A/HRC/42/CRP.3 3. Legal Analysis and Findings 128. The Mission concludes on reasonable grounds that the Tatmadaw and civilian authorities of the UEHRD have sought support from crony companies to pursue an objective of changing the demographic landscape on northern Rakhine and keeping Rohingya displaced from Myanmar in a manner that is causing them considerable inhumane suffering. The Mission also concludes on reasonable grounds that several crony companies have willingly and knowingly provided such support and that the Tatmadaw has received this support outside the purview of effective civilian oversight. With these findings, the Mission also concludes that the companies providing their financial support to the Tatmadaw and UEHRD’s activities noted above are failing in their corporate responsibility to respect human rights and have also failed to effectively conduct due diligence to ensure they are not otherwise causing, contributing to or directly linked to the many international human rights and international humanitarian law violations in the area perpetrated by the Tatmadaw and the civilian government. (a) Liability of company officials for contributing to the construction of the barrier fence 129. In its 2018 report, the Mission concluded on reasonable grounds that crimes under international law were committed in Rakhine State, principally by the Tatmadaw.308 The crimes included the crimes against humanity of deportation and persecution. For reasons set out below, the Mission now has reasonable grounds to also conclude that officials from KBZ Group and Max Myanmar should be criminally investigated and, if appropriate, prosecuted for making a substantial and direct contribution to the commission of the crime against humanity of “other inhumane acts” and persecution as outlined above in the applicable legal framework on business officials and criminal liability. The Mission came to this conclusion based on its finding that these company officials donated funds to the construction of a barrier fence along the Myanmar-Bangladesh border and were aware of the substantial likelihood that the fence would contribute to the prevention of the displaced Rohingya population from returning to their homeland and community, thereby causing great suffering and anguish. Moreover, the Rohingya population was explicitly targeted and discriminated against based on their ethnicity, constituting the crime against humanity of persecution.309 130. The crime against humanity of “other inhumane acts” is seen as a residual crime 310 and envisages physical or mental suffering, namely serious or great suffering rather than severe pain or suffering.311 The seriousness of the harm or injury must be assessed on a case- 308 309 310 311 A/HRC/39/CRP.2, paragraph 1511. A/HRC/39/CRP.2, paragraph 1499-1502. Decision on the Confirmation of Charges, Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (CC-01/09-02/11), Pre-Trial Chamber II, 23 January 2012, § 269; Judgment, Stanišić and Župljanin (IT-08-91-T), Trial Chamber, 27 March 2013, § 58; Judgement, Case 002/01 (Case File No. 002/19-09-2007/ECCC/TC), Trial Chamber, 7 August 2014, §§ 436-437; Judgment, Case 002/01 (Case File No. 002/19-09-2007-ECCC/SC), Supreme Court Chamber, November 23, 2016, §§ 576-580. The war crime for 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, Judgment, Jelisić (IT-95-10-T), Trial Chamber, 14 December 1999, § 52; Judgment, Naletilić & Martinović (IT-98-34-T), Trial Chamber, 31 March 2003, § 246; Judgment, Gotovina et al. (IT-0690-T), Trial Chamber, 15 April 2011, § 1791; Judgment Nyiramasuhuko et al. (ICTR-98-42-T), Trial Chamber, 24 June 2011, § 6127; Judgment, Perišić (IT-04-81-T), Trial Chamber, 6 September 2011, § 111; Judgment, Taylor (SCSL-03-01-T), Trial Chamber, 18 May 2012, § 418-421; Judgment, Haradinaj et al. (IT-04-84bis-T), Trial Chamber, 29 November 2012, § 422; Judgment, Lukić (IT-9832/1-A), Appeals Chamber, 4 December 2012, § 631; Judgment, Tolimir (IT-05-88/2-T), Trial Chamber, 12 December 2012, § 853; Judgment, Prlić et al. (IT-04-74), Trial Chamber, 29 May 2013, §§ 77 and 148; Judgment, Karadžić (IT-95-5/18-T), Trial Chamber, March 24, 2016, § 504; Judgment, Habré, EAC, TC, May 30, 2016, §§ 1590-1593; Judgment, Case 002/01 (Case File No. 002/19-09-2007-ECCC/SC), Supreme Court Chamber, November 23, 2016, §580; Judgment, Mladić, (IT-09-92-T), Trial Chamber, November 22, 2017, § 3233; the situation is slightly different under the ICC Statute where the war crimes of inhumane treatment and cruel treatment have the same level of 45