A/HRC/42/CRP.5 crimes412 of torture,413 cruel treatment for the infliction of severe physical or mental pain or suffering it caused414 or as outrages upon human dignity for the severity of the humiliation or degradation.415 All these violations of international human rigths law and international humanitarian law must be effectively investigated. 193. In addition to its obligations under international law, Myanmar’s Penal Code and the Ward or Village Tract Administration Act adopted in 2012 punish forced labour as a criminal offence. However, authorities have not adequately enforced the law. Adding to impunity, Article 359 of the Constitution, which exempts from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public” could be interpreted to exempt the military from the forced labour prohibition. According to the International Labour Organization’s Committee on the Application of Standards, Tatmadaw soldiers involved in forced labour have only faced internal disciplinary action, with the exception of one person who the Committee reported was punished under section 374 of the Penal Code.416 194. Similar to the Mission’s other findings, the Mission also concludes on reasonable grounds that the Government’s use of forced labour and its unwillingness to address its regular use contribute to an overall condition that makes it unsuitable and unsafe, inhumane, unsustainable and impossible for Rohingya to return to Myanmar. F. The repatriation process 195. In the aftermath of the “clearance operations” that began on 25 August 2017, the official rhetoric of the Government of Myanmar has been to pursue the repatriation of 912,852 Rohingya refugees, 55 per cent of them children, 417 most of whom were forcibly deported during the 2016 and 2017 “clearance operations”.418 They include 743,016 refugees who have arrived in Bangladesh since the August 2017 violence. 419 On 23 November 2017, only months after the mass exodus of the Rohingya, the Governments of Myanmar and Bangladesh signed a Memorandum of Understanding (MoU) as a preliminary step to begin the repatriation process. A Joint Working Group on repatriation (JWG) was established, consisting of officials from the two Governments pursuant to the 412 413 414 415 416 417 418 419 62 As a matter of international criminal law, the International Criminal Tribunal for the former Yugoslavia (ICTY) has determined that the nexus between the armed conflict and the alleged crime does not have to be causal, but the conflict “must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, [the accused’s] decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established…that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.” ICTY, Prosecutor v. Kunarac (IT96-23& IT-96-23/1-A), Appeals Chamber Judgement, 12 June 2002, para. 58. See, also, ICTY, Prosecutor v. Limaj et al. (IT-03-66), Trial Chamber Judgement, 30 November 2005, para. 91. ICC Rome Statute, Article 8 (2) (c) (i)-4; Elements of Crime, pages 32-33. ICC Rome Statute, Article 8 (2) (c) (i)-3; Elements of Crime, page 32. ICC Rome Statute, Article 8 (2) (c) (ii); Elements of Crime, page 33. International Labour Organization, Observation (CEACR), available from https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:3 957004. UNHCR, Population factsheet, 31 July 2019, available from https://data2.unhcr.org/en/documents/download/70585. This figure includes 33,956 refugees previously registered and an estimated 74,000 refugees who sought shelter in Bangladesh following the October 2016 violence. See United Nations Office for Coordination of Humanitarian Affairs, Rohingya Refugee Crisis, available from https://www.unocha.org/rohingya-refugee-crisis, see also UNHCR report, 3 May 2017, available from https://www.unhcr.org/news/latest/2017/5/590990ff4/168000-rohingya-likely-fled-myanmar-since2012-unhcr-report.html. UNHCR, situational update, 19 August 2019, available from https://data2.unhcr.org/en/situations/myanmar_refugees.