Iraq: Submission to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW)

I. Introduction

1. In advance of the Committee on the Elimination of Discrimination against Women’s (Committee) forthcoming review of Iraq, it is critical that the Committee pay particular attention to the need for fundamental reform of Iraq’s criminal legal system in order to achieve justice for Daesh’s victims, and more broadly for the women and girls of Iraq. As currently codified, Iraq’s criminal laws do not punish the most egregious aspects of Daesh’s sexual and gender-based violence. If prosecuted under these laws, basic features of Daesh’s crimes will go unpunished, such as rape with objects, forced marriage, and gender-motivated torture, as well as the international atrocity crimes of genocide, crimes against humanity, and war crimes.

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Human Rights Organizations Issue Joint Submission to CEDAW Committee Ahead of Myanmar Review

   

FOR IMMEDIATE RELEASE – February 22, 2019

[NEW YORK, NY] –  Today, the Committee on the Elimination of Discrimination against Women (“Committee”) will meet to discuss Myanmar’s Exceptional Report on the situation of Rohingya women and girls from northern Rakhine State. The Committee requested the Exceptional Report months after Myanmar’s Security Forces launched a massive attack on Rohingya civilians in August 2017, destroying almost 400 villages and forcing over 700,000 Rohingya to flee to Bangladesh. This was only the fourth time the Committee had requested an Exceptional Report since its founding in 1982.

Letter to the CEDAW Committee: Supplementary information to Myanmar’s Report on an exceptional basis, scheduled for review by the CEDAW Committee at its 72nd Session

The Committee on the Elimination of Discrimination against Women
Office of the United Nations High Commissioner for Human Rights
Palais Wilson - 52, rue des Pâquis
CH-1201 Geneva (Switzerland)

Re: Supplementary information to Myanmar’s Report on an exceptional basis, scheduled for review by the CEDAW Committee at its 72nd Session

Dear Committee Members,

This letter supplements and responds to particularly concerning sections of the 6 February 2019 Exceptional Report submitted by Myanmar,[1] which is scheduled for review by the Committee on the Elimination of All Forms of Discrimination against Women (“Committee”) on February 22, 2019 during its 72nd Session.

It is the view of the undersigned organizations that Myanmar’s submission raises serious doubts as to its willingness and ability to effectively investigate and prosecute those responsible for international crimes committed against the Rohingya, especially sexual and gender-based violence. Myanmar’s blanket denials that such crimes occurred and the answers presented in the report underscore not only that accountability will have to be achieved on the international level or before other domestic authorities, but also that there is a real risk of Myanmar aiming to discredit or jeopardize such accountability efforts. In addition to these overarching concerns, we seek to bring the Committee’s attention to two major areas of concern: (1) Myanmar’s refusal to acknowledge or accept responsibility for conflict, human rights abuses, and displacement; and (2) Myanmar’s inability and lack of will to meaningfully investigate and hold those responsible accountable.

  1. Refusal to acknowledge or accept responsibility for conflict, human rights abuses and displacement

Myanmar has consistently refused to accept responsibility for the acts of its Security Forces in Rakhine State and continues to deny the identity of the Rohingya. Myanmar’s Exceptional Report to this Committee is consistent with this unlawful position.

  • Para. 2 - “(The) report refers to the Muslim population in Northern Rakhine as “Muslims” or “the Muslim community in Rakhine”. This group does not include the Kaman Muslims. They are simply referred to as “Kaman”. As in the Annan report, neither “Bengali” nor “Rohingya” is used in referring to the Muslim community.”

While the Committee explicitly requested Myanmar to submit a report on the situation of Rohingya women and girls, Myanmar’s refusal to explicitly report on Rohingya women and girls should be understood as a continuation of its policy to deny the group’s identity and continue discrimination, persecution, and targeting of the Rohingya as an ethnic group. While Myanmar aims to couch this definition as internationally accepted by highlighting the role played in the Commission by former UN Secretary-General Kofi Annan, the Commission’s report makes clear that this nomenclature was utilized “in line with the request of the State Counsellor.”[2] In fact, Myanmar’s failure to recognize the Rohingya as a group has been widely criticized by human rights experts, including this Committee and the Special Rapporteur on the situation of human rights in Myanmar, as a violation of the group’s right to self-identify.

  • Para. 5 - “The seeds of fear sown by the terrorists led to massive displacement of people internally and to neighbouring Bangladesh.”

