A/HRC/39/CRP.2 Discrimination against Women and is a violation of human rights. 325 The obligations of States parties, including Myanmar, do not cease in periods of armed conflict. 326 States parties have a due diligence obligation to prevent, investigate, prosecute and punish acts of sexual and gender-based violence.327 193. A limited number of legal protections from sexual and gender-based violence exist in Myanmar domestic law. The Constitution guarantees equality before the law, 328 freedom from discrimination on grounds of gender,329 and a prohibition of trafficking and enslavement.330 The Penal Code, enacted in 1860, prohibits rape and other forms of sexual assault, though the definition of rape is outdated and legally vague and does not meet international best practice standards. Penal Code provisions criminalising “kidnapping, abduction, slavery and forced labour” are piecemeal. For example, the prohibition of the importation of women for the purposes of sexual exploitation is only applicable if the woman is under the age of 21. (b) Findings Abductions, rape and sexual violence by the Tatmadaw 194. The Mission found a pattern of individual Tatmadaw soldiers or groups of them abducting women and girls and raping, attempting to rape, or gang raping them in forests. Parents, relatives and neighbours reported that they saw women and girls being forcibly taken by the Tatmadaw and, in some cases, saw or learned from others they had been killed. 331 195. For example, a female victim recounted that in 2017, when she was 15-years old, she was sexually assaulted by a Tatmadaw soldier while cutting grass near her home in Tanai Township, Kachin State. She stated that other girls experienced similar sexual assault, including a friend who told her that she was raped.332 196. On 20 February 2018, one woman reported being abducted near Nam Byu village in the amber mining area in Tanai Township by five soldiers on her way, and forced to walk two hours into the forest to meet with a more senior officer. When she refused to take off her clothes, three soldiers forcibly undressed her while two soldiers stood guard. The senior officer raped her while insulting her, telling the other officers, “I will take her first and then you can have her” and telling the victim, “I will fuck you to death”. The victim believed she was targeted because she was Kachin and the Tatmadaw soldiers look down at the Kachin people because of their different history, religion and language. 333 197. A survivor in Kutkai Township, Shan State, was abducted with her mother from her farm and raped in the forest in 2011. Two Tatmadaw soldiers guarded her while another soldier took her inside an abandoned hut and raped her. During the abduction and rape, the survivor was also accused of supporting TNLA soldiers: They pointed their guns at our heads, and they said that we had told the TNLA about the position of the soldiers, and because of that, the TNLA had taken their horse. There were about five or six Burmese soldiers. Then they took me to their military base. On the way there, three soldiers took me to a small hut in the jungle. They asked me, 325 326 327 328 329 330 331 332 333 United Nations Committee on the Elimination of Discrimination against Women, “General recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations” (CEDAW/C/GC/30), para. 34; “General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19” (CEDAW/C/GC/35), para. 21. United Nations Committee on the Elimination of Discrimination against Women, “General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women” (CEDAW/C/GC/28), paras. 11-12. E.g. CEDAW, General Recommendation No. 30, para. 15, 23. Constitution of Myanmar, s. 347. Constitution of Myanmar, s. 348. Constitution of Myanmar, s. 358. PI-003, PI-004, PI-007, PI-029, PI-067, PI-069, PI-089, PI-096. PI-063. PI-069. 51