A/HRC/42/CRP.5 crime to be pardoned or potentially protected from prosecution. Article 20(b) of the Constitution gives the military “the right to independently administer and adjudicate all affairs of the armed forces”540 and Article 343(b) gives the Commander-in-Chief of the Defence Services the power to make final and conclusive decisions on military justice. 541 Thus, the Commander-in-Chief has the Constitutional authority to pardon a member of the Myanmar military convicted of genocide, even if such a prosecution were possible. The Commander-in-Chief not only has the power to pardon but he has demonstrated his willingness to use it, as he did when he pardoned seven soldiers convicted and sentenced to 10 years imprisonment for the killings of 10 Rohingya civilians in the village of Inn Din.542 The Mission therefore considers that Myanmar is also in breach of its Article V obligations because, at this time, Myanmar does not have a justice system capable of ensuring “effective penalties for persons guilty” of the crime of genocide. 7. Continuing genocidal intent 238. The Mission’s second phase of investigation provided further evidence that strengthens the inference of genocidal intent identified in its report in September 2018. The Mission has also concluded on reasonable grounds that there is sufficient evidence for it to infer that the State continues to harbor genocidal intent. This is evident in the Government’s acts and omissions that maintain a system of persecution and other discriminatory treatment against the Rohingya, depriving them of their fundamental rights so that they live in deplorable and inhumane conditions. These acts and omissions include the failure to reform the Citizenship Law, the inhumane use of the NVC process and the annual household listing process. They include the Government’s clearance, destruction, confiscation and building on lands of the forcibly displaced Rohingya. They include the Government’s application of laws and policies that keep Rohingya uprooted and living in inhumane conditions through their inability to return home and the deprivation of items essential to their survival. They include the lack of any accountability and of public condemnation to prevent “clearance operations” from recurring and to end the continuing persecution of Rohingya. They include the Government’s tolerance for public rhetoric of hatred and contempt for the Rohingya. All of these measures embody the discriminatory rationale for the underlying acts of genocide and all of them remain present in Myanmar at the time of writing. The Government is able but unwilling to bring them to an end. This strengthens the inference of genocidal intent in the past and provides the basis for an inference that the State continues to harbor genocidal intent. 8. Serious risk of genocide 239. The Mission’s final assessment of the rules of State responsibility under the Genocide Convention pertains to Myanmar’s obligation to prevent genocide. This obligation is triggered when there is serious risk of genocide. 543 There is limited case law to assist the Mission in making its assessment of whether a risk is present and is serious in nature. The Mission made its assessment by comparing the current situation in Rakhine 540 541 542 543 76 Myanmar Constitution (2008), art. 20(b). Available at http://www.burmalibrary.org/docs5/Myanmar_Constitution-2008-en.pdf. Myanmar Constitution (2008), art. 343(b). Available at http://www.burmalibrary.org/docs5/Myanmar_Constitution-2008-en.pdf. See, Shoon Naing and Simon Lewis, “Exclusive: Myanmar soldiers jailed for Rohingya killings freed after less than a year”, Reuters, 27 May 2019. Available at https://www.reuters.com/article/usmyanmar-rohingya-soldiers-exclusive/exclusive-myanmar-soldiers-jailed-for-rohingya-killings-freedafter-less-than-a-year-idUSKCN1SX007; Htet Naing Zaw, “Military Chief Pardoned Soldiers Involved in Rohingya Massacre”, Irrawaddy, 29 May 2019. Available at https://www.irrawaddy.com/news/burma/military-chief-pardoned-soldiers-involved-rohingyamassacre.html; and Htoot Thant, “Tatmadaw defends release of soldiers jailed for Inn Din killings”, Myanmar Times, 3 June 2019. Available at https://www.mmtimes.com/news/tatmadaw-defendsrelease-soldiers-jailed-inn-din-killings.html. 1948 Convention on the Prevention and Punishment of the Crime of Genocide, art. I.