The characterization of the mass and forced displacement of over 725,000 Rohingya to Bangladesh since August 2017 as the result of the actions of “terrorist” groups is both disingenuous and indicative of Myanmar’s unwillingness to accept responsibility for its actions. According to the UN Fact-Finding Mission on Myanmar (“Myanmar FFM”), “[o]n 25 August 2017, the Arakan Rohingya Salvation Army (ARSA) coordinated attacks on a military base and up to 30 security force outposts across northern Rakhine State, in an apparent response to increased systematic oppression of Rohingya communities by Myanmar and with the goal of gaining global attention.”[3] However, while acknowledging these attacks by ARSA, the Myanmar FFM firmly establishes that the reason for the displacement of over 725,000 Rohingya was the grossly disproportionate response by Myanmar security forces to these attacks, which targeted the entire Rohingya community and resulted in the mass destruction of Rohingya villages.[4]

  • Para. 11 - “Despite repeated accusations that Myanmar Security Forces committed a campaign of rape and violence against Muslim women and girls residing in Rakhine State, there is no evidence to support these wild claims.”

The categorical dismissal of the extensive documentation of rape and sexual violence as “wild” and with “no evidence” is perhaps the strongest illustration of Myanmar’s unwillingness to acknowledge and take responsibility for the acts committed by its Security Forces. As this Committee is well aware, the Security Forces’ systematic sexual violence in Rakhine State has been extensively documented not only by the Myanmar FFM but a range of other actors, including the United States State Department[5] and numerous human rights groups[6]. Furthermore, for decades the military has used sexual violence as a tactic in its campaigns against ethnic minorities in other parts of Myanmar. Similarly, these actions have long been met with official denials and impunity for perpetrators.

Even more egregious, Myanmar offers no support for its assertion that “no evidence exists,” nor does it detail any efforts or investigations that were taken to reach this conclusion. While the Report touts the signing of a joint communiqué with the Special Representative of the Secretary-General on Sexual Violence in Conflict, it remains unclear how Myanmar will meaningfully give effect to the commitments on accountability in the joint communiqué while it continues to insist that no problems exist and no crimes have been committed.

  • Para. 54 - “The complexities and challenges in Rakhine should not be viewed within a narrow lens of human rights for one particular community alone. This may tanamount [sic] to discrimination.”

The suggestion that calling on Myanmar to account for its treatment of one minority group constitutes discrimination is yet another indicator that it will continue to deflect responsibility for acts against the Rohingya under any apparent guise.

II. Inability and lack of will to meaningfully investigate and hold those responsible accountable

Despite the assurances in the report, Myanmar has unequivocally failed to demonstrate any willingness to investigate or hold perpetrators – civilian and military alike – accountable, compounding its failure to acknowledge and accept any form of responsibility for its acts.

  • Para. 8 - “The Government of Myanmar does not condone human rights violations. Nor does it espouse a policy of ethnic cleansing and genocide. It has therefore established an Independent Commission of Enquiry to establish the facts concerning the situation in Rakhine. The Commission is comprised of two international personalities who are well-versed in matters of human rights and Myanmar nationals with judicial background and vast experience in international organizations on 31 August 2018 to investigate the violations of human rights and related issues following the ARSA terrorist attacks in Rakhine State. The Commission is tasked to investigate allegations of human rights violations and related issues following the terrorist attacks by the Arakan Rohingya Salvation Army in Rakhine State with a view to seeking accountability and formulating recommendations on steps to be taken to ensure peace and stability in Rakhine State. The ICoE has now invited complaints or accounts with supporting data and evidence related to allegations of human rights violations in Rakhine State. ICoE call for submissions was actual from 31 August 2019 [sic] to 28 February 2019.”

While eight ad-hoc commissions and boards have been set up by the Myanmar authorities since 2012 with regard to the situation in Rakhine State, the Myanmar FFM determined that none meet the standards of an “impartial, independent, effective and thorough human rights investigation.” The newly constituted Independent Commission of Enquiry for Rakhine has done nothing to allay these concerns. One of the four Commissioners is a Myanmar Government official who has previously stated that Myanmar had “no intention of ethnic cleansing,” and the chairperson has stated that the Commission will not “blame or finger-point,” which is at odds with Myanmar’s own statement above that the Commission will seek accountability.

Additionally, the framing of the mandate of the Commission with a focus on “terrorist” attacks is a clear indicator that the work of the Commission will likely be biased and unbalanced. In fact, if the assertions made by Myanmar in this report, such as the one discussed above placing the responsibility for forced displacement on “terrorist actors,” are representative, it is unlikely that the work of the Commission will be any different than its predecessors.

  • Para. 9 - “Myanmar is both willing and able to investigate any crimes and violations of human rights that took place on its territory.”

Structural barriers, as well as a systematic climate of impunity in the country, clearly demonstrate that Myanmar is neither willing nor able to genuinely carry out any investigations and prosecutions related to international crimes committed by its Security Forces.

