Introduction

1. The United Nations Independent Investigative Mechanism for Myanmar (“IIMM” or “Mechanism”) was established by the UN Human Rights Council resolution 39/2 in September 2018 with a mandate to collect and analyse evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011 and to prepare files to share with national, regional or international courts that may have jurisdiction to prosecute such cases.  In furtherance of its mandate, the Mechanism has collected large quantities of evidence regarding sexual and gender-based crimes (“SGBC”) committed during the 2016 and 2017 clearance operations.
2. Based on the material collected to date, the Mechanism has prepared the present Analytical Note, which examines evidence of the efforts – or lack of efforts – by the Myanmar authorities to investigate and punish sexual and gender-based crimes committed against Rohingya victims during the 2016 and 2017 clearance operations in northern Rakhine State, Myanmar.
3. Under international law, Myanmar has obligations to investigate and punish crimes, including SGBC. International law also places and obligation upon those persons with authority over military forces to take all necessary and reasonable steps required to investigate and punish crimes by their subordinates. Jurisprudence from international courts also recognizes that rape can constitute and underlying act of genocide as it inflicts severe bodily or mental harm, can be a condition of life designed to bring about the destruction of a group, and can be a measure intended to prevent births. Therefore, the failure to investigate and punish such crimes could amount to a violation of the obligations of parties to the Convention on the Prevention and Punishment of Genocide. The conduct of State organs, institutions, and State officials acting in their official capacity are attributable to the State.

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