A/HRC/42/CRP.5 members of the Tatmadaw in particular, committed crimes against humanity and war crimes against the Rohingya.473 Based on these findings, the Mission determined that a competent prosecutorial body and court of law should investigate and adjudicate cases against specific persons to determine individual guilt or innocence.474 212. Based on its second phase of investigation, the Mission concludes on reasonable grounds that the situation of the Rohingya remains largely unchanged since the Mission’s 2018 report. If anything, the situation of the 600,000 Rohingya remaining in Myanmar is worse after another year of living under deplorable conditions. 213. The Mission draws four main conclusions from the final investigation under its mandate: 1. • Myanmar continues to commit crimes against humanity of inhumane acts that inflict great suffering and of persecution as part of a widespread and systematic attack against the Rohingya population. • Myanmar incurs State responsibility for committing genocide and is failing in its obligations under the Genocide Convention to investigate and, where appropriate, prosecute genocide. It is also failing to enact effective legislation criminalising and punishing genocide. • The State of Myanmar continues to harbour genocidal intent and the Rohingya remain under serious risk of genocide. • Conditions in Myanmar are unsafe, unsustainable and impossible for approximately one million displaced Rohingya to return to their homes and lands. Crimes against humanity of persecution and other inhumane acts 214. Crimes against humanity are among the gravest crimes under international law and the legal threshold for crimes against humanity is high. In its consideration of whether the facts it established amount to crimes against humanity, the Mission relied on the legal analysis from its 2018 report.475 Based on that analysis, the Mission concludes on reasonable grounds that, since the publication of the Mission’s 2018 report, the Government has committed the crimes against humanity of “other inhumane acts” and “persecution” in the context of a continued widespread and systematic attack against the Rohingya civilian population in furtherance of a State policy to commit such an attack. 215. Under the definition of crimes against humanity, an “attack” does not need to involve a military attack or the use of armed force; it can, for example, encompass mistreatment of the civilian population.476 This is the nature of the Government attack being perpetrated against the Rohingya today. Since the end of the 2017 “clearance operations”, the Government has continued its widespread and systematic attack on the Rohingya through its denial of fundamental rights, including citizenship, through its laws, policies and regulations; its denial of access to land they once lived and relied on; and its denial of items essential to human survival, in particular food. 216. The Myanmar Government’s implementation of laws, regulations and policies, including the 1982 Citizenship Law, the NVC process and the annual household lists that result in the denial of citizenship and other fundamental human rights, is causing the type of serious or great physical or mental suffering to the Rohingya people that constitutes the crime against humanity of “other inhumane acts”. 477 The gravity and impact of 473 474 475 476 477 68 A/HRC/39/CRP.2, paras. 1511 and 1513-1517. A/HRC/39/64, para. 83. See, also, A/HRC/39/CRP.2, para. 1441. A/HRC/39/CRP.2, paras. 1442-1511. ICC Elements of Crime, art. 7, para. 3; ICTY, Prosecutor v. Kunarac et al., (IT-96-23 and IT-9623/1-A), Appeals Chamber Judgement, 12 June 2002, para. 86. The war crime of inhumane treatment is related to international armed conflicts; the equivalent for non-international armed conflicts is called cruel treatment; both are considered similar in gravity as another war crime called wilfully causing great suffering or serious injury to body or health. See ICTY, Prosecutor v. Jelisić (IT-95-10-T), Trial Chamber Judgement, 14 December 1999, para. 52;