Myanmar’s civilian government is unable to hold perpetrators accountable due to structural barriers that preclude the possibility of justice. Myanmar lacks domestic legislation on international crimes, rendering its court system unable to prosecute any potential crimes against humanity or genocide. Furthermore, constitutionally-imposed limits on the power of the civilian government over the military, coupled with constitutional protections for the military from prosecution (guarantees of immunity and exclusive jurisdiction in military courts with the Commander-in-Chief able to overturn any decisions unilaterally), ensure that the military will be immune from accountability in Myanmar. Without significant domestic legal and constitutional reforms, Myanmar’s national judicial system is neither available nor able to carry out proceedings for crimes committed by its Security Forces against any ethnic group, including the Rohingya.

Furthermore, as discussed extensively in this letter, Myanmar’s authorities—civilian and military alike—have also failed to demonstrate any willingness to investigate or hold perpetrators accountable. In fact, Myanmar has variously denied any wrongdoing and failed to conduct genuine investigations or impose sanctions or accountability on perpetrators of these crimes.

  • Para. 23 - “In Myanmar, the Penal Code was enacted in 1861. It establishes a legal framework in order to protect and eliminate crimes, including sexual assaults, rapes, human trafficking, domestic violence, and other offenses against women and girls.”

The existing legal framework in Myanmar, including the Penal Code, is insufficient to ensure justice, protection, and rehabilitation for victims. As a preliminary point, the Constitution shields the military from prosecution in civilian courts, thus the Penal Code would not be the dispositive legal framework. However, if cases were taken up in civilian court, Myanmar’s Penal Code and other criminal procedures, which reflect outdated stereotypes and do not comport with international standards, would be insufficient to ensure justice.

For instance, while Section 375 of the Penal Code includes non-consensual “sexual intercourse” as a criminal element of rape, the undefined requirement of “penetration” as a component of “sexual intercourse” leaves the overall definition of rape ambiguous, for instance in cases of forced non-penile penetration. Nor does the Penal Code include any specific provisions concerning unwanted sexual touching or sexual harassment outside the context of sexual intercourse, although Section 354 does criminalize assault intended to “outrage [a woman’s] modesty” (a troubling example of outdated and ambiguous language justifying scrutiny of a woman’s “modesty” as a pre-condition for access to justice). The definition of rape under Section 375 applies only to women who are not married to their attacker; the Penal Code neither prohibits nor punishes the rape of women by their husbands, unless the victim is less than 15 years of age.

Additionally, despite Myanmar’s assertion, the Penal Code does not criminalize domestic violence or provide a legal mechanism allowing women to obtain restraining orders to protect them against aggressors. While a long-negotiated comprehensive violence against women law has been promised, it has yet to be introduced in Parliament after nearly four years, and consultations and drafts have indicated that the law will uphold the problematic definitions of crimes discussed above, including rape and marital rape.

Meanwhile, neither Myanmar’s Code of Criminal Procedure nor its Evidence Act contains comprehensive substantive protections for the integrity and dignity of women during the investigation and prosecution of cases involving violence against women.  The law also permits judges to both compel victims of rape to testify against their attackers and to draw an adverse inference from a victim’s refusal to answer questions about the rape.  The “inconsistencies and vagaries” of the legal process is one cause of low reporting of violence.

  • Para. 30 - “Myanmar National Human Rights Commission officially transmitted complaints on violation of human rights it receives to the authorities concerned to take follow-up action in line with regulations and procedures and relevant laws.” and para. 32 - “The Government also affirms that it will help Muslim displaced persons who have fled to Bangladesh to file cases concerning alleged human rights abuses. Those wishing to file grievances may do so from their current location but will be required to attend a trial in Myanmar. The Government will assist them in so doing.”

Administration of justice is particularly weak in Myanmar[7] and neither Myanmar’s domestic courts nor its National Human Rights Commission have the capacity, impartiality, and independence required to deliver justice.

Myanmar’s judiciary is seen as “inactive and subordinate to the military,” with “allegations of judicial corruption, inefficiency, and susceptibility to executive influence [that are] so widespread that they cannot be sensibly discounted.”[8] State actors, including the executive and the military, have been known to apply improper pressure on the judiciary and prosecutors in cases related to gross violations of human rights, as well as political and civil cases.[9] As a result, even if cases were transferred from military court to civilian court, those proceedings would not be free from the military’s power and influence.

Attempts to utilize formal court or accountability proceedings are often met with reprisals and raise serious concerns about the safety of those who would opt to utilize formal processes facilitated by the government, whether the National Human Rights Commission or other venues. The case of Brang Shawng, the father of a fourteen-year-old girl who was killed by the military, is a case in point.[10] While he never saw accountability for his daughter’s killing, he himself was prosecuted for filing false charges and was embroiled in legal proceedings for over eighteen months. Fear of reprisals, along with widespread corruption and generally low levels of judicial competence, has resulted in a lack of public trust in the legal system.[11] Fears of reprisals are only likely to be heightened in those who were attacked and forcibly displaced by Myanmar’s Security Forces, rendering Myanmar’s promise to “assist” those outside the country in filing human rights complaints in Myanmar’s courts, with no assurances of safety and well-being, empty at best.

