Letter to UN Security Council members regarding Myanmar’s Independent Commission of Enquiry and the Provisional Measures ordered by the International Court of Justice

Your Excellency,

We are writing to you in light of the recently published summary of the final report of Myanmar’s Independent Commission of Enquiry (ICOE), which was issued the same week that the International Court of Justice (ICJ) ordered Myanmar to take immediate action to prevent genocide against the country’s persecuted Rohingya minority. In particular, we would like to raise grave concerns regarding the ICOE’s: (1) independence and impartiality; (2) methodology; and (3) flaws in narrative and findings.

The ICOE’s independence and impartiality have been seriously undermined by its reliance on the Office of the President of Myanmar for financial and technical support, as well as by the composition of the Commission itself, which includes at least one official directly implicated in the bulldozing of Rohingya villages damaged during the 2017 crisis in Rakhine State. The executive summary of the ICOE’s report also provides no information as to what sources and materials were relied upon beyond individual interviews, nor how the ICOE corroborated and verified this information, making it impossible to assess the quality of their methodology. Crucially, the ICOE did not interview a single Rohingya refugee in Cox’s Bazar, Bangladesh, regarding the circumstances that resulted in over 700,000 people fleeing the country. Finally, there are serious flaws and misrepresentations in the ICOE’s narrative of the crisis in Rakhine State, including disturbing inaccuracies and omissions in relation to mass rape and widespread sexual violence directed at Rohingya women and girls during the military’s so-called “clearance operations.”

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Behind Myanmar’s Military Alibi: A Path for Compliance with the ICJ’s Order to Protect Rohingya

Excerpt of Just Security op-ed by GJC's Akila Radhakrishnan and Grant Shubin.

In the wake of the ruling from the International Court of Justice (ICJ) ordering Myanmar to prevent genocide against the Rohingya going forward, the initial excitement was tempered by pragmatics—how this important court order can be enforced so that it actually protects the 600,000 Rohingya who remain in Rakhine State.

To be sure, there is no confusion that these measures are binding—as the court noted, they create international legal obligations that require Myanmar’s compliance. But how can the international community guarantee that Myanmar actually does anything? And does Myanmar’s civilian government have the capacity to do what is needed?

The answers to these questions are mixed, generally relying on exertion of geopolitical pressure, including through the United Nations Security Council, to which the order has been transmitted. As a general rule and absent a concrete enforcement mechanism, ICJ orders have a reliable compliance rate. However, looking at the Myanmar case in context, and in particular the measures requiring prevention of the commission of genocide by Myanmar’s military, compliance will require a serious and concerted effort by both the international community and the civilian government.

Read the Op-Ed

Myanmar’s Silence on Rape Against Rohingya Is Cruel and Dangerous

Excerpt of Pass Blue op-ed by GJC President Akila Radhakrishnan.

Last month, the world was struck by an unusual image — that of a Nobel Peace Prize laureate, Aung San Suu Kyi — standing in court to defend and deny genocide. What was striking was not only what she and Myanmar’s legal team said but also what wasn’t said: the total failure of Myanmar to respond to the allegations of mass sexual violence against the Rohingya, including rape.

As Prof. Philippe Sands, counsel for The Gambia, which brought the case against Myanmar, said, “Madame agent, your silence says far more than your words.”

In fact, the words “sexual violence” passed through the lips of Myanmar’s team just once during the three-day hearings at the International Court of Justice in December, only to say that it is “a phenomenon that regrettably occurs in many parts of the world and that we all condemn unequivocally.”

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There can be no real accountability in Myanmar if women remain on the sidelines

Excerpt ofWomen's Media Center op-ed co-authored by GJC Senior Burma Researcher Phyu Phyu Sann.

Myanmar presents one of the world’s most difficult challenges to combating impunity, assisting victims, and reforming the institutions responsible for committing sexual violence and other crimes in conflicts. For years, women in Myanmar have called on the international community to intervene to put meaningful pressure on their human rights abusers. They are demanding an end to military control in the country and accountability for perpetrators of sexual violence and other egregious crimes against women.

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Gender Inequality and Sexual Violence in Myanmar: Part of the Problem is Preventing a Cure

Excerpt ofMizzima op-ed by GJC Senior Burma Researcher Phyu Phyu Sann & GJC Special Counsel Michelle Onello.

