Sexual and gender-based violence in Myanmar and the gendered impact of its ethnic conflicts in English omissions intended or likely to cause or result in death or physical, sexual, psychological or economic harm or suffering, threats of such acts, harassment, coercion and arbitrary deprivation of liberty.14 Sexual and gender-based violence is affected and often exacerbated by cultural, economic, ideological, technological, political, religious, social and environmental factors. Sexual and gender-based violence is also affected by political, economic and social crises, civil unrest, humanitarian emergencies, natural disasters and the destruction or degradation of natural resources.15 27. Sexual violence is conduct of a sexual nature that is perpetrated without a person���s genuine consent 16 often by force or coercion. Rape, which consists of sexual penetration without consent, is one form of sexual violence. Acts falling within the category of sexual violence other than rape include: attempted rape; trafficking for the purpose of sexual exploitation; sexual slavery; forced pregnancy; violent acts against the sexual integrity of a person; and other acts of a sexual nature that cause offence or humiliation (for example, forced public nudity, demanding sex in return for favours, sexual harassment).17 Sexual violence may also occur in the context of forced labour and violate the human right to liberty and security of the person and other rules of customary international law. 18 Rape and other forms of sexual and gender-based violence may amount to torture or cruel, inhuman or degrading treatment or punishment in certain circumstances. 19 28. The Convention on the Elimination of Discrimination against Women (CEDAW), to which Myanmar is a party, prohibits sexual and gender-based violence against women and girls as a form of discrimination.20 Myanmar’s obligations under the CEDAW do not cease in periods of armed conflict.21 Under this prohibition, Myanmar must not engage in sexual and gender-based violence, must prevent acts or omissions of sexual and gender-based violence by their own organs and agents, and must investigate, prosecute and apply appropriate legal or disciplinary sanctions and provide reparations as required. 22 Myanmar must also take all appropriate measures to prevent and investigate, prosecute, punish and provide reparation for acts or omissions by non-State actors that result in sexual and 14 15 16 17 18 19 20 21 22 United Nations Committee on the Elimination of Discrimination against Women, “General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19” (CEDAW/C/GC/35), para. 14. United Nations Committee on the Elimination of Discrimination against Women, “General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19” (CEDAW/C/GC/35), para. 14. “Genuine consent” should not be interpreted narrowly. For example, a lack of violence does not imply that consent was granted. Article 36(2) of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) explains that “consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances.” Under international criminal law, it is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. See, e.g., ICC Elements of Crimes, Art 8 (2) (e) (vi)-1 (War crime of rape). See e.g. ICC Elements of Crimes, art. 7(1)(g). For a discussion on customary international law, see A/HRC/39/CRP.2, paras. 41-43. United Nations Committee on the Elimination of Discrimination against Women, “General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19” (CEDAW/C/GC/35), para. 16. United Nations Committee on the Elimination of Discrimination against Women, “General recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations” (CEDAW/C/GC/30), para. 34; “General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19” (CEDAW/C/GC/35), para. 21. United Nations Committee on the Elimination of Discrimination against Women, “General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women” (CEDAW/C/GC/28), paras. 11. United Nations Committee on the Elimination of Discrimination against Women, “General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19” (CEDAW/C/GC/35), para. 23. 7