III. Recommendations

  • Immediately cease military and security operations against the Rohingya in Rakhine State and in other ethnic areas, particularly Shan and Kachin states; issue orders to cease all acts of rape and sexual violence; and permit humanitarian access to the State.
  • Initiate impartial and independent investigations into violations of international criminal, human rights, and humanitarian law, possibly amounting to international crimes, with a view to ensuring justice and accountability and comprehensive and transformative reparations to affected individuals and populations.
  • Cooperate with and facilitate access for all international human rights and accountability institutions and mechanisms, including the Myanmar FFM, the Special Rapporteur on the situation of human rights in Myanmar and other UN special procedures, the International Criminal Court, and international human rights organizations.
  • Ratify the Rome Statute of the International Criminal Court and provide retroactive jurisdiction to the entry into force of the Statute, July 1, 2002.
  • Amend the 2008 Constitution to bring the military and security forces under civilian oversight, and repeal provisions granting the military actors impunity for human rights abuses, including Article 445.
  • Expeditiously pass a Prevention (and Protection) of Violence Against Women Law in line with international human rights standards, eliminate contradictory Penal Code provisions including the definition of rape and marital rape exceptions, and ensure jurisdiction over the military for crimes under the ambit of the law in civilian courts.
  • Amend the 1982 Citizenship Act to repeal discriminatory provisions based on national origin, religion, and ethnicity and restore citizenship to those whose citizenship was stripped under the law.
  • Guarantee the safe return of Rohingya and other displaced ethnic minorities, including the repatriation of any confiscated land and ensure the equal participation of women in all decision making processes related to these efforts.

Respectfully submitted by:

European Center for Constitutional and Human Rights
Global Justice Center
Women’s Initiatives for Gender Justice

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Annexes:

  1. Global Justice Center, Discrimination to Destruction: A Legal Analysis of Gender Crimes Against the Rohingya, September 2018, available at: http://globaljusticecenter.net/files/Discrimination_to_Destruction.pdf
  2. Naripokkho, Women’s Initiatives for Gender Justice, Ms. Sara Hossain, European Center for Constitutional and Human Rights, Amicus Curiae Observations Pursuant to Rule 103, available at: https://www.icc-cpi.int/CourtRecords/CR2018_02944.PDF  
  3. Global Justice Center, Fact Sheet: Structural Barriers to Accountability for Human Rights Abuses in Burma, October 2018, available at: http://globaljusticecenter.net/files/Structural-Barriers---Burma.pdf.

[1] Government of Myanmar, Report on an exceptional basis, U.N. Doc. CEDAW/C/MMR/4-5/Add.1 (Feb. 4, 2019) [hereinafter “State Report”].

[2] Rakhine Advisory Commission, Towards a Peaceful, Fair and Prosperous Future for the People of Rakhine: Final Report of the Advisory Commission on Rakhine State, p. 12 (Aug. 2017).

[3] Human Rights Council, Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, 750, U.N. Doc A/HRC/39/CRP.2 (Sept. 17, 2018).

[4] Human Rights Council, Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, ¶ 751, U.N. Doc A/HRC/39/CRP.2 (Sept. 17, 2018).

[5] United States Department of State, Documentation of Atrocities in Northern Rakhine State, 24 September 2018, https://www.state.gov/j/drl/rls/286063.htm.

[6] Public International Law and Policy Group, Documenting Atrocity Crimes Committed Against the Rohingya in Myanmar’s Rakhine State, https://www.publicinternationallawandpolicygroup.org/rohingya-report.

[7] Crouch, Melissa, The Judiciary in Myanmar (March 3, 2016). UNSW Law Research Paper No. 2016-10. Available at SSRN: https://ssrn.com/abstract=2747149 or http://dx.doi.org/10.2139/ssrn.2747149.

Progress Rep. of the Special Rapporteur on the situation of human rights in Myanmar to the Human Rights Council (Tomás Ojea Quintana), ¶ 12, U.N. Doc. A/HRC/19/67 (March 7, 2012); Nick Cheesman & Kyaw Min San, Not Just Defending; Advocating for Law in Myanmar, 31 Wis. Int’l L.J.  714,  available at http://www.Myanmarlibrary.org/docs19/Cheesman_KMS__Not_just_defending-ocr-tpo.pdf; International Bar Association’s Human Rights Institute, The Rule of Law in Myanmar: Challenges and Prospects, (December 2012) at 58, [Hereinafter IBA 2012 Report], available at http://www.ibanet.org/Document/Default.aspx?DocumentUid=DE0EE11D-9878-4685-A20F-9A0AAF6C3F3E.