When it comes to protecting women from violence in Myanmar, what little difference a year makes. Last year during the annual 16 Days of Activism against Gender-Based Violence, the Government pledged to submit a Prevention of and Protection from Violence Against Women (PoVAW) Law to Parliament in early 2019 and give “priority and focus” to protecting women and children from violence.  As we approach another 16 Days of Activism, the PoVAW law, in the drafting stage since 2013, has not yet been submitted to Parliament, making clear that protecting women from violence is far from a priority or focus for the current Government.

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Discrimination by Design: Key Points for the Universal Periodic Review of Iraq

In advance of the Human Rights Council’s forthcoming review of Iraq, it is critical that attention is paid to the need for fundamental reform of Iraq’s legal system in order to achieve justice for Daesh’s victims, and more broadly for the people 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.

The Global Justice Center’s full submission highlights a number of concerns over Iraq’s criminal laws as violations of Iraq’s obligations under the treaty bodies to which it is a party – including the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Prevention and Punishment of the Crime of Genocide, and the Geneva Conventions.

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Ending Impunity for Gender-Based Violence in Genocide

Excerpt ofMs. Magazine op-ed by GJC Legal Intern Katherine Comly.

Ask any feminist how they think their government is doing at holding perpetrators of sexual violence accountable and most would respond with an emphatic “poorly”—at best. Internationally, there are moves being made to tackle sexual violence, like awarding the Nobel Prize to Nadia Murad and passing the first Security Council Resolution on the issue. Still, they go nowhere near solving systemic problems.

There currently exists, however, a major opportunity to reform how the international justice system addresses sexual violence: the investigations into genocidal violence against the Rohingya in Burma. A gendered understanding of these crimes is essential and will fulfill the international community’s responsibility to recognize and punish all forms of genocidal violence.

Read the Full Op-Ed

Bringing a Gendered Lens to Genocide Prevention and Accountability

By Maryna Tkachenko

More than 70 years after the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide, mass atrocity crimes are still carried out in systematic and, equally important, gendered ways. The lack of emphasis on the gendered nature of coordinated crimes not only jeopardizes international security but also ignores the multi-layered reality of genocidal violence. The most recent genocides against the Yazidi and the Rohingya populations are clear instances of the international community neglecting to prioritize a gendered lens in preventing and punishing genocide.

On 22 May, the Global Justice Center and the International Coalition for the Responsibility to Protect (ICRtoP) held a panel on “Gender and Genocide: Engendering analysis for better prevention, accountability, and protection” to examine critical gaps within the framework of analysis for atrocity crimes. (Read GJC’s white paper Beyond Killing: Gender, Genocide, & Obligations Under International Law to learn more about the ways in which female experiences of genocide are too often removed from the analysis of genocidal violence.) 

There’s Nothing “Pro-Life” About Sweeping Abortion Bans

Excerpt of Ms. Magazine op-ed by GJC Communications Manager Liz Olson.  

Alabama’s sweeping abortion ban compares abortion to the Holocaust and the Rwandan genocide, as though the termination of a fetus is morally equivalent to the willful annihilation of a people. But it is abortion bans, not the women who seek them, that put lives at risk every day.

Legislation that criminalizes abortion access and provision does not prevent abortions—it just makes them more dangerous. The World Health Organization reports that about 25 million unsafe abortions are performed annually, primarily in regions with heavily restrictive abortion laws. Women who have unsafe abortions face serious and even fatal medical complications like heavy blood loss, infection and damage to internal organs. Unsafe abortions are even a leading cause of maternal mortality: 68,000 women die from them every year around the world.

The deadly impact of restrictive abortion policies is so well documented that the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, Agnes Callamard, once declared that total abortion bans “amount to a gender-based arbitrary killing, only suffered by women, as a result of discrimination enshrined in law.” 

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Breaking Decades of Silence: Sexual Violence During the Khmer Rouge


By: Maryna Tkachenko

April 17, 2019 marked the 44th anniversary since the Communist Party of Kampuchea (the Khmer Rouge) took over Cambodia. While in power, the party sought to create a Cambodian “master race,” resulting in years of repression, forced labor, torture, and massacres. While the recent trials at the Extraordinary Chambers in the Courts of Cambodia (ECCC) convicted two Khmer Rouge leaders of genocide, the issue of sexual and gender-based violence perpetrated by the regime was not at the center of discussions.

After decades of silence, survivors of sexual violence are speaking out about their experiences. Working toward justice, accountability, and peace building becomes a challenge when survivors are at risk of being blamed and discriminated against. Hence, in an effort to eradicate the stigma and facilitate transitional justice processes, women in Cambodia are demonstrating the ways in which Cambodian society is impacted years after the Khmer Rouge regime ended.

