A/HRC/39/CRP.2 so, the Mission referred to the definitions of these crimes in the Convention on the Prevention and Punishment of the Crime of Genocide, the Rome Statute of the International Criminal Court and customary international law, as well as the interpretation of these definitions in the jurisprudence of international courts and tribunals. 69 64. As mentioned above, the prohibitions of genocide, crimes against humanity and war crimes amount to peremptory norms of international law (jus cogens), meaning that no derogation from the rule is allowed. The recognition of a crime under international law as jus cogens gives rise to a duty of the State to prosecute and punish perpetrators, the nonapplicability of statutes of limitation for such crimes, and the universality of jurisdiction over such crimes regardless of where they were committed, by whom, or against whom.70 Moreover, under various sources of international law and under United Nations policy, amnesties are impermissible if they prevent prosecution of individuals who may be criminally responsible for war crimes, genocide, crimes against humanity or other gross violations of human rights.71 4. Domestic law 65. Where relevant, the Mission also considered human rights guarantees under Myanmar’s domestic law, in particular the 2008 Constitution and the Penal Code, and the extent to which these are in line with international human rights norms and standards. (a) Constitutions of the Union of the Republic of Myanmar of 2008 66. The 2008 Constitution of Myanmar, in its Chapter VIII (“Citizen, Fundamental Rights and Duties of the Citizens”), guarantees a number of human rights, including the right to equality and non-discrimination, the right to life, freedom of expression, freedom of peaceful assembly, freedom of association, freedom of movement, the right to privacy, the right to education, the right to health care, and the prohibition of slavery and forced labour. These constitutional human rights provisions are problematic for at least two reasons: most are reserved for “citizens” only, and several are accompanied by broad and often impermissible qualifications or limitations. In addition some fundamental human rights are absent from the list (for example, the prohibition of torture). 67. Section 21 of the Constitution provides that “every citizen” shall enjoy the rights to equality, liberty and justice. Section 348 further elaborates that the Union “shall not discriminate any citizen of the Republic of the Union of Myanmar based on race, birth, religion, official position, status, culture, sex and wealth”. Other examples of rights limited to “citizens” are the rights to freedom of religion, freedom of expression, freedom of peaceful assembly and association, freedom of movement, privacy, education and health care. 72 In light of the arbitrary deprivation of nationality of a large segment of the population (in particular the Rohingya), resulting in their de facto statelessness,73 these constitutional provisions exclude large segments of the population from basic human rights protection. 74 68. The Mission recalls that every person, by virtue of their humanity, is entitled to enjoy all human rights. Under international human rights law, the State is – as a matter of principle – under an obligation to respect, protect and fulfil the human rights of all persons within its territory or under its jurisdiction, without discrimination. Distinctions between citizens and non-citizens can only be made if they serve a legitimate State objective and are proportional 69 70 71 72 73 74 20 See chapter VIII. Crimes under international law. E.g. M.C. Bassiouni, “International Crimes: Jus cogens and obligatio erga omnes”, Law and Contemporary Problems, vol. 59(4), 1996, p. 66. See e.g. OHCHR, Rule-of-Law Tools for Post-Conflict States: Amnesties (New York and Geneva, United Nations, 2009), p. 11. Constitution of Myanmar, sections 34, 354, 355, 357, 366 and 367. See chapter V, section B.1. Denial of legal status and identity. Note, however, section 347 of the Constitution, which provides that the Union “shall guarantee any person to enjoy equal rights before the law and shall equally provide legal protection”, which appears in contradiction with the provisions limiting certain rights to citizens (emphasis added).