[8] Report of the Special Rapporteur on the situation of human rights in Myanmar, Human Rights Council

Thirty-first session, ¶ 20, 21, U.N. Doc. A/HRC/34/67 (March 1, 2017) Report of the Special Rapporteur on the situation of human rights in Myanmar, Human Rights Council, Thirty-first session, ¶ 15, 16, U.N. Doc. A/HRC/31/71 (March 18, 2016). IBA 2012 Report at 59. See also  International Commission of Jurists, Country Profile: Myanmar, (June 2014) 11 available at http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2014/06/CIJL-Country-Profile-Myanmar-June-2014.pdf; see also International Commission of Jurists, Right to Counsel: the Independence of Lawyers in Myanmar, (June 2014) at 40 available at  http://www.burmalibrary.org/docs16/ICJ-MYANMAR-Right-to-Counsel-en-red.pdf

[9] International Commission of Jurists, Achieving Justice for Gross Human Rights Violations in Myanmar: Baseline Study at 19 (Jan. 2018), available athttps:.//www.icj.org/wp-content/uploads/2018/01/Myanmar-GRA-Baseline-Study-Publications-Reports-Thematic-reports-2018-ENG.pdf.

[10] International Commission of Jurists, Achieving Justice for Gross Human Rights Violations in Myanmar: Baseline Study at 33.

[11] Justice Base, Behind Closed Doors: Obstacles and Opportunities for Public Access to Myanmar’s Courts (May 25, 2017), available at http://myjusticemyanmar.org/sites/default/files/Justice-Base-Behind-Closed-Doors.compressed-1.pdf.

Why the US Needs CEDAW: Abortion as a Human Right in the United States

By Jessica Pierson

This year marks the 42nd anniversary of the Hyde Amendment, a legislative provision barring the use of federal funds to pay for abortion except in extreme circumstances. The Hyde Amendment has been a key way in which conservative lawmakers have been able to systematically deny a large portion of women their constitutional right to an abortion. Even though the right to abortion is the law of the land, U.S. constitutional law does not affirmatively guarantee that every person must be able to access an abortion. A case in point being that the Supreme Court has ruled twice that the Hyde Amendment is constitutional, even though its effects have been detrimental to American women.

A human rights framework, on the other hand, requires that government respect, protect, and fulfill the right to an abortion. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is the international treaty on women’s rights that has been ratified by nearly all the United Nations member states except for the U.S. In contrast to the U.S. Constitution, CEDAW imposes an equality standard that requires all laws that disparately impact women be scrutinized to secure de jure and de facto equality for women. The CEDAW Committee, the monitoring body for the treaty, has repeatedly made clear that it considers restrictive abortion laws incompatible with the human rights of women. Therefore, the Hyde Amendment would violate a human rights framework, which would require that the state ensure that every woman, regardless of her income or race, could access the same rights. As the founder of the Global Justice Center, Janet Benshoof, has argued, ratification and full implementation of CEDAW in the U.S. would radically change the basic equality rights of American women, including the right to an abortion.

CEDAW Casebank

CEDAW Casebank

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) defines discrimination against women and requires states not only to prohibit discrimination but also to take affirmative steps in order to achieve gender equality.  The Convention is legally binding upon States that have ratified the Convention and any laws in violation of CEDAW must be struck down.

CEDAW has been used to support affirmative action policies and programs as well as to strike down laws that are in violation of the Convention.  These cases carry significant import: the application of CEDAW in domestic courts gives CEDAW legitimacy globally and reinforces the principle that domestic courts are bound by international treaties such as CEDAW.

Dispatch from Geneva - Behind the Scenes Update from GJC's Senior Burma Researcher

Phyu Phyu Sann, far right, the Global Justice Center’s Senior Burma Researcher, is in Geneva, Switzerland for the United Nation’s (UN) review of Myanmar’s implementation of its obligations under the Convention of the Elimination of All Forms of Discrimination against Women (CEDAW)  to ensure gender equality. In Myanmar, the UN’s Committee on the Elimination of Discrimination against Women (CEDAW Committee) will confront a “constitution and laws that explicitly and in effect discriminate against women,” and a country with a “history of patriarchy, negative gender stereotypes,” and marginalization of women in all parts of society, as outlined in a recent press release and shadow report by the Global Justice Center and the Gender Equality Network.

 

Arriving in Geneva after a long, trans-Atlantic flight, Sann immediately commenced preparations with members of local women’s groups. In an unprecedented show of cooperation, women’s groups agreed to submit a joint oral statement to the CEDAW Committee and GJC helped formulate and draft the statement.  In Geneva, Sann helped to finalize the oral statement, prepare answers to “possible questions from [the] committee,” and compare CEDAW’s list of issues with official responses from the  government in order to effectively highlight the precarious situation faced by women.

