A/HRC/42/CRP.5 incident led to the soldiers’ convictions, were imprisoned for 18 months, significantly longer than the time served by the actual perpetrators of the crimes.534 Senior General Min Aung Hlaing is one of the persons recommended by the Mission for investigation and prosecution for crimes against humanity, war crimes and genocide.535 233. In light of the Government’s awareness that reasonable grounds existed that genocide occurred on its territory, its continuing failure to initiative effective criminal investigations into genocide or its underlying acts, its continuing failure to reform legislation that promotes impunity, its destruction of evidence relevant to a genocide investigation and its willingness to punish those who try to expose the crimes that occurred during the Government’s 2017 “clearance operations”, the Mission concludes on reasonable grounds that Myanmar has breached, and is continuing to breach, its obligation under the Genocide Convention to conduct an effective investigation in relation to crimes of genocide. Failure to enact legislation536 6. 234. The Mission also assessed Myanmar’s criminal justice system to determine whether it is meeting its obligations under Article V of the Genocide Convention to enact the necessary legislation to give effect to the Convention and, in particular, to provide effective penalties for persons guilty of genocide and persons who incite genocide, attempt to commit genocide and are complicit in genocide.537 The Penal Code has no provisions on the crime of genocide.538 Part of this can be explained by the fact that Myanmar’s Penal Code has not been substantially amended since it was first enacted in 1891, well before the term “genocide” was first used in 1943 and before it became part of international criminal law. 539 235. At the time of writing, no provisions in Myanmar’s Penal Code reflected the substance, object, purpose, letter or spirit of the Genocide Convention. The Penal Code lacks provisions that contain the defining elements of the crime of genocide, including the element of intending to destroy a protected group. It does not contain “ordinary crimes” that could amount to the underlying acts of genocide. 236. Based on this assessment, the Mission concludes on reasonable grounds that Myanmar is failing in its obligation to enact legislation that gives effect to the Genocide Convention. Given that Myanmar does not have legislation proscribing genocide, by extension it also does not provide any penalties for genocide. This means that Myanmar is also breaching its obligation under Article V to “provide effective penalties for persons guilty” of the crime of genocide. 237. Even if Myanmar enacted domestic legislation to give effect to the Genocide Convention, Myanmar’s Constitution allows Myanmar military personnel convicted of any 534 535 536 537 538 539 Myanmar Times, 3 June 2019. Available at https://www.mmtimes.com/news/tatmadaw-defendsrelease-soldiers-jailed-inn-din-killings.html. A/HRC/39/CRP.2, para. 1296; see, also, A/HRC/42/50, para. 73. A/HRC/39/CRP.2, para. 1555. 2742. In making its assessment, the Mission recalls that the Special Rapporteur on the situation of human rights in Myanmar has commented that Myanmar’s Penal Code reflects relatively few international human rights standards. Report of the Special Rapporteur on the situation of human rights in Myanmar, A/HRC/31/71, 18 March 2016, paras. 8-17. Genocide Convention, art. V. A/HRC/39/CRP.2, para. 1583. For a list and links to the eight amendments to the penal code since 1861, see International Labour Organization, NATLEX database of national labour, social security and human rights legislation, Myanmar: Criminal and penal law, http://www.ilo.org/dyn/natlex/natlex4.listResults?p_lang=en&p_country=MMR&p_count=117&p_cl assification=01.04&p_classcount=9. See also Library of Congress, Burma: Draft Legislation on Revision of Penal Code, Sept. 15, 2015, https://www.loc.gov/law/foreign-news/article/burma-draftlegislation-on-revision-of-penal-code/. 1943 was the first time the term “genocide” was used to describe a crime predicated on the destruction of a protected group. See, Raphael Lemkin, Axis Rule in Europe: Laws of Occupation, Analysis of Government – Proposals for Redress, New York, NY: Howard Fertig, 1973 [1944]), p. 79. 75