Much More Than Language: How the US Denied Survivors of Rape in Conflict Lifesaving Care

Excerpt of Women Under Siege op-ed by GJC Deputy Legal Director Grant Shubin.  

On Wednesday, April 23, 2019, the UN Security Council adopted Resolution 2467 during the Council’s annual Open Debate on Conflict-Related Sexual Violence. .

After months of German-led negotiations, passage of the Resolution ultimately came down to sexual and reproductive health (SRH)—specifically, whether the U.S. would veto its inclusion in the final text.

The U.S. justified its position by claiming that SRH is a euphemism for abortion services. Not only is this not true—SRH includes, among other things, contraception, safe abortion services, HIV prevention, and prenatal healthcare—but even if it were, abortion services for survivors of sexual violence save lives.

Unsafe abortion causes the deaths of 47,000 people each year and leaves another 5 million with some form of permanent or temporary disability. They may suffer complications, including hemorrhage, infection, perforation of the uterus, and damage to the genital tract or internal organs. In fact, the consequences of denying abortion services have been found to be so severe that it can amount to torture and other inhuman or degrading treatment.

The international community cannot become accustomed or complacent to the Trump administration’s use of domestic politics to hold international rights hostage. Because it is more than just words that are given up last minute on the floor of the Security Council—it’s women’s lives.

Read the Full Op-Ed

"That's Illegal" Episode 10: #BringBackOurGirls: Five Years Later

In this episode, we are joined by Dr. Mojúbàolú Olúfúnké Okome, Professor of Political Science, African & Women’s Studies at Brooklyn College, CUNY and one of the founders of the Bring Back Our Girls NYC campaign, to discuss the fifth anniversary of Boko Haram’s kidnapping of the 276 Chibok girls and gender-based violence in Nigeria.  

Enjoy this episode? Follow us on iTunes and Soundcloud!

UN Security Council Adopts Resolution 2467

FOR IMMEDIATE RELEASE – April 23, 2019

[NEW YORK, NY] – Today, the United Nations Security Council adopted Resolution 2467 on Women, Peace and Security. Although the resolution purports to address the needs of victims of sexual violence in conflict, it contains no direct references to reproductive health—a key component of necessary and comprehensive medical care. This last-minute compromise was made to avoid a certain veto by the United States government.

"The Prosecutors" Screening at the United Nations

From April 25, 2019 18:15 until 20:00

At United Nations Headquarters, New York City, CR11

Speakers:

  • H.E. Ms. H. Elizabeth Thompson, Permanent Representative of Barbados to the United Nations
  • Pramila Patten, Special Representative of the United Nations Secretary-General on Sexual Violence in Conflict
  • Karim Khan QC, Special Adviser and Head of UN Investigative Team to promote accountability for crimes committed by
  • Susana SáCouto, Director, War Crimes Research Office, American University Washington College of Law
  • Leslie Thomas, Director and Producer

Overview:

The Prosecutors is a documentary that tells the story of three dedicated lawyers who fight to ensure that sexual violence in conflict is not met with impunity. Filmed over five years on three continents, it takes viewers from the Democratic Republic of Congo to Bosnia and Herzegovina to Colombia on the long journey towards justice.

The Global Justice Center is proud to co-sponsor this event alongside the Permanent Missions of the United Kingdom, Colombia, Canada, Chile and Costa Rica to the UN and Women’s Initiatives for Gender Justice. Join us for a 30-minute screening of The Prosecutors, followed by a panel about prosecuting sexual violence in conflict. 

#BringBackOurGirls: Five Years Later


By: Maryna Tkachenko

On the night of April 14, 2014, Boko Haram—a jihadist terrorist group that aims to purify Islam in Nigeria—kidnapped 276 girls from a boarding school in Chibok, Nigeria. Not long after, Boko Haram broadcasted images of the captives, wearing dark gowns. Although Boko Haram had previously engaged in armed attacks on the local people, this event captured the attention of the international community and sparked the global media campaign #BringBackOurGirls (BBOG).

Consequently, New York City’s Nigerian community responded: #BringBackOurGirlsNYC. Responding to the widespread outrage, the UN Security Council added Boko Haram to its sanctions list, and the United States sent troops to search for the girls. Public figures and celebrities also used their voices to condemn the abductions. While Pope Francis encouraged all to “join in prayer,” Malala Yousafzai and Angelina Jolie rallied on the behalf of the girls, and Michelle Obama posted an image of herself holding a white sheet of paper with the hashtag #BringBackOurGirls.

