A/HRC/42/CRP.5 46. There is limited guidance for assessing what factors are relevant for making a finding of genocidal intent under the rules of State responsibility. When assessing whether a pattern of conduct reveals genocidal intent, the Mission was guided by case law from international criminal tribunals and took into account interrelated factors, as documented in its previous report and supplemented by the Mission’s 2019 investigation.35 (b) Obligation to investigate genocide 47. The Genocide Convention places a general obligation on all States parties to prevent and punish genocide.36 Article III places an obligation to punish all genocide crimes regardless of the suspect’s government position.37 Article VI places a specific obligation on States parties in whose territory genocide was committed to try in a competent court individuals charged with genocide or, alternatively, allow them to be tried by an international tribunal with jurisdiction.38 Article V requires States parties to enact legislation to give effect to the Convention’s provisions and, in particular, to provide effective penalties for persons guilty of genocide.39 48. The Mission interprets the Genocide Convention as placing an obligation on Myanmar to effectively investigate allegations of genocide where reasonable grounds exist and, where appropriate, to bring charges. This interpretation follows the approach of international and regional human rights treaties.40 Any other interpretation would render much of the Genocide Convention ineffective and go against the Convention’s object and purpose of freeing the world of such as “odious scourge”. 41 If there were no obligation to conduct an effective investigation and prosecute where appropriate, a State’s obligation to enact legislation to “give effect” to the Genocide Convention, as well as the State’s obligation to hold perpetrators criminally accountable, would be rendered meaningless. 35 36 37 38 39 40 41 14 organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. (2) An organ includes any person or entity which has that status in accordance with the internal law of the State.” Article 4 of the Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001). See, generally, A/HRC/39/CRP.2, paras. 1419-1433. 1948 Convention on the Prevention and Punishment of the Crime of Genocide, art I. 1948 Convention on the Prevention and Punishment of the Crime of Genocide, art IV. 1948 Convention on the Prevention and Punishment of the Crime of Genocide, art VI. 1948 Convention on the Prevention and Punishment of the Crime of Genocide, art V. For a detailed discussion of this issue see, International Law Commisison, Second report on crimes against humanity, 21 January 2016, A/CN.4/690, paras. 121-130. Vienna Convention on the law of treaties, Art. 31, read in conjunction with the preamble to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The ICJ has determined that “an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.” ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, para. 53. In addition to the incorporation of a duty to investigation into human rights treaty law, states have shown strong support for a duty to investigate genocide. See, Basic Principles and Guidelines on the Right to a Remedy and Reparation (principles 3-4) (“…States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations…”)(Emphasis added); and Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, para. 22. (“We commit to ensuring that impunity is not tolerated for genocide, war crimes and crimes against humanity or for violations of international humanitarian law and gross violations of human rights law, and that such violations are properly investigated and appropriately sanctioned, including by bringing the perpetrators of any crimes to justice, through national mechanisms or, where appropriate, regional or international mechanisms, in accordance with international law, and for this purpose we encourage States to strengthen national judicial systems and institutions.”) (Emphasis added.) See, also, S/PRST/2010/11, Statement by the President of the Security Council, Promotion and strengthening of the rule of law in the maintenance of international peace and security, 29 June 2010. (“The Security Council further emphasizes the responsibility of States to comply with their relevant obligations to end impunity and to thoroughly investigate and prosecute persons responsible for war crimes, genocide, crimes against humanity or other serious violations of international humanitarian law in order to prevent violations, avoid their recurrence and seek sustainable peace, justice, truth and reconciliation.”) (Emphasis added.)