A/HRC/42/CRP.5 must have been inflicted with the involvement of a public official or other person acting in an official capacity. Such involvement can be through that person’s instigation, consent or acquiescence.874 Customary international law also prohibits “other cruel, inhuman or degrading treatment or punishment”875 which has a similar definition to “torture” but without the purposive element. Myanmar is also prohibited from committing acts of torture, cruel treatment and outrages upon personal dignity under international humanitarian law when the acts have a connection with an armed conflict.876 These acts also constitute war crimes under international humanitarian law.877 Under international criminal law, torture and cruel treatment are defined as the infliction of severe physical or mental pain or suffering.878 Outrages upon personal dignity require a severity in the humiliation or degradation.879 Torture requires a purposive element, such as obtaining information or a confession, punishment, intimidation or coercion or any reason based on discrimination of any kind.880 Under both international human rights law and international humanitarian law, the Government of Myanmar has an obligation to conduct effective investigations into these violations, including criminal investigations especially when the violations amount to war crimes.881 390. The Mission concludes on reasonable grounds that the treatment it documented of people detained in the custody of the Tatmadaw in the context of its conflict with the AA constituted a pattern of torture or other cruel, inhuman or degrading treatment or punishment under international human rights law. The Mission also concludes on reasonable grounds that the treatment that the Tatmadaw subjected people to in its custody constituted violations of international humanitarian law and rose to the level of war crimes of torture, cruel treatment or outrages upon personal dignity due to the connection they had to the armed conflict between the AA and the Tatmadaw.882 These acts must therefore be further investigated, including as war crimes of torture, cruel treatment and outrages upon personal dignity. 391. Finally, the Mission concludes on reasonable grounds that the Myanmar Government, the military side of the Government in particular, engaged in arbitrary or unlawful detention.883 The Mission draws this conclusion because the Government detained people and often placed them into its criminal justice system while failing to inform detainees why they were detained, denied them legal representation, blocked access to 874 875 876 877 878 879 880 881 882 883 CAT, art. 16. David Weissbrodt and Cheryl Heilman, “Defining Torture and Cruel, Inhuman, and Degrading Treatment”, 29 Law & Ineq. 343 (2011), pp.361-363. The International Criminal Tribunal for the former Yugoslavia (ICTY) has determined that the nexus between the conflict and the crime does not have to be causal, but the conflict “must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, [the accused’s] decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established…that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.” ICTY, Kunarac Appeals Chamber Opinion para. 58, See, also, ICTY, Limaj et al. (IT-03-66), para. 91. J.M. Henckaerts and L. Doswald-Beck, “Customary International Humanitarian Law. Volume I:Rules” (Cambridge, ICRC/Cambridge University Press, 2005), rule 156 (definition of war crimes). ICC Elements of Crime, Article 8 (2) (c) (i)-4 (War crime of torture) and Article 8 (2) (c) (i)-3 (War crime of cruel treatment). ICC Elements of Crime, Article 8 (2) (c) (ii) (War crime of outrages upon personal dignity). ICC Elements of Crime, Article 8 (2) (c) (i)-4 (War crime of torture). 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. ICTY, Kunarac Appeals Chamber Opinion para. 58, See, also, ICTY, Limaj et al. (IT-03-66), para. 91. For a detailed discussion of what constitutes unlawful or arbitrary deprivation of liberty, see Human Rights Committee, General comment No. 35 on Article 9 (Liberty and security of person), CCPR/C/GC/35, paras 10-12. 111