Holistic Care for Victims of Conflict-Related Sexual Violence


By: Maryna Tkachenko

Conflict-related sexual violence (CRSV) takes on various forms: rape, forced pregnancy, forced sterilization, forced abortion, sexual exploitation, trafficking, genital mutilation, and other heinous forms of sexual abuse. Although both women and men can become targets of sexual violence, women constitute the majority of the victims. It has been widely recognized that all survivors experience long-lasting mental and physical harm, but women and girls have unique, gender-sensitive needs. That is why survivor-centered care is one of the main requirements in providing victims with the tools to take control of their lives. Avoiding further harm and trauma, we must treat survivors with respect for their dignity, bodily autonomy, and the choices they make. 

What does holistic, victim-centered care constitute in practice? Drawing on extensive experience as a founder of Panzi Hospital in 1999 and a co-recipient of the Nobel Peace Prize in 2018 for his work to end the use of rape as a weapon of war, Dr. Denis Mukwege offers us the Panzi Model, a holistic model of care that addresses the root causes of violence against women and girls and rebuilds survivors’ lives based on principles of human rights and gender equality. This model encompasses four main aspects: psychosocial support, medical care, access to legal justice, and reintegration into communities.

Stand Speak Rise Up: Know the System, Fix the System

From March 27, 2019 11:50 until 12:50

At European Convention Centre Luxembourg (ECCL), 4 Place de l'Europe, 1499 Luxembourg.

Stand Speak Rise Up! is hosted by Her Royal Highness The Grand Duchess of Luxembourg and her Foundation, in cooperation with the Women’s Forum and with the support of the Luxembourg Government. The conference is in partnership with the Dr. Denis Mukwege Foundation and We Are Not Weapons of War.

Slow progress on ending sexual violence in fragile environments is not a reflection of efforts to combat it. Indeed, sexual violence in fragile environments is steadily rising on global policy and humanitarian agendas. International organisations, governments, researchers, NGOs, foundations, and the private sector are devoting increasing resources to this issue. Yet, despite growing attention and the private sectors' increasing willingness to help address social issues, usually reserved for government and humanitarian organisations, responses to sexual violence in conflict remain lacking in coordination, scale and efficiency. That's because to fix the system, we need to understand the system.

  • What are the main obstacles to building a complete and accurate understanding of sexual violence in fragile environments globally?
  • How will survivor involvement and initiatives accelerate the changes needed to "fix the system"?
  • What examples of cross-sectoral and/or intra-sectoral collaboration offer best practices for knowledge sharing and impact?
  • What should be the role of the private sector in these efforts (e.g., funder, solution provider)?

Exchanges between:

  • Céline Bardet, Founder and President, We are NOT Weapons of War
  • Antonia Mulvey, Founder and Executive Director, Legal Action Worldwide
  • David Pereira, President, Amnesty International Luxembourg
  • Kim Thuy Seelinger, Director, Sexual Violence Programme, Human Rights Center, Berkeley Law School
  • Michel Wurth, Director, ArcelorMittal Luxembourg; Vice-President, Luxembourg Red Cross

Expert commentators:

  • Elise Boghossian, Founder, EliseCare
  • Akila Radhakrishnan, President, Global Justice Center

Moderated by:

Alanna Vagianos, Women's Reporter, HuffPost

 

Open Letter to United Nations Secretary General on UN Operations in Myanmar

Reference: TIGO ASA 16/2019.001
Index: ASA 16/0113/2019

António Guterres
UN Secretary General

25 March 2019

Excellency,

We write to welcome your initiative to review United Nations operations in Myanmar, and to strongly urge you ensure that the review is open, transparent and that its findings and recommendations are made public.

Given the gravity of the abuses in Myanmar, the review offers an important opportunity to establish “whether everything possible to prevent or mitigate the unfolding crises was done, identifying lessons learned and good practices, making recommendations as appropriate, including on accountability, and enabling more effective work in the future”, as recommended by the International Independent Fact-Finding Mission on Myanmar.1 To this end, we urge you to ensure that:

  • The review is open and transparent, and its terms of reference, final report and findings are made public;
  • The review team has sufficient resources – human, financial and technical – to conduct its work. We encourage you to instruct all UN agencies to cooperate fully with the inquiry, including by providing access to relevant information and documents;
  • The review team consults with a wide range of stakeholders, both inside and outside of Myanmar. Any current and former UN staff, as well as other organizations including INGOs and local NGOs, who provide information to the inquiry must be able to do so without risk of reprisal.
  • The UN reaffirms its commitment to the Human Rights up Front initiative and takes immediate action to develop a comprehensive plan to more effectively mainstream human rights protection among all UN staff working on Myanmar, both in country and at headquarters. This should include detailed timelines for implementation, clearly identified indicators of successful implementation of the initiative, and the development of a plan for UN agencies to warn the UN Security Council to prevent and respond to serious human rights violations.

