequacy is that the Constitution of Myanmar extends human rights protections to “citizens” only,503 further limiting protections to many of the victims of 499 500 501 502 503 Myanmar is a State party, the government has the obligation to prevent, investigate, prosecute and punish acts of sexual and gender-based violence. Ibid. Also Principles to Combat Impunity, principle 19; Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (New York and Geneva, United Nations, 2017) (hereafter “Minnesota Protocol”). See for e.g. Constitution of Myanmar articles 445, 20(b), articles 293(b) and 319 establish permanent military tribunals. The 1959 Defence Services Act provides that military personnel on active service who commit serious crimes against a civilian (murder, culpable homicide, rape) shall be tried by military tribunals (article 72). The Act defines “active service” in such broad manner that military personnel would effectively always fall under military courts’ jurisdiction; Article 343(b) of the Constitution further makes decisions of the Commander-in-Chief concerning military justice. The 1995 Myanmar Police Force Maintenance of Discipline Law also assists in shielding police officers from prosecution for crimes committed in the course of their service. The Law lists a range of “offences” for which police officers may be tried before a Police Court, such as threatening a witness (article 13(c)), unlawful detention (article 17(a)), beating or ill-treatment of prisoners (article 17(c)), or corruption (article 17(h)). See CEDAW/C/MMR/CO/4-5, para. 27(a). BM-007. Constitution of Myanmar articles 21, 34. 53