In e-mail correspondence from Geneva, Sann stresses the importance of listening to women working on the ground to effect change. She notes that, “the CEDAW Committee pays attention to these informative quick assessments and opinions of women from the ground.” Topics covered might include structural barriers and discrimination in law, underrepresentation of women at all levels of government and in the peace process and violence against women, including conflict-related sexual violence committed by the military. Between intense preparation sessions, Sann and her activist colleagues found time to celebrate the country’s rich culinary diversity, cooking “rice and Burmese soup and salad,” and “[sharing] food together.”

The women, Sann writes, are now “ready to engage with CEDAW.”

Follow us on Twitter or Facebook to stay updated on the CEDAW review and other GJC news.

Security Council Resolutions on Women, Peace and Security in Practice: The Failed Case of Burma

In 2000, the United Nations (UN) Security Council passed a historic resolution as its clarion call for ending sexual violence in conflict. This Resolution, SCR 1325, as well as the succeeding Resolutions, that together form the Women, Peace and Security (WPS) Resolutions recognized the gender-specific impact of conflict and historic gender discrimination in criminal accountability for sexual violence in conflict, and underscored the need for women to participate in post conflict reconstruction. The Global Summit to End Sexual Violence (the Summit) has been convened to create a “sense of irreversible movement to end the use of rape and sexual violence in conflict” and, therefore, is a time to assess how the WPS Resolutions have translated into protections for women during conflict.

Using the current conflict situation in Burma as a test of the WPS Resolutions demonstrates how ineffective they have been in providing protection and remedy for women on the ground during conflict. Despite the mandates of the WPS Resolutions, credible evidence continues to indicate that the military uses sexual violence against ethnic women in Burma as a means to assert its authority and to destroy ethnic communities. The military continues to operate with Constitutionally-sanctioned impunity for its actions. Moreover, current peace negotiations, intended to end decades of ethnic conflict, have almost completely failed to include women, especially ethnic women.

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Updating State National Action Plans to Ensure the International Humanitarian Rights of Women and Girls Raped in Armed Conflict

On the occasion of the Global Summit to End Sexual Violence in Conflict, the Global Justice Center encourages States to exercise global leadership on the protection of women and girls raped in armed conflict by updating their National Action Plans (NAPs) to include explicit language accepting their international humanitarian law obligations to provide non-discriminatory medical care, justice, and reparations to war rape victims.

Women and girls raped in war are among the “war wounded,” therefore protected under international humanitarian law (IHL) by the absolute prohibition on adverse distinction, including on the basis of sex. In reality, however, women and girls raped in war are regularly subjected to discrimination in the medical care they receive and in the justice, accountability, and reparations measures available to them. The prohibition against adverse distinction applies to how all IHL rules are implemented, and it is so fundamental that it constitutes customary international law. Adverse distinction is interchangeable with the term “non-discrimination:” in all cases IHL cannot be implemented in ways that are “less favorable” for women than men.

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Chilean Health Minister Reply

JULY, 2013: Chilean Health Minister Dr. Jaime Menalich Muxi responds to a letter from the GJC requesting that he allow an 11-year-old rape victim to have a life-saving abortion.

This letter states that though the pregnancy is risky, he cannot grant her an abortion because it is against the law.

This is a translated version of the letter.

Read GJC's original letter here.

Read the original version of the Chilean Health Minister's response letter (in Spanish) here.

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Letter to Jaime Mañalich Muxi, Re: Denial of Life-Saving Abortion to Pregnant Chilean Girl Violates International Human Rights Law

GJC writes a letter to Chilean Minister of Health, Jaime Manalich Muxi, asking him to allow doctors to perform a life saving abortion on an 11-year old girl who was impregnated after being raped repeatedly by her mother's boyfriend.

Excerpt:

On behalf of the Global Justice Center, I am writing to urge you to immediately permit doctors to perform a therapeutic abortion to save the life and prevent further cruel, inhuman and degrading treatment of a young Chilean girl, “Belén,” who faces a life-threatening pregnancy resulting from rape.

Belén, an 11-year old girl, was impregnated after being raped repeatedly for more than two weeks by her mother’s boyfriend. According to Belén’s doctors, the pregnancy has placed her life at risk. If, however, her doctors were to provide her a life-saving abortion, they and Belén would both be found in criminal violation of Chile’s absolute ban on abortion, which allows no exceptions for rape, incest or life of the mother. As Chilean law now stands, an 11-year old girl will be forced to endure a life-threatening pregnancy that will either kill her or compel her, a child herself, to give birth to and raise the child of her rapist. This forced pregnancy will continue the violation of her bodily integrity and sovereignty, extending the pain and abuse she has already experienced.

We call on your government to permit a therapeutic abortion as the only humane response to Belén’s predicament, and to reform your restrictive ban on abortion so that future girls and women are not subjected to the physical and psychological dangers of unwanted and life-threatening pregnancies.

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Legal Victory in Kenya Can Serve as Model to Fight Impunity in Burma

Girls and women in Kenya recently made history when the High Court of Kenya delivered a favorable outcome to a constitutional challenge in which 160 girls between the ages of 3 and 17 sued the Kenyan government for failing to protect them from being raped.

