10 The recent mass exodus of almost 700,000 Rohingya civilians from Rakhine state in Myanmar, to Cox’s Bazar, Bangladesh, created a humanitarian crisis that seized the attention of the world. As documented by international medical staff and service providers operating in Bangladesh, many civilians bear the physical and psychological scars of brutal sexual assault. The assaults were allegedly perpetrated by members of the Myanmar Armed Forces (Tatmadaw), at times acting in concert with members of local militias, in the course of the military “clearance” operations in October 2016 and August 2017 characterized by the United Nations High Commissioner for Human Rights as “ethnic cleansing”. The widespread threat and use of sexual violence were integral to their strategy, humiliating, terrorizing and collectively punishing the Rohingya community and serving as a calculated tool to force them to flee their homelands and prevent their return. Violence was visited upon women, including pregnant women, who are seen as custodians and propagators of ethnic identity, as well as on young children, who represent the future of the group. Tatmadaw representatives in the national legislature stated in August 2017 that the Constitution empowers the Tatmadaw to initiate area clearance operations of their own volition. Yet Tatmadaw officials and other government authorities have not linked this term to provisions clearly prescribed in law. On previous occasions, the term has been invoked in practice to grant security forces the authorization, possibly through lax rules of engagement, to ignore legal protections afforded under the Constitution and international standards. In addition to the terms ‘area clearance operations’ and ‘military operations area,’ in late 2016 the Myanmar authorities commonly used the term ‘joint operations’ to refer to security operations conducted by the Tatmadaw and the Border Guard Division of the Myanmar Police Force in northern Rakhine State. Joint operations appear to be a descriptive term that does not imply special legal effect. Did the President authorize the recent military operations? The Office of President Htin Kyaw designated parts of northern Rakhine State as a ‘military operations area’ on 25 August 2017, according to statements by Zaw Htay, Director General of the Ministry of the Office of the State Counsellor and spokesperson ROHINGYA GENOCIDE DAY for the State Counsellor Aung San Suu Kyi. Zaw Htay said that the designation covers the whole of Maungdaw District and was issued as an immediate response to a request from the Office of the Commander-in-Chief of the Tatmadaw. However, there were neither definitive dates to indicate the date of enforcement nor cited clear legal provisions in reference to the President’s designation. Under the 2008 Constitution, for the President’s designation of ‘military operations areas’ shall be during a state of emergency (Chapter 11) or the President “shall have the right to take appropriate military action, in co-ordination with the National Defence and Security Council formed in accord with the Constitution, in case of aggression against the Union (213-a).” However, northern Rakhine has neither been declared as a state of emergency nor the National Defence and Security Council has not been formed under the NLD-government. The absence of a declared state of emergency and the absence of a formal National Defence and Security Council meeting calls into question the Constitutional basis for the President’s designation of ‘military operations areas’ in northern Rakhine State. Article 212 of the Constitution empowers the President to promulgate ordinances for administrative actions requiring immediate actions, with procedural limitations, including the right of parliament to review the ordinance. A review of the weekly Union Government Gazettes published between the 25 August until 31 October 2017 reveals that to date there has been no ordinance or other such promulgation of that the President authorized military operations in northern Rakhine State on 25 August. Is Rakhine State under a state of emergency? Myanmar has not declared a constitutional state of emergency over Rakhine State or any part of it However, a press release from the Ministry of the Office of the State Counsellor was issued on 11 August 2017 stated that parts of northern Rakhine State were subject to a temporary curfew invoked under section 144 of Myanmar’s Criminal Procedure Code. It is unclear whether this curfew remains in force following the attacks on 25 August 2017 and during subsequent security operations.