As you know, a similar inquiry was undertaken in 2012 on events in Sri Lanka. The public report that came out of that inquiry set an important precedent, and sent a strong message on the UN’s commitment to transparency and accountability within its own system. It also led to the Human Rights up Front initiative, which was an important step towards strengthening the UN’s human rights pillar and making the body more responsive during crises. We believe that the review on Myanmar offers an important opportunity to assess progress since 2012 and to look at the UN system as a whole to ensure that it is fit for purpose and able to respond quickly and effectively to prevent grave abuses. At a time when the protection and promotion of human rights around the world is under increasing threat, a strong, transparent, effective and accountable UN is essential. We would be happy to discuss these important issues with you further.

Please accept, Excellency, the assurance of our highest consideration,

Yours sincerely

Veronique Andrieux, Chief Executive Office, Action Against Hunger

Debbie Stothard, Coordinator, ALTSEAN-Burma

Kumi Naidoo, Secretary General, Amnesty International

Thomas Hughes, Executive Director, ARTICLE 19

John Samuel, Executive Director,  Asian Forum for Human Rights and Development (FORUM-ASIA)

Anna Roberts, Executive Director,  Burma Campaign UK

Caroline Kende-Robb, Secretary-General, CARE International

Meg Gardinier,  Secretary General, ChildFund Alliance

Dimitris Christopoulos, President, FIDH – International Federation for Human Rights

Matthew Smith, Chief Executive Officer, Fortify Rights

Simon Adams, Executive Director, Global Centre for the Responsibility to Protect

Akila Radhakrishnan, President, Global Justice Center

Kenneth Roth, Executive Director, Human Rights Watch

Saman Zia-Zarifi, Secretary General, International Commission of Jurists

Abdul Malik Mujahid, Chairman, Justice for All/ Burma Task Force

Winnie Byanyima, Executive Director, Oxfam International

Helle Thorning-Schmidt, Chief Executive Officer, Save the Children International

Adrianne Lapar, Program Director, Watchlist on Children and Armed Conflict

Sarah Costa, Executive Director, Women’s Refugee Commission

1. Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, A/HRC/39/CRP.2, 17 September 2018, para. 1706.

 

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CSW Side Event: Working Towards Greater Implementation of 1325 – Models of Best Practice States Parties and Civil Society

From March 11, 2019 10:30 until 12:00

At New York City Baha'i Center, 866 UN Plaza

Speakers:

  • Tia Bown, NAWO YWA
  • Grant Shubin, Deputy Legal Director Global Justice Center
  • WILPF activists from Cameroon and Niger
  • Rugya Muttawa, Founder Hope Organisation Libya

Overview:

UNSRC 1325 was passed and ratified in 2000, more than 18 years later and with numerous related resolutions since, there is still a way to go to ensure the full implementation of 1325.  Human Rights violations in conflict zones are well documented and much of the vision of 1325 remains unrealized.

Young women are often subject to double marginalization – as women, and as young people. In many societies and families, they are the last to eat, to speak, to receive an education. They do not have a voice, and only speak when spoken to. With little or no education or training, young women and girls are relegated to caretaking, cooking, childbearing, collecting firewood and fetching water – the unpaid labour, which is often not regarded as important by the society, and does not provide the women with financial means of their own. Conflict aggravates this situation. We will therefore have a voice of a young woman from the NAWO Young Women’s Alliance WPS network.

Civil society was active in the creation of 1325 and has remained committed and active since in its implementation despite lack of resources.  There are numerous examples from civil society from which we can learn to increase implementation elsewhere in addition to understanding better obstacles and challenges.  Representatives from civil society working at policy level and on the ground will share perspectives.

States Parties, have to varying degrees, supported and implemented 1325. Hearing from them their view of success and their learning in implementation, will take forward the discourse on this important issue.

The event will provide time for discussion to learn from the expertise in the room, especially in preparation for the 20th anniversary next year.

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

Download the Letter

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.