The girls brought the action under Section 22(1) of the Kenyan constitution, which provides that “Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.” The Kenyan criminal code contains laws that protect against rape, however they are not enforced and as a result rape has been on the rise. The petitioners accused the police of “neglect, omission, refusal and/or failure…to conduct prompt, effective, proper and professional investigations” into sexual violence complaints.

The High Court agreed with the petitioners, saying that the police had “unlawfully, inexcusably and unjustifiably” failed to respond to reports of sexual abuse in Kenya. It said police inaction and lack of enforcement has created a “climate of impunity” that shows perpetrators they can commit crimes of sexual violence and not be punished. The Court found that the petitioners’ fundamental rights and freedoms had been violated, not only under the Kenyan Constitution but also according to international law. The Court found police inaction to violate fundamental rights that are protected by the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, and the Universal Declaration of Human Rights. The Court also considered international cases that demonstrate a consensus that states may be held accountable for failing to properly respond to sexual violence because they have a duty “to protect all citizens from violence and ensure their security of person.”

Two days after the victory, several people contacted Fiona Sampson, the Toronto attorney who worked on the case. They wanted to use the case as a model in other countries for fighting impunity in the context of sexual violence, a problem that is hardly limited to Kenya.

For the women in Burma, for example, the problem of impunity in the face of widespread sexual violence is dire. The prevalence of abuse, documented by Burmese women’s groups, UN special rapporteurs, and even the Security Council, is extensive. These violations are not anecdotal incidences of crime. Rather, the Burmese military uses rape as a weapon of war against the civilian population.

Although this problem has been reported at length, the Burmese government refuses to take any action to punish such acts. In fact, the current 2008 Constitution provides complete impunity for sexual violence perpetrated by the military by including an amnesty provision that precludes the prosecution of military perpetrators of crimes. What’s more, current law requires that any amendment to the Constitution be supported by more than 75% of parliament. Because 25% of parliamentary seats are reserved for the military, all nonmilitary members plus at least one military member must support any proposed amendment. It is therefore unlikely that the amnesty provision will be overturned any time soon.Because of this, the International Center for Transitional Justice has said that Burma presents “one of the most difficult challenges in the world in relation to making progress toward combating impunity”.

As a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women, Burma has an affirmative duty to ensure women are protected from sexual violence, which includes not affording immunity to its perpetrators. Like Kenya, Burma is bound under the Convention on the Rights of the Child and should be guided by the Universal Declaration of Human Rights in developing policies and practices that protect Burmese citizens from sexual violence. Burma is violating these international obligations when it relies on its 2008 Constitution to justify inaction.

The international community should look to the recent case in Kenya as a model and call for Burma to put an end to impunity if it wants to establish viable democracy in the country. Given the Burmese military’s reliance on aid, international pressure could be highly effective. While the government continues to fail to act to combat impunity, the international community must demand a change in the constitution so that girls and women in Burma, just as in Kenya, receive the protections their government owes them.

Women Must be Included in Drafting Libya Constitution

On May 29, 2013, the United Nations Support Mission in Libya (UNSMIL) called for the active participation of women in the drafting of Libya’s constitution-drafting. The statement stresses the significant role Libyan women played in the February Revolution and the continued role they play in public life. The impact women had on the revolution is certainly true, but, we are missing a decisive point – that the participation of women in the drafting process (as well as in the political process in general) is a legal obligation under international law.

The United Nations Security Council (UNSC) Resolutions on Women, Peace and Security, along with CEDAW, stipulate that women should be included in the drafting of national constitutions. As applied to Libya, the Security Council resolutions, which pertain to enhanced gender roles and protections, and CEDAW, a treaty that encompasses recommendations for advancing women’s rights, are relevant in two ways. First, the laws demand women’s participation because of Libya’s post-conflict status. Security Council Resolution 1889 states that nations should ensure women’s participation during all stages of peace processes, especially post-conflict planning and peace building, by enhancing female engagement in decision making from the early stages of the recovery process. Similarly, CEDAW’s General Recommendation 23 states that women must participate in the formulation and implementation of government policy, as well as hold public office. Following the “Declaration of liberation,” Libya is currently a post-conflict state and thus falls within the scope of SCR 1889. Furthermore, the constitution-drafting process appears to be the very type of early-stage planning in which women must be involved. A constitution is a primary source of policy and law; women must be included in its drafting process.

