A/HRC/42/CRP.5 385. The Mission collected information concerning at least nine deaths in custody of ethnic Rakhine detained on suspicion of being connected to the AA. Three of the deaths appear to have been the result of torture and six others due to gunfire. Credible reports indicate that the number of deaths could be much higher. 869. In both cases that the Mission investigated, these people died while in the custody of the Government. Based on the facts that the Mission gathered, the nine deaths occurred in circumstances where victims appeared to have posed no threats that would have made the Government’s use of force justifiable under international human rights law or international humanitarian law. That is to say, those who died did not present a threat of imminent death or serious injury and were not at the time of death taking an active part in hostilities. 386. Under these circumstances all the deaths must be the subject of an effective investigation into arbitrary deprivation of life under international human rights law and into the war crimes of violence to life and murder under international humanitarian law. Prosecutions must occur where appropriate. In response to the Government’s claim that three of the men in its custody died of respiratory problems, drug addiction and suicide, the Government nonetheless had a responsibility for their care and an investigation remains warranted to determine if the State could have prevented deaths from such causes. In response to the Government’s claim that soldiers opened fire on the group of villagers detained in a school because the villagers tried to grab their guns, the Government nonetheless has a responsibility to investigate whether the soldiers’ gunfire was indiscriminate or lacked proportionality under the rules of international humanitarian law. 387. The Mission concludes on reasonable grounds that, at the time of writing, the steps the Government has taken to investigate the 2 May 2019 shooting of detainees did not constitute an effective investigation and, therefore, violated the right of victims and their families to an effective investigation. Torture 388. The Mission also concludes on reasonable grounds that, as part of its conflict with the AA, the Tatmadaw engaged in a pattern of rounding up and interrogating male villagers, including minors, accusing them of belonging to the AA and then often subjecting them to violent interrogations that inflicted severe pain or suffering. 870 These men and boys were predominantly ethnic Rakhine, although sometimes they belonged to members of other ethnic groups, including the Rohingya. They were often detained in areas with continuing or recent clashes between the military and the AA. The Tatmadaw interrogated these men and boys about the AA or about their alleged involvement with the AA. 871 This practice has been more prevalent since the beginning of 2019. 389. Although Myanmar is not a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Myanmar Government is prohibited from committing acts of torture as a peremptory norm of customary international law.872 Under customary international law, “torture” generally means any act that is intentionally inflicted on a person when the act causes severe pain or suffering, whether physical or mental, for such purposes as obtaining information or a confession, for punishment, for intimidation or coercion or for any reason based on discrimination of any kind.873 To constitute torture under international human rights law the pain or suffering 869 870 871 872 873 110 FFFGEN-1-88144, Min Aung Khine, “Detainee Deaths Mount in N. Rakhine” (The Irrawaddy, 2 July 2019), Radio Free Asia, “Rights Groups Hit Myanmar Military Over Mounting Rakhine Deaths in Custody” (3 July 2019). CI-275, CI-276, CI-277, CI-281, CI-285, CI-286, LI-166, LI-170, LI-171, LI-174, LI-175. CI-201, CI-274, CI-275, CI-276, CI-277, CI-278, CI-281, CI-285, CI-286, LI-136, LI-137, LI-166, LI-170, LI-171, LI-174, LI-179, LI-180, LI-216. ICTY, Prosecutor v Furundžija (IT-95-17/1), Appeals Chamber Judgement, 21 July 2000, para. 111; David Weissbrodt and Cheryl Heilman, “Defining Torture and Cruel, Inhuman, and Degrading Treatment”, 29 Law & Ineq. 343 (2011), pp.361-363. ICTY, Prosecutor v Furundžija (IT-95-17/1), Appeals Chamber Judgement, 21 July 2000, para. 111 (referring to art. 1. of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).