The second way CEDAW and the Security  Council resolutions pertain to the Libyan constitution-drafting process is that they call for heightened gender perspectives in decision making processes. The special needs of women are better protected by female point of view in the lawmaking process. Thus, special measures should be taken to ensure women’s political participation. Both UNSC Resolution 1325 and CEDAW directly call for increased gender perspective; however, the latter legal entity goes one step further. In its fifth General Recommendation, CEDAW emphasizes the use of temporary special measures, such as preferential treatment or quota systems, to ensure the inclusion of a critical mass of women in governing bodies. The 23rd General Recommendation further explains that this mere removal ofde jure barriers is necessary but not sufficient, and that states must also work to address cultural barriers and stereotypes, facilitate the recruitment of female candidates, provide financial assistance and training and amend electoral procedures to ensure critical mass.

The optimal means to ensure that a gender perspective manifests in Libyan society is to entrench these values into the constitution. Such steps are legally stipulated by international law, and the appropriate means to attain gender equality, according to CEDAW, are expected to be taken without delay. To reach gender equality, CEDAW recommends temporary measures that per se favor women. A state’s social and cultural practices that are contrary to the equality goal are not accepted reasons to violate its obligations. Libya is no exception. It is the responsibility of the State to provide avenues for women to ascend to office, by reserving public office opportunities for women, as well as actively working to overcome the stigma that may preclude women from becoming candidates.

Democratic practice is also subject to international law on gender equality. In other words, a lack of female representation is not permitted merely as a failure of the population to vote for female candidates. CEDAW recommends that states use electoral instruments to ensure that at least a minimum number of women – that goes beyond mere “tokenism” and is estimated to be between 30 and 35 percent of legislative seats – in order to receive a “critical mass.”

Libya admittedly took steps towards increasing female representation by using a quota (ten percent of seats) in the first democratic election after the fall of the Gaddafi regime. However, this figure is well short of the thirty to thirty-five percent that CEDAW’s General Recommendation 23 provides is necessary for adequate representation. Furthermore, the ten percent quota utilized in Libya is ambiguous and may actually serve as a ceiling for female representation. Finally, the quota only applies to a narrow category of politicians that make up a small proportion of the government assembly.

With these concerns in mind, GJC welcomes UNMSIL’s announcement, but seeks to ensure that Libya goes further to guarantee women the political power and voice they are due according to international law. The new Libyan Constitution is an opportunity to realize gender equality and protect women’s international human rights, as enumerated by the UNSC and CEDAW. Not only do women deserve a seat at the table in drafting Libya’s constitution, as UNMSIL notes, from their participation in the February Revolution, but also as a matter of international law. All efforts must be taken to ensure women’s participation in the constitution-drafting process, and in electoral politics. Such measures will enable the country’s further democratization as it develops in the wake of the revolution.

Written Submission on the General Recommendation on “Access to Justice”

The GJC welcomes the Committee’s Concept Note and looks forward to the general discussion on “Access to Justice” in preparation for a General Recommendation on the subject.

In general, access to justice for women is essential to the advancement of women’s rights, including the prevention of any form of discrimination against women, including gender based violence, and the full implementation of the rights in the UN Convention on the Elimination of all Forms of Discrimination against Women.2 In this context, it is essential that women are able to assert their rights in a judicial system, have access to redress and reparation, including compensation, and have perpetrators of crimes against women held accountable.

This written submission focuses on one particular area of access to justice: the necessity to ensure equal participation in the judiciary by women, in particular through the use of quota systems. Gender parity in the judiciary is essential in order to ensure the advancement of the rule of law, and high quality, non-discriminatory decisions.

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Myanmar/Burma’s Binding Obligations Under International Law

November, 2012

This document outlines some of Myanmar/Burma’s (hereinafter “Burma”) obligations under international law, and demonstrates the ramifications of these obligations. Burma’s obligations under international law have greatly increased due to the advances in international law and the enforcement of states obligations over the last fifteen years.

International law mandates that states either act or refrain from acting in certain ways, and provides remedies for state breaches. The framework of Burma’s obligations arise from four interrelated bodies of international law: international human rights and other treaty law, including the United Nations (UN) Charter; customary international law, including the laws of state responsibility; international humanitarian law; and international criminal law.

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Domestic Criminal Laws That Conflict with International Law: Burma's Abortion and Rape Laws - A Case Study

International law provides a model to improve often outdated domestic laws.

Burma is party to many treaties, including the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the Genocide Convention and the Geneva Conventions. International law requires states to comply with their treaty obligations in “good faith” regardless of whether domestic laws conflict with the treaty. These obligations often include requirements that states modify their domestic laws to ensure compliance with international human rights and humanitarian standards and obligations. For example, the Genocide and Geneva Conventions, ratified by Burma, both require as a part of their fundamental mandates that states pass domestic laws to comply with their treaty obligations. Burma currently has no domestic laws implementing any of its human rights treaty obligations, with the possible exception of its laws against human trafficking.

This document examines Burma’s domestic criminal laws addressing abortion and rape and compares them with the international law standards binding on Burma. These case studies are examples of how international law can be used to reform of Burma’s domestic law to comport with international human rights and